Authored By: Nimzing Ponsel Andrew
Near East University
CASE NAME
MARCEL NNAKWE APPELLANT AND
THE STATE RESPONDENT
254/2007
CASE CITATION
MJSC (Pt I) Vols 5–7 (10 May–12 July 2013).
COURT NAME
SUPREME COURT OF NIGERIA
NAMES OF JUDGES
W.S.N ONNOGHEN, JSC (Presided)
C.M. CHUKWUMA-ENEH, JSC
OLUKAYODE ARIWOOLA, JSC
B. OGUNBIYI, JSC (Delivered the lead judgement)
KUMAI BAYANG AKA’AHS, JSC
DATE OF JUDGEMENT
12 JULY 2013
DESCRIPTION OF PARTIES
The APPELLANT, was a DEFENDANT in a criminal matter, suspected of conspiracy, murder and sssattempted murder.
The RESPONDENT is private legal practitioner of whom has obtained a fiat from the Attorney General of the Federation to prosecute the matter herein stated above.
FACTS OF THE CASE
The defendant/appellant and seven others faced charges of conspiracy, attempted murder, and murder. The offenses occurred between October 2001 and December 2003 in Abuja and Anambra State. It was alleged that they conspired to undertake illegal acts leading to Dr. Akunyili’s death and caused harm during attempts on her life. During the trial, the seventh defendant died. The appellant challenged the competence of counts 3 and 4 of the charge by filing a motion on notice to that effect, praying the court to quash the said counts. The appellant also filed a no case submission at the close of the respondent’s case of which the court determined both applications (motion on notice and the no case submission) at the same time and the trial court ruled in favor of the appellant.
The respondent being aggrieved by the trial court’s decision, appealed to the Court of Appeal. The Court of Appeal allowed the appeal in part by affirming the no case submission of the appellant in respect of counts 1 and 2 but dismissing the motion on notice challenging the competence of counts 3 and 4. The Court of Appeal ordered that the trial should continue in respect of counts 3 and 4. The appellant being dissatisfied with the decision of the Court of Appeal dismissing the motion on notice on counts 3 and 4, appealed to the Supreme Court.
ISSUES RAISED
- Whether Chief Afe Babalola.SAN & Co, a private prosecutor, was competent or had authority by the FIAT of the Attorney-General of the Federation to have charged the appellant in Count 4 with the alleged murder of one Emeka Onuekutu.
- Whether the Court Appeal was right when it held that the High Court of the Federal Capital Territory, Abuja has jurisdiction to entertain the offence alleged in Counts 3 and 4 of the charge preferred against the appellant,
- Whether the Court of Appeal was right when it held that the Attorney General of the Federation can validly issue FIAT to prosecute the appellant in the Federal Capital Territory, Abuja in respect of the offences alleged in Counts 3 and 4.
- Whether the FIAT of the Attorney-General of the Federation dated 10th September, 2004 issued to Afe Babalola, SAN & Co to prosecute could be used to initiate appellate proceeding without a fresh FIAT.
ARGUEMENTS OF PARTIES
ISSUE 1
That appellant submitted that the donee of a fiat cannot go beyond the authorization given to the donee in a fiat. The appellant further contented that the fiat granted to the respondent did not give the respondent the authority to prosecute count 4 of the charge, which is to prosecute the persons suspected of causing the death of one Emeka Onuekutu. The appellants complaint against the fiat centers around the purpose, which was to “prosecute the persons suspected to have participated in the attempt to assassinate Dr. Dora Akunyili” and not the death of Emeka Onuekutu as contained in count 4 of the charge. The appellant relied on the case of Emeakayi v C.O.P (2004) 4 NWLR and Rex v. Johnson Jaiyesimi Aiyeola (1946/49) 12 WACA 324; that a private prosecutor also has no power to prefer the charge in count 4 against the appellant and others because it violates section 4(4) of the penal Code and therefore an abuse of court process. The appellant further submitted that a trial without the power to institute a criminal proceeding amounts to a nullity.
The respondent, in response to the submissions of the appellant reaffirmed the competence of count 4 and said that the Attorney General of the Federation authorized and ratified the preferment of count 4 which was an offence committed in the course of the same transaction as counts 1-3 of the charge. The respondent argued that the authorities cited by the appellant are irrelevant and inapplicable in this case.
ISSUE 2
The appellants submitted that in a criminal trial, the status of the complainant/victim of the alleged offence as well as the probable political consideration behind the alleged offence, do not vest jurisdiction on the court. The appellant supported his submission using the case of State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548 at 577 and further referred to the case of Madukolu v. Nkemdilim (1962) 2 SC NLR 341 at 348 which is a locus standi for conditions to have jurisdiction, the conditions laid down are of necessity for the competence of a court to adjudicate on a matter. The appellant argued that the alleged offences in Counts 3 and 4 were not committed in Abuja and rather committed and consummated with all their elements exclusively committed in Anambra State and that law governing such alleged crimes is the criminal code law of Anambra State and not the penal code, which doesn’t apply to Anambra State directly or indirectly.
In response to the submissions of the appellants, the respondents held the view that the trial court had jurisdiction to entertain counts 3 and 4 of the charge. The respondents relied on the cases of Njovens v. State (2001) 13 NMLR 331 at 345 and Adejini v. State (2001) 13 NWLR (Pt. 730) 375 wherein it was held that the mere entry of an accused person into the jurisdiction of the court where he was eventually arraigned was sufficient to confer jurisdiction, whether or not the crime was committed in such jurisdiction. The respondent further submitted that the High Court in the FCT, Abuja has unfettered jurisdiction to entertain this matter; that the offences contained in Counts 1 and 2 as well as counts 3 and 4 were all committed in the course of the same transaction and consequently, any of the states where either of the offences were committed has the jurisdiction to entertain the suit. The respondent concluded by saying that the objection by the appellant to counts 3 and 4 are frivolous and a ploy to avoid justice.
ISSUE 3
The appellants submitted that the Attorney General of the Federation under section 174 of the 1999 constitution of the Federal Republic of Nigeria is not vested with the authority to issue a fiat in respect of offences created under a state law and which were committed wholly outside the Federal Capital Territory Abuja. The appellant further went on to submit that only the Attorney General of Anambra State by virtue of section 211 of the 1999 constitution can issue a fiat to prosecute the alleged offences in Counts 3 and 4 of the charge. That on the premise, the appellant and others can only be arraigned in respect of counts 3 and 4 by the Attorney General of Anambra State.
In response to the appellants submission, the respondent submitted that it must be noted that the Attorney General of the Federation did not act as Attorney General of the Federation or Attorney General of Anambra State; rather that he acted as the Attorney General of the Federal Capital Territory and that since the offences for which he issued the fiat were crimes under the laws of the FCT, the fiat was validly issued; that the appellant clearly got it wrong when he submitted that counts 3 and 4 were only Triable by the Attorney General of Anambra.
ISSUE 4
The appellants in their submission said that though the right to appeal is constitutional and exercisable by a party aggrieved by the decision of a trial court from which goes on to the apex court, the procedure initiating the appellate process is vital to the success of any appeal. The appellant maintained that being a criminal appeal, the charge preferred against the appellant and others at the trial court was pursuant to a fiat issued by the Attorney General of the Federation and also avers that the fiat did not include the authority to appeal of file and appeal against any of the rulings of the trial court, which means the respondent does not have the power to appeal, without being issued a fiat in that respect from the Attorney General of the Federation and that renders the appeal of the respondent incompetent. The appellant relied on the cases of Emeakayi v. C.O.P (2004) 4 NWLR (Pt. 862) 158 also the case of Rex v. Johnson Jaiyesimi Aiyeola (1946/49) 12 WACA 324 at 326; that the above cases have settled as obligatory the need to obtain a fresh mandate before their appeal was filed and the consequential effect of the failure to obtain a fresh mandate before their appeal was files and the consequential effect of the failure to obtain such authority had rendered the appeal at the lower court incompetent and should have been struck out.
In response to the appellants submission, the respondent referred to the case of Ebe v. C.O.P (2008) 4 NWLR (Pt. 1076) 189. The respondent submitted that the Attorney General of the Federation did not need to issue a fresh FIAT before the law firm of Chief Afe Babalola, SAN & Co. could proceed with the prosecution of the appeals arising from the charge. The respondent also informed the court that and drew their attention wherein the main trial is still pending at trial court and therefore the case for which the fiat was issued is unconcerned and the need for a fresh FIAT did not arise.
LEGAL REASONING OF ISSUE 1
C.B OGUNBIYI, JSC delivering the lead judgment, it is obvious from all indication that the appellant is challenging the authority and extent of the fiat given by the Attorney General of the Federation. The learned justice drew reference to section 36 of the constitution of the Federal Republic of Nigeria 1999, which says that every person has an unfettered right to any counsel of his choice. Also, in the case of FRN v Adewunmi (2007) 10 NWLR (Pt. 1042) 399 the court held that the Attorney General of the Federation could in appropriate circumstances authorize a private legal practitioner to undertake the prosecution of offences and only the Attorney General of the Federation could raise questions as to whether such authority was properly given. In N.P.S v. Adekanye (No.1) 2002 15 NWLR (Pt. 790) 318 where it was further held that presumption of authority could only be rebutted by hard evidence which the appellants did not do. The court also drew reference to the case of Attorney General of Ondo State v. Attorney General of Federation (2002) 9 NWLR (Pt. 772) 222 at 335 where it was held that “every grant of power includes by implication all such other powers as are reasonably incidental thereto and not expressly excluded.” The Supreme court came to the conclusion that since the Attorney General of the Federation had properly authorized the fiat, and count 4 arose from the same transaction as counts 1-3, the appellants appeal won’t fly.
LEGAL REASONING ISSUE 2
The lead judge stated that jurisdiction is the bedrock of adjudication and can be raised at any time, even for the first time on appeal, and also referred to the case of Madukolu v. Nkemdilim is a locus classicus in jurisdiction, which provides circumstances when a court has jurisdiction;
- It is properly constituted as regards numbers, qualifications and no member is disqualified for one reason or another
- The subject matter is within its jurisdiction
- The case is instituted by due process of law and the fulfilment of any condition precedent.
In the absence of these, a court cannot assume jurisdiction to hear any matter. In buttressing this point, section 4(2)(b) of the Penal Code provides as follows;
If an act or omission occurs elsewhere than in Northern Nigeria, and the person commits that act afterwards enters Northern Nigeria, he by such is guilty of an offence of the same kind. This same position was reiterated in the case of Adeniji v. State (2001) 13 NWLR (Pt. 730) p. 375
The court was provided evidence as to the appellants entry into the Federal Capital Territory, Abuja, and by law this gives the High Court of the FCT jurisdiction to entertain the matter. It was further held in the case of Lawson v State (1975) 4 SC 115 at 121 that
“When an act is an offence by reason of its relation to any other act which is also an offence, a charge of the first mentioned offence may be tried or inquired into by a court having jurisdiction in the division or district either in which it happened, or in which the offence with which it was so connected. The case of Okoro v Attorney General (1965) 1 ALL NLR 283 reiterated the position that where an offence several elements and part of those elements occur in another state, in the course of the same transaction, then both states have concurrent jurisdiction to try the matter.
ISSUE 3
In determining this issue, the court referred to section 174(1) of the 1999 constitution of the Federal Republic of Nigeria which makes provisions for the powers of the Attorney General of the Federation and grants him the power to issue a fiat. The court drew attention to the case of Attorney General of Ondo State v. Attorney General of the Federation where it was held that; the Attorney General of the Federation derives his powers from the constitution as an agency of the Federal Government and the courts have no control on how that power is being exercised, nor can he be prevented from exercising his functions on the grounds that his jurisdiction does not extend to any particular state in Nigeria. The court went on to further state that part of the elements of the crime being performed in the FCT, and being in the course of the same transaction, the Attorney General of the Federation has the right to prosecute the matter and issue a fiat in that respect.
ISSUE 4
The court agrees with the respondents’ arguments. In the case of Ebe v. COP (2008) 4 NWLR (Pt. 1076) 189; it was held that once a fiat is granted to a person to prosecute or defend a case, the validity of the fait would continue throughout the duration of the case for which the fiat was granted. The court further went on to cite the case of Chinda v. Amadi (2002) 7 NWLR (Pt. 767) 505 at 517; that an appeal is the continuation of an action and no new issues can be raised on appeal. The court further went on to say that the respondents did not require a new fiat to proceed with the appeal arising from the charge.
CONCLUSION
The Supreme Court in Marcel Nnakwe v. The State reaffirmed the wide constitutional and statutory powers of the Attorney-General of the Federation, particularly regarding the issuance of a fiat for criminal prosecution. The Court held that once a valid fiat is issued, it covers all acts reasonably incidental to the prosecution of the case and the continuation of the matter on appeal, without the need for a fresh authorization. It further confirmed that jurisdiction lies with the High Court of the FCT because part of the elements of the offences occurred within its territory and because the appellant later entered the FCT, which satisfies statutory requirements. Ultimately, the Supreme Court dismissed the appellant’s objections, upholding the Court of Appeal’s decision and reinforcing the legal principles governing prosecutorial authority, territorial jurisdiction, and the scope of a prosecutorial fiat.
