The institution of criminal proceedings in Nigeria is a subject that deals with the commencement of all criminal proceedings in any court(s) in Nigeria. To properly understand the process of instituting a criminal action, it is important to note First that the category of persons who institute criminal proceedings in the Nigerian legal system is different from those who Institute civil proceedings in Nigeria. This difference includes persons who can institute such matters, the relief, remedies or what orders the court can make as regards criminal or civil litigation.
To properly address the matters of this article, the persons who are recognized as competent and can institute criminal proceedings in Nigerian courts, are categorized into four. They are:
- The Attorney General whether of any state in the country or the Attorney General of the Federal. - S174 and S211 CFRN
- The Police. - S106 ACJA, S69, S70 ACJL (Lagos) and S123 ACJL (Kano)
- Private Persons
- Special Prosecutors
Before we proceed at this point, it is important to note that wherever there is incompetence on the part of the prosecutor, the whole proceedings shall be a nullity including any judgment that may have been obtained therefrom – Olatunji v. The State (2000) FWLR (PT 30) 2635.
The Attorney General
The powers of the Attorney General of the Federation as it relates to instituting criminal matters are contained in S150 of the Constitution of Nigeria 1990 while the powers of the Attorney General of the various states in Nigeria to institute criminal matters are contained in S195 of the Constitution of Nigeria 1990.
At this point, it is important to note that the offices of the Attorney General of both federation and state is the creation of the statute and as such, they are juristic personalities, with perpetual succession. However, one requirement to be qualified to be the Attorney General is that the person must have been a legal practitioner in Nigeria for at least 10 years.
The person who occupies the position plays a dual role as being the Attorney General of either the state or the federation and also of being the Commissioner of justice in states or the Minister of Justice at the federal level.
The Constitution of Nigeria empowers the Attorney General to institute and commence criminal proceedings in S 174 and 211 of the Constitution of Nigeria 1999. Accordingly, they are empowered to institute, undertake, take over, continue and discontinue any criminal proceeding at any stage before judgement is given. This power is against any court and against any person.
It should however be noted the Attorney General does not have power where it involves court martial.
The Attorney General has the powers to prosecute unless it delegates such powers - S104 and 106 of the Administration of Criminal Justice Act 2015.
The powers of the attorney of the state to institute a matter is confined to the instituting of matters in relation to an offence created by law of the state. Section 211 of the 1999 Constitution of Nigeria.
The Attorney General of the federation cannot institute or prosecute state offences. The Attorney General of the state cannot also conduct prosecution if the law backing such is created by the Act of the National Assembly unless with the permission of the Attorney General of the Federation by fiat. Section 268 of the Administration of Criminal Justice Act 2015.
Where the Act is created in a manner to operate as state law, the Attorney General of the State does not need any express delegation by the Attorney General of the Federation.
The powers of the Attorney General to institute and undertake criminal matters are sacrosanct and such powers cannot be curtailed by means of an injunctive relief by court.
The Attorney General can delegate such powers has has it relates to criminal proceedings to officers working under him in his office. Section 211 of the 1999 Constitution of Nigeria; section 104 of the Administration of Criminal Justice Act 2015.
Where the Attorney General delegates such powers to the Director of Public Prosecution (DPP), the Director of Public Prosecution cannot delegate such powers to his subordinates. This is under the latin maxim DELEGATUS POTEST NON DELE GARE.
In the absence of an incumbent Attorney General, officers of his office can carryout any function but not that of NOLLE PROSEQUI.
What is Nolle Prosecui?
Nolle prosequi is a Latin phrase, which directly translates to “not to wish to prosecute.” As seen in our detailed article on nolle prosecui, it is best described as a legal notice or entry of record that the prosecutor or plaintiff has decided to abandon the prosecution or lawsuit.
This legal notice can be exercised orally or in writing and the Attorney General, while executing nolle prosequi should give reasons for exercising such power.
The Attorney General can evercise such power by himself and when doing this, it could orally by asking the court to discontinue the matter or through officers of his department, and when it is by officers of his department, it should not be done orally but by a written authority of the Attorney General.
The officer who from his officer must be a law officer. Section 2 of Law Officers Act explains that a clerk or eve the secretary in the office of the Attorney General cannot bring such written instrument to court as he is not a law officer.
This means that even if the clerk or the secretary is a lawyer, they don't fall under the definition of law officer.
When nolle prosequi in entered, what the court does is to make an order.
THE ATTORNEY-GENERAL
The Attorney General of the Federation is the Chief Law Officer of the Federation while the Attorney General of the State is the Chief Law Officer of the State. He must be a legal practitioner of at least ten (10) years standing in the profession.
The office of the A-G. is created under the provisions of sections 171(1) and 211(1) of the 1999 Constitution. By these provisions, each A-G., has the power to institute, take over and to discontinue criminal proceedings before a Court in Nigeria in his respective jurisdiction, except in a Court Martial.
However, the definition of Federal offences made by section 286 of CRFN which is to the effect that where a Federal law is to take effect as a State law, the A-G of the State is competent to institute criminal proceedings against any person because that law is deemed to be a State Law. However, this section does not confer jurisdiction as respects Federal causes or Federal offences upon a court presided over by a person who is not or has not been qualified to practise as a legal practitioner in Nigeria – Emelogu v. The State (1988) 2 NWLR (Pt 78) 524, the A-G of Imo State prosecuted the appellant who was later convicted by the court for robbery under the Robbery and Firearms Act. He appealed contending that the Firearm Act under which he was prosecuted being an Act of the National Assembly, the A-G of Imo was not competent to prosecute under the said Act. It was held that the Firearm Act was meant to operate as a State law. It was also held that since the offence of armed robbery was not included in the Exclusive Legislative List or Concurrent List, it falls within the Residual List and hence any State Attorney General can prosecute without any delegation from the A-G of the Federation; Also, A-G of Ondo State v. A-G of The Federation (2002) FWLR (PT 111) 1972 at 2073.
While the Federal A-G cannot exercise powers granted to him under section 174(1) in respect of State offences, the State A-G also cannot exercise the power granted to him under section 211(1) of CFRN in respect of Federal offences – Anyebe v. The State (1986) 1 SC 87, it was held that only the A-G of the Fed can institute and undertake proceedings against any person in relation to matters within the Exclusive Legislative List. It was also held that the power of the A-G of the Fed can be exercised by him in person or through an officer of his department expressly delegated. Hence the A-G of Benue State is not an officer in the Department of the A-G of the Fed. The A-G of a State only has power to institute criminal proceedings in respect of offences created by or under any law of the State house of Assembly while the power of the A-G of the Fed is limited to matters over which the National Assembly can legislate.
EXAMINING THE PROVISIONS OF SECTION 174(1) OF THE 1999 CONSTITUTION
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 under 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; and
c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
POWER TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS
The power of the A-G of the Fed or of a State to institute criminal proceedings is an absolute one. What this means is that where two or more persons are alleged to have committed an offence, the A.G has the power to prosecute one or more of them and let one or more of them go. He is under no obligation to give reasons for exercising his discretion – Bagudu v. Federal Republic Of Nigeria (2004) 1 NWLR (Pt 853) 183; A-G of Ondo State v. A-G of the Federation (supra). In The State v. Okpegboro (1980) 2 NCR 291, a State Counsel filed a charge before a Magistrate Court and an objection was taken on the ground that by Section 78(B) of the Criminal Procedure Act, only a Police Officer could bring and file a charge before a Magistrate Court. The objection was overruled; the Court held that the powers of the Attorney General contained in Section 191(1) of the 1999 Constitution supersedes the power of the Police as provided in Section 78(B) of the Criminal Procedure Act.
THE POWER TO TAKE OVER AND CONTINUE PROCEEDINGS
By Section 174(b) of the Constitution, the Attorney General has the power to take over proceedings, which may have been instituted by him or by any other person or authority. This power is an absolute one and what this means is that he does not need to give any person any reason as to why he is taking over the proceedings. In Amaefule v. The State (1988) 2 NWLR (Pt 75) 156, the accused persons were charged before the Magistrate Court for certain indictable offences. After several adjournments, the Magistrate adjourned the case sine die. While the proceedings was still going on, the Attorney General filed an information in respect of the same charges against some of the accused persons. The accused persons objected on the ground that it was an abuse of process and that the information be declared null and void. The Supreme Court rejected this contention although in its judgment, it acknowledged that it was desirable to have withdrawn the charges before the Magistrate Court.
In Edet v. The State (1988) 2 SC (Pt 1) 103, the appellant was charged along with three others before a Magistrate Court on a charge of manslaughter. Ten months thereafter, information was filed at the High Court charging all four of them for murder and they were convicted. In an ultimate appeal to the Supreme Court against his conviction, the appellant contended that the trial was a nullity in that the procedure adopted at the High Court, which was affirmed by the Court of Appeal, was an abuse of process. The Supreme Court held at page 173 per Uwais, JSC (as he then was) as follows:
“No citizen should be the subject of persecution by the State. The Courts frown at such action and will not hesitate to deprecate it even if the law has provided no remedy”.
The learned Justice, however, concluded that the trial and conviction of the appellant was in order as nothing affects the powers of the A-G over proceedings at any stage of the proceedings.
POWER TO DISCONTINUE
This is otherwise known as the power of nolle prosequi. Because of the two earlier powers discussed, the power of the A-G in this respect is equally absolute. There is a lacuna as regards sections 174 and 211(1) of the CFRN as to how the power of nolle is to be exercised. However, sections 73(1) of the Criminal Procedure Act (CPA) and 253(2) of the Criminal Procedure Code (CPC) make provisions in that regard. By the combine provisions, the A-G is required to come to Court personally and make an oral application in that regard or send any officer in his department with a written authority under his hand. In The State v. Chukwura (1964) NMLR 64, a State Counsel made an oral application to discontinue proceedings. The application was refused. In State v. Ilori (1983) 2 SC 155, it was held that the nature of nolle prosequi is such that once the plea is entered, the Court does not go behind it in order to question the A-G as to the reasons for so exercising his powers. It held further that the words “shall have regard to the public interest…” used in Section 191(3) of the 1979 Constitution, now section 211(3) of 1999 CFRN, are not mandatory but directory. The Court concluded that the only check or control on the A-G in the exercise of his powers is adverse criticism and possible removal by his appointor.
EFFECT OF A NOLLE PROSEQUI
Once a nolle prosequi is entered, the person is discharged although it shall not operate to further prosecution on the same facts – sections 73(1) and (2), 74(4) of the CPA, and section 253(3) of the CPC; Clarke v. Attorney General of Lagos (1986) 1 QLRN 119. In the case of Attorney General of Kaduna State v. Hassan (1985) 2 NWLR (Pt 8) 483, an aggrieved person who maintain a civil action against the Attorney General has no legal or constitutional backing. In other words, that opinion stands alone. The reason is that the issue before the Court was not whether an aggrieved person could maintain an action against the A-G for improper exercise of the power of nolle prosequi. Rather, the issue before the Court was whether the power of nolle prosequi was exercisable when there is no incumbent A-G, it was held that the powers of the Attorney General to enter a nolle prosequi are personal to him hence the Solicitor General has no power to enter a nolle prosequi so as to discontinue the case. However, in the case of Obasi v. The State (1998) 9 NWLR (Pt. 567) 686, the court made a distinction between the powers of the A-G to commence and take over on the one hand and the power to discontinue on the other hand. In OBASI’s case, the accused person were tried for murder on an information and they raised an objection that their being no Attorney General in office at the time the criminal prosecution commenced, their arraignment and trial was unconstitutional. In rejecting this contention, the Court held that the power to commence and take over can be exercised by any law officer in the Attorney General’s office while the power to discontinue, which is nolle prosequi is exercisable by the Attorney General only either in person or by his expressed written authority.
It should be noted that there is a difference between discontinuance under section 211(1)(c) of CRFN and withdrawal from Prosecution by the Prosecutor under section 75 of the CPA. The effect of a nolle prosequi in section 211(1)(c) is a discharge while under withdrawal in section 75, the effect would depend on the stage of the proceedings. 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. Also, the Court must consent to a withdrawal while no consent is required before a nolle prosequi can be entered. Again, by the proviso to Section 75(1)(b)(ii), even where withdrawal is done before the accused puts in his defence, a Court has discretion to either discharge the accused person or acquit him.
Apart from the power of nolle prosequi, the A-G can delegate any of his powers either expressly or by necessary implication. In other words, every law officer in the Office of the A-G has an implied power to commence criminal proceedings against any person or to take over any of such proceedings, and there is no limit to the powers, which the A-G can delegate.
THE POLICE
The power of the Police to institute criminal proceedings derives from section 23 of the Police Act, Cap P.19, Laws of the Federation of Nigeria (LFN), 2004. It provides thus:
“Subject to the provisions of Sections 160 and 191 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any Police Officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name”.
In Olusemo v. C.O.P (1998) 1 NWLR (Pt. 575) 547, it was held that by virtue of section 23 of the Police Act, any Police Officer may conduct in person all prosecutions before any court in Nigeria subject to the powers of the Attorney General of the Federation and the State.
In Osahon v. Federal Republic Of Nigeria (2003) 16 NWLR (Pt. 845) 89, the provisions of Section 56(1) of the Federal High Court Act was held by the Court of Appeal to have effectively robbed the Police of the powers to prosecute in the Federal High Court. The Court held that a Police Officer does not come within the meaning of law officer as used in the Criminal Code or of the Law Officers Act and is, therefore, incompetent to prosecute in the Court, that is, in the Federal High Court.
On further appeal to the Supreme Court in Federal Republic Of Nigeria v. Osahon & 7 ORS. SC 23/2004, decided in February 2006, the Supreme Court overruled the Court of Appeal’s decision. Belgore, JSC who read the lead judgment of the Court held at page 15 as follows:
“From Colonial period up to date, Police Officers of various ranks have taken up prosecution of Criminal cases in Magistrate Courts and other Courts of inferior jurisdiction. They derive their powers under Section 23 of the Police Act but when it comes to superior Courts of record, it is desirable though not compulsory that the prosecuting Police Officer ought to be legally qualified… For the foregoing reasons, I allow this appeal and hold that a police Officer can prosecute by virtue of Section 23 of the Police Act, Section 56(1) of the Federal High Court Act and Section 174(1) of the Constitution of the Federal Republic of Nigeria, 1999 ….”
Thus, it is clear that there being no constitutional or statutory provision prohibiting the Police Officer from prosecuting in any particular Court, the Police can validly file an information in the High Court. The exclusion of Police Officers from appearing in the High Court is, therefore, only a matter of practice by legal practitioners and not of law.
PRIVATE PERSONS
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 CPA, and 143(e) of CPC.
By section 59(1) of CPA, the power of a private person to make a complaint against any person is subject only to statutory provisions, which says that only a particular person or authority may make a particular complaint (as a matter of procedure). This is also provided in section 342 of CPA. By section 143(e) of CPC, the Court may take cognisance of an offence if information received from any person other than a Police Officer, he has reasons to believe or suspect that an office has been committed. (The word information is used in the ordinary sense).
The following are instances of statutory provisions that may limit the powers of a private person to lay a complaint:
a) Section 98(c)(ii) of the Criminal Code provides that no proceedings for an offence of official corruption may be commenced against a judicial officer save upon a complaint or information signed by or on behalf of the Attorney General.
b) Section 52(2) of the Criminal Code provides that a person shall not be prosecuted for the offence of sedition unless the consent of the Attorney General is obtained.
c) Also, by section 142(1) of the CPC, any complaint of offences such as adultery and related offences itemised in section 387 and 389 of the Penal Code shall only be made by the husband, father, or guardian of the woman or girl involved.
It should be noted also that with the endorsement of the A-G, a private person can validly file an information whereupon an application by a private person to prosecute. If the Attorney General refuses to either prosecute or endorse, an order of mandamus may lie against him. In Fawehinmi v. Akilu (1987) 11-12 SCNJ 151; and A.G of Anambra State v. Nwobodo (1992) 7 NWLR (Pt. 256), private persons successfully obtained an order of mandamus compelling the Attorney General to endorse and certify their private information.
However, in some States such as Lagos State, the power of private person to file an information in respect of indictable offences has been limited to the offence of perjury – Akilu v.. Fawehinmi (1989) 1 NWLR (PT. 25) 26.
In practice, private persons usually lay their complaints at the police station.
SPECIAL PROSECUTORS
The statute creating a particular offence may specify the person or class of persons who may institute proceedings in respect of the same offence – section 176(2) of the Customs and Excise Management Act (CEMA), Cap C.45 LFN, 2004. The section provides that only the Attorney General of the Federation can prosecute for offences under the Act after the board must have sanctioned the same – Customs and Excise v. Senator Barau (1982) NCR (Nigeria Criminal Report) 1. Also, Section 66 of the Factories Act, also vests power of prosecution in respect of factory offences on the Inspector of Factories.
LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS
As a general rule, there is no time limit within which to commence criminal proceedings against an offender. In other words, proceedings may commence at any time after the commission of the offence. There are, however, some statutory exceptions:
1) Sedition – Under section 52(1) of the Criminal Code, proceedings in respect of sedition must be commenced within six months.
2) Treason and Treasonable Felony – Under section 43 of the Criminal Code, criminal action in respect of persons and treasonable felony must be commenced within two years.
3) Having Carnal Knowledge of a Girl under 16 – Contrary to sections 218 and 221 of the Criminal Code, offences under these two sections must be commenced within two months.
4) Offences under CEMA – Under section 176(3) of the Customs and Excise Management Act, offences must be commenced within 7 years.
However, there is no limit of time for the offence of conspiracy even when the substantive offence has become statute barred – Rex v. Simmonds (1967) 51 CRIM. APP. REP 316.
However, the protection accorded to public officers by section 2 of the Public Officers Protection Act is only in respect of civil actions and not criminal proceedings. In Yabugbe v. C.O.P (1992) 4 NWLR (PT. 234) 152, the trial court held that the provision of Section 2(a) of the Public Officers Protection Act, Cap 379 only protects public officers from civil proceedings. The Court of Appeal confirmed this decision. On further appeal to the Supreme Court, it was held:
i. That it is only civil legal proceedings against public officers that is subject to the limitation period of three months;
ii. That Public Officers Protection Act does not limit criminal proceedings against public officers for criminal acts or omissions committed in their official capacity; and
iii. Public officers remain liable to criminal proceedings arising from criminal acts or omissions in the course of their duties.
MODES OF INSTITUTING CRIMINAL PROCEEDINGS
The law lays down the methods by which criminal proceedings can be instituted in courts vested with criminal jurisdiction. The CPA and CPC both provide for ways of instituting criminal proceedings depending on:
a) The court before which the criminal proceedings are instituted; and
b) Whether the courts are in the Southern or Northern States of Nigeria.
Criminal proceedings may be instituted by the drafting and filing of charges in the Magistrates’ Courts and the States’ High Courts in the Northern States and the Magistrates’ Courts in the Southern States. However, it is instituted by drafting and filing of information in the States’ High Courts in the Southern States.
MAGISTRATES’ COURTS
There are three methods of commencing criminal proceedings in the Magistrate Courts viz:
1. By bringing the person arrested without a warrant before a Magistrate upon a charge duly signed by a Police officer;
2. By laying a complaint before a Magistrate; and
3. By laying a First Information Report before a Magistrate.
BY BRINGING THE PERSON ARRESTED WITHOUT A WARRANT BEFORE A MAGISTRATE UPON A CHARGE DULY SIGNED BY A POLICE OFFICER
This is provided under section 78(b) of CPA. It is the commonest method of commencing criminal proceedings in the Magistrates’ Courts in the South. The Charge Sheet must contain all the necessary particulars including:
a) The name of the accused person;
b) The offence committed;
c) Date of commission of the offence;
d) The place where the offence was committed and in case of property offences; and
e) The name of the person whose property is in issue.
It should be noted that in the South, as distinct from the North, a charge in the Magistrate Court is drafted by a Police officer whereas in the North, it is the Magistrate who frames the charge.
By Laying Complaint before a Magistrate
This is provided under sections 77(a) and 78(a) of the CPA as well as section 143(d) of the CPC. This method is common in both the CPA and the CPC States. A complaint is an allegation made either orally or in writing that a person has committed an offence – section 1 of the CPC and section 2 of the CPA.
A complaint need not be on oath except it is intended that by such complaint, a warrant of arrest may be issued against the alleged offender or it is otherwise provided by statute – sections 60(2) and 23 of the CPA. The complaint need not be in writing but where a complaint is made orally, the same shall be reduced into writing – section 61(1) of CPA and section 146(1) of CPC.
Before a criminal process by way of a warrant of arrest or criminal summons is issued, there must be enough particulars before the Magistrate showing not only that an offence had been committed but also that the alleged offender is linked to the commission of the offence – section 61 of the CPA. Criminal summons or warrant of arrest is issued usually based on the nature of the offence.
BY LAYING A FIRST INFORMATION REPORT BEFORE A MAGISTRATE
This is provided under section 143(b) of CPC. It is the commonest method of commencing criminal proceeding in the Magistrates’ Courts in the North and it is, indeed, peculiar to the CPC States. In other words, no State in the South operates the First Information Report (FIR) – sections 117, 118 and 143(b) of the CPC. By this method, a suspect arrested usually without a warrant is brought to a Police station where the Front Desk Officer (FDO) listens to the complaint against him usually by the Investigating Police Officer (IPO). If the Police officer, usually the FDO, is satisfied with the information that a prosecution will serve public interest, he receives the complaint in writing in the form called “FIR” which is the First Information Report Form. If he is not satisfied, he may refuse the information and the alleged offender is released.
If the information is received, the same shall be read over to the alleged offender who will, upon satisfaction, sign it. The statement of the offender may be taken at this stage. Thereafter, the suspect and the FIR are taken before a Magistrate, who, if satisfied that the allegation is well founded, would direct the matter to the magistrate who has jurisdiction in the matter and if he has jurisdiction, he will continue – sections 157 to 160 of CPC.
AREA COURTS AND CUSTOMARY COURTS
In the Area Courts and Customary Courts, the procedure is similar to what is obtained in the Magistrates’ Courts. In the Area Court, it is usually by an FIR and in the Customary Court by bringing the person arrested before the Customary Court Judge upon the charge duly signed by the Police Officer.
FEDERAL HIGH COURTS
Criminal trial in the Federal High Court is summary in nature and the mode of commencing it is by filing a charge against the accused person in the court – section 32(2) of the Federal High Court Act, 1973.
It should be noted that the charge must be signed by a law officer or by a Police officer, as the case may be – S 56(1) of the Act; Federal Republic Of Nigeria v. Osahon (supra).
State High Courts
There are five recognised methods of commencing criminal proceedings in the States High Courts. They include:
1st Procedure
By information filed with the direction or consent of a High Court Judge in respect of an indictable offence – S 340(2) of CPA.
The consent of a High Court Judge is a condition precedent to the filing of information in the High Courts in the South. By section 340(3) of the CPA, any information filed without the requisite consent is liable to be quashed. In A-G of the Federation v. Clement Isong (1986) 1 QLRN 75, the appellant was charged upon an information containing two counts of being in possession of firearms and ammunitions, without the consent of a High Court Judge having been first sought and obtained. The Court quashed the information upon the application of the appellant; Also, Okafor v. The State (1976) 1 ALL NLR (Pt. 1) 385; and The State v. Akilu & Anor (UNREPORTED) Suit No. LD/4C/88.
However, the CPA is silent on the procedure for bringing an application for consent. So relying on section 363 of the CPA, recourse is usually had to the Administration of Justice (Miscellaneous Provisions) Act, 1933, precisely the Indictment (Procedure) Rules, 1971. In other words, the Indictment Procedure Rules is made under the Act and it is an English Act. By this provision, the application for consent is usually in writing and is accompanied by the following:
1) A copy of the proposed charge;
2) Where the application is brought by any other officer than the Attorney General himself, an affidavit by the applicant to the effect that to the best of his knowledge, the facts contained in the information are true;
3) Unedited Statement of the accused person; and
4) Where a similar application had been made previously, the fact must be disclosed as well as the result of such application.
It should however be noted that these rules have been abolished in England. At present, especially in Lagos State, an ordinary letter together with the proof of evidence will do – Belgore, JSC in Abacha v. The State (2002) FWLR (Pt. 118) 1224, the Attorney General of Lagos State commenced criminal proceedings by a letter written to the Registrar of the Court. The Supreme Court approved this procedure
Where the proof of evidence in the opinion of the Judge discloses a prima facie case, justifying calling on the accused for some explanation, consent will be granted – Ikomi v. The State (1986) 3 NWLR (Pt. 28) 340 at 341; (1986) 5 SCNJ 313, it was held that what is required to grant consent is that the Judge is satisfied that there is a prima facie case against the accused.
Where the proof of evidence does not disclose a prima facie case, the Judge will refuse consent. Where a Judge refuses to grant consent, the same application can be made before another of the same High Court – Ghali v. The State (1974) 5 SC.
Where consent is granted and the accused person is aggrieved by the grant of consent, he may apply that the information be quashed on the ground that the proof of evidence discloses no prima facie case against him – Egbe v. The State (1980) NCR 341, In, Ikomi v. The State (supra), the Supreme Court held that what is required to grant consent is that the Judge is satisfied that there is a prima facie case against the accused.
It should be noted at all times, that the determining factor either to give consent or not is whether the proof of evidence disclose a prima facie case against the accused.
2ND Procedure
By a charge filed with the leave of a High Court Judge under section 185(b) of the CPC. The procedure is similar to the procedure for consent under the CPA as it involves an ex parte hearing. The procedure is as provided for in the Criminal Procedure (Application to Prefer a Charge in the High Court) Rules, 1970. This is the commonest way of commencing criminal proceedings in the High Court in the North.
The application for leave is accompanied by the following:
a) A copy of the Charge sought to be preferred;
b) Name of the witness(es) who will testify at the trial;
c) Proof of evidence; and
d) The statement must also state whether a similar application had been made previously and also that no preliminary inquiry had been conducted in the matter – Ohwovo Riole v. Federal Republic of Nigeria (2003) FWLR (Pt. 141) 2019 at 2033.
Although it is trite (basic) that if one Judge refuses an application, same application may be made to another Judge of the same High Court. A decision refusing consent is a final decision and therefore appealable – Ghali v. The State (supra).
3RD Procedure
The third procedure is by laying a complaint before a High Court Judge. This procedure is provided under section 77(b)(iv) of CPA and section 143(d) of CPC. The complaint may be or may not be on oath. Unlike filing information, consent or leave is not required here and non-indictable offences are usually brought before High Court in the South via a complaint – In D.P.P v. Aluko (1963) 1 ALL NLR 398, it was held that in the Southern States, the States’ High Courts exercise jurisdiction in “any non-indictable offence brought by complaint, among other indictable and non-indictable offences”.
4TH Procedure
By information filed in the court after the accused has been summarily convicted for perjury – section 77(b)(ii) of the CPA. There is no similar provision in the CPC as such.
5TH Procedure
By information filed in the High Court by the Attorney General in his official capacity in cases where the Attorney General in England may file such similar information – sections 77(b)(i) and 72(1) of the CPA.
Conclusion
The institution of Criminal
CONTENTS
•Persons who have power to institute criminal proceedings
- The Attorney-General
- The Police
- Private Persons
- Special Prosecutors
- Private Legal Practitioners
•Limitation of time within which to commence criminal proceedings
•Modes of instituting criminal proceedings in the various courts in Nigeria –Information, charges, complaint and F.I.R
•Practice Directions at the Federal High Court and F.C.T. High Court
•Since every offence committed by a person is an affront on the state, it is the state that has the competence to institute criminal proceedings against such person. It was held in The State v Squadron Leader S.I. Olatunji (2003) 14 NWLR (pt. 839) 138 that where there is no competence to institute criminal proceedings any trial in such proceedings is a nullity.
•Competence is so crucial in prosecution such that an indictment without jurisdiction will be quashed, even after the prosecution has closed its case. See Okafor v The State (1976) 5 S.C. 7
●The institution of criminal proceedings in Nigeria is governed by several procedural laws in different jurisdictions.
We shall examine those who are empowered under the law to institute criminal proceedings and the various means of instituting criminal proceedings in various Courts in Nigeria.
THE ATTORNEY-GENERAL
•The office of the AG is created under Ss 150(1) and 195(1), of the CFRN 1999 for the federation and States respectively
•The Attorney-General is the Chief Law Officer and also Minister and Commissioner for Justice of the Federation and the States respectively. Ss 150 & 195 CFRN1999
•AG- Ss 174 & 211 CFRN- Power to-
–institute and undertake,
–take-over and continue, and
–discontinue any criminal proceeding against or in respect of any offender in their respective jurisdictions in any court of law except a court-martial.
•To initiate or institute and undertake-By SS. 174(1)(a) & 211(1)(a) 1999 CFRN, both the Federal and State Attorneys General can initiate or institute criminal proceedings in any Court established under any law in Nigeria, except a Court Martial.
•In Akpa v State (2008) All FWLR (pt. 420) 644, the Supreme Court held that the Attorney-General has unfettered discretion to prosecute persons in respect of any offence.
•Generally speaking, the powers of A.-G Federation is restricted to federal offences and the powers of the A.-G States are restricted to state offences.
●NOTE- AG has the discretion to charge some suspects & not charge others even if alleged to have committed same offence. Abacha v. State (2002)FWLR (pt 118) 1224 @ 1289; Also see
Akpa v. State (Supra)
•The A.-G of a State can, however, prosecute a federal offence in two circumstances:
1) Where a Federal Law is intended to operate as a state law. Emelogu v The State (1998) 2 NWLR (pt. 78) 524
2) By the instrumentality of a fiat, where the A.-G of the Federation delegates the authority to him. (This is usually in respect of a particular proceeding). Where there is no such delegation, the A.-G State cannot prosecute federal offences. See Anyebe v The State (1986) 1 NWLR (pt. 14) 39; S. 286(4) ACJA
•Note that while S.174(1)(a) CFRN provides for prosecutorial powers of AG for offences created by or under any Act of the National Assembly, S.211(1)(a) CFRN provides for offences created by or under any Law of the State Houses of Assembly.
•Note that even where there is no incumbent AG, Officers of the department are usually authorized to initiate & undertake criminal proceedings. See Saraki v. FRN (2016) 3 NWLR (pt 1500) 531@ 581-582.
•Who are Law Officers? S.3 Law Officers Act; Awobotu v. State; State v. Okpegboro.
POWER TO TAKE OVER AND CONTINUE CRIMINAL PROCEEDINGS
•The AG can take over and continue criminal proceedings instituted by any other authority or person, including the Police, EFCC, ICPC, Customs, NDLEA, INEC, private prosecutors or any other Prosecutor.
•See Amaefule v The State (1988) 2 NWLR (pt. 75) 238; Nyame v FRN (2007) 7 NWLR (Pt. 1993) 344
POWER TO DISCONTINUE CRIMINAL PROCEEDINGS
•The power of the AG to discontinue criminal proceedings, also known as nolle prosequi is unarguably the most far-reaching and controversial of the powers.
•This power is exercised either orally by the AG in person or in writing through any of the officers in his department. See ss 124, 270, ACJL Kano, 77 (1), (b) ACJL Lagos, 107 ACJA.
•S.124(1) ACJL Kano provides inter alia that at any stage before judgment for an offence created by the Law of Kano State, AG may enter nolle either by stating in Court or informing Court in writing that proceedings be discontinued.
•Thereupon, the defendant shall be at once discharged in respect of that Charge or Information for which the nolle prosequi is entered. Also see similar provisions- S. 107 ACJA.
•In State v. Chukwurah (1964) NMLR 64, a State Counsel made an oral application to discontinue proceedings pursuant to S.73 CPL. It was refused on the ground that only the AG could make an oral application to discontinue proceedings.
•But S.71(1) ACJL Lagos provides that the AG of Lagos shall discontinue proceedings either by himself or through Officers of his department & defendant shall be discharged immediately. No requirement for written authority in Lagos.
•The effect of entering a nolle prosequi is a mere discharge-
• (NEVER an acquittal) of the defendant. See Clark v A.-G Lagos State (1986) 1 QLRN 119
●Nolle prosequi in Latin means “will not prosecute” or “do not wish to proceed” See Audu v. AGF (2013) 8 NWLR (pt 1355) 175 @203.
●It does not matter who initiated case sought to be discontinued by the AG.
•NOTE- When there is no incumbent AG, no other officer in the AG’s department can enter nolle prosequi- A.G Kaduna v Hassan (1985) NWLR (pt. 8) 483
•Can Nolle be entered on appeal?
•The power of nolle prosequi is unfettered and cannot be questioned even by a court State v Ilori (1983) 14 NSCC 69
•Can not be entered on appeal or in Court Martial
•As regards the exercise of the powers of the AG under Ss 174 & 211 CFRN, he is a law unto himself, cannot be questioned, not subject to any control except, public opinion & the reaction of his Appointor. State v. Ilori.
DELEGATION OF POWERS OF THE ATTORNEY-GENERAL
•Sections 174(2) and 211(2) of the 1999 Constitution are both to the effect that the foregoing powers of the AG can be exercised by officers in his department.
•The AG may also delegate his powers to the Police, Customs, EFCC and other agencies with prosecutorial powers. Saraki v FRN (2016) LPELR-40013(SC); Comptroller of Prisons v Adekanye (2002) 15 NWLR (pt. 790) 318
•The power of delegation must be made expressly A.-G Kaduna State v Hassan (1985) NWLR (pt. 8) 483, Ibrahim v State (1989) 1 NWLR (pt. 18) 650
•The power to institute criminal proceedings can be exercised even where there is no incumbent Attorney-General Saraki v. FRN
•However, the power to discontinue a criminal proceeding can only be exercised where there is an incumbent Attorney-General. A.G Kaduna v. Hassan (1985) NWLR (pt. 8) 483
NOLLE PROSEQUI vs. POWER OF DISCONTINUANCE
•The power to enter nolle prosequi should be distinguished from the power of a prosecutor to discontinue criminal proceedings under Sections 125 ACJL Kano, 73 ACJL Lagos and 108 ACJA.
•The major differences are as follows:
Differences between Nolle Prosequi and withdrawal by Prosecutor under Ss. 108 ACJA, 125 (1) & (2) ACJL Kano, 73 ACJL Lagos.
1) While effect of a nolle is always a discharge, effect of withdrawal under the above sections may be a discharge or an acquittal.
2) Where the withdrawal is made before defence, it will be a discharge but where the withdrawal is made after defence it will be an acquittal.
3) Withdrawal under the above sections requires the consent of the judge while in case of nolle, consent of the judge is not required.
4) Court may award costs against a prosecutor who discontinues proceedings but lacks such power in respect of a nolle.
•Therefore, effect of a nolle is always a discharge irrespective of the stage it is entered, even if on date fixed for judgment, while the effect of a withdrawal is a discharge or an acquittal depending on the stage of the trial.
Entering a nolle is at the discretion of the Attorney-General while withdrawal is subject to the consent of the court.
The court may award costs against a prosecutor who discontinues proceedings but lacks such power in respect of a nolle.
•In exercising his (A.-G's) powers under s 174(3) and 211(3) CFRN 1999, the AG is required to have regard to public interest, the interest of justice, and the need to prevent the abuse of legal process.
•The above provision was tested in State v Ilori, and the Supreme Court held that the provision imports a discretion but certainly did not create a condition.
THE POLICE
•The power of the Police to institute criminal proceedings is statutorily provided under Section 66 (1) of the Police Act 2020. This power is made subject to the power of the AG
•The law was settled that the Police had power to institute criminal proceedings in all courts in Nigeria. Olusemo v. COP (1998) 11 NWLR (pt. 575) 547, Osahon v. FRN (2006) 5 NWLR (pt. 973) 361. This was irrespective whether the officer is a legal practitioner or not.
•CURRENT POSITION- However, under the Police Act 2020, only police officers who are legal practitioners can prosecute criminal matters in superior courts of record in Nigeria.
•Sections 78 of the ACJL Lagos and 123 (3), 129 ACJL Kano, lay police prosecutors can prosecute only in magistrates courts. Contrast with ss 106, 268, 381 ACJA. See s 141 Police Act 2020 for definition of Court.
•The implication of the above is that Olusemo v COP and Osahon v FRN are no longer applicable for now in view of Section 66 of the Police Act 2020.
PRIVATE PERSONS
•The various criminal procedure laws recognise the power of private persons to institute criminal proceedings – Ss 77 (1)(b)(ii)& 254 cf 57 ACJL Lagos, 121(1), 123(1)(b), 125(4), 126(e) ACJL Kano, 381(d) ACJA
•The only limitation to the right of a private person to initiate criminal proceedings is where the law or enactment specifically provides for the class of persons that can initiate such action.
•Before an information signed by a private person is received by the Registrar of a court, certain conditions must be fulfilled:
•The first is that there must be an endorsement by the Attorney-General stating that he has seen the Information and declines to prosecute at the public instance, the offence(s) contained in the Information.
•Where AG refuses to prosecute and refuses to endorse, mandamus will lie against him to secure his performance of duty. See AG Anambra State v. Nwobodo (1992)7 NWLR (pt252)711; Fawehinmi v.Akilu(1987)11-12 SCNJ 151.
Secondly, the private person shall enter into a recognizance in the sum prescribed by the statute, together with a surety in the like sum.
ACJA- Court to fix the sum.
To pay such costs as may be awarded by Court. S. 322 ACJA, 354(b) ACJL Lagos.
Other Statutory Limitations to the Right of A PRIVATE person to PROSECUTE
Proceedings for an offence of official corruption against a Judicial Officer- Information must be signed by the A.-G.
For the offence of sedition, the private person must seek the consent of the A.-G.
Adultery and related offences under sections 387,388 & 389 of the Penal Code only the persons specified therein can institute the action.
Adultery, proceedings only by husband or guardian of woman alleged to have committed or with whom the offence was committed.
SPECIAL PROSECUTORS
SPECIAL Prosecutors
•The statute creating an offence may designate a particular person or officer as the appropriate person to initiate proceedings. The Statutes that create special prosecutors include:
•The EFCC (Establishment)Act See Ibrahim Shehu Shema v. FRN (2018) LPELR-43723(SC)
•Customs and Excise Management Act See Customs & Excise v. Barau (1982) 2 NCR 1
•The special prosecutor need not be a lawyer E.g. Section 66 of the Factories Act vests the power of criminal proceedings in respect of factory offences on the Inspector of Factories.
PRIVATE LEGAL Practitioners
The Attorney General can brief a private legal practitioner to act on his behalf. In this case, such private legal practitioner requires a fiat from the AG which authorises him. (DPP v. Akozor (1962) 1 All NLR 235, FRN v ADEWUNMI, GEORGE v FRN,). This practice has now been codified in S 106 and 381(c) of the ACJA.
Authorization is by way of Fiat- Latin word meaning “Let it be done”•NOTE S.145(2) Electoral Act 2022 – Provides that prosecution for Electoral Offences under the Act shall be undertaken by Legal Officers of the Commission or any Legal Practitioner appointed by it.
LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS
LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS
•As a general rule, there is no time limit within which to commence criminal proceedings against a person.
•Certain exceptions are, however, provided by statutes and include:
•Treason and Treasonable Felonies: within 2 years of the commission of the offence - s 43 CC.
•Sedition: within 6 months of the commission of the offence - s 52(1) CC.
•Proceedings under the Customs and Excise Management Act (CEMA): within 7 years of the commission of the offence
- s 176(3) CEMA.
•Private complaint under s 92 of ACJA, private complaint must be made within 6 years.
•Defilement offences provided for in ss 218 and 221 of the Criminal Code Law must be commenced within 2 months of the commission of the offence.
•BUT NO LIMITATION FOR RAPE
•Service men (after retirement):
3 months - s 169(2) Armed Forces Act.
3 years if still in service.
•Note that all Military offences, except Mutiny, failure to suppress mutiny and desertion must be instituted within 3 years if still serving or 3 months after disengagement of service. S.169(2) Armed Forces Act.
•Offences listed above have no time limit. S.169(1) Armed Forces Act.
•Note that no limitation of time for bringing criminal action against Public Officers. S.2(a) Public Officers Protection Act applies only to civil proceedings and not criminal actions. See YABUGBE v. COP (1992) 4 NWLR (pt 234) 152.
•NOTE-
No limitation of time for offence of conspiracy to commit all the above or any other offences. Offence of conspiracy cannot be statured barred even if the substantive offence is!!!
•Computation of time *From the day after the offence is alleged to have been committed to the day charges are instituted in court. The day offence is committed is excluded. Counting starts next day. RADCLIFF v. BARTHLOMEW (1892)1QBD161. MAYAKI v. STATE (1981)1 NCR 25.
MODES OR METHODS OF INSTITUTING CRIMINAL PROCEEDINGS IN NIGERIA
MAGISTRATES’ COURTS UNDER THE ACJL KANO (AND OTHER STATES IN THE NORTH)
⦿ By a complaint whether or not on oath. Section 126 (a) ACJL Kano
⦿ By bringing a suspect arrested without a warrant before the court on a complaint. S. 127 (1) (a) ACJL Kano.
⦿ Upon receiving a First Information Report (FIR) . S. 126 (a) & 127 (b) ACJL Kano
FIRST INFORMATION REPORT (FIR) is only applicable in Magistrate Courts under ACJL Kano & other Northern States & ACJA.
FIR Form has a written statement alleging commission of offence, usually brought before the Magistrate together with suspect. If Magistrate is satisfied that allegation is of an offence known to law, will sign the FIR.
Allegations are read and explained to accused, who is asked if he has cause to show why he should not be summarily convicted, based on the allegations contained in the FIR. See S. 127 (1) (b) ACJL Kano, 112 ACJA
Note- Difference between short & long summary trial.
MAGISTRATES’ COURTS UNDER ACJL LAGOS & OTHER SOUTHERN STATES
⦿ By bringing a person arrested with or without a warrant before the Magistrates’ court upon a charge contained in a charge sheet.
S. 78 ACJL Lagos
Charge in Magistrate Court under ACJL Lagos & South usually drafted and signed by the Police Officer, but this does not exclude Law Officers from doing same. STATE v. OKPEGBORO (1980)2 NCR 291.
Note difference with ACJL Kano where Magistrate drafts after prima facie case established by Prosecution.
MAGISTRATES’ COURTS UNDER THE ACJA
⦿ By bringing a person arrested upon a charge contained in a charge sheet. S. 110(1)(a) ACJA
⦿ By laying a First Information Report before a Magistrate. S. 110(1)(b) ACJA
⦿ By laying a complaint before a Magistrate. S. 110(1)(c) ACJA
HIGH COURTS UNDER ACJL KANO & OTHER NORTHERN STATES
⦿ CHARGE by the Attorney-General of the State or by any Officer of his department, Legal Practitioner or person authorized by the Attorney General of Kano State. See Ss.121, 123, 126 & 127 ACJL Kano
⦿ CHARGE filed in the court after the Defendant has been summarily committed for perjury by a Court. S. 126 (c) Kano.
⦿ By CHARGE filed in the court by any other prosecuting authority. S. 126 (d) ACJL Kano.
⦿ By a Charge filed by a private prosecutor. S. 126 (e) ACJL Kano.
⦿ Upon receipt of a COMPLAINT by the Attorney General . S.126(f) ACJL Kano
⦿ In the High Court of Kano State, under the ACJL Kano, leave of the High Court Judge is no longer required to be sought before criminal proceedings are instituted therein.
NOTE- The States that still maintain the CPCL the application for consent or leave is a prerequisite to ignite the jurisdiction of the court by adhering thus;
HIGH COURTS UNDER ACJL LAGOS & SOUTH
⦿ By Information of the AG of the state. S. 77(1)(b)(i) ACJL Lagos
⦿ By Information, filed by a private prosecutor. S. 77(1)(b)(ii) ACJL Lagos
⦿ By Information filed in court after the Defendant has been summarily committed for perjury . S. 77(1)(b)(iii) ACJL Lagos
⦿ Summarily in respect of contempt.
S. 77(1)(b)(iv) ACJL Lagos
NOTE- INFORMATION IS NOT THE SAME WITH FIRST INFORMATION REPORT
HIGH COURTS UNDER THE ACJA (THIS APPLIES TO ONLY HC OF THE FCT NOT FED HIGH COURT/NIC)
⦿ In the High Court, by Information of the Attorney-General of the Federation. S. 109(b) ACJA
⦿ By Information or charge filed in the court after the defendant has been summarily committed for perjury. S. 109(c) ACJA
⦿ By Information or charge filed in the court by any other prosecuting authority. S. 109(d) ACJA
⦿ By Information or charge filed by a private prosecutor. S. 109(e) ACJA
FEDERAL HIGH COURT
⦿ Actions are commenced before the FHC by way of a CHARGE; This is despite the provision of S.109 of ACJA which has a general provision. See. S.33 of the FHC Act, which has a specific provision on commencement of action at FHC. See FRN v. Obinna Ezerioha (Charge No. FHC/OW/46C/2016).
NATIONAL INDUSTRIAL COURT
Section 109 of the ACJA is applicable.
⦿ By Information where the AG is initiating the proceedings
⦿ Where any other person or authority is prosecuting, a charge or Information would be filed.
NOTE- IF AGF INSTITUTING HERE OR IN HC FCT, MUST BE BY INFORMATION AND NO OTHER METHOD. BUT IN FED HIGH COURT, ONLY BY CHARGE WHOEVER IS INSTITUTING.
EFFECT OF THE FEDERAL HIGH COURT AND FCT HIGH COURT PRACTICE DIRECTIONS
•The Federal High Court practice directions relate to the offences of terrorism, trafficking in persons, rape, corruption and money laundering.
•The FCT High Court Practice Directions relate to applications for leave to prefer a criminal charge by the EFCC, ICPC or any other agency charged with the prosecution of criminal offences.
Under the High Court of the FCT Practice Directions, in all applications seeking leave to prefer a criminal charge, a court may not hear the application until the Defendant is brought before it. It also requires, in addition to other provisions, that such application must be accompanied by an affidavit stating that all investigations have been concluded and that there is a prima facie case against the defendant.
The Federal High Court Practice Direction makes similar provisions regarding presence of the defendant and supporting affidavit.
•However, while the FCT HC Practice Direction relates to application for leave before preferring a Charge, the Federal High Court Practice Direction relates to procedure to be adopted in proceedings before the Court during hearing.
•These Practice Directions whether of the FHC or FCT High Court are made to ensure speedy dispensation of justice.
•Where there is a conflict between the Practice Directions and the Rules of Courts, the Rules of Courts will prevail over Practice Directions.
•Some of the Practice Directions made by these courts bothers on existing law. For instance, the provision that an Defendant must be present in court on the arraignment has been taken care of by the case of Adeoye v The State [1999] 6 NWLR (Pt. 605) 64.
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