OUTCOMES

At the end of this lesson students would be able to;

1. Identify and explain who can institute (commence) Criminal proceedings.
2. Explain and discuss how to commence criminal proceedings in the various courts in Nigeria.
3. Discuss limitation of time to commence criminal proceedings.

Unlike civil proceedings where there are no specific persons for instituting proceedings in criminal proceedings there are persons empowered to institute criminal proceedings:

• Attorney general
• Police
• Private persons
• Special prosecutors

ATTORNEY GENERAL OF THE FEDERATION AND THE STATE– They derive their powers directly from the constitution – s174& 211 of the 1999 constitution provide for the powers of the attorney general of the federation and state respectively. The AG of the federation powers relate to offences created by the National Assembly. While the state have their powers for offences created by the state house of assembly. Their powers include the power to commence by himself or by members of his chambers; counsels working within the office of the AG. He can institute, or take over; he also has the powers to delegate the powers granted to him under the constitution expressly or impliedly to any members of their office or chambers. They also have the powers to discontinue at any time before judgment is given or delivered. The AG of the state and the federation have ultimate powers, they can decide who to prosecute and who not to prosecute. They can decide to prosecute offender A and not prosecute offender B even though they committed the offence together. They can exercise their functions in every court including the magistrate court. The only court they don’t have jurisdiction to commence trial or exercise their other powers is the court martial. This exclusion is different from the power of a state counsel to defend a matter before the court martial. Ordinarily the Attorney General of the Federation has power to institute offences created by the National Assembly while the State Attorney General executes his powersin relation for state offences. In taking over or exhibiting any of his powers he must pay attention to avoid abuse of court of process. See s 371 for definition of law officer.

• Power to take over – this refers to the fact that if he has not commenced the proceedings i.e. if the matter was instituted by a police officer or any other person, the AG can take over orally in person or he can send a member of his office e.g. a state counsel in written form to take over the matter.
• Power to institute – they have the power to institute proceedings in all courts except court martial. Note Anyebe v State: here the offence was created by the act of the National Assembly and when it went on appeal the conviction was quashed and the state AG had no business prosecuting an offence created by the National Assembly. Also Emelogu v The State – here the act of the National Assembly was to operate as a state law and so the state AG could institute the matter. Note the two cases, they’re both Supreme court decisions
• Power to discontinue – the AG can discontinue a proceeding orally in person or he can send a member of his office e.g. a state counsel in written form to discontinue a matter. It is an absolute power; the AG has power to discontinue at any time before judgement is given. This is known as a NolleProsequie. He doesn’t have to give reasons why he is discontinuing and the court cannot refuse. It is an absolute power. A peculiar feature about this power is that any time this power is to be exercised there must be an AG in office. This power cannot be exercised in the absence of an attorney general, so if there is no AG in office and any member of the office goes armed with a written authority to discontinue the case, the power would not be valid and it would amount to an abuse of court process. See AG Kaduna state v Hassan – the court held that the power was personal to the AG and the solicitor general wanted to execute the power when there was no AG in office so, the court refused. Also see State v Obaze.

See also Saraki v FRN (2016) – the office can still institute even though there is no incumbent AG in office.

Where the power of discontinuance is exercised under Nolleprosequie it amounts to a mere discharge, the accused person can still be prosecuted later for the same offence. It doesn’t amount to autrefois acquit. See State v Obasi [1998], Ibrahim &orsv the state [1986]. *So regardless of the point in the trial the Nolleprosequieis entered it still amounts to a mere discharge and not an acquittal.**

THE POLICE

They are empowered under the police act to institute criminal proceedings and no statute limits them to the inferior court. The police are equally empowered to prosecute cases in any court but this was challenged in two cases Olusemo v COP – here it was held that for a police officer to prosecute in a superior court he must be a Legal Practitioner. In a later case of Osahon v FRN[2006] it was held that they don’t have to be lawyer to prosecute cases in the superior court, just that because of the technicality in superior court, in practice they may refrain from doing so, but no law prevents such. So they can initiate proceedings and sign it in their own name. The only limitation to the power is that their power is subject to that of the Attorney General to take over. See also s 4 & 23 of the police act

If the police officer wants to withdraw the proceedings, how can he do that?

The power of the police to withdraw can be found in s 75 CPL, 73(1) ACJL, 108 ACJA. This also empowers any other prosecutor. If there is no incumbent AG and members from the department want to withdraw a case they can use these provisions of the statute to withdraw the case.

It depends on the stage whether the withdrawal amounts to an acquittal or mere discharge. If its before the defendant has made his defence then it amounts to a discharge, so he cant bring autrefois acquit, if its after he has made his defence then it amounts to an acquittal, so he cant be tried again for that matter. See 73(1) ACJL, 108 ACJA.

Under ACJL the police officer must give reason for a withdrawal under the reasons and the court has the discretion to consent or non-consent to the withdrawal, and the court may question the withdrawal by the police officer or any other officer.

PRIVATE PERSONS

In practice it is uncommon to see a private person institute criminal proceedings. Note that this is different from the AG granting a private Legal Practitionerauthority to prosecute on behalf of the state. A private person prosecuting will prosecute when there is an offence committed which the state ought to prosecute but fails to institute the proceedings/ neglected to prosecute. So there’s a difference between private Legal Practitioner’s empowered to prosecute and private persons prosecuting.

There are conditions under the ACJA and ACJL where the private person is to institute a claim

• The private person will take the complaint to the AG and show him the matter the state failed to prosecute, the AG must endorse that information giving him (the private person)permission to commence the proceedings
• Once he has been given that authority he can sign it in his own name and not in the name of the AG, so he can go on and prosecute the case.
• S 254 ACJL provides that he would give his word/ undertaking that he would prosecute it to the conclusive end. And he would pay a certain sum.
• Where the AG refuses to endorse it (the claim) and there is a prima facie case worth prosecuting an order of mandamus may be taken against the AG - **GaniFawehinmi v Akilo

Where the state feels they need the expertise of a private LP who is experienced, the statute empowers the AG to give him the case – this is called a Fiat. In this regard he would sign in the name of the AG because he would be prosecuting on behalf of the state. See NafiuRabiu v State ,

SPECIAL PROSECUTORS

There are statute related offences and the statute will empower certain officers working in that category to prosecute cases emanating from that statute. So the statute creating the offences will also empower officers working under that statute to prosecute cases emanating from it.

Examples include:

• Customs and excise management act – the customs officers, comptroller general are empowered to prosecute such cases by virtue of that statute.
• NDLEA – creates and empowers officers to prosecute such matters
• Factory offences emanating from factories act where inspectors of factories are empowered to prosecute such cases.

The specialprosecutor need not bea Legal Practitioner, if he is the head of department or head of unit he is empowered to represent the institution in the matter arising therefrom. Note that casesinitiated by specialprosecutors are still subject to the power of the AG, so the AG can take over such cases.

MODE OF INSTITUTING CRIMINAL PROCEEDINGS

MAGISTRATE COURT

In magistrate court, whether south or north the main method is by bringing a person arrested with or without warrant upon a charge. State v Akpoboro.

The second mode is by laying a complaint, oral or written on oath before the court. In Lagos state trial by complaint is no longer recognised either in the high court or magistrate court.

In the magistrate court in the north and FCT by filing first information report (FIR) s 143(b) CPCL, 112 ACJA

First information report (FIR)

This is the commonest mode of bring cases in the north, area / magistrate court.

Procedure

When a complaint is made to the police, the first step is that he would reduce it to a prescribed form called FIR form. The FIR form contains all the details, the offence where it was committed and particulars of the offenders. The filled and ready FIR form will then be taken to the magistrate court. Once it gets to the magistrate, the FIR report will be read to the accused person, if he admits that what is containedin the form is true the magistrate will not draft a charge, he would just try the accused person summarily, convict him accordingly and sentence. If however the accused denies what is written in the FIR form, the magistrate will then take the prosecution’s evidence and if there is a prima facie case having taken the prosecutions evidence, the magistrate will go ahead to draft a formal charge taking him to trial. The matter will then be tried by him or another court with jurisdiction. If there is no prima facie case and no case is made out then the magistrate will discharge the accused person Karunami v Bornu Native authority, s 159, 160 CPCL.

 It is important to note that the magistrate must take the prosecution witnesses before attempting to draft a formal charge Ebeziapo v COP. If the magistrate fails to take the prosecutions witnesses it may lead to the conviction being quashed on appeal.Harunami v Bornu Native authority

STATE HIGH COURT

• By filing information with consent of the high court judge. This is peculiar to the southern state, in the northern state charges are preferred. No consent is required in Lagos state before information is filed. In the south where consent is required it is mandatory. The CPL is silent on the mode of obtaining consent, the mode that is adopted is that of the English rules
• A written application accompanied a) copy of the proposed charge – the charge against the accused including the annotated statement of the accused b) proof of evidence - statement that the witness will be available; and c) if previous applications have been made to other judges it must be indicated that previous applications have been made.

*see 379 ACJA for contents of information

• By preferring a charge with leave of court, this is common in the north
• By laying a complaint before the high court – this is applicable in north and south. Complaint is usually for non-indictable offences and no consent is needed for offences
• Exhibition of information at the high court – this is in the south by the AG
• In the high court of the FCT, the ACJA provides for how to commence in the FCT high court. By preferring a charge and …..

FEDERAL HIGH COURT

In the federal high court offences are commenced by filing a charge and the offences are still triable summarily. Consent is not needed to proffer/ file a charge in the FHC see 33 (2) FHC Act;Nwazuike v AG federation.

Who can institute cases at the FHC? The AG of the federation, special prosecutors and person mentioned in s56 Federal High Court Act which stipulates persons who can prosecute cases in the FHC.

Limitation of time

Generally in criminal proceedings time doesn’t run when an offence is committed. An offence can be tried at any time unless the statute creating it provides otherwise.

However there are few exceptions:

• Treason and treasonable felony must be instituted/prosecuted within two years of commission of the offence s 43 Criminal code
• Sedation must be prosecuted within 6 months
• Customoffences created by the customs and excise management act must be broughtwithin 7 years of the commission otherwise it becomes statute barred
• Sexual offences against girls under 13 years - defilement against girl under 13 years or imbeciles must be brought within 2 months s218 and 221 of criminal code
• Criminal complaints by a private person of crimes within his knowledge must be instituted within 6 years
• Military offences under the armed forces act must be instituted within 3 years of commission except mutiny or desertion. However military offences committed by military officers who have retired while they were in office (while they were subject to service law) must be charged within 3 months otherwise it becomes statute barred s169(2) of the armed forces act.

Time does not run against conspiracy. Conspiracy to commit an offence may be prosecuted at any time even though the actualoffencecommitted has become statute barred. See R v Simmons.

Public officers protection act does not protect public officers or civil servants who commit criminal offences. It applies to civil proceedings alone. Before the case of Yabugbe v COP, the reasoning was that the protection included criminal proceedings to protect public officers but when the case was decided, it stated that s 2 of the Public Officers Protection Act only related to civil liabilities committed by the public officers. But for criminal offences committed by public officers they can be prosecuted for it.

Difference between a Nolle Prosequi and withdrawal

Withdrawal relates to individual counts in the charge sheet, it also may be to some certain defendants not all the defendants, while nolle prosequie terminates the whole proceedings and all the defendants. A nolle cannot be appealed against, while a withdrawal can be appealed against and it is to the discretion of judge to consent. Read s 75 CPL, 73 ACJL, 108 ACJA and compare the differences.

NOTE: INTERACTIVE SESSION FOR TASK QUESTIONS WAS NOT HAD BUT WILL BE HAD AT A LATER DATE.