Institution
of Criminal Proceedings
1.
Persons who have
Power to Institute criminal Proceedings
It is
instructive to note that to institute a criminal proceeding is to initiate
or start it; while to commence a criminal proceeding is to perform the first
act or take the first step in the proceeding.
In criminal proceedings, the question of who institutes criminal
proceedings is fundamental. This is because a want of competence in the
prosecutor will result in the entire proceedings, including any judgment
obtained therefrom, being declared as a nullity.
Under section 106 of the
Administration of Criminal Justice Act 2015, which applies principally and
exclusively to Federal Offences, prosecution of all offences in any court shall
be undertaken by:
(a)
the Attorney General of the Federation or a Law
Officer in his Ministry or Department;
(b)
a legal practitioner authorised by the Attorney
General of the Federation;
(c)
a legal practitioner authorised to prosecute by the
Administration of Criminal Justice Act
2015 or by any other Act of the National Assembly.
Thus, a police officer is not competent to prosecute anybody for federal
offences, unless the police officer is a legal practitioner. Also, the above
enumeration of competent persons is subject to the provisions of the
constitution relating to the powers of the prosecution by the Attorney General
of the Federation.
Conversely, in the case of state offences, there are broadly, four (4) classes of persons who can
commence criminal proceedings against any person in Nigeria. These are the
Attorney General, the Police, the Private prosecutor and the special
prosecutor. We shall attempt a brief exposition of the principles of law
governing criminal prosecution by each of these persons.
A.
The
Attorney-General
The power of the Attorney-General to institute criminal proceedings is
constitutional and is as provided for in Section
174(1) of the CFRN, 1999 (for federal Attorney General) and Section 211 of the
same constitution (for state Attorney General). Section 174(1) thereof states
that the Attorney-General of the Federation shall have power:
(a) To institute and undertake criminal
proceedings against any person before any court of law in Nigeria, other than a
court-martial, in respect of any offence created by or against any Act of the
National Assembly;
(b) To take over and continue any such criminal proceedings that may
have been instituted by any other authority or person;
(c) To discontinue at any stage before judgment is delivered
any such criminal proceedings instituted or undertaken by him or other
authority or person.
The Powers
Conferred upon the Attorney-General of the Federation under Subsection (1) of
this section may be exercised by him in person or through officers of his
department.
The following points are deducible from the
foregoing.
First, the power
to institute and undertake does not or is not exercisable in a court
martial. Also, in the case of a Federal Attorney General, it is exercisable in
respect of Federal offences as contained in the Exclusive Legislative List;
while in the case of State Attorney General, it is exercisable in respect of
state offences created by state laws pursuant to the Concurrent Legislative
Lists. Authority for this proposition is the case of Anyebe v. The State (1986) 1 SC 87, involving an accused charged
before a Benue State High Court by the State Attorney General for the Federal
offence of being in possession of a short gun without a valid license contrary
to Section 4 of the Firearms Act of 1958
as amended by the Firearms (Amendment)
Decree No. 31 of 1966 and section
286 of the CFRN, 1999.
However, where a
Federal enactment is meant to take effect as a state law, any offence so
created shall be deemed to be a state offence, and in such a case, the State
Attorney General and not the Federal Attorney General shall be competent to
prosecute. In Emelogu v. The State
(1988) 2 NWLR (Pt. 78) 524, the Supreme Court held that a State Attorney
General can prosecute persons who violate the provisions of the Robbery and Firearms (Special Provisions)
Act, 1970 because though the Act is a federal law, it was made to take
effect as a state law.
The foregoing
notwithstanding, a Federal Attorney General can delegate to the State Attorney
General the power to institute criminal proceedings in respect of federal
offences and vice versal.
Again, the power
so conferred is absolute and at the discretion of the Attorney General to
determine who to prosecute and who not to prosecute. He has no obligation in a
particular way; and the court of law has no power to question his discretion.
Secondly, the power
to take over and continue extends to proceedings begun by any other
authority or person and is also absolute and subject only to the unquestionable
discretion of the Attorney General himself; and the exclusion of a proceeding
before a court martial. The Attorney General’s power in this regard is
exercisable in the court of 1st instance or in any other court of his choice,
provided that the proceeding has not terminated: AMAEFULE v. THE STATE (1988) 2 NWLR (Pt. 75) 156.
This power is
however, subject to the provisions of Sections
174(3) and 211(3) of the 1999 CFRN
which provides that in exercising his power under the section, the Attorney
General shall have regard to the public interest, the interest of justice and
the need to prevent abuse of legal process: Edet v. The State (1988) 12 SC (Pt. 1) 103.
Thirdly, the power
to discontinue otherwise known as “nolle
prosequi” is also absolute and can
only be exercised when there is an Attorney General in office and not when the
office is vacant, since it is power peculiar to the Attorney General. See Attorney General of Kaduna State v. Hassan
(1985) 2 NWLR (Pt. 8) 483 for the proposition that power to enter a nolle
prosequi are personal to the Attorney General and hence a Solicitor General
cannot exercise same. The power is also not subject to judicial review: State v. Ilori & 2 Ors (1983) 2 SC 155.
The power can be exercised anytime before judgment is delivered and in respect
of proceedings begun by other authority or person.
The constitution
is silent on the mode of exercising the power of nolle prosequi. However,
statutes provide for how the power of nolle prosequi is to be exercised. See Section 73(1) of the Criminal Procedure Act
and Section 253(2) of the Criminal
Procedure Code, Section 107(1) of the Administration of Criminal Justice Act
2015 and section 71(1) of the Administration of Criminal
Justice (Repeal and Re-enactment) Law, 2011 of Lagos State.
Whereas, the Administration of Criminal Justice Act
2015, talks about “stating in court” or “informing the court in writing”;
the Administration of Criminal Justice (Repeal & Re-Enactment) Law 2011
does not prescribe any mode of exercise but merely provides that the power may
be exercised either by the Attorney General himself or through an officer of
his department. This has been interpreted to mean that a written authority of
the Attorney General is not required before an officer in the Attorney
General’s department can enter a nolle prosequi and also that the Attorney
General does not need to appear physically in order to exercise this power.
Contrasting Nolle
Prosequi with Withdrawal of a Case by Police or Other Prosecutors
It is opposite
at this point to compare nolle prosequi
with withdrawal of a case by police or
other prosecutors. First, the latter
is provided for under section 108(1) of
the Administration of Criminal Justice Act 2015 and Section 73(1) of the Administration of Criminal Justice (Repeal and
Re-enactment) Law, 2011 of Lagos State and refers to the power of a
prosecutor to withdraw from prosecution.
The two powers
differ in the following respects:
i.
Whereas the effect of nolle prosequi is a discharge
and not an acquittal; the effect of a withdrawal may be a discharge or an
acquittal depending on the circumstances. See section 107(4) of the Administration of Criminal Justice Act 2015 and
Section 71(3) of the Administration of
Criminal Justice (Repeal and Re-enactment) Law, 2011 of Lagos State; all to
the effect that the discharge of an accused person pursuant to a plea of nolle
prosequi shall not operate as a bar to any subsequent proceedings against him
on account of the same facts. See the case of Clarke v. AG Lagos State (1986) 1 QLRN 119 where the accused
persons were re-arrested and arranged after entry of nolle prosequi.
However, the
provisions of section 108(1) of the
Administration of Criminal Justice Act 2015 and Section 73(1) of the Administration of Criminal Justice (Repeal and
Re-enactment) Law, 2011 of Lagos State, must be read subject to the
provisions of Subsections (2) & (3) and Subsection (3) of the Laws respectively.
The general effect
of the subsection is that where the accused person has not put in his defence,
a withdrawal would lead to a discharge, but where he has already put in his
defence, a withdrawal would lead to an acquittal.
Under subsection (3) of section 108 of the Administration of Criminal Justice Act 2015,
where a withdrawal is made before the defendant is called upon to make his
defence, the court may in its discretion order the defendant to be acquitted if
it is satisfied on the merits of the case that the order is a proper one.
ii.
Whereas the court must consent to a withdrawal
(except in cases where a withdrawal is made pursuant to the
discretion/direction of the Attorney General); consent of the court is not
required to make a nolle prosequi effective.
iii. The court has a
wider discretion in respect of withdrawal, for example, it can acquit even when
the accused has not given his defence.
iv. The instructions
of the Attorney General with respect to withdrawal need not be in any
particular form; but in a case of nolle prosequi; it must be in writing and
duly signed by the Attorney General.
v.
The power to withdraw is exercisable only in
proceedings before a Magistrate Court – section
75(1) Criminal Procedure Act or in any trial or proceedings before a court
(court here means Federal High Court or High Court of the Federal Capital
Territory) - section 108(1) of the
Administration of Criminal Justice Act 2015 or proceedings before a High
Court and Magistrate Court – Section
73(1) of the Administration of Criminal Justice (Repeal and Re-enactment) Law,
2011 of Lagos State; while the power of nolle prosequi is exercisable in
respect of proceedings before any trial court except a court marshal. This also
means that whereas the power is exercisable in respect of state offences, the
latter extends to federal offences.
vi. nolle prosequi
applies to proceedings instituted by another authority; but withdrawal does
not.
Furthermore, the
power of institute criminal
proceedings conferred on the Attorney General may be exercised by him
personally or through officers in his department. Thus, the power is delegable.
The delegation may be express or implied. That it is implied means that such a
power is exercisable by the subordinate authorities even in the absence of an
express authorization. See Ibrahim v.
State (1986) 1 NWLR (Pt. 18) 650.
However, the
power of nolle prosequi cannot be impliedly delegated; but only expressly delegated;
except in Lagos State since the Administration
of Criminal Justice (Repeal and Re-enactment) Law, 2011 of Lagos State; is
silent on the matter – see Section 71
(1) of the Administration of Criminal Justice (Repeal and Re-enactment) Law,
2011 of Lagos State.
Lastly, the
powers delegated by the Attorney General in this regard may in turn be
sub-delegated; since the maxim does not apply to criminal proceedings.
B.
A Police Officer
Before the enactment of the Administration
of Criminal Justice Act 2015, the police had a statutory power to conduct
criminal proceedings against any person accused of having committed an offence
before any court of law in Nigeria, subject only to the power of the Attorney
General in this regard: Section 23 of
the Police Act, Olusemo v. COP (1998) 11 NWLR (Pt. 575) 547; Section 98(1) of
the Federal Capital Territory High Court Act and FRN v. Osahon & 7 Ors (2006)
5 NWLR (pt. 973) 361 where it was held that police officers can prosecute
in the Federal High Court, notwithstanding the express provisions of Section 56(1) of the Federal High Court Act
Cap F12 LFN 2004.
Also, the language of the law is “any police officer” and accordingly,
it was immaterial whether the officer prosecuting is legally qualified or not.
However, with the enactment and coming into effect of the Administration of Criminal Justice Act 2015,
the powers of the Police to prosecute in Federal Courts and in the courts of
the Federal Capital Territory has been prohibited; subject only to Police
Officers who are qualified legal practitioners. Thus, by section 106 of the Administration of Criminal Justice Act 2015,
which applies principally and exclusively to Federal Offences, prosecution of
all offences in any court shall be undertaken by:
(a)
the Attorney General of the Federation or a Law
Officer in his Ministry or Department;
(b)
a legal practitioner authorised by the Attorney
General of the Federation;
(c)
a legal practitioner authorised to prosecute by the
Administration of Criminal Justice Act
2015 or by any other Act of the National Assembly.
Lastly, it is instructive, illuminating and important to note that the
police can only conduct criminal proceedings in State High Courts after the
Attorney General or a Law Officer in his Department has instituted such
proceedings. See Section 341 of Criminal
Procedure Act and Section 253 of the
Administration of Criminal Justice (Repeal and Re-enactment) Law, 2011 of Lagos
State.
However, in the case of a Magistrate Court, a police officer can
institute criminal proceedings. See Section
78(6) of Criminal Procedure Act, Section 78(2) of the Administration of
Criminal Justice (Repeal and Re-enactment) Law, 2011 of Lagos State and Section 143 Criminal Procedure Code.
Accordingly, in respect of High Courts, a police officer has power to
“conduct”, while in the case of Magistrate Courts, it has power to “institute”
criminal proceedings.
C.
Private Persons
Private persons can initiate or commence criminal proceedings in Federal
Courts and Courts within the Federal Capital Territory, if and only if that
private person is a qualified legal practitioner. See section 106 of the ACJA 2015 supra.
In all other cases, a private persons can initiate or commence criminal proceedings.
Two ways a private can institute
criminal proceeding are (a) by laying a complaint before the
court and (b) by filing private
information.
Indeed, private persons may institute criminal proceedings against a
person alleged to have committed an offence by laying a complaint before a court: section 59(1) of the Criminal Procedure Act. By that provision, the
only limitation to the right of a private person to initiate criminal
proceedings by complaint is where it appears from the enactment on which the
complaint is founded that any complaint for such offence shall be made by a
particular person or class or persons. There are a number of such provisions in
the statute books:
i.
Section 98C (2)
of the Criminal Code which provides that no proceedings for an offence
under Sections 98, 98A or 98B (summarily
dealing with offence of official corruption) shall be instituted against a
judicial officer except on a complaint or information signed by or on behalf of
the Attorney General of the Federation or by or on behalf of the Attorney
General of the State in which the offence is alleged to have been committed.
ii.
Section 52(2) of
the Criminal Code which provides that a person shall not be
prosecuted for an offence under section
51 (dealing with the offence of sedition) without the written consent of
the Attorney General of the Federation or of the State concerned.
iii. Section 142(1) of the Criminal Procedure Code which provides
to the effect that complaint of offences such as adultery and related offences
itemized in Sections 387, 388 & 389 of the Penal Code can only be made
by the husband of the woman or in his absence by some person who had care of the woman on his
behalf at the time when the offence was committed or in the case of an
unmarried woman, by her father or guardian or in his absence by someone who had
care of the unmarried woman on his behalf at the time when the offence was
committed.
iv. Section 141(1) of the Criminal Procedure Code which provides
that no court shall take cognizance of an offence falling under Chapter XXI or Chapter XXIII of the Penal Code or under Sections 383 to 386 of
the same code, except upon a complaint made by some person aggrieved by that
offence, but where the person so aggrieved is a woman who according to the
customs and manners of the country ought not to be compelled to appear in
public or where the person is under the age of eighteen or is an idiot or
lunatic or is suffering from sickness or infirmity unable to make a complaint,
some other person may, with the leave of the court, make a complaint on his
behalf or her behalf.
Additionally, section 383 of the ACJA 2015 and Section 254 of the Administration of
Criminal Justice (Repeal and Re-enactment) Law, 2011 of Lagos State make
provision for the right of a private person to institute criminal proceedings
and prescribes the conditions to be fulfilled when a private person wants to file private information.
By those
provisions, a private person may commence criminal proceedings by way of
information upon fulfillment of the following conditions:
a)
The information has endorsed thereon a certificate
by the Attorney General of the Federation or a law officer acting on his behalf
to the effect that he has seen the information and declined to prosecute at the
public instance the offence contained therein.
b)
The private person must enter into a recognizance
in the sum of N100 (section 342(b) of Criminal Procedure Act)
or N10,000 (section 254(b) of the Administration of Criminal Justice (Repeal and
Re-enactment) Law, 2011 of Lagos State), or "such sum as may be fixed
by the court, with a surety, to prosecute the information to conclusion from
the time the defendant shall be required to appear" (section 383(1)(b) of the ACJA 2015) together with one surety in
like sum, to prosecute the information diligently to the conclusion and to pay
such costs as shall be ordered by the court or in lieu of entering into such
recognizance, to deposit the said sum in court to abide by the same conditions.
Section 383(2)
of the ACJA 2015, states that where an application for consent to prosecute is made to
the Attorney General of the Federation by a private legal practitioner and the
Attorney General declines to grant such consent, he shall give his reason(s)
for doing so in writing within Fifteen
(15) working days from the date of the receipt of the application.
Section 384 of
the ACJA 2015 provides that upon the fulfillment of the conditions above, a private
person may sign the information and prosecute same. There is no equivalent
provision in Lagos State, but Section
77(1)(b)(ii) of the Administration of Criminal Justice (Repeal and Re-enactment)
Law, 2011 of Lagos State provides that criminal proceedings may be
instituted in the High Court on information, filed by a private prosecutor
pursuant to Section 254.
It is instructive to note that the law does not give the Attorney
General discretion to endorse or not to endorse private information.
Accordingly, where the Attorney General refuses to endorse a private
information or charge, he may be compelled by an order of mandamus: Fawewnmi v. Akilu (1987) 11 – 12 SCNJ 151 and
Attorney General Anambra State v.
Nwobodo (1992) 7 NWLR (Pt. 256).
Lastly, under the Criminal Procedure Code, Section 143(c) authorizes institution of criminal proceedings by
private persons and this is done by the court taking cognizance of an offence
from information received from persons other than a police officer (such as
private persons), if the court has reason to believe or suspect that an offence
has been committed. Take Notice that
the Criminal Procedure Code does not specify the requirement of a recognizance
or surety by the private person or any deposit in lieu thereof.
D.
Special
Prosecutors
Subject to the new Administration
of Criminal Justice Act 2015, this is another class of persons who can
commence and prosecute criminal cases. The phrase special prosecutor normally
refers to any person be he 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. In Nigeria, a special prosecutor is not so called because
the statute or instrument of appointment refers to him as such. Rather, the
circumstance of the person’s engagement in the prosecution (save where a
statute expressly names him/her) determines whether he is a special prosecutor
or not.
Furthermore, where a statute specifies a special prosecutor, no other
person except the Attorney General can validly institute criminal proceedings
in respect of a violation of the provisions of that statute. Also, in Nigeria,
unlike what obtains elsewhere, a special prosecutor so mentioned by a statute
need not be a lawyer.
For example, under Section 98 of
the Federal Capital Territory, Abuja, High Court Act, we have
administrative officer and other person duly authorized in that behalf by or on
behalf of the Attorney General or in revenue cases, authorized by Head of the Department
concerned. However, this is subject to the new Administration of Criminal Justice Act 2015.
Again, Section 66(1) of the
Factories Act Cap FI LFN, 2004 provides that any inspector of factories may, although he is not a legal
practitioner, prosecute, conduct or defend before a court any charge,
information, complaint or other proceedings arising under the Act or in the
discharge of his duty as an inspector.
Additionally, section 12(2) of
the Economic and Financial Crimes Commission (Establishment) Act Cap E1 LFN
2004, provides that the Legal and Prosecuting Unit shall be charged with
responsibility for prosecuting offenders under the Act.
Also, under Section 176(2) of the
Customs and Exercise Management Act Cap C45 LFN, 2004, it is the Attorney
General only that can prosecute offences under the Act, after the Board might
have sanctioned same.
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