institutional of criminal proceedings

The following persons can institute criminal proceedings on behalf of the state;

a)The Attorney-General (Federal and State)

b)The Police

c)Private Persons

d)Private Legal Practitioners

e)Special Prosecutors

The Attorney General of the Federation is the Chief Law Officer of the Federation, while the Attorney General of the State is the Chief Law Officer of the State. By sections 174 & 211 of the 1999 Constitution they have the powers to commence, undertake, take over and continue or discontinue any criminal proceeding against or in respect of any offender in their respective jurisdictions.

Yes it can, by the provisions of sections 174(2) and 211(2) of the 1999 Constitution are both to the effect that the foregoing powers of the AG can be exercised by officers in his department. The AG may also delegate his powers to the Police, Customs, EFCC and other agencies with prosecutorial powers. Saraki v. FRN (2016). The power of delegation must be made expressly, preferably in writing. AG Kaduna State v. Hassan (1985).

A nolle differs from a withdrawal of charge in several respects. Firstly, the effect of a Nolle is a discharge only; which consequently means that the accused may subsequently be tried on the same facts and a plea of autre fois acquit will not avail him. While the effect of a discontinuance by a prosecutor will result in a discharge or/and an acquittal depending on the stage of the trial (Before or after the defendant make his defence). Secondly, a Nolle is exercised at the discretion of the Attorney General without the consent of the court while discontinuing proceedings is subject to the consent of the court. Lastly, the court may award costs against a prosecutor who discontinues proceedings but lacks same in respect of a Nolle exercised by the Attorney General. See Clarke v. Attorney General (1986), S.108 ACJA, S.73 ACJL Lagos

A Nolle differs from a withdrawal of charge in several respects. Firstly, the effect of a Nolle is a discharge only; which consequently means that the accused may subsequently be tried on the same facts and a plea of autre fois acquit will not avail him. While the effect of a discontinuance by a prosecutor will result in a discharge or/and an acquittal depending on the stage of the trial (Before or after the defendant make his defence). Secondly, a Nolle is exercised at the discretion of the Attorney General without the consent of the court while discontinuing proceedings is subject to the consent of the court. Lastly, the court may award costs against a prosecutor who discontinues proceedings but lacks same in respect of a Nolle exercised by the Attorney General. See Clarke v. Attorney General (1986), S.108 ACJA, S.73 ACJL Lagos

Yes, the power to discontinue proceedings or a Nolle Prosequi can only be exercised on his behalf where there is an incumbent Attorney-General. Exercise of such power in the absence of a sitting Attorney-General will be a nullity. See the case of AG Kaduna State v. Hassan (1985)

The power of the Police to institute criminal proceedings is statutorily provided for in Section 66 (1) of the Police Act 2020. The power is made subject to the power of the Attorney General. The police may also prosecute matters at the Magistrate Court, S.78 ACJL Lagos. The case of Olusemo v. COP (1998) and Osahon v. FRN (2006) both confirmed the power of the police to prosecute cases at the High Court.

The various criminal procedure laws recognise the power of private persons to institute criminal proceedings. Section 131 (1) ACJL Kano, 77(1)(b)(ii) S.254 ACJL, Lagos, S.381(d) ACJA. The only limitation to the right of a private person to initiate criminal proceedings is where the law or enactment specifically provides for the class of persons that can initiate criminal proceedings in such circumstance. For example section 98 of the criminal code prescribes that proceedings against a judicial officer for official corruption will only be initiated by a complaint or information signed by the Attorney-General.

The first is that there must be an endorsement by the Attorney-General stating that he has seen the information and declines to prosecute at the public instance, the offence(s) contained in the information. Secondly, the private person shall enter into a recognizance in the sum prescribed by the statute, together with a surety in the like sum. See sections 383,384 ACJA

This is a class of persons who can commence and prosecute criminal cases. The statute creating an offence may specify who may prosecute such and offence and may designate a particular person or officer as the appropriate person to initiate proceedings. For example section 66 of the Factories Act vests the power of criminal proceedings in respect of factory offences on the Inspector of Factories. The inspector of factories in this circumstance is the special prosecutor

By section 381(C) of the ACJA, an information may be filed by a private legal practitioner authorized by the Attorney-General. Where a legal practitioner is so engaged, he is said to enjoy the fiat of the AG. See FRN v Adewumi,

As a general rule, there is no time limit within which to commence criminal proceedings against a person. However there exists certain exceptions such as;

1.Treason and Treasonable Felonies: must be commenced within 2 years of the commission of the offence.

2.Sedition: within 6 months of the commission of the offence Section 52(1) Criminal Code

3.Service men (after retirement): commenced within 3 months. Section 169(2)Armed Forces Act

4.Private complaint under s.92 of ACJA, private complaint must be made within 6 years

In Lagos State, it is by bringing a person arrested with or without a warrant before the Magistrates‘ court upon a charge contained in a charge sheet. See S. 78 ACJL, Lagos. In Magistrates court under the ACJA, it is by bringing a person arrested upon a charge contained in a charge sheet or by laying a First Information Report before a Magistrate section110(1)(a)(b) ACJA.

Section 77 of the Criminal Procedure Act outlines how criminal proceedings may be commenced in the following ways:

1.By information of the Attorney‐General of the State in accordance with the provisions of section 72 CPA; and

2.By information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provisions of Part 31 of the CPA; and

3.By information filed in the court after the accused has been committed for trial by a magistrate under the provisions of Part 36 of CPA; and

4.On a complaint whether on oath or not.

5.By information or charge filed in the court by any other prosecuting authority section 109(d) ACJA

The above listed is pari materia with the provisions of ACJL Lagos on instituting proceedings in the High Court see S.77(1) ACJL Lagos. However under the provisions of ACJL Kano it may be; By a charge filed by a law officer or a private prosecutor, by a charge filed in the court after the defendant person has been summarily committed for perjury or by any other prosecuting authority. See S.126 ACJL Kano. See also S.190 ACJA on instituting criminal proceedings.

It is commenced by filing a charge against the accused in court. It is filed by any of the persons recognized by S.56(1) of the Federal High Court Act and is drafted in a simple way as in a Magistrate Court. No leave or consent of the Judge is required.