It was submitted before the Court of Appeal Ilorin Judicial Division that by Section 143 of the Criminal Procedure Code Law of Kwara State a private person can initiate criminal prosecution in Kwara State and he/she does not need the Attorney-General’s consent or fiat to prosecute same and this does not conflict with the powers of the Attorney-General under Sections 174 and 211 of the 1999 Constitution.
The Court of Appeal per BOLOUKUROMO MOSES UGO J.C.A. (Delivering the Leading Judgment) in MRS. TOLULOPE ONIYIDE v. MR. TAIYE AYOTUNDE ONIYIDE (2018) LPELR-44240 (CA) kowtowed and went further to say:
“…In fact even the roadside petition writer or any person for that matter can prepare and sign a criminal complaint for a complainant under Section 143 (d) and (e) of the Criminal Procedure Code Law of Kwara State.”
The Court stated further that:
”It must not be forgotten, too, that the clear aim of Section 143 of the Criminal Procedure Code Law of Kwara State in issue and similar provisions in the Criminal Procedure Code Laws of all the States constituting the old Northern Region of Nigeria is to make the initiation of criminal complaints simple so that any member of the general public who has any genuine criminal complaint can approach the Courts directly to lay it. It is something suggestive of an all hands on deck in the fight against crimes approach. That laudable objective ought not to be, and should not be allowed to be defeated by dry technical objections like the instant one of the means by which a person chose to notify the Court of his/her criminal complaint. Technical justice is an ill wind that blows no one any good and should be avoided like the plague.”
It is therefore settled that a Direct Criminal Complaint is not one of the Court Process(s) or Document(s) that must be prepared or/and signed by a Lawyer.
Mrs. Tolulope Oniyide a legal practitioner pursuant to Section 143 of the Criminal Procedure Code Law of Kwara State initiated a direct criminal complaint before the Magistrate Court against her husband Mr. Taiye Ayotunde Oniyide also a legal practitioner. Her complaint was about domestic violence. She alleged that Mr. Oniyide voluntarily caused her grievous harm without provocation, criminal force, assault and mischief contrary to Sections 240, 242, 243, 247, 262, 268 and 326 of the Penal Code Law.
The said criminal complaint was mentioned to Mr. Oniyide at the Magistrates Court and his plea was accordingly taken. Before taking his plea, however, he had already filed a five-ground notice of preliminary objection challenging the jurisdiction of the Magistrate Court. That objection was argued and sustained by the trial Magistrate Court Coram: Chief Magistrate S.B. Olanipekun (Mrs.) and the Direct Criminal Complaint of Mrs. Oniyide was struck out on the ground that the legal practitioner who signed the complaint signed on behalf of the International Federation of Women Lawyers (FIDA).
Mrs. Oniyide was miffed with that ruling hence she appealed to the Appellate Session of the High Court of Kwara State. Mr. Oniyide also cross-appealed against the same decision of the Magistrate Court on the ground that the trial magistrate chose to depart from the decision of the High Court of Kwara State in Suit No: KWS/3/37M/2016 between Abdulrahman Ishola v. Mr. Sunday Aremu by ruling that a private person can initiate and prosecute without the Attorney-General’s fiat a direct criminal complaint before the Magistrate Court.
After hearing counsel on both sides, the Appellate Session of the Kwara State High Court sitting in Ilorin (Coram Titi Daibu, I. A. Yusuf and A. L. Ishaq JJ.) dismissed the appeal of Mrs. Oniyide and allowed the cross-appeal Mr. Oniyide.
Further dissatisfied with the judgment of the High Court, Mrs. Oniyide filed this appeal in the Ilorin Judicial Division of the Court of Appeal Coram: CHIDI NWAOMA UWA, J.C.A., HAMMA AKAWU BARKA J.C.A., and BOLOUKUROMO MOSES UGO J.C.A. (Delivering the Leading Judgment) praying the Honourable Court to set aside the High Court’s judgment and hold that the Magistrate Court had jurisdiction to hear and determine the direct complaint she initiated.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues viz:
- Whether the lower Court was right to have upheld the trial Court’s decision by holding that the legal practitioner who signed the direct criminal complaint in this case signed on behalf of International Federation of Women lawyers and not on behalf of the appellant.
- Whether the lower Court was right to have allowed the respondent’s cross-appeal thereby holding in error that an individual could not file a direct complaint and initiate private prosecution without the fiat of the Honourable Attorney-General first obtained as held in the High Court case of Mr. Abdulraheem Ishola Salami v. Mr. Sunday Aremu & Ors Unreported Suit No KWS/37/M/2016 delivered on 16th December 2016, as against the Supreme Court’s decision in Controller of Prisons v. Adekeye (sic: Adekanye) & Ors (2002) 7 S.C. 164.
In the final analysis, the appeal succeeded and was unanimously allowed. The decision of the Appellate Session of the High Court of Kwara State Coram: Titi Daibu, I. A. Yusuf and A. L. Ishaq JJ. affirming the Ruling of Chief Magistrate S.B. Olanipekun (Mrs.) which upheld the preliminary objection of Mr. Oniyide and striking out Mrs. Oniyide’s criminal complaint was set aside. The said preliminary objection was also overruled and dismissed and the trial of the said complaint/Charge was ordered to proceed before the Magistrate Court of Kwara State, but by a Magistrate other than Mrs. S.B. Olanipekun.
- CRIMINAL LAW AND PROCEDURE – COMMENCEMENT OF CRIMINAL PROCEEDING: can prepare and sign a criminal complaint for a complainant under Section 143 of the Criminal Procedure Code Law of Kwara State
“… The question is: is this decision/reasoning of the High Court correct? Certainly not, I venture to say. In the first place neither the Legal Practitioners Act nor the point established by the cases of Okafor v. Nweke and SLB Consortium is applicable here. Unlike the situation in Okafor v. Nweke and the legion of cases following it including SLB Consortium Ltd v. NNPC where what was in issue were Notices of Appeal and Writs of summons which the relevant Statutes specifically require that only the parties themselves or a Legal Practitioner (meaning a Legal Practitioner enrolled under the Legal Practitioners Act 2004, and not a Law Firm of legal Practitioners) can sign, a criminal complaint under Section 143 of the Criminal Procedure Code Law of Kwara State does not require a Legal Practitioner’s signature to validate it. In fact even the roadside petition writer or any person for that matter can prepare and sign a criminal complaint for a complainant under Section 143 (d) and (e) which are the relevant provisions. That law simply says:
- 143: Cognisance of offences by Court.
Subject to the provisions of chapters XIII and XIV, a Court may take congisance of any offence committed within the local limits of its jurisdiction.
(a) When an arrested person is brought before it under Section 40 or 41;
(b) Upon receiving a First Information Report under Section 118, or from any other Court;
(c) Upon receiving a complaint in writing from the Attorney-General;
(d) Upon receiving a complaint of facts which constitute the offence;
(e) If from information received from any person other than a police officer it has reason to believe or suspect that an offence has been committed. (Emphasis mine.)
What the Court should do next to satisfy itself that the complaint has substance and worthy of acceptance for trial is stated further in Sections 146, 149, 150 and 152 as follows:
- 146 Examination of Complaint
(1) A Court taking cognisance of an offence on complaint shall, subject to the exercise of its powers under Sections 144 and 145, thereupon examine the complainant and reduce his complaint and the substance of the examination to writing, and the writing shall be signed or sealed by the complainant if he is able so to do.
(2) A Court may in its discretion conduct such examination on oath.
(3) When the complaint is made in writing and signed by a public servant acting or purporting to act in the execution of his official duties, the Court may, if it thinks fit, and shall when the complaint is made by a Court under Section 314 proceed with the inquiry into or trial of the case without examining the complainant under this section.
S.149 Inquiry by Court of complaint by person other than police officer.
(1) A Court taking cognisance of an alleged offence on the complaint of any person other than a police officer may, for reasons to be recorded in writing, make an inquiry into the case or direct any subordinate Court to do so or refer the matter to any police officer for investigation.
S.150 Court may refuse to proceed.
(4) (1) A Court taking cognizance of an alleged offence may refuse to proceed with the case if after examining the complainant, if any, and considering the result of any investigation held under Chapter XII or Section 149 there is in its opinion no sufficient ground for proceeding, and it shall thereupon briefly record its reasons for so refusing.
(5) (2) If the accused is in custody or on bail, he shall be discharged when the Court refuses under this section to proceed.
(6) (3) A person aggrieved by a refusal of a Court to proceed with a case may apply to the appropriate appeal Court with an affidavit setting out the facts for an order directing the transfer of the case to another Court with jurisdiction to hear and determine the cause or matter.
- 152 Inquiry or trial
When a Court taking cognizance of an offence is satisfied that there is sufficient ground for proceeding, it shall after causing process to issue for the attendance of the accused person, if he is not already in custody or on bail, proceed either to hold an inquiry into the offence or to try the offence provided that it is competent so to do.
It was not respondent’s case in his objection before the Magistrates Court that any of these statutory safeguards was not observed. On the contrary, his concession in this appeal, rightly made, even if delayed, is that appellant was in fact the complainant in the criminal complainant in issue and that was not an issue in his objection. Even on the face of that concession alone one finds it extremely difficult to go along with the lower Court’s reasoning that it was not appellant but FIDA which simply took down her criminal complaint and wrote to the magistrate Court on her behalf that ‘initiated’ it and same rendered the complaint incompetent and deserving of an order striking it out. The said complaint written on FIDA’s letter-headed paper clearly speaks for itself as regards its complainant, namely, appellant, Mrs. Tolulope Oniyide. It reads: …
14th September 2015
CRIMINAL COMPLAINT OF VOLUNTARILY CAUSING GRIEVOUS HURT, VOLUNTARILY CAUSING GRIEVEOUS HURT WITHOUT PROVOCATION, CRIMINAL FORCE AND ASSAULT AND MISCHIEF CONTRARY TO SECTIONS 240, 242, 243, 247, 262, 268, AND 326 OF THE PENAL CODE LAW.
?We act as solicitors to Mrs. Tolulope Pelumi Oniyide of 17, Abdulsallam Ayinla Street, Tanke, Ilorin, hereinafter referred to as the Complainant and it is on her behalf that we approach this Honourable Court as follows:
- The complainant is a Counsel at the Kwara State Ministry of Justice, Ilorin.
- That the accused person Mr. Taiye Ayotunde Oniyide of Bayo Ojo & Co. Ahmadu Bello Way, IIorin is the Husband of the Complainant whom she legally got married to at the Marriage Registry Offa road in 2004.
- That the marriage has been blessed with three children; namely; Nifemi Oniyide female, 10 years old, Timilehin Oniyide, male, 8 years old, and Ewaoluwa Oniyide, female, 7 months old.
- That over the years, the accused person has developed the habit of assaulting the Complainant at the slightest opportunity and inflicting injuries on her on several occasions.
- That the situation was so bad that the Complainant once moved out of the accused person’s house for about two years.
- That after intervention by the families of both parties, their church, friends and senior legal practitioners, the Complainant moved back into the matrimonial home.
- That unfortunately, no sooner had the Complainant moved back into the house than the accused person went back to his old ways.
- That on 17th August at about 5.00p.m the Complainant went to visit a family in the neighborhood who were having a naming ceremony where she spent less than twenty minutes.
- That upon her return home the defendant who had arrived from his office confronted her as she came out of the car demanding to know where she was coming from with her two daughters.
- That as she was attempting to describe the house she went into, the accused person slapped her and punched her until she fell on the floor where he descended on her dragging her on the floor while continuously hitting her.
- That the accused held the complainant on the neck with such a vicious grip that he would have strangled her to death but for the intervention of people who came to her rescue.
- That in the process, the Complaint sustained serious injuries to various part of her body including her neck, bleeding on her arms and legs and a damaged left knee which made it very difficult for her to stand on her leg.
- The accused person also smarched the phone of the complainant on her floor damaging it beyond repairs
- The accused person was all the while, and even till now, has been boasting that he will kill the complainant and get away with it because he is a lawyer.
- That the Complainant went to Anchormed Hospital, Ilorin where she was placed on admission for two weeks.
- That the Complainant has being (sic) in pains since the accused person attacked her and even now still walks with a limp.
- That Complainant has spent over One Hundred Thousand Naira (N100,000.00) on medical treatment as a result of the grievance injury sustained from the attack.
- That the complainant has lodged this complaint before this Honourable Court praying that the accused person be brought to Justice.
Dated this 14th day of September, 2015.
Abung Bridget (Mrs.)
INT. FEDERATION OF WOMEN LAWYERS
FIDA HOUSE LANJORIN
Yes, Mrs. Abung who wrote this complain on behalf of appellant said she, or FIDA, acted as ‘solicitors’ to the named appellant; but even assuming for purposes of argument that her claim as solicitor brought in Okafor v. Nweke, Mrs. Abung whose status as ‘solicitor’ is not disputed did not add any ‘and Company’ to her name as it was in Okafor v. Nweke for which it was held that the notice of appeal in that case was signed by a law firm instead of a human being enrolled as a Legal Practitioner under the Legal Practitioners Act. Besides, and perhaps most importantly as said earlier, a criminal complaint under Section 143 (e) of the Criminal Procedure Code Law of Kwara State is not one of those documents that only a lawyer called to the Bar can prepare, so Mrs. Abung’s description of herself as solicitor or the fact that it was the medium of FIDA appellant used to make her criminal complaint is of no consequence to its validity. A hood, it is said, doesn’t make the Monk, as Eko, J.S.C. also recently pointed out in Achonu v. Okuwobi (2017) ALL FWLR (PT 1297 @ 1335 para D-E.
It must not be forgotten, too, that the clear aim of Section 143 of the Criminal Procedure Code Law of Kwara State in issue and similar provisions in the Criminal Procedure Code Laws of all the States constituting the old Northern Region of Nigeria is to make the initiation of criminal complaints simple so that any member of the general public who has any genuine criminal complaint can approach the Courts directly to lay it. It is something suggestive of an all hands on deck in the fight against crimes approach. That laudable objective ought not to be, and should not be allowed to be defeated by dry technical objections like the instant one of the means by which a person chose to notify the Court of his/her criminal complaint. Technical justice is an ill wind that blows no one any good and should be avoided like the plague. That is the position of the Courts in this country. Only recently in Oko v. State (2017) ALL FWLR (PT 905) 1244 @ 1261-1262 the Supreme Court (Bage, J.S.C.,) while dismissing a contention that the failure to first obtain leave of Court in compliance with Section 309 of the Criminal Procedure Law of Cross River State before proffering a criminal Information nullified a criminal trial, re-echoed this stance, saying:
‘Litigants should expect no technical but substantial justice from this Court. We have said several times that we are not a workshop for technical justice. Over and over again, we have reiterated the need to do substantial justice and avoid delving into the error of technical justice.’
I note, too, that this Court (Denton-West J.C.A.) in Sambo v. Ndatse (2013) LPELR-20857 had cause to re-emphasize the importance of the provisions of Section 143 of the Criminal Procedure Code Law in issue when it said (at p. 32) that:
“In the instant appeal Section 211 (1) (b) & (c) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 143 (d) and (e) of the Criminal Procedure Code (CPC) Capt. 39, Laws of Taraba State of Nigeria 1977, empower the appellants to initiate the Direct Complaint against the respondent and they need not show any special relationship with the deceased persons or demonstrate an interest more substantial than that of the general public to be enabled in that behalf as wrongly opined by the learned trial judge.
Interestingly, in this case the complaint in question, having already passed the rigorous ‘quality control’ tests put in place by the same statute for its cognizance, was accepted by the Magistrate Court and respondent’s plea to it taken before the same Court turned around to strike it out for reasons only of the means by which it was brought to its attention.
And looking even more closely at this decision of the two Courts below that it was FIDA that sought to, or was, prosecuting the appellant and that made the complaint incompetent with the consequence that it denied the Court of jurisdiction, which point Mr. Ismail for appellant says is appellant’s real objection, I must again observe, firstly, that there is nothing on the face of the records to suggest that Mrs. Ronke Adeyemi, Mrs. Adebosin and/or Mr. John Dada (a male lawyer who cannot even be member of FIDA) who variously appeared as counsel for appellant in the Magistrates Court did so on behalf of FIDA and not on the instruction of appellant. In any event it is not appearance of counsel that confers jurisdiction on a Court or its power to adjudicate on the case before it. In Tukur v. Government of Gongola State (1988) 1 NWLR (PT 68) 39; (1988) 1 SCNJ 54; (1988) 1 NSCC 30 @ 38 lines 15- 20 the apex Court (Oputa, J.S.C.,) put this clearly thus:
“It is not appearance of counsel ‘duly authorised in that behalf’ nor want of such authority that confers or removes jurisdiction from the Court. Appearance of counsel may have something to do with adjudication but nothing whatsoever with the competence of the Court to adjudicate and therefore with the jurisdiction of the Court.” (Emphasis mine).
So, even if the Magistrate Court was convinced that counsel were wrongly prosecuting the complaint on behalf of FIDA rather than the direct instruction of appellant (which fact can be only proved by evidence unless admitted by the said counsel, which was not the case here) the appropriate response of the Court should have been to debar counsel from further appearance and not strike out the complaint itself as it did. A complaint that an entity or counsel was representing a party in a case in Court without authorization of the party cannot go beyond its target of counsel or that entity’s authority to strike at the competence of the complaint validly filed.” Per UGO, J.C.A. (Pp. 23-35, Paras. B-E)
- CRIMINAL LAW AND PROCEDURE – COMMENCEMENT OF CRIMINAL PROCEEDING: Whether private persons can initiate and prosecute criminal complaints without the fiat of the Attorney–General
“Issue 2: Whether the Court below was right in allowing the cross-appeal of the respondent by holding that the trial Magistrate Court was wrong in failing to follow and apply the decision of the High Court in Suit No KWS/37M/2016: Between Abdulraheem Ishola v. Sunday Aremu to the effect that a private person could not competently initiate and prosecute a criminal complaint without obtaining consent or fiat of the Honourable Attorney-General.
Here again, I am unable to agree with the lower Court on its conclusion that counsel representing appellant was bound to obtain fiat from the Attorney-General and their failure to do that affected the competence of the private criminal complaint, especially given its earlier decision in KWS/37M/2016: Between Abdulraheem Ishola v. Sunday Aremu, which in its view the Magistrate Court was bound to follow rather than the Supreme Court’s decision in Comptroller of Prisons v. Adekanye (2002) 7 S.C. 164 which was not applicable. There is no doubt that by rules of stare decisis the Magistrate Court being a Court lower than the High Court is bound to follow its decisions. But that is where the High Court’s decision is not in conflict with a decision of this Court or the Supreme Court on the issue at stake. Here the trial Magistrate seems to have reasoned that the decision of the High Court of Kwara State in Abdulraheem Ishola v. Sunday Aremu was in conflict with that of the Supreme Court in Comptroller of Prisons v. Adekanye on the issue of whether a private person can competently initiate and prosecute a criminal complaint in Kwara State without the Attorney General’s fiat so she was bound to follow the apex Court’s decision.
In as much as I was not availed the said decision of the High Court of Kwara State in Abdulraheem Ishola v. Sunday Aremu, which decision in any case is not even binding on this Court, unlike Comptroller of Prisons v. Adekanye supra which binds us, I am afraid the lower Court could not have been right in its decision that Section 143 of the Criminal Procedure Code Law conflicts with the powers of the Attorney-General of Kwara State under Section 211 of the 1999 Constitution of this country to prosecute criminal complaints. Incidentally, this Court had course to examine closely this same contention in our decision of 7th July 2017 in CA/IL/C.59/2014: Adebola Bakare v. Segun, now reported as Adebola Bakare v. Segun (2017) LPELR-43152. There (with the concurrence of my brothers Owoade and Barka JJ.C.A) I said as follows in confirming most of what I have said so far in this judgment as well as the present issue of the applicability of the case of Comptroller of Prisons v. Adekanye to this issue:
“First, on the right of a private person to initiate criminal proceedings in Court by a complaint, a learned author Mrs Oluwatoyin Doherty (of blessed memory), writing on the subject Methods of Institution of Criminal Proceedings in her book Criminal Procedure in Nigeria, Law and Practice, Blackstone Press Ltd., opined at pages 66 & 70 thus:
P 66: Private persons may institute criminal proceedings against a person alleged to have committed an offence by laying a complaint before a Court. In practice, private persons usually lay their complaints at the police station.
And citing Section 143 (d) of the Criminal Procedure Code Law and Section 77(a) of the Criminal Procedure Act, the same learned author reconfirmed at p.70 of her book thus:
‘Criminal proceedings may also be instituted in the Magistrate’s Court both in the Southern and Northern States of Nigeria by laying a complaint before a magistrate. A complaint is an allegation made before a magistrate that any named person has committed an offence. In practice, complaints made before the magistrate are laid by police officers, although a private person can lawfully lay a complaint before a magistrate.’
“I am in complete agreement. Chapter XV of the Criminal Procedure Code Law, Cap C.23 of Kwara State which begins with Section 143 is interestingly titled ‘Initiation of Criminal Proceedings before a Court.’ Section 143 itself reads:
S 143: Cognisance of offences by Court.
Subject to the provisions of Chapters XIII and XIV, a Court may take congisance of any offence committed within the local limits of its jurisdiction.
(a) When an arrested person is brought before it under Section 40 or 41;
(b) Upon receiving a First Information Report under Section 118, or from any other Court;
(c) Upon receiving a complaint in writing from the Attorney-General;
(d) Upon receiving a complaint of facts which constitute the offence;
(e) If from information received from any person other than a police officer it has reason to believe or suspect that an offence has been committed.
“To take cognizance is defined in Section 1 of the Criminal Procedure Code Law to mean ‘to take notice in official capacity.’
“After taking cognizance of, or taking notice in official capacity, what the Court does next in respect of a complaint from a private person is further spelt out in the following provisions of the Law:
(After reproducing Sections 143, 146, 149 and 150 of the Criminal Procedure Code law)
“There is thus no doubt that the Criminal Procedure Code Law of Kwara State, a reproduction of the Criminal Procedure Code Law of 1960 of Northern Nigeria, permits the initiation and prosecution of criminal proceedings by a private person as the respondent did in this case.
“Of course a private person who proceeds under the provisions of Section 143 (d) and (e) above by instituting a direct complaint in Court cannot seriously expect the police to prosecute it for him; he will ordinarily be expected to prosecute his complaint by himself or counsel of his choice as the respondent did.”
I then went on to address more specifically the right of private persons to initiate and prosecute criminal complaints without the fiat of the Attorney-General of Kwara State and whether that right conflicts with Section 211 of the 1999 Constitution thus:
“The next and related issue is whether these provisions permitting a private person to initiate a criminal prosecution conflict with the powers vested on the Attorney-General of Kwara State to initiate and prosecute criminal proceedings under Section 211 of the 1999 Constitution of the Federal Republic of Nigeria and so invalid as contended by Mr. Jawondo for the appellant. Section 211 of the 1999 Constitution of the Federal Republic of Nigeria states thus:
- 211: The Attorney-General of a State shall have power:-
(a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court-martial in respect of any offence created by or under any law of the House of Assembly.
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of a State under Subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
(All emphasis mine.)
“These provisions of the 1999 Constitution, especially the portions I have highlighted, clearly confer power of, and contemplate, institution of criminal proceedings by three different bodies or persons, namely:
(1) The Attorney-General of the State and officers of his Department;
(2) Any other authority which may have been conferred powers by statute to initiate criminal cases. Other authority here clearly refers to and include Governmental Authorities and agencies like the Police, the EFCC and sundry other authorities which daily initiate and prosecute complaints in our Courts, especially the lower Courts.
- Last but no less important is ‘persons’, which in the provision is not only unqualified but also deliberately separated from Attorney-General and ‘any other authority’ by the disjunctive ‘or’ thus suggesting that neither of the two already mentioned is intended as ‘the person’ used in the provision. In any event, the word ‘person’ must be given its ordinary natural meaning of ordinary persons, after all the golden rule of construction is that words be given their literal meaning. It is here provisions like Section 143 and 152 of the Criminal Procedure Code Law of Kwara State conferring powers on private persons to initiate criminal proceedings, and for the Courts of Kwara State not only to take cognizance of such complaint but also try them if satisfied with their substance, comes into play and is undoubtedly validated by Section 211 of the 1999 Constitution, incredible as that may sound on first impression.
“Section 211 of the 1999 Constitution undoubtedly confers on the Attorney-General of the State the power to take over any prosecution including a complaint instituted by a private person upon direct complaint to the Court, like the present one. In the result, I hold that there is no conflict between Section 211 of the Constitution and the right of a private person to lay and prosecute a complaint before a Court as provided by Section 143 of the Criminal Procedure Code Law of Kwara State and such a complainant’s right to directly brief counsel of his choice to prosecute his complaint. Neither Commissioner of Police v. Joseph Tobin (2009) ALL FWLR (pt.483) 1302 at 1322-1323 nor any of the other cases cited by Mr. Jawondo says the contrary or even addressed the present issue. In Tobin’s case the complaint was made to the police and private counsel was issued fiat by the Attorney-General to prosecute the case at the Magistrate Court of Rivers State and the issue on appeal to this Court, which was even decided on an application for extension of time to appeal by the private prosecutor, was whether the said private counsel who also filed an appeal on the basis of the said fiat which he never produced made out his locus to file the appeal. All other cases cited by Mr. Jawondo for appellant were also on similar facts and not on the rather novel point here of a complaint directly laid by a private person to the Court and prosecuted by him with counsel of his choice. To that extent, those cases are all inapposite.
“There is no doubt in my mind that seemingly novel as the complaint and the prosecution in this case is, the lower Court was correct in its decision that the respondent competently initiated and prosecuted privately his complaint in the Magistrate’s Court of Kwara State and same does not conflict with the powers of the Attorney-General of Kwara State under Section 211 of the Constitution. This conclusion is further confirmed in Comptroller, Nigerian Prisons Service (No.1) v. Adekanye (2002)15 NWLR (PT 790) 318 where the Supreme Court, per Belgore, J.S.C. (as he then was), interpreting Section S.160 of the 1979 Constitution (similar to Section 211 of 1999 Constitution), said thus at p. 329 after setting out the constitutional provisions:
“It is clear from the provisions of Section 160 of the 1979 Constitution the Attorney-General’s powers of public prosecution is not exclusive; the ‘any other authority or person’ in Subsection (1) can institute and undertake criminal proceedings.” (Emphasis all mine)
I have not seen any reason to depart from this reasoning which incidentally upheld a judgment of the same appellate session of the Kwara State High Court holding that a private criminal complaint can be validly prosecuted by counsel without the fiat of the Attorney General of Kwara State. The lower Court is bound by this Court’s decision as well as Comptroller of Prisons v. Adekanye and so wrong in its decision to the contrary in this case.
I note, too, that in D.P.P. v. Micheal Akozor (1962) 1 ANLR (Reprint) 235, particularly at 237 – 238, Mr. G. Impey, a private legal practitioner, is recorded to have been retained to prosecute the private criminal complaint in that case without the fiat of the Director of Public Prosecutions (D.P.P.) who under 97 of the1960 Constitution exercised similar functions as those reserved for the Attorney-General in Section 211 of the 1999 Constitution. In fact it was after the D.P.P. exercised his powers of discontinuing that private complaint, went on to institute fresh proceedings against Akozor and instructed the same Mr. Impey to prosecute him that the issue, which led to the reference to the Federal Supreme Court in the case, was taken up by counsel to the Defendant as to whether the D.P.P. (now Attorney-General) has power under Section 97 of the 1960 Constitution (now S. 211) to instruct a private legal practitioner to appear in a criminal case – a question the apex Court answered in the affirmative. Mr. Impey’s right to prosecute the private complaint of United Trading Co. Ltd against Akozor without the D.P.P.’s fiat was never in doubt and was not questioned.
The long and short of it is that, until the Attorney-General exercises his powers under Section 211 of the Constitution of either taking over and continuing or discontinuing a private criminal complaint, such a complaint remains just what it is – a purely private affair of the complainant in every ramification including authority to instruct counsel to prosecute it.” Per UGO, J.C.A. (Pp. 35-47, Paras. F-E).
MRS. TOLULOPE ONIYIDE v. MR. TAIYE AYOTUNDE ONIYIDE (2018) LPELR-44240(CA)
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