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who else can draft charges

Q841. I am surprised to hear that only the Attorneys-General and their delegates, and the Police can institute criminal proceedings because I have had the experience of seeing a private person institute and prosecute a criminal trial without going through any A.G. or the Police. How could that have happened?

Your surprise is well founded. While it is true that prosecution of violations of the laws of the land are fought as public fight through the prosecution and punishment of the violators through the public offices mentioned, it does very rarely happen that under some strict conditions, 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, Section 254 of the Administration of Criminal Justice Law 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 if it is in Lagos State, he further

  3. Enter into 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.

It is important that I add that while the Constitution does not burden the Attorney-General with the task of endorsing private information for prosecution of offenders, a private person can actually, in another way, ensure that an offence which the A.G. and the police are not interested in prosecuting gets prosecuted,. He can so by a court Order of Mandamus that compels the A.G. to prosecute a suspect. See Fawehinmi V. Akilu (1987) 11 – 12 SCNJ 151 and A.G. Anambra State V. Nwobodo (1992) 7 NWLR (Pt. 256)11

Also note that the old order formerly operative in Lagos State whereby a private person can prosecute only offences of perjury and other non-indictable offences as was held in Attake V. Mene-Afejuku (1996) 3 NWLR (Pt. 437) 483, has been altered by the entry of the ACJL of Lagos State, 2011 which has enlarged this right to cover all offences as long as the requirements in Sections 77(1) and 254 of that law are satisfied.

Q842. Being that the Police also have powers, derived under Sections 23 of the Police Act 1967 as amended by the Police (Amendment) Decree No. 14 (now an Act) of 1989 and Section 78(b) of the CPA both provisions of the laws of which did not specify the “Court” contemplated, can a Police Officer institute criminal proceedings in any other court other than a Magistrates’ Court?

No, 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 (in Lagos State, Section 253 of the ACJL, 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. By virtue of Section 98 of the (FCT) High Court Act, Abuja, 1990, that decision of the police 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.