A Rivers State High Court sitting in Port Harcourt, has reserved its decision on a move by the state government to handover the prosecution of the former Governor of Rivers State, Chibuike Amaechi, the candidate of the All Progressives Congress, APC, for the 2023 polls, Tonye Cole, and five others in the $50 million fraud case against them to a private prosecutor. Justice Okogbule Gbasam gave the decision after a very long legal argument by the parties in the matter on whether it is was right for the public prosecutor to hand over the prosecution of a criminal matter to a private prosecutor without meeting some legal requirements. This was coming following the appearance of Mr. Donald C. Denwigwe, a Senior Advocate of Nigeria, SAN, with a certificate issued from the office of the Attorney General of the state to take over the prosecution of the criminal matter.
But, A. J. Owonikoko, counsel for Amaechi, (the first defendant in the matter) opposed the appearance of Denwigwe to take over the trial of the ex-governor and others. Owonikoko stated that under Section 109, subsection 1E, of the Rivers State Administration of Criminal Justice Law, ACJL, that the certificate presented by Denwigwe would not be accommodated. He noted that provisions of section 109, 1E, of ACJL, did not allow a private prosecutor to substitute a Public prosecutor in a matter that has be instituted by a public prosecutor, without meeting stipulated pre-conditions in the state’s law. Owonikoko said under the extant regime of giving out matters to private prosecution in Rivers State that section 109, sub 1, places a control, adding that the implications is that the information that private prosecutor will have must be duly filled out of the originating process. He opined that on Subsection 2, of the section that the threshold challenge is raised on the locus about the warrant of the prosecutor to process the information, adding that Section 109 is a novel law to check abuse of public prosecution. He urged the court to deny audience to the private prosecutor, saying it should be taken that the state is unrepresented in the case at the moment.
Similarly, Bode Olanikpekun, SAN, said Criminal prosecutor is sui generis and extremely so, because the liberty of citizens are at stake, informing the court that the 4th, 5th, 6th and 7th, defendants have not been served with the originating processes in the matter. Olanikpekun pointed out that the hearing notice from the court advertised in the Nation and Guardian Newspapers of Monday, July 18th Only referred to the 5th and 6th Defendants/Solicitor, calling in protest for service of information on the defendants. He also pointed out that the hearing notice published did not state what yesterday’s proceeding was meant for. The SAN noted that the provisor in section 109 describes the steps to be taken by private prosecutor and the registrar of the court as conditions before a private prosecutor can take over a public prosecutor’s case. He added: “Earlier on, referred to those steps as ‘entered’, the twin consideration of those steps make them condition precedence, which till this time has not been fulfilled. Sub section 2, of the 109, it provides for a circumstance waiver, in respect of failure of endorsement. The authorities to take over matter is expressly reversed for the Attorney General and not the other way round.
“Even where the Attorney General wants to take over a proceedings initiated by other persons, section 211, 2 of the Constitution, mandates that the powers be exercised by him in person or through other officers of his department.” Furthermore, Godwin Omoaka, SAN, counsel for the Seventh defendant, Tonye Cole, said the document, fiat, president to court by Denwigwe is incompetent and did not comply with section 109 of ACJL, on which it was issued. Omoaka said it also clearly violates a higher authority of Section 211 of the 1999 and so should be disregarded. He said information and proof of evidence has been filed by the attorney general and proceedings already commenced by the Attorney General, regretting while the private prosecutor is coming at the point. However, Denwigwe told the court that the process has not reached the stage of arrangement and that it is upon arraignment that the arguments of substitution could come up. He said the submissions as the point was premature, drawing a distinction between private prosecution to commence a charge and prosecution started by the Public prosecutor and delegated to the private prosecutor. He noted that his appearance has been strengthened by section 106 of the Act, which permits any legal representations appointed by the Attorney General. Meanwhile, after the long argument, Justice Gbasam adjourned till 29th of July for ruling.
