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22 Jan

CRIMINAL LITIGATION WEEK 7 (INSTITUTION OF CRIMINAL PROCEEDINGS)

WEEK 7

INSTITUTION OF CRIMINAL PROCEEDINGS.

Suits should be commenced in the proper (seized and constituted) court through the proper process by the proper person(s). Green v Green, Madukolu v Nkemdilim.

:: PERSONS WHO HAVE POWER TO INSTITUTE CRIMINAL PROCEEDINGS.

– THE ATTORNEY GENERAL: 174 and 211 CFRN. Except in a Court Martial. The Federal and State AGs have absolute discretion[1] to institute, takeover and discontinue criminal proceedings in respect of offences within their respective fields[2]. 174 and 211 (1 a, b and c respectively)-State v Ilori. Mohammed v The State. Abacha v State, Saraki v FRN.

The power to do these can be delegated (except power to enter nolle proseque[3] i.e. discontinue)-AG Fed v ANPP. In fact, where there is no incumbent AG, there can be no nolle proseque-AG Kaduna State v Hassan.

Nolle cannot be questioned but the aggrieved party may petition the appointing authority, use media/public opinion to criticize and maintain a civil action against the AG for wrong use of nolle-State v Ilori

– THE POLICE: Pursuant to Section 4, 23 Police Act. They can sue in both magistrate and superior courts-Olusemo v COP. FRN v Osahon. Police usually institute as commissioner of police or Inspector General of Police for state and federal offences.

– PRIVATE PERSONS: can lay a complaint except an enactment stipulates a particular person/authority[4]. See Section 59 CPL. A private person (armed with the fiat/endorsement of the AG[5]) may file an information-Nafiu Rabiu v The State, COP v Tobi, Gwonto v The State See 77 ACJL. Where AG refuses to sue or endorse, mandamus can lie against the AG to secure his performance of the duty-Gani Fawehinmi v Akilu, Anambra State v Nwobodo.

Private prosecutors may also be employed by AG for high profile cases fraught with a host of conflicting interests. As seen in FRN v Adewunmi, Nafiu Rabiu v State-where Kehinde Sofola SAN represented.

– SPECIAL PROSECUTORS: authorised by Statutes (usually enabling statutes creating the bodies) like; Customs authority (S 180 CEMA);  EFCC (S 12); ICPC; FIRS; Section 6 Factories Act; etc.

The Police, Private Persons, Special Prosecutors, etc. exercise their powers subject to the powers of the Attorney Generals. S 174 and 211 CFRN, FRN v Osahon

:: COMPARISON BETWEEN THE POWER OF THE POLICE TO WITHDRAW UNDER SECTION 75 CPA AND THE POWER OF NOLLE PROSEQUI.

– Nolle cannot be questioned by the court while a prosecutor wishing to withdraw would have to adduce convincing reasons to get the consent of to the court-Section 355 ACJA.

– Nolle amounts to discharge (and accused may be re-arraigned for the same offence-State v Ilori) while withdrawal may amount to an acquittal if it is made after defence has been called to make his defence.

– Nolle needs incumbent AG while withdrawal doesn’t.

– Nolle power is derived from constitution while withdrawal power is from criminal procedure statutes/laws.

– Under CPA, withdrawal is only exercisable in respect of state offence while nolle can be exercised over State and Federal Offence.

– Under CPA, withdrawal is exercisable in magistrate while nolle transcends till superior courts. ACJA too.

– Under ACJA, court may award costs where private prosecutor withdraws (especially where prosecution is based on unfounded allegations). No costs in nolle.

:: MODES OF INSTITUTING CRIMINAL PROCEEDINGS IN THE VARIOUS COURTS. (MAGISTRATE AND HIGH COURTS NORTH AND SOUTH, FHC AND NIC). Varies from court and geographical territory. They include; By Information, Charge, Complaint and First Information Report (F.I.R.)

  1. IN THE MAGISTRATES’ COURT: Matters may be instituted by:
  2. Laying a complaint before a Magistrate (except Lagos). The compliant should be saying (whether on oath or not) that a named person has committed an offence and a criminal process should be issued against him. See 77 CPL, 115 ACJA 2015 usually in prescribed Form (FORM 3 for ACJA).
  3. By filing First Information Report (F.I.R) in the North and FCT. ((117 CPCL, 143 CPC and 110 ACJA). It is done by the police officer bringing the suspect along with a signed F.I.R[6] before a Magistrate within jurisdiction. The FIR is read to the Suspect who admits (and is summarily convicted) or denies the accusation (here witnesses are called and examined (chief, cross, re). If the Magistrate determines that no case has been made out, accused would be discharged but if a case has been made out, the Magistrate would frame a charge-160 CPC) Mohammed Abacha v The State
  4. Preferring a charge: here the accused (usually arrested without a warrant) is brought to court upon a charge signed by a police officer (except CPCL States). Section 78 CPL, 78 ACJL, 110 ACJL.
  5. IN THE HIGH COURT: Actions may be commenced BY:
  6. Filing an information (South and FCT) accompanied by Proof of evidence Section 77 ACJL, 109 ACJA.
  7. Preferring a Charge (FHC and North[7]).
  8. Laying a Complaint (Section 77 CPL): Consent, oath or writing not needed here. No FHC.

Others include;

  1. By information filed in the court after accused has been summarily committed for perjury by a judge-Section 77 CPL.
  2. By information exhibited in the HC by AG in cases where AG of England may file similar information. Section 77 CPL this provision no longer applies in Nigeria.

To file an information or prefer a charge, you need the consent/leave of the judgeAG Federation v Dr Clement Isong (except in Lagos, FHC and FCT that is ACJL and ACJA or it is the AG that is instituting).

Apply for leave through written and signed motion exparte supported by affidavit accompanied by; the charge, statement of the accused, frontloaded documents (i.e. list of witnesses and their written statement, list and copies of documents to be relied upon, other disclosures (like whether previous application for leave has been made and granted, particulars of bail, custody, plea bargain, and other information the prosecutor deems necessary or the court wishes to have)[8].

Where the application is refused, it can be taken to another judge of that High Court.

The accused may bring a motion to quash a defective information-Abacha v The State, Ikomi v The State.

  1. IN THE FHC: (it is a court of summary jurisdiction-33 FHCA. Initially by Charge but S 109 ACJA 2015 now says by information. Remember the frontloading requirement discussed earlier.

:: LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS.

Generally no time limit except for Treason, treasonable felonies (2 years), sedition (6months) DPP v Chike Obi), Customs and excise offence (7 years-167 CEMAct), Actions against Military Officers (within 3 months of exit of officer from service).
There is no limit for conspiracy to commit any offence including the above listed[9]R v Simmonds. Public Officers are not protected from Criminal Acts so POPA des not apply-S 2 POPA, Yabugbe v The COP.

 

 

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[1] He should consider public interest, interest of justice and the need to prevent abuse of the legal process-State v Ilori

[2] But can intertwine with fiat of each other or allowance of the lawEmologuy v State (armed robbery)-Section 268 ACJA.

[3] Although the AG can through a written authority, send an officer in his department to enter the nolle-State v Ilori

[4] E.g. AG consent needed for; complaint of official corruption against Judicial Officer-98C CC, Sedition. Sexual related offences can only be brought by husband, father or guardian of the female involved, for offences in chapter xxi or xxiii of PC by person aggrieved by the offence or other person in appropriate circumstances with leave of court.

[5] By Section 342 CPA, 254 ACJL, 143 CPC, 383 ACJA, the information may be received by the registrar provided the AG or Law officer has endorsed that he has seen the information and refuses to prosecute. Then recognizance of a sum (CPA=100, ACJL=10000, ACJA=sum to be fixed) and surety (to the same amount) to the effect that the private person shall prosecute the case till the end-State v Ilori, COP v Tobin… and such other costs as may be ordered.

[6] Containing particulars of offender and offence.

[7] With the exception of Adamawa and Taraba states which use information

[8] If the offence relates to Terrorism, Kidnapping, Trafficking, Rape, Corruption, and Money-Laundering… In the FHC and HCFCT an affidavit stating that there was investigation into the matter and the prosecutor opines that a prima facie case exists against the accused

[9] But prosecution should be timeous to prevent poor recollection of event or absence or death of witnesses/victims.

Isochukwu

Quite eccentric really

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