EXCEPTS FROM THE LATEST DECISION OF THE SUPREME
COURT OF NIGERIA REGARDING WHETHER A PROSECUTOR (MR. FESTUS KEYAMO,
SAN) CAN BE DISQUALIFIED FROM PROSECUTING A MATTER ON THE GROUND OF
PERCEIVED BIAS AGAINST THE ACCUSED PERSONS.
KENNY MARTINS & 3 ORS V. THE FEDERAL REPUBLIC OF
NIGERIA
Per Ejembi Eko, JSC, delivering the lead
judgment:
“Let it be stated, prefatorily, that it is preposterous, if not
absurd, to suggest that a counsel will accept to conduct or
prosecute an appeal either for the appellant or the respondent in
which he has no interest in its outcome. Let me also state that no
power resides in the Lower Court, or any court for that matter, to
grant permission to any litigant as to which counsel to employ to
conduct his case. Guided by the natural justice principle of
nemo judex in causa sua, forbidding the
Judge or court from being a judge in his (or its) own cause; a
Judge or court does not undertake such ignoble role of granting
permission to a litigant as to which counsel he shall hire to
conduct his case. It lies within the absolute discretion of the
litigant to engage a counsel of his own choice to conduct his case
for him.
The substance of the Appellants’ complaint, under issue 2, is
that Mr. Festus Keyamo who had written several petitions against
the Appellants to the EFCC wherein he made various “allegations of
commission of criminal offence on matters relating to the facts of
this case” is not a fit and proper person to conduct the appeal
against the Appellants on behalf of the EFCC. The ground for this
objection is that the EFCC, as the prosecuting authority, had
listed Mr. Festus Keyamo in the proofs of evidence as one of the
witnesses for the prosecution at the trial court. In one of such
petitions, Mr. Festus Keyamo had allegedly nudged the EFCC not to
spare any effort “to investigate activities of the Presidential
Committee on Police Equipment, to recover the balance of its total
income, payoff the creditors of the body and remit the balance to
the Police”. The learned Senior Counsel for the Appellants, drawing
his conclusion from the previous activities of Mr. Keyamo, submits
that “the EFCC had actual knowledge that Mr. Festus Keyamo had a
bitter hatred for the Appellants”, and that if “the EFCC had indeed
properly briefed Mr. Festus Keyamo to file the appeal against the
appellants at the Lower Court, it would have been an illegal
instruction inconsistent with the express provisions of Section
174(1), (2) and (3) of the Constitution as amended”.
I have taken my time to read Section 174 of the 1999
Constitution, as amended. I cannot agree with the outrageous
construction the learned Senior Counsel had put to the provisions.
The prosecutorial powers vested on the Attorney-General of the
Federation by Section 174 of the Constitution, inter
alia, to institute and undertake criminal proceedings
against any person before any court of law; to take over and
continue such criminal proceedings instituted by any other person;
and to discontinue such criminal proceedings instituted by any
other person; and to discontinue such criminal proceedings, does
not extend to his appointing legal practitioners, who have no
manifest interest in the outcome of the case, to prosecute or
undertake criminal proceedings in any court of law in Nigeria. The
Attorney-General of the Federation, under Section 174 of the
Constitution, does not seem also to have powers to appoint
prosecuting counsel for the EFCC, a prosecuting authority
established by an Act of the National Assembly. The EFCC
(Establishment) Act, 2004, the enabling statute establishing the
EFCC, does not in any provision authorise the Attorney General of
the Federation to appoint for the EFCC counsel either to initiate
and undertake criminal proceedings in trial courts, or initiate and
prosecute criminal appeals on behalf of the EFCC.
The learned Senior Counsel had made so much fuss of it being
unethical for Mr. Keyamo, a prospective witness listed in the
proofs of evidence prosecuting the appeal at the lower court, the
subject of this appeal. The lower court was not conducting the
appeal before it in its original jurisdiction. No witnesses,
including Mr. Keyamo, would be, or was, called to testify in the
appeal at the Lower Court. The fanciful submissions of the
Appellants on this convey no other picture or allegory than the rat
telling the home owner: as we proceed in this game of wits I do not
want my opponent to be led by this man (the cat) he has appointed
as his captain; he would be too smart and dangerous for me. Can he
do that? I think not. The submissions on this are nothing but “A
tale full of sound and fury, yet signifies nothing”, as Shakespeare
would put it. The Lower Court, as a centre referee in full control
of the game, puts it correctly thus –
In regards to issue of ethics a lawyer cannot be a
witness in a case that is not personal and then proceed to
prosecution in the same matter. On the other hand, in a personal
case, a legal practitioner can testify and represent himself. The
reasoning is that a counsel cannot prosecute and be put in a
witness box to be cross-examined at the same time as it is not tidy
and not in tandem with the rules of professional ethics and morals.
In regards to whether the comments of a legal practitioner who
invariably prosecutes the same case he had previously commented on
cannot amount to bias, it is my view it cannot. Bias in legal
proceedings relates to the conduct or act of the Judge or
adjudicator not the prosecutor. The impartiality of the prosecutor
in proceedings before a court is not the issue but that of the
court. It is expected— a prosecutor should set out to
win
A prosecuting counsel who is not prepared and
desirous to prosecute a charge will be abdicating his role as a
prosecutor. Therefore, the grounds of the objection relating to the
comments of the Appellant’s counsel should not affect the
competency of the Notice of Appeal. It is an extraneous
factor.
I completely agree. …..”
“The bias of Mr. Keyamo does not prohibit or inhibit him from
prosecuting the appeal of the prosecutor against the accused
persons if he strongly believes that they were wrongly set free
upon a no-case submission. The prosecutor, not performing any
judicial or quasi- judicial function, is not inhibited by his
presumed partiality or hatred towards the accused persons. He, not
caught by the rule: nemo judex in causa
sua, must be convinced in the first place that an
offence had been committed before his decision to prosecute. The
objection to Mr. Festus Keyamo prosecuting the appeal at the Lower
Court is completely baseless. The grounds for the objection: that
he knows too much, and harbours so much hatred for the Appellants
is not only intriguing; it is also frivolous and vexatious. It is
not a right or function of the accused to partake in the selection
of the counsel the prosecution employs to prosecute him….”
“The Appellants, through the learned Senior Counsel, seem to
misconstrue or misconceive the statement of the Supreme Court of
Canada in OVILA BOUCHE v. THE QUEEN (1955) SCR 16
at page 23 in its application to the facts of this case. Mr.
Keyamo, in prosecuting the appeal at the Lower Court, did nothing
either unethical or untoward beyond his advocating what the law on
no-case submission is. He did nothing suggesting that the appeal he
prosecuted must be won at all costs. In arguing the appeal, Mr.
Keyamo merely presented the facts and the principles of the law to
the said appeal fairly and firmly within his legitimate right and
strength in advocacy. I cannot, and I did not, find from the
printed Records, anything undignifying of his advocacy. BOUCHER’S
case (supra) has been cited wrongly not expressed any personal
opinion at the Lower Court in a very inflammatory or
vindictive language suggesting that the Appellants are guilty as
charged cannot be said to have brought himself within the statement
expressed in BOUCHER’S case by the Supreme Court of Canada.
The learned Senior Counsel made out nothing tangible on which I
should resolve this issue in favour of the Appellants and upturn
the decision of the Lower Court on this issue. The Constitution, as
submitted by the Respondent’s counsel, does not question the
impartiality or otherwise of the prosecutor but only of the court
or the judex. The duty of the prosecutor is simply to prove the
allegation in criminal proceedings beyond reasonable doubt in order
to convince the trial court that the, accused person is guilty and
therefore liable to have his liberty curtailed. He has no duty to
determine the civil rights or obligations of himself qua the
accused person. That duty reposes in the adjudicator, not the
prosecutor.”
EXCEPTS FROM THE LATEST DECISION OF THE SUPREME
COURT OF NIGERIA REGARDING WHETHER A PROSECUTOR (MR. FESTUS KEYAMO,
SAN) CAN BE DISQUALIFIED FROM PROSECUTING A MATTER ON THE GROUND OF
PERCEIVED BIAS AGAINST THE ACCUSED PERSONS.
KENNY MARTINS & 3 ORS V. THE FEDERAL REPUBLIC OF
NIGERIA
Per Ejembi Eko, JSC, delivering the lead
judgment:
“Let it be stated, prefatorily, that it is preposterous, if not
absurd, to suggest that a counsel will accept to conduct or
prosecute an appeal either for the appellant or the respondent in
which he has no interest in its outcome. Let me also state that no
power resides in the Lower Court, or any court for that matter, to
grant permission to any litigant as to which counsel to employ to
conduct his case. Guided by the natural justice principle of
nemo judex in causa sua, forbidding the
Judge or court from being a judge in his (or its) own cause; a
Judge or court does not undertake such ignoble role of granting
permission to a litigant as to which counsel he shall hire to
conduct his case. It lies within the absolute discretion of the
litigant to engage a counsel of his own choice to conduct his case
for him.
The substance of the Appellants’ complaint, under issue 2, is
that Mr. Festus Keyamo who had written several petitions against
the Appellants to the EFCC wherein he made various “allegations of
commission of criminal offence on matters relating to the facts of
this case” is not a fit and proper person to conduct the appeal
against the Appellants on behalf of the EFCC. The ground for this
objection is that the EFCC, as the prosecuting authority, had
listed Mr. Festus Keyamo in the proofs of evidence as one of the
witnesses for the prosecution at the trial court. In one of such
petitions, Mr. Festus Keyamo had allegedly nudged the EFCC not to
spare any effort “to investigate activities of the Presidential
Committee on Police Equipment, to recover the balance of its total
income, payoff the creditors of the body and remit the balance to
the Police”. The learned Senior Counsel for the Appellants, drawing
his conclusion from the previous activities of Mr. Keyamo, submits
that “the EFCC had actual knowledge that Mr. Festus Keyamo had a
bitter hatred for the Appellants”, and that if “the EFCC had indeed
properly briefed Mr. Festus Keyamo to file the appeal against the
appellants at the Lower Court, it would have been an illegal
instruction inconsistent with the express provisions of Section
174(1), (2) and (3) of the Constitution as amended”.
I have taken my time to read Section 174 of the 1999
Constitution, as amended. I cannot agree with the outrageous
construction the learned Senior Counsel had put to the provisions.
The prosecutorial powers vested on the Attorney-General of the
Federation by Section 174 of the Constitution, inter
alia, to institute and undertake criminal proceedings
against any person before any court of law; to take over and
continue such criminal proceedings instituted by any other person;
and to discontinue such criminal proceedings instituted by any
other person; and to discontinue such criminal proceedings, does
not extend to his appointing legal practitioners, who have no
manifest interest in the outcome of the case, to prosecute or
undertake criminal proceedings in any court of law in Nigeria. The
Attorney-General of the Federation, under Section 174 of the
Constitution, does not seem also to have powers to appoint
prosecuting counsel for the EFCC, a prosecuting authority
established by an Act of the National Assembly. The EFCC
(Establishment) Act, 2004, the enabling statute establishing the
EFCC, does not in any provision authorise the Attorney General of
the Federation to appoint for the EFCC counsel either to initiate
and undertake criminal proceedings in trial courts, or initiate and
prosecute criminal appeals on behalf of the EFCC.
The learned Senior Counsel had made so much fuss of it being
unethical for Mr. Keyamo, a prospective witness listed in the
proofs of evidence prosecuting the appeal at the lower court, the
subject of this appeal. The lower court was not conducting the
appeal before it in its original jurisdiction. No witnesses,
including Mr. Keyamo, would be, or was, called to testify in the
appeal at the Lower Court. The fanciful submissions of the
Appellants on this convey no other picture or allegory than the rat
telling the home owner: as we proceed in this game of wits I do not
want my opponent to be led by this man (the cat) he has appointed
as his captain; he would be too smart and dangerous for me. Can he
do that? I think not. The submissions on this are nothing but “A
tale full of sound and fury, yet signifies nothing”, as Shakespeare
would put it. The Lower Court, as a centre referee in full control
of the game, puts it correctly thus –
In regards to issue of ethics a lawyer cannot be a
witness in a case that is not personal and then proceed to
prosecution in the same matter. On the other hand, in a personal
case, a legal practitioner can testify and represent himself. The
reasoning is that a counsel cannot prosecute and be put in a
witness box to be cross-examined at the same time as it is not tidy
and not in tandem with the rules of professional ethics and morals.
In regards to whether the comments of a legal practitioner who
invariably prosecutes the same case he had previously commented on
cannot amount to bias, it is my view it cannot. Bias in legal
proceedings relates to the conduct or act of the Judge or
adjudicator not the prosecutor. The impartiality of the prosecutor
in proceedings before a court is not the issue but that of the
court. It is expected— a prosecutor should set out to
win
A prosecuting counsel who is not prepared and
desirous to prosecute a charge will be abdicating his role as a
prosecutor. Therefore, the grounds of the objection relating to the
comments of the Appellant’s counsel should not affect the
competency of the Notice of Appeal. It is an extraneous
factor.
I completely agree. …..”
“The bias of Mr. Keyamo does not prohibit or inhibit him from
prosecuting the appeal of the prosecutor against the accused
persons if he strongly believes that they were wrongly set free
upon a no-case submission. The prosecutor, not performing any
judicial or quasi- judicial function, is not inhibited by his
presumed partiality or hatred towards the accused persons. He, not
caught by the rule: nemo judex in causa
sua, must be convinced in the first place that an
offence had been committed before his decision to prosecute. The
objection to Mr. Festus Keyamo prosecuting the appeal at the Lower
Court is completely baseless. The grounds for the objection: that
he knows too much, and harbours so much hatred for the Appellants
is not only intriguing; it is also frivolous and vexatious. It is
not a right or function of the accused to partake in the selection
of the counsel the prosecution employs to prosecute him….”
“The Appellants, through the learned Senior Counsel, seem to
misconstrue or misconceive the statement of the Supreme Court of
Canada in OVILA BOUCHE v. THE QUEEN (1955) SCR 16
at page 23 in its application to the facts of this case. Mr.
Keyamo, in prosecuting the appeal at the Lower Court, did nothing
either unethical or untoward beyond his advocating what the law on
no-case submission is. He did nothing suggesting that the appeal he
prosecuted must be won at all costs. In arguing the appeal, Mr.
Keyamo merely presented the facts and the principles of the law to
the said appeal fairly and firmly within his legitimate right and
strength in advocacy. I cannot, and I did not, find from the
printed Records, anything undignifying of his advocacy. BOUCHER’S
case (supra) has been cited wrongly not expressed any personal
opinion at the Lower Court in a very inflammatory or
vindictive language suggesting that the Appellants are guilty as
charged cannot be said to have brought himself within the statement
expressed in BOUCHER’S case by the Supreme Court of Canada.
The learned Senior Counsel made out nothing tangible on which I
should resolve this issue in favour of the Appellants and upturn
the decision of the Lower Court on this issue. The Constitution, as
submitted by the Respondent’s counsel, does not question the
impartiality or otherwise of the prosecutor but only of the court
or the judex. The duty of the prosecutor is simply to prove the
allegation in criminal proceedings beyond reasonable doubt in order
to convince the trial court that the, accused person is guilty and
therefore liable to have his liberty curtailed. He has no duty to
determine the civil rights or obligations of himself qua the
accused person. That duty reposes in the adjudicator, not the
prosecutor.”