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Any person can initiate prosecution even without the Attorney-General Fiat (4)

Published by Guardian on Tue, 17 Jan 2012

Guardian Law ReportIn the High Court of Federal Capital Territory, in the Abuja Judicial Division,holden at Apo Abuja F.C.T.Suit No: FCT/HC/CR/100/2011M/8863/9405/9478/2011Between:Federal Republic of Nigeria'RespondentAnd1.Rt. Hon. Oladimeji Bankole, CFR2.Rt. Hon. Usman Bayero Nafada'ApplicantsAS would be shown shortly, and with great respect to Chief Awomolo SAN and without demeaning his effort, industry and high level of advocacy, I will not exert my energy on those authorities. Already, we have enough Nigerian authorities to determine the issue in focus.But Mr. T. Oyetibo SAN took the argument beyond the person of Mr. Festus Keyamo. His own submission was based on the legality of Mr. Keyamo, a private legal practitioner who has not shown any authority to the court empowering him to prosecute and undertake the prosecution of this case. In other words, he dealt with the issue whether a private legal practitioner can prosecute and in so doing, he touched admirably on the cases cited by Mr. Keyamo.He submitted very powerfully that the cases of Amadi Vs FRN (2008) 18 NWLR (Pt 1119) 259; FRN Vs Osahon (2006) 5 NWLR (Pt 973 361; Ebe Vs C. O. P. (2008) 4 NWLR (Pt 1076) 189; Nyame Vs FRN (2010) 7 NWLR (Pt 1193) 344; Tukur Vs Govt of Gongola State (1988) 1 NSCC30; and A. G. Federation Vs. ANPP (2003) 18 NWLR (Pt 851) 182 are all distinguishable from the present case at hand.Mr. Oyetibo SAN said unlike Amadi's case (supra) and Nyame's case (supra) where EFCC or one of their staffers applied for leave to prefer a charge, it is Mr. Keyamo himself that applied for leave and signed the Charge Sheet. He argued that Mr. Keyamo could not do any of this without a legal fiat to do so.Submitting on Osahon's case (supra), Mr. Oyetibo SAN said that it was a police officer who preferred the charge and was held to possess prosecutorial powers under S174 (1) of the 1999 Constitution.It is pertinent at this juncture to state that the submission of Mr. Keyamo on this issue of private prosecution actually set the tone for the argument of Mr. Oyetibo SAN as elucidated above.Mr. Keyamo at pages 11-26 of his address in reply to the 2nd accused/applicant's motion dated 14th July 2011. Referring to S98 (1) of the High Court Act Cap 510, Laws of the Federation of Nigeria, Abuja 1999 and also S174 of the 1999 Constitution, Mr. Keyamo submitted that even without the authorisation of the Attorney-General of the Federation, the EFCC was in order to have briefed him to conduct this prosecution on their behalf.According to him, S98 of the High Court Act, which is in pari-material with S56 of the Federal High Court Act should be seen as null and void for its inconsistency with the provisions of S174 (1) of the 1999 Constitution. The learned prosecuting counsel, relied heavily on the case of Osahon (supra) and Okafor Vs AG Rivers State (1998) 7 NWLR (pt 556) 38.I should feel free here to revert back to the question - can a private legal practitioner initiate and undertake private prosecution in Nigeria' Or better put, is the fiat of the Attorney-General of the Federation a sine qua non to such prosecution by a private legal practitioner'All I am saying is that from the wordings of S174 (1) of the 1999 Constitution and the interpretation eloquently ascribed to it by the Supreme Court in Osahon's case (supra), any person can initiate, and undertake criminal prosecution with or without the fiat of the Attorney-General of the Federation.The import of the decision is that such fiat of the Attorney-General is now superfluous. By that majority decision of the Supreme Court, the fiat of the Attorney-General is already given constitutionally, though by implication and not expressly, vide the provisions of S174 (1). And the implied fiat or authorization is to any Person or Authority. The only caveat is that the Attorney-General can take over either to continue or discontinue.So the erudite submission of Chief Awomolo SAN at page 29 Paragraph 3.27 of his written address that without the fiat of the Attorney-General sought and granted to a private prosecutor, any criminal action will be unconstitutional, null and void cannot be the law.Generally speaking, any legal practitioner not debarred except under some restriction recognised by the primary law of the land, has the right of audience in any court.'This equally Implies or denotes that in appropriate cases, such a Legal practitioner coming under the description asContained in the Legal Practitioner's Act has the right Of appearance which term include prosecuting a case, And can due to the wide open door of Section 174 (1) Initiate criminal prosecution on behalf of the agencyHe works for particularly as in this case, an institutional Body vested with power to check, prevent and Investigate crimes and even to prosecute.'(Capitalization and underlined are mine)It was held by the Supreme Court that the word 'any person' in Section 174 (1) (b) of the 1999 Constitution envisages a legal practitioner qualified to appear in all Superior Courts of record in Nigeria as provided by the Legal Practitioners' Act. And 'any other authority' presupposes that authority could be represented by a legally qualified person, either in that authority or engaged for the purpose by that authority. The Supreme Court went on to say that it does not mean that in any case, a legally qualified person must appear even though it is desirable.In the light of all the above, the dichotomy that Mr. Oyetibo SAN tried to create as between a private prosecution instituted and being undertaken by a private prosecutor and a public prosecution by a public body like the EFCC but being conducted by a private legal practitioner is, with great admiration and respect to Mr. Oyetibo SAN not of any significance or importance. It fizzles out completely when the issue relates to competence to prosecute. It must be appreciated by all that the important thing is that any person (including Keyamo) can prosecute whether as private prosecutor who has taken it upon himself so to do and probably finance it or whether he was briefed and authorized to do so. If anybody now alleges that Keyamo was not authorized to prosecute, that person must prove it. Before I conclude, the issue of whether EFCC can prosecute in the name of the federal Republic of Nigeria is to me a non-issue. Whether they sue using STATE or EFCC or FRN is certainly not of any significant consequence. This issue is not worth wasting our precious time upon.In conclusion and in the light of all the foregone, I hold that Mr. Festus Keyamo can legally prosecute in this case and in this court. He cannot be disqualified nor excused. This application therefore fails.As I indicated at the start of this ruling, I intend to take all the arguments in these motions together. Luckily for me, the prosecution's address on the issues involved in respect of the two motions are similar and the same.In support of Motion No. M/8863/11 is a 17-paragraph affidavit and a written address. There is also a further affidavit in support of the same application. It is a 9-paragraph affidavit. Motion No. M/9405/11 has a 9-paragraph affidavit in support and a written address.I had already set out the arguments of Chief Awomolo SAN, the leading learned Counsel for the 1st accused/applicant. Principally speaking, his arguments are 3-fold:1 That this court has no jurisdiction to try the speaker of House of Representatives or subject him to jurisdiction in all matters which related to, connected with and arose from any exercise of his official functions.2. That in the exercise of his duties in matters relating to his office as speaker of the House of Representative, he cannot be prosecuted for the acts, decision and resolution of the House of Representatives, taken at its Executive or Committee Sessions because the principle of vicarious liability is unknown to criminal law in Nigeria.3. That there is no scintilla of evidence contained or shown in the proof of evidence placed before this court capable of sustaining the 17-count charge.Let me quickly deal with the issue of jurisdiction. The argument of Chief Awomolo SAN is that the Court has no jurisdiction to try this case because the 1st accused as Speaker cannot be tried for all matters which are related to or connected with or arose from any exercise of his official functions. But is this assertion true in Law' With due respect to the learned SAN, the 1st accused/applicant as Speaker, when it lasted enjoyed no immunity by virtue of his office.Again, even if for purposes of argument, we say he had that immunity, is he still the speaker of that House of representatives, my answer is as good as yours. He is not. Now, having left office, can we say with all seriousness that he cannot be prosecuted now for any offence committed while in office' I think I should just leave this argument as it is. It does not worth any serious consideration because it is clear to me that no issue of jurisdictional competence is involved.Back to the issue of quashing the charge against the two accused persons, Mr. Tayo Oyetibo SAN, submitted that a criminal charge is liable to be quashed if it does not disclose a prima facie case against the accused. Otherwise the accused would be put in a situation where he would have to prove his innocence or be compelled to do so. This according to the learned SAN is contrary to the provisions of S36 (5) of the 1999 Constitution. The learned counsel to the 2nd accused/applicant then defined the phrase 'prima facie case' relying on the old case of Ajidagba Vs I. G. P (1958) 5 CNLR 60. Thereafter the learned Senior Advocate of Nigeria review the contents of the 17-counts, breaking them into five categories and concluded that there are no materials in the proof of evidence linking the accused with the statutory elements or ingredients of the offences charged.Furthermore, in his reply address to the prosecution's address, Mr. Oyetibo SAN submitted that the inherent jurisdiction of the court to quash a criminal charge that does not disclose a prima facie case against the accused is not in any way clogged by the fact that leave had been granted to prefer the charge. He relied on the case of IkomiVs State (1986) 3 NWLR (Pt 28) 340.
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