OLISAEMEKA IGBOKWE VS THE STATE

CORAM

PARTIES

OLISAEMEKA IGBOKWE APPELLANTS

THE STATE RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

CRIMINAL LAW, MURDER, ISSUANCE OF A FIAT
SUMMARY OF FACTS
This interlocutory appeal seeks to challenge the competence of the Respondent (the State/Attorney General of the Federation) and its counsel (the law firm of Chief Afe Babalola, SAN & Co. to prosecute the Appellant for the crimes of attempted murder and murder. The High Court of the Federal Capital Territory granted the Respondent leave to prefer a four count charge of conspiracy, attempted murder and murder against the Appellant and seven others.
The accused person was set free on the ground of no case submission by the trial court. Dissatisfied with the foregoing ruling the respondent, by a notice of appeal appealed to the court below which affirmed the decision of the trial court in part, hence this appeal .

HELD

Appeal dismissed

ISSUES

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 of 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 proceedings without a fresh FIAT:”

RATIONES DECIDENDI

RIGHT OF REPRENSENTATION BY A COUNSEL-SECTION 36 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“For instance, with reference to section 36 of the Constitution of the Federal Republic of Nigeria, 1999, the law is well settled that every party to a case has an unfettered right of representation by counsel of his choice”.

COUNSEL-AUTHORITY OF-WHETHER CAN BE CHALLENGED BY A PARTY

“Decided authorities of this court have also held out that where a counsel announces appearance on behalf of a party in any matter, the authority to challenge such representation only lies with the same party. Furthermore, it has also been sufficiently emphasized by this court that the competence or otherwise of a private legal practitioner and his authority to prefer a charge on behalf of the Attorney-General of the Federation cannot be questioned by any other person”.

ATTORNEY GENERAL OF THE FEDERATION-POWER TO AUTHORISE A PRIVATE LEGAL PRACTITIONER TO PROSECUTE OFFENCES

“The court of Appeal properly recognized this when it said: – “There is no doubt that under the scheme of things in 1997, the Attorney-General of the Federation could in appropriate circumstances authorize a private legal practitioner to undertake the prosecution of offences it is also noteworthy that only the Attorney of the federation could at the time raise question as to whether or not such authority to prosecute was properly given”

APPEARANCE OF COUNSEL-DUTY OF COURT THERETO

“Firstly when or where counsel announces that he is appearing for a party it is now firmly settled that it is not for the court to start an enquiry into his authority and the court never does”

CRIMINAL PROCEEDINGS-EFFECT OF FAILURE TO RAISE AN OBJECTION TIMEOUSLY TO AN UNLAWFUL PROCEDURE/PROCEEDING

“It is well settled in plethora of authorities that where an accused person in a criminal case fails to raise an objection to an unlawful procedure/proceeding at the trial, he cannot be allowed to raise same at the appellate stage”.

JURISDICTION OF COURT- FACTORS TO BE CONSIDERED IN A CRIMINAL TRIAL

“The law is trite and has long been settled by this court that for a court to assume jurisdiction in a criminal trial, the following factors must be considered:-
“(i) That ends of justice would better be served by hearing the charge against the accused in that particular court seeking to assume jurisdiction.
(ii)That the accused was apprehended or in custody within the judicial division of the court seeking to assume jurisdiction.
Accessibility and convenience of the witnesses.”

JURISDICTION OF COURT-WHEN CAN BE RAISED-EFFECT OF LACK OF JURISDICTION

“Jurisdiction is the corner stone and bedrock of adjudication; it can neither be compromised nor conferred by consent of parties upon a court. It is constitutional and very fundamental; hence the reason why it can be raised at any stage of a proceeding both at the trial and on appeal even if for the first time in this court. Where a court lacks jurisdiction, any proceeding conducted is in breach and renders same a nullity”.

JURISDICTION OF COURT-HOW CONFERRED

“For purpose of conferring jurisdiction therefore, the court must be absolutely certain and satisfied that the offence or crime is directly donated by the jurisdiction conferred in the enabling law; where the offence or crime is however outside the statutory provision, the court cannot exercise jurisdiction as it lacks the authority to do so”.

APPEAL-WHETHER NEW ISSUES CAN BE RAISED ON APPEAL

“The law is well settled in plethora of authorities that an appeal is a continuation of the action and that no new issues can be raised on appeal”.

STARE DECISIS-PRINCIPLE OF

“This is because the principle of stare decisis is well entrenched in our system of judicial adjudication where lower courts in the hierarchy are bound by the ratio decidendi of higher courts”.

JUDGE-ROLE IN THE ADMINISTRATION OF JUSTICE

“A judge is an adjudicator and not a law maker; he must therefore apply the law in its given form”.

CASES CITED

Nwambe V. The State (1995) 3 NWLR (Pt. 384) 358|Chinda V. Amadi (2002) 7 NWLR (Pt 767) 505 at 517,|Oredoyin V. Arowolo (1989) 4 NWLR (Pt 114) 172 at 211|Onwudiwe V. F.R.N,. (2006) 10 NWLR (Pt 988) 382 at 425|Emoga V. State(1977) 9 NWLR (Pt. 519) 38|Clement V. Iwuanyawu (1989) 3 NWLR (Pt. 107) 39 at 53 – 54,|Ekperokun V. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 193;|Akpan V. State (1994) 8 NWLR (Pt. 361) 226 at 243 -244

STATUTES REFERRED TO

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999,|Sections 213 and 214(1) of the Criminal Procedure Code Act Cap 491 Laws of the Federation of Nigeria (Abuja).|Section 174(1) of the Constitution of the Federal Republic of Nigeria, 1999 r|Section 4(2) (b) of the Penal Code Act|Section 134(a)(b)(c) and (d) of the Criminal Procedure Code Act|Section 301 of the Constitution of the Federal Republic of Nigeria 1999,|

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