X-Raying The Impropriety Of The Practice Of “Holding Brief” Between A Prosecutor And Private Lawyer Under Nigerian Criminal Jurisprudence

By A.S. Gidan-Wankey, Esq.

“I pray and hope that my learned seniors, friends and indeed legal researchers, would find my humble efforts and contributions in this respect relevant and useful. So, help me, God!”

      Sylvester Udemezue

The polemics on the subject matter began sometimes on Legal Practice Discourse (LPD), a leading online-based Legal Practitioners’ platforms that harbours an array of notable, highly distinguished and veteran Nigerian Lawyers from the Private Bar, Academia, Lawyers from Public Bodies, Professors from various Faculties of Law and Senior Advocates of Nigeria alike, where, a fellow colleague sparked up the discussion, “is it legally permissible for a private counsel to announce his appearance in court as holding the brief  of a police lawyer who is reported to be otherwise unable to appear in court on named date? Much obliged sirs.”

Interestingly, the topic was discussed and eventually generated a hot debate which left behind some legal footmarks as the subject matter has not been exhaustively disposed of to its logical conclusion. Because, many respected learned seniors made a wide range of contentious contributions, opinions and name-calling that one can hardly live without handling down a possible article, with a view to placing certain issues in a proper perspective. In the same footing, the essence of this article is to introduce a realistic and balanced perspective of some of the issues involved with a view to provoking/inflaming further intellectual discourse on the topic. Therefore, some of the legal issues involved are:

• The prosecutorial power of the Attorney-General
• Who then prosecute apart from the Attorney-General
• Fiat
• The practice of holding brief

THE PROSECUTORIAL POWER OF THE ATTORNEY-GENERAL UNDER THE CONSTITUTION.

As a good starting point, the state, as the supreme protector of all the citizens’ lives and properties imposes upon itself the fundamental duty of not only apprehending, but also prosecuting offenders before a court of law. Such power is delegated to specific offices and agencies like the Attorney-General of the Federation and of a State, the Police, the Economic and Financial Crimes Commission, the Independent Corrupt Practices Commission etc.

An axiomatic interrogation into sections 174 (1) and 211 (1) of the 1999 Constitution of the Federal Republic of Nigeria (2011 as altered) reveals the pre-eminent position of Attorney-General as the Chief Law Officer of the Government and ombudsman of the people. The Attorney-General of the Federation or State as the case may be, is empowered to institute and undertake criminal proceedings in respect of an offence created under any Act of the National Assembly or Law of House of Assembly of a State respectively. This position of the law had received judicial stamp of approval in a plethora of judicial authorities to wit: the cases of AMADI V F.R.N (2008) 18 NWLR (PRT 1119) P. 259 AT 263 and OLASE V COP (1998) 11 NWLR (PART 575) 547, 558,  where the apex court held thus, “By these provisions the Attorney-General of the Federation and of the State as the case may be, are themselves empowered to institute and undertake any criminal proceedings in any court in Nigeria and if any other person or authority instituted or undertook any such criminal proceedings in any court in Nigeria, within their respective jurisdictions, they have the power to take it over, continue or discontinue at any stage of proceedings”

Further, the Attorney-General (alone) is clothed with unrestricted discretion to pick and choose who to prosecute and what charge/charges to be framed against a suspect.” It is important to note at this threshold that, it is a time-tested, time-honored and time-proven principle of law that the powers of the Attorney-General captured above, may be delegated to any officer in the Attorney General’s office. To further bolster this position subsections (2) of sections 174 and 211 is reproduced hereunder:

“the powers conferred upon the Attorney-General…under subsection (1) of this section may be exercised by him in person or through officers of his department.”

As it was clearly highlighted above, the Attorney-General has a primary responsibility with respect to prosecution of criminal cases. The importance of Attorney-General in the administration of criminal justice cannot be undermined. He plays an important role either by himself or through officers of his department in the prosecution of offenders thereby contributing largely to the maintenance of law and order in the society. Thus, it is settled that the Attorney-General can be represented by any officer in his department to initiate or undertake a criminal prosecution.

WHO THEN CAN PROSECUTE BESIDE THE ATTORNEY-GENERAL AND OFFICERS IN HIS DEPARTMENT ?

1. POLICE OFFICER

It is an elementary principle of law under Nigerian Criminal Justice Regime that, Police Officers have the authority to initiate and prosecute criminal offences. That is to say, apart from the Attorney-General of the Federation or of a State, the police are the next triumvirate organ in Nigerian prosecutorial regime. This power is derived from Section 66 of the Nigerian Police Force Establishment Act, 2020 which provides thus:

(1) “Subject to the provisions of 174 and 211 of the Constitution and section 106 of the Administration of Criminal Justice Act…a police officer who is a legal practitioner, may prosecute in person before any court whether or not the information or complaint is laid in his name”(2) A police officer may, subject to the provisions of the relevant criminal procedure laws in force at the federal or state level, prosecute before the court those offences which non-qualified legal practitioners can prosecute”

The provision of section 66 of Police Act cited above (which is in parimateria with section 23 of the then Police Act), has found fertile soil in IBRAHIM VS STATE (1989) 1 NWLR (Prt. 18) 650; (1991) 5 SCNJ  129 and OSAHON V FRN (2006 5 NWLR (pt.973) 361whereat the Supreme Court has remarkably elucidated on the powers of the police to prosecute under the Nigerian Criminal Justice System. The case of FRN V OSAHON in particular, despite all the controversies generated, had firmly established the unquestionable power of the police to prosecute in any court in Nigeria irrespective of the fact that the officer prosecuting is not legally qualified as Legal Practitioner within the meaning of sections 2 and 8 of the Legal Practitioners Act, 2007. The Supreme Court in OSAHON went further to establish that a Police Officer can prosecute in all hierarchy of courts in Nigeria.

Sure, any Police Officer from Panti in Lagos or Bompai in Kano or anywhere in Nigeria is legally competent to initiate and prosecute criminal offence before any court in Nigeria.  It should be borne in mind that the prosecutorial power of the police is statutorily recognized hence, a police officer requires no fiat of the Attorney-General to commence criminal trial. However, the power of the police is subject to the mighty powers of the Attorney-General to take over or discontinue any proceedings initiated by the police officer settled above. “Therefore, the Police officers’ powers to prosecute in the criminal proceedings in this case is not limited, restricted or controlled. Mr Ehindero qua Police Officer is competent to prosecute in these proceedings in any court in Nigeria including the High Court.” Says Supreme Court in FRN V OSAHON (Supra).

2. SPECIAL PROSECUTORS

“The term special prosecutor normally refers to any person whether he is a lawyer or not whose ordinary job is not public prosecution. The term is used to show that his role in that instant is a special assignment.” Under Nigerian Criminal regime, a statute creating an offence may specify person or authority that may prosecute such offence. No other person than the person mentioned in the Act can prosecute the offence in question. On this point mention must be of the Factories Act, Independent and Corrupt Practices Commission Act, Economic and Financial Crimes Commission Act, 2004, Kano State Public Complaint and Anti-Corruption Commission etc. This power is covered by a cobweb of judicial authorities one of them is the case of C. O. P. V Tobin (2009) 10 NWLR (Pt. 1148) P. 62 where the court held thus:

“…Such power (power to prosecute) is invariably delegated to specific offices and agencies like Attorney-General of the Federation and of a State, the Police, the Economic and Financial Crimes Commission, the Independent Corrupt Practices Commission etc.”

Judging from the afore referenced, it can be argued that beside the power of the Attorney-General to prosecute and officers in his department, there are agencies established by an Act or Law of the House of Assembly that confers on certain people the power to initiate and undertake criminal proceedings before a court in Nigeria. Equally, the Attorney-General reserves the power to take over or discontinue any proceedings initiated by special prosecutors.

3. PRIVATE PERSON

A private person may institute criminal proceedings against any person alleged to have committed an offence by laying a complaint before a court. On this point Sections 59 (1) of CPA, and 143 143 (e) of CPC is instructive. Further, it is important to state that, the power of a Private Person under section 59 (1) of CPA is subject to statutory provision, which provide that only a particular person or authority may make the particular complain. And by section 143 (1) of CPC the court may take cognizance of an offence if information is received from any person other than a police officer, he has reason to believe or suspect that an offence has been committed.

Note also, with an endorsement (fiat) or approval of the Attorney-General, a private person (private lawyer inclusive) may validly file an information to prosecute an offence. And, where the Attorney-General refuses to either prosecute or endorse, an order of Mandamus may be made against him. A case on point is FAWEHINMI V AKILU (1987) 11-12 SCNJ. It should be borne in mind that a private Legal Practitioner for all intents and purposes fall under the category of Private Person explained above. Thus, a private lawyer can only prosecute when armed with Attorney-General’s fiat or endorsement duly issued in his favour.

FIAT

Osborn’s Concise Law Dictionary 10^th Edition at page 177 defines fiat as “a decree; a short order or warrant of a judge or public officer that certain steps should be taken. Many statutes provide that the fiat (consent) of Attorney-General is necessary before proceedings are instituted” Accordingly, J.A. Agaba, the learned author of Practical Approach to Criminal Litigation in Nigeria 3^rd Edition, equally adopted the definition with more elaboration to wit: “Fiat is a Latin word which means literally “let it be done”. Technically, it denotes the grant of a power by a person having complete authority and control to another person to enable that other person exercises the power contained in the fiat”. Fiat is therefore considered as a grant or conferment of authority on another person by a person who has complete authority on the issue upon or for which the fiat is given.

In Criminal Law parlance, fiat can therefore mean an authority, endorsement, approval or consent of the Attorney-General given to a private person (who is neither a police officer nor special prosecutor) to initiate and undertake criminal proceedings on behalf of the Attorney-General. This position got anchorage in the case of C.O.P V TOBIN (2009) 10 NWLR (Pt. 1148) p 62 AT 75 where the court held thus:

“Under Nigerian adversarial judicial system, any prospective private prosecutor must first and foremost apply for and obtain the authority or fiat of the Attorney-General prior to the commencement of private prosecution. In the instant case, the prosecution (Appellant’s Counsel had a duty of establishing that he had sought and obtained the necessary fiat of the AG of Rivers State prior to the institution of the count charge against the respondent before the trial court. The absence of the cogent, express and unequivocal proof on the face of the record to establish that the Attorney-General’s consent or fiat had been sought and obtained prior to the institution of the case before the trial court renders the Appellant’s Counsel incompetent to prosecute.”

An innocuous inquisition reveals that fiat is more than a mere oral or implied approval; it is a formal legal document or an instrument under the hand of the Attorney General duly issued in favour of private person (Private Lawyer inclusive) to commence or undertake a criminal prosecution. Therefore, a private person no matter how highly or professionally placed he is, cannot initiate, prosecute or conduct a criminal trial even for a minute without the fiat of the Attorney-General first had and obtained.

THE PRACTICE OF HOLDING BRIEF

“Holding brief” is a kind of professional arrangement between two lawyers where one lawyer is standing in temporarily for other lawyer in a case until the other lawyer is available to continue with the handling of his case personally. In the case of MFA V INONGHA (2014) NWLR (Pt. 1397)P. 343 AT 369 the court held on the effect of holding brief practice that “when counsel announces appearance, whether as holding brief for another counsel or not, he is presumed to have full briefing and authority to do the case…” Also, the fact that a counsel holds brief of another does not mean he is stripped of the right to consider and act on legal issues arising out of the matter in which he represents a party in a court. Once in court, the presumption is that he is seized of the matter. See PRUDENT BANK PLC V OBADAKI (2012) 2 NWLR P. 50.

The effect of holding brief came in handy in MOHAMMED & ANOR. V STATE (2015) LPELR-25694(CA) where the court held thus: “it is the law, as has been submitted by the learned counsel for the respondent), that any counsel who announces that he is holding brief for another counsel is presumed to be in possession of the facts and law regarding the case, and has the full authority of the counsel, whose brief he holds.” Therefore, a prudent perusal of the effect of holding brief as beautifully alluded in the above cases, it is axiomatic that, any lawyer holding the brief of another is deemed to be the counsel in the case. Thus, where a private counsel holds the brief of a prosecutor he (the private counsel) is being ascribed with the status of prosecutor. Now, the nagging question is:  can the Private Lawyer prosecute even for one-minute without the Attorney-General’s fiat” Certainly No. My authority is the case C.O.P V TOBIN (2009) 10 NWLR (Pt. 1148) P 62 AT….

It is interesting at this juncture to distinguish holding brief among private lawyers on one hand and between private lawyers and publicly-employed lawyers or police prosecutor on the other hand. In the former, what is required is the authority of the lawyer personally handling the case to his colleague to the effect of standing in for him. While in the later, because, the law vested the prosecutorial power in the Attorney-General/officers in his department, Police Officer and Special Prosecutor, a prosecutor cannot hand over his file to a private lawyer to hold his brief (i.e. to prosecute) without the later acquiring the fiat of the Attorney-General. Hence, holding brief relationship cannot be conveniently created between Publicly-Employed Lawyer/Police prosecutor and his Private counterpart.

It must be reiterated that where a holding brief lawyer conduct criminal proceedings in a particular day he is assigned by his principal/colleague, it means he prosecutes an accused person. Thus, the marriage of holding brief cannot be conveniently established simply because one of the parties (i.e. private lawyer) is legally incapacitated for not obtaining the fiat of the Attorney-General. To put it in better perspective, a holding brief private lawyer automatically assumes the position of a prosecutor in a criminal trial because, the court consider him as such. Therefore, it is practically impossible for a police prosecutor to expand the horizon of factual circumstances of holding brief by handing over his file to a private lawyer to stand in for him. My authority is the cases of MFA V INONGHA (2014) NWLR (Pt. 1397) P. 343 AT 369andMOHAMMED & ANOR. V STATE (2015) LPELR-25694(CA) (supra).

On the same footing, the practice of holding brief technically creates a sought of agency relationship between the person in-charge of the case (principal) and the lawyer holding brief (agent) in dealing with a third-party (the court). Therefore, as clearly highlighted somewhere in this paper, a police officer derives his prosecutorial power under section 66 of Nigerian Police Establishment Act, 2020 and, the Act does not empower him to so delegate a private lawyer to act on his behalf. This, calls for the applicability of the latin maxims: Delegatus Non-Potest Delegare and nemo dat quod non habet. Thus, the practice of holding brief is in all fours with agency relationship. Sure, a police officer whether a lawyer or not cannot delegate a private lawyer to step into his statutory shoes to prosecute.

Having masterly analyzed all the intricacies, I come to the irresistible conclusion that the practice of holding brief can only be created between private lawyers and among publicly employed lawyers. Furthermore, it is never contemplated in our criminal jurisprudence that a prosecutor or police-prosecutor hands over his file to a private lawyer to hold his brief and prosecute an accused person without the lawyer first of all having obtained the requisite fiat from the Attorney-General.