criminal trial procedure matters

Yes, of course. Where a charge is instituted by a person who has no capacity to institute, or on behalf of a person who has no capacity to institute, the entire proceeding even if the defendant has been convicted, is a nullity. Mohammed v. The State (2015) All FWLR (PT 782) 1658. Also, a prosecutor who is unable to gather and arrange his evidential materials properly, and who as a result is unable to prove the ingredients of the charge beyond reasonable doubt will surely lose the case because of incompetence. AMAH V. FRN (2019) HELAR; EHINDERO V. FRN (2017) HELAR.

Yes, when there is no Attorney General at the moment, legal officers in the office of the Attorney General can still exercise the powers of the Attorney General in delegation. This is because, the office of the Attorney General is a public authority and exists in perpetuity whether there is a human occupant or not. The office remains functional, so also, the powers whether or not there is anyone occupying it at any given time. SEE AG FEDERATION v. ANPP & 2 ORS (2003)18NWLR (PT. 851)182. SECTION 174(2) OF THE CFRN 1999 (AS AMENDED). SECTION 104(2) AND 106 OF ACJA. The delegation of the Attorney General’s powers may be express or implied. Where the delegation is to officers in the Attorney General’s office, it need not be express. It is implied. AMAH V. FRN (2019) HELAR; EHINDERO V. FRN (2017) HELAR; OLAGUNJU V. FRN (2018) HELAR

No. This is because unlike the exercise of other powers of the Attorney General, the power to discontinue a matter can only be exercised by the Attorney General himself. Law officers working in the office of the Attorney General cannot exercise this power on his behalf.

Thus, where the Attorney General is of the opinion that in the interest of public policy, a matter be discontinued, he may:

1. Appear personally in court and inform the court orally of his intention to discontinue; or

2. By a written authority under his hand, discontinue the proceedings through any officer in his department.

SEE Section 73(1) CPA, SECTION 253(2) CPC, SECTION 107 ACJA, 2015. The position of the law on this is not quite clear in Lagos State It appears that the law officers in the office of the Attorney General can exercise the Attorney General’s power to discontinue on his behalf. This is because, Section 71 of the ACJL Lagos state did not provide for the manner in which the power can be exercised, whether personally or through legal officers in his department. AMAH V. FRN (2019) HELAR; EHINDERO V. FRN (2017) HELAR

Yes, a private person can prosecute a criminal matter provided the offence is not one which by the provision of any law, is stated that it must be instituted by some particular persons. For example, to prosecute a judicial officer for the offence of official corruption, the information or complaint must be signed for and on behalf of the Attorney-General. Also in the North where Sharia Law operates, only the husband, father, or guardian of the woman or girl involved can file a complaint. Furthermore, the offence of Sedition cannot be prosecuted unless the consent of the Attorney-General is first sought and obtained. SEE SECTION 59 CPA, SECTION 98C CRIMINAL CODE ACT, CAP.38 LFN, 2004; SECTION 142(1) CPC, SECTION 52(2) CRIMINAL CODE Also, the information is required to have an endorsed certificate by a law officer in the department of the Attorney-General to the effect that he has seen such Information and declines to prosecute the offence at the public instance, and the private person will enter into a cognizance together with one surety that he must prosecute the Information to a logical conclusion. SEE SECTION 381(D) ACJA, 2004

In the Magistrates’ Court in the South, a criminal proceeding is instituted by bringing the defendant to Court with a Charge prepared and signed by a Police Officer. SEE SECTION 78(B) CPA, SECTIONS 109(A), 110(A) ACJA, 2015. This does not stop the Attorney General or any Law Officer working in his department, or any legal practitioner from instituting a criminal proceeding at the Magistrates’ Court. It is not only the Police Officer that can institute a criminal proceeding at the Magistrates’ Court. A criminal proceeding can also be commenced in the Magistrates’ Court in the South by way of bringing the Defendant to the Court together with a Complaint. This Complaint need not be under oath, unless a warrant of Arrest is to emanate from it. Also, a Complaint need not be in writing. Where it is not in writing, the Registrar shall reduce same into writing. SEE SECTIONS 60, 77(A) and 78(A) CPA.

There are basically three main means through which the attendance of a witness in court can be secured. They are:

a. Witness summons

b. Subpoena

c. Warrant

SECTION 241 ACJA, 2015; SECTION 188 CPA.

Yes. By virtue of Section 381 of the ACJA, 2015, an Information may be filed by:

(a) The Attorney-General of the Federation or officers in his office;

(b) A public officer acting in his official capacity;

(c) A private legal practitioner authorised by the Attorney-General of the Federation. From this it can be deduced that a private counsel duly authorized by the Attorney General of the Federation, can competently prosecute crime in Court on behalf of the State.

However, the information is required to have an endorsed certificate by a law officer in the department of the Attorney-General to the effect that he has seen such information and declines to prosecute the offence at the public instance, and the private person will enter into a cognizance together with one surety that he must prosecute the information to a logical conclusion. SEE SECTION 383(1) ACJA, 2015. And where the Attorney-General declines, he shall have fifteen days to give his reasons or an order of mandamus shall lie against him. SEE SECTION 383(2) ACJA, 2015. AMAH V. FRN (2019) HELAR; EHINDERO V. FRN (2017) HELAR.

The Shari’a Court is the competent Court to try a Muslim for an offence committed. The Shari’a Court can also competently try a non-Muslim for an offence committed, where the Non-Muslim submits to the jurisdiction of the Shari’a Court

Yes, a police officer can prosecute a criminal matter in any court. This is the intention of the different laws on the powers of the Police to prosecute. SEE SECTION 23 POLICE ACT, CAP.19 LFN, 2004; SECTION 211(B), (C) OF THE 1999 CFRN. However, certain procedures and practices must be considered. For example, it is provided by SECTION 268(2) ACJA, 2015 that proceedings instituted by a Police Officer shall be filed in the name of the Inspector General of Police or Commissioner of Police. This means that a Police Officer though authorized to prosecute matters, it must be in the name of IGP or COP just like, a law officer in the department of the Attorney General prosecuting on behalf of the Attorney General.

Also, by virtue of Legal Practice rules, the High Court of a State is a superior court of record where practitioners are dressed with wig and gown. Since only lawyers can wear the wig and gown, it follows that only Police Officers who are lawyers and are called to the Nigerian Bar can prosecute matters at the High Court and in the name of the Inspector General of Police or the Commissioner of Police, respectively.

It is true that a Police officer’s power to institute criminal proceedings is generally limited to courts of inferior records - Magistrates’ Court, Area Courts and Customary Courts. This is because the Police lack the authority to sign the Information or Charge sheet which are used in the State High Courts by reason of the provisions of Section 341 CPA (and for Lagos State, **Section 253 of the ACJL, Lagos State, 2011)**and so cannot institute cases in the Federal and State High Courts.

Nevertheless, it has been held in the case of Olusemo V. COP (1998) 11 NWLR (Pt. 575) 547 that the Police can represent the State in Courts of superior records, subject to the constitutional authority of the Attorney General. Since this provision by virtue of Section 98 of the High Court Act, Abuja, 1990, that decision of the police having the power to operate in the High Court would be limited to the Federal Capital Territory High Court, Abuja. The Court of Appeal actually had so held in Osahon v. FRN (2003) 16 NWLR (Pt. 845) 89 that the decision in Olusemo’s case cannot be stretched to empower a Police Officer to institute criminal proceedings in the Federal High Court, as unlike Section 98(1) of the High Court Act, Abuja, that mentioned Police Officer, Section 56(1) of the Federal High Court Act, 1990 did not include a Police Officer amongst those that may institute criminal proceedings in the Federal High Court. Quite curiously, the Supreme Court considering the Osahon’s case in further appeal to it, as FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361 included Police Officers in the list of those who can institute and prosecute a criminal case in the Federal High Court without making the kind of clear analysis the Court of Appeal made to explain its decision on the differences in the wordings of Section 98(1) of the High Court Act, Abuja, 1990, and the Section 56(1) of the Federal High Court Act, 1990. It is hoped that before long, some more clarifications would be pronounced by the Apex Court when the opportunity offers itself

After the plea of the defendant, the prosecutor is expected to briefly state by what evidence he seeks to use in proving the guilt of the defendant. The prosecution shall then proceed to call and examine his witnesses one after the other, and after that he will hand each of them over to the defence for cross-examination. SECTION 300 (1) OF THE ACJA 2015

After the plea of the defendant, the prosecutor is expected to briefly state by what evidence he seeks to use in proving the guilt of the defendant. The prosecution shall then proceed to call and examine his witnesses one after the other, and after that he will hand each of them over to the defence for cross-examination. SECTION 300 (1) OF THE ACJA 2015

Hardly allowed. This is because an offence committed is taken to be committed against the State and so, only the State can prosecute an offence. Nevertheless, there are some conditions and requirements which if you meet, you could be allowed to take up the prosecution of the suspect as a private prosecutor. A private person can lawfully institute and prosecute criminal trials. The power to do that is given under Sections 342 of the CPA, 143 of the CPC, and for Lagos State, 254 of the ACJL of Lagos State.

For a private person to institute a criminal proceeding in the Southern States of Nigeria pursuant to S. 342 of the CPA, he would need to:

1. Obtain an endorsement on the Information sheet by a Law Officer certifying that he (the law officer) has seen the Information and has no intention of prosecuting the offence on behalf of the public;

2. Enter into a recognizance in the sum of N100 only together with one surety in like sum, undertaking to prosecute the matter with due diligence, and in the case of Lagos State,

3. Recognizance in the sum of N10,000.00 as set out under S.254(b) ACJL of Lagos State, 2011.

It is a bit differently done in the Northern States of Nigeria under Section 143(e) of the CPC wherein all the private person needs to do is to present the Information to the Court which taking recognizance of the Information from the private person other than a Police Officer sees reason to believe or suspect that an offence was indeed committed, takes steps to commence the prosecution of the accused person. In the Northern States, under the CPC, there is no requirement of recognizance or surety or any money deposit. AMAH V. FRN (2019) HELAR

In a criminal trial in Nigeria, the State means the Federal Government or the State Government, respectively. While the Attorney General of the Federation has the powers to prosecute criminal federal offences on behalf of the Federal Government, the Attorney General of the State has the powers to prosecute state criminal offences on behalf of the State Government. The Federal offences are those offences which are contrary to any Act of the National Assembly or any Law which operates as such while a State offence is that which is contrary to any Law of the State or any Law or Act which exists to operate as such. SEE Section 315 CFRN 1999 (as amended). The Attorney General of a State cannot competently institute a criminal trial with respect to Federal offences unless he has been delegated or authorised to do so personally or generally and he may prosecute through officers in his Ministry. Section 268 ACJA, 2015. It follows therefore, that the Attorney General of a State can only issue a nolle prosequi with respect to only State offences he instituted. The Attorney General of the State cannot issue a nolle prosequi in a Federal Offence and the Attorney General of the Federation cannot even authorize him to so act. AMAH V. FRN (2019) HELAR; EHINDERO V. FRN (2017) HELAR

No. The power of the Attorney General to discontinue a matter is not subject to any other power or authority not even the Court. Such intention to subject the power of the Attorney General to prosecute or discontinue a matter that is in court cannot be deduced from the Constitution or any other law. Nobody can question him and the only remedy here is his removal from office by the person who appointed him-the Governor or the President. OBASI V. STATE (1998) 9 NWLR (PT.567) 686; ATTORNEY GENERAL, KADUNA STATE V. HASSAN (1985) 2 NWLR (PT.8) 483

In the North, Criminal Proceedings is commenced by taking cognizance of an offence referred to in a Complaint. The Magistrate proceeds to hear the prosecution and the prosecution witnesses who are examined and cross-examined. Thereafter, if the Magistrates think that the case can be prosecuted as made out, he shall draft a charge on which the Accused shall be charged.

Also, it can be commenced by a Police Officer bringing the accused to Court together with a First Information Report to Court. SEE SECTION 112(6) (F) ACJA, 2015. Again just like in the case of Complaint, the Magistrate shall proceed to hear the prosecution and the prosecution witnesses who are examined and cross-examined. And if the Magistrates thinks that a case which can be prosecuted is made out, he shall draft a charge on which the Accused shall be charged. Where the Magistrate fails to follow the above procedure before drafting a charge, the trial will be a nullity. HARANAMI V. BORNO NATIVE AUTHORITY (1967) NNLR 19. The way a criminal proceeding is commenced in the Magistrates’ court in the North is the same way it is commenced in the Area/District Courts in the North. MUHAMMAD V COP (2017) HELAR.

At the High Courts in the South, a criminal proceeding is commenced by way of information being filed at the High Court after obtaining the Consent of the Attorney-General of the State. In the North it is by way of Charge on the direction or consent of a High Court Judge. SECTION 77(B) & 340 (2) CPA.