WHO CAN
INSTITUTE A CRIMINAL ACTION?
1.
Attorney
General of the Federation and State
2.
Police
3.
Private
Prosecutor
4.
Special
Prosecutor.
ATTORNEY GENERAL OF FEDERATION
AND STATE
THE RULES IN SECTION 174 and 211
CFRN 1999
POWER TO COMMENCE AN ACTION [S.174
1(a) &211 1(a)]
RULE 1
(a): A.G FED can institute and undertake (COMMENCEMENT POWER) criminal
proceeding against any person before any court of law in Nigeria in respect of
offence created by or under the ACT OF THE NATIONAL ASSEMBLY. SEE S.174(1)(a) CFRN
RULE 1
(b): A.G STATE can institute and undertake criminal proceeding against any
person before any court of law in Nigeria in respect of offense created by or
under any LAW OF THE HOUSE OF ASSEMBLY. SEE
S.211(1)(b) CFRN.
POSER: CAN AN A.G STATE COMMENCE
ACTION OVER OFFENCE CREATED BY AN ACT OF NATIONAL ASSEMBLY?
Generally,
an A.G STATE cannot commence action over offence created by an Act of National
Assembly. However, there are instances where he could commence an action over
offences created by an act of National Assembly.
FIRSTLY,
we need to take into cognizance the provision of Section 286 CFRN which provides for jurisdiction of the state
courts in respect of Federal Offences, the court in EMELOGU V STATE seems to shed more light on this assertion where
the court opined that where an offence which is created by an act of the
National Assembly and the offence is also a creation of law of the state house
of assembly, then the A.G STATE can commence an action in relation to the
offence…….. OR where the statue that creates the offence confers jurisdiction
on both the Federal and Courts
SECONDLY, in the
case of ANYEBE V STATE the court
opined that were the offence is created is created by an act of National
Assembly and confers no jurisdiction on the state courts, then the A.G FED must
give a specific or general express delegation to the A.G STATE for him to be
able to commence action in relation to that offence. This was affirmed in the provision
of SECTION 268 (4) ACJA [PLS READ].
The court went
further to hold in ANYEBE V STATE
that the failure to have this authority will render any judgment gotten to be
null and void.
SUB RULE1 (a)(b):
This power to INSTITUTE AND UNDERTAKE can be delegated to the LAW OFFICERS in
the Attorney General department. In S.311
ACJ, 494 ACJA and S.3 Law Officer Act and in the case of AWOBUTU V STATE where the court
defined a law officer to mean the Attorney-General and the Solicitor-General
and it includes the Director of Public Prosecution and such other qualified
officer by whatever names designated to whom any of the powers of a law officer
are delegated by law or necessary intendment.
POSER:
HOW WILL THIS POWER BE DELEGATED?
If you look at
Section 174(2) 211(2) both provides that this Attorney General power can be
exercised by him or through officers in his department.
But you need to note the procedure,
when an Attorney General is appointed through an official Gazette he confers
this power on the law officers in his department to commence actions on his
behalf in any court.
POSER:
WHAT WILL BE THE POSITION WHEN THE A.G VACATES OFFICE?
It has been
settled in the case of IBRAHIM V STATE
and STATE V OBASI, that upon the vacancy of the seat of the ATTORNEY
GENERAL, it doesn’t have any consequence on the law officers to carry out this
function of commencing action in relation to a federal offence. If you remember, MR TIJANI told us that the
existence of the OFFICIAL GAZETTE will continue to be source of power for the
law officer until another ATTORNEY GENERAL comes his appointed.
RULE
2: POWER TO TAKE OVER PROCEEDING {SECTION 174(1)(b) 211(1)(b)
N.B
THIS POWER CAN ONLY BE APPLIED WHEN THE ACTION HAVE COMMENCED
Just note that the
A.G have the power to take over proceedings from any person or authority at any
stage of criminal proceedings, this power could also be delegated by virtue of Section 174(2) and 211(2) CFRN
RULE
3: POWER TO DISCONTINUE (NOLLE PROSEQUI)
This part seems
technical but we need to note some vital ground rules;
1.
It
is a personal power of the A.G meaning that it CANNOT be delegated (will
explain that shortly)
2.
It
is not subject to any judicial review meaning that He need not give reason for
entering nolle prosequi
3.
It
effect is that it amounts to DISCHARGE and not acquittal
4.
The
most applicable case are; STATE V ILORI and A.G KADUNA V HASSAN.
5.
The
constitution is silent on the procedure
6.
The
relevant section are S. 73(1) CPA, S.253 (1)(2) CPC, S.71 ACJL, S.107 ACJA [PLS
READ]
Let us take you
through the cases for better understanding…..
IN STATE V
ILORI, THE COURT HELD THAT;
The power to enter NOLLE PROSEQUI in criminal
cases has been recognized as an UNDOUBTED power vested ONLY in the
Attorney-General. He is to determine whether a prosecution shall go on or not. The
court further stated that he need not give any reasons for his decision, all he
need to do is to take into consideration public interest, interest of justice
and need to prevent abuse of legal processes.
Furthermore,
NOLLE PROSEQUI entered puts an end to the prosecution for the time being and
that such prosecution may in an appropriate case be latter revived.
THE PROCEDURE
The constitution
did not lay down any procedure for the entry of NOLLE and LAGOS also under ACJL,
but if we combine the provision of the ACJA,
CPA AND CPC and the decision of the court in A.G KADUNA V HASSAN we can summaries
the procedure to be;
At any stage in a criminal
proceeding before JUDGMENT is given, an Attorney General may enter NOLLE
PROSEQUI either in WRITING or in PERSON informing the court conducting such
inquiry and trial that he does not intend to prosecute the accused in relation to the offence charged.
In simply English I
mean;
1.
He
may appear personally in court and inform the court of his intention to
discontinue
2.
He
may by a written authority under his hand discontinue the said proceeding
through any law officer in his department. N.B
MIND THE WORD USED LAW OFFICER AND LAW OFFICER ONLY SCROLL UP FOR OUR
DEFINITION OF LAW OFFICER.
THIS
WILL MAKE US MOVE TO THE NEXT QUESTION IS THIS POWER DELEGABLE?
My brother/sister
no general rule or exception on this the power is not delegable, forget anything
you may have read or heard.
Remember our
ground rules, His the only person that can enter nolle, if you read the aforementioned
statutes you see something like THROUGH ANY LAW OFFICER in his department, Now don’t
get it wrong, In A.G KADUNA V HASSAN,
the decision of the court was that the absence of the A.G makes it wrong for
any of the law officers to enter NOLLE PROSEQUI, it only the A.G that can enter
NOLLE PROSEQUI.
So I ask myself, will the A.G be
coming to the court personally what if he has an official assignment. Now remember
the procedure he could come personally, now on the other and he can issue a
WRITTEN AUTHORITY which have his signature and stamp to the state counsel to
bring to the attention of the COURT that the A.G intend to discontinue the
proceedings. DO YOU GET? So note
that he his not delegating the power to the state counsel, the state counsel is
an agent to carry out his intention in the court.
Now in STATE V CHUKWURAH: The state counsel made
an oral application of NOLLE PROSEQUI, the court expressly stated that only the
A.G can enter an oral NOLLE PROSEQUI.
THE
EFFECTS OF NOLLE PROSEQUI
Flowing from the
above you can easily deduce that the major effect is that it a mere discharge. In STATE
V ILORI the court affirms this position when it stated that; NOLLE PROSEQUI
entered puts an end to the prosecution for the time being and that such
prosecution may in an appropriate case be latter revived. Let me list them for
you to understand;
1.
A
mere discharge which means that the accused can be re-arrested and prosecuted
for the same offence’
2.
The
trial must be discontinued
3.
If
accused is in the prison, he is to be released at once
4.
If
the accused person is on bail, the bail terms must be discharged immediately
S. 73(1) (2) of the CPA,
S. 253(3) of the CPC and
S. 71(2) of the ACJL
N.B
THE DIFFERENCE BETWEEN NOLLE PROSEQUI AND WITHDRAWAL
PLS
READ S. 75 of
the CPA, S. 73 of the ACJL and S. 130 of
the CPC
DIFFERENCES
BETWEEN AG'S POWER OF NOLLE AND WITHDRAWAL BY PROSECUTOR
1) A
nolle entered by the AG amounts to a discharge while withdrawal by a Prosecutor
before accused defends amounts to a discharge and after accused presents his
defence, amounts to an acquittal.
2) The
Court must consent to a withdrawal, while the court's consent is not required
for entering a nolle.
3) The
Prosecutor has to give reasons for withdrawal whereas no reasons need be given
for a nolle.
4) The
mandatory instructions of the AG with respect to withdrawal need not be in any
particular form, for a nolle the instruction must be in writing and signed by
AG to be valid.
5) The
power of withdrawal by prosecutor is restricted to state offences while nolle
may be entered for state or Federal offence.
N.B SOME
VITAL POINTS NOT DISCUSSED;
1) HE
CANNOT institute an action in a COURT MARTIAL. See section 174 (1)(a)
2) The
OFFICE of the AG is a CORPORATION SOLE created by S. 150&195 of the CFRN
1999 and can sue and be sued
3) the
AG cannot be sued because he entered a nolle prosequi- AG kaduna state v. Hassan
THE POLICE
RULE 1:
Police can prosecute criminal cases. See Section 23 & 4 POLICE ACT
RULE 2: The power to prosecute is subject to the
Attorney General. S.23 Police Act
RULE 3: Police can prosecute in all courts, both
inferior and superior courts. See OLUSEMO
V COP
RULE 4: Police
need not be a legal practitioner to appear before the court.
TO BE CONTINUED
THANKS FOR STOPPING BY, READ AND SHARE……
READ HARD
EAT HARD
REST HARD
PRAY HARD……………YOUR SUCCESS IS OUR
SATISFACTION
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