The Prosecutorial Power of the Police under the Kaduna State ACJL vis-à-vis the ACJA and the Police Act: An Exposition

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By Emmanuel J. Samaila, Esq. 

Abstract

A basic requirement in litigation is that a party must have the locus standi to appear in a matter. In criminal cases, with its likely concomitant consequences marked by the denial or violation of certain rights of a defendant, it is imperative that the proper person with the requisite qualification prosecutes an offence. A deficiency in the right of appearance of a party affects not only the jurisdiction of a court to entertain a matter but also constitutes a potent ground for the nullification of its decision. In this paper, the power of the Police to prosecute offences is examined within the context of the Kaduna State Administration of Criminal Justice Law, 2017 vis-à-vis the provisions of the Administration of Criminal Justice Act, 2015 and the Police Act, 2020.

Keywords: Police, criminal law, prosecution, criminal justice I.

  1. Introduction

One of the key institutions in the administration of criminal justice is the Police. The power of the Police to investigate and prosecute offences is not only statutorily provided for but also judicially underscored. However, some uncertainties still persist as to the existence, nature and extent of the power of the Police to prosecute offences. It is necessary for these to be clarified in order to prevent the occurrences of a mistrial, forestall wastage of State resources and defendant’s expenses, undue burdening of a court, and avoid undue delays in the aggrieved persons’ and the society’s quest for justice. It is to these ends that the Kaduna State Administration of Criminal Justice Law, 2017 (hereafter referred to as “the ACJL”) is comparatively considered alongside the Administration of Criminal Justice Act, 2015 (hereafter referred to as “the ACJA”) and the recently re-enacted Police Act, 2020 (hereafter referred to as “the Police Act”)

  1. The Power to Prosecute Offences under the ACJL

The ACJL, which occasioned the repeal of its precursor[1], is the domesticated version of the Federal Act.[2] It captures the peculiarities in the administration of criminal justice in Kaduna State. Section 117 of the ACJL (in pari materia with Section 104 of the ACJA) grants the Attorney-General the power to initiate all criminal proceedings for State offences in any Court and to also authorize any person of his choice to exercise this power. The section provides:

(1) The Attorney-General may prefer a charge in any Court in respect of an offence created by a Law of the State House of Assembly.

(2) The Attorney-General may authorize any other person to exercise any or all the power conferred on him under this Section.

Furthermore, Section 119(1) of the ACJL (in pari materia with Section 106 of the ACJA) makes provision for the power of the Attorney-General of a State to prosecute offences in any Court.[3] The section contains a list of the persons that can prosecute offences in Kaduna State. It provides that:

In pursuance of the provisions of the Constitution relating to the power of prosecution by the Attorney-General the prosecution of all offences in any Court shall be undertaken by:

(a) the Attorney-General or a Law Officer in his Ministry or Department;

(b) a legal practitioner authorized by the Attorney-General or any other person; (c) a legal practitioner authorized to prosecute by this Law or any other Law of the State House of Assembly.

Thus far, the only persons empowered to prosecute offences in Kaduna State are as follows:

  1. The Attorney-General
  2. A Law Officer in the Ministry of Justice.
  3. A legal practitioner authorized by the Attorney-General.
  4. Any other person authorized by the Attorney-General. 5. A legal practitioner authorized by the ACJL or any Law enacted by Kaduna State Legislature.
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Seemingly, Police officers are impliedly excluded from the classes of persons that can prosecute offences under the ACJL. However, this position of the law is manifestly inconsistent with the power of the Police to prosecute offences which has been statutorily and judicially underscored.[4] In the case of Federal Republic of Nigeria v. Osahon[5], the core issue for determination, as stated by Belgore, JSC in the lead judgment, was:

Whether a Police officer, legally qualified to practice law in all courts in the Federation by virtue of his having been called to Nigerian Bar under Legal Practitioners Act, can institute criminal proceedings without the fiat of the Attorney-General of the Federation.

The Court set aside the decision of the Court of Appeal and upheld the verdict of the Federal High Court that Police officers can prosecute criminal cases. Hear his Lordship:

From colonial period up to date, Police officers of various ranks have taken up prosecution of criminal cases in Magistrates’ and other courts of inferior jurisdiction. They derive their power under S.23 Police Act. But when it comes to superior courts of record, it is desirable, though not compulsory that the prosecuting Police Officer ought to be legally qualified. This is not deleting from the provisions of S. 174(1) of the Constitution, rather it maintains age long practice of superior courts having counsel rather than lay persons in most cases prosecuting matters. ….

For the foregoing reasons, I allow this appeal and hold that a Police can prosecute by virtue of S.23 Police Act, S.56 (1) Federal High Court Act and S. 174(1) of the Constitution of the Federal Republic of Nigeria, 1999. I therefore set aside the decision of Court of Appeal and restore the ruling of Federal High Court.

In the more recent case of Ajakaiye & Anor v. FRN[6] one of the issues the appellate Court had to determine was: Whether there was a valid criminal charge or process commenced before the lower court from which legal consequences can flow OR whether the prosecutor who signed the charge has power to institute the criminal proceedings against the Appellants before the lower court. The Court answered the issue in the affirmative and held inter alia that:

In the instant case, it’s rather obvious from the submissions of the learned counsel in the respective briefs thereof vis-a-vis the records of appeal as a whole, that Seidu Kazeem Atteh, apart from having been a senior Police officer, was also a qualified lawyer and legal practitioner in Nigeria within the meaning and contemplation of the provisions of the Legal Practitioners Act CAP207 of Laws of the Federation of Nigeria, 1990 (CAP C.23 Laws of the Federation, 2004). He is by virtue of the law in question alone, entitled, and has the absolute right and privilege, to appear and be accorded an audience in any court of law or tribunal throughout the country. See OLUSEMI VS. COP (1998) 11 NWLR (pt. 575) 547 at 558 paras. G-H. Thus, most undoubtedly, Mr. Atteh had the right to appear and prosecute cases, both criminal and civil, in any court, the lower court inclusive, without the authorization or fiat of the Attorney General, Federal or State, or any body for that matter. (Emphasis supplied)

The essence of the decision of the Supreme Court in F.R.N. V. Osahon (supra) and Ajakaiye & Anor v. FRN (supra) is now aptly captured in the provision of section 58 of the Police Act which expressly vests prosecutorial power on the Police. However, this power is subjected to the power of the Attorney-General of the Federation or of a State and the limits of its exercise by a Police officer is dependent upon whether he is a legal practitioner or or a lay person. Even though the section did not expressly state that a prosecuting Police officer in the superior courts must be a legal practitioner, not a lay person, this much is implied in the exception contained in subsection (2). Section 58(1) & (2) provides that:

  1. Subject to the provisions of section 174 and 211 of the Constitution and section 106 of the Administration of Criminal Samaila: The Prosecutorial Power of the Police 6 Justice Act which relates to the power of the Attorney-General of the Federation and of a State to institute, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria, a Police officer who is a legal practitioner, may prosecute in person before any law court whether or not the information or complaint is laid in his name.
  2. A Police officer may, subject to the provisions of the relevant criminal procedure laws in force at the Federal or State level, prosecute before the courts those offences which non-qualified legal practitioners can prosecute.
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By the provision of section 58(1) of the Police Act, Police officers who are legal practitioners have a right, subject to the power of the Attorney General of a State, to prosecute offences in any court. Pursuant to the provision of section 58(2) of the Police Act, Police officers who are not legal practitioners may, subject to the provisions of the ACJL of a State, prosecute offences which the ACJL allows persons who are nonqualified legal practitioners to prosecute.

III. The Significance of Section 103(6) ACJL vis-à-vis Section 58(2) Police Act, 2020

One of the modifications to the provisions of the ACJA in the ACJL is contained in section 103(6). The section provides thus:

After the investigation the Police shall charge the Suspect to Court where the punishment for the offence is less than 3 years or refer the matter to the Attorney-General where the offence attracts more than 3 years imprisonment.

Apparently, the ACJL places a limitation on the nature of offences which can be prosecuted by the Police under the ACJL. While the Police have unlimited and unrestricted power to prosecute all offences referred to them by the Court,[7] which are punishable with less than 3 years imprisonment, they are required to refer offences punishable with more than 3 years imprisonment to the Attorney-General. Of course, the Attorney-General may, in the exercise of his power, direct the Police or any other person to prosecute those offences.[8]

The wording of Section 103(6) ACJL appears to indicate that any Police officer who is not a legal practitioner can prosecute offences which are punishable with a term of imprisonment that is less than three years only. This line of reasoning and conclusion appears to be in tandem with the core essence of section 58(2) of the Police Act 2020 where restriction is placed on the kind of offences Police officers who are lay persons can prosecute. It will be safe, therefore, to deduce that the limitation and restriction placed on such Police officers in section 103(6) is by necessary extension and implication also applicable to a complainant[9] who is not a legal practitioner. Such deduction and practice appears to be in sync with the intendment of the provision of the ACJL.[10]

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Significantly, section 89 ACJA, which is almost in pari materia with section 103 ACJL, does not contain a provision which corresponds with section 103(6) ACJL.

  1. The Role of the Court in the Ensuring Compliance with the Law

A lower court Judge who makes the referral of a direct complaint to the Police for investigation has a corresponding duty to ensure that a complainant who is a lay person is not allowed to prosecute an offence which a Police officer is restricted from prosecuting under section 103(6) ACJL. The Judge also has a duty to ensure that the prosecuting Police officer appearing before him has the requisite vires to prosecute the alleged offence in accordance with the provisions of the ACJL and the Police Act. He ought to examine the alleged offences as contained in the First Information Report (F.I.R.), make enquiries as to the qualification of the prosecutor and issue a directive to the prosecuting Police officer to comply with Section 103(6) ACJL when the offence does not fall within the purview of the offences that he can prosecute.

  1. Conclusion

 In a nutshell, the power of the Police to prosecute State offences under the ACJL is restricted and controlled. In other words, it is subjected to[11] the power of the Attorney-General whether or not the prosecuting Police officer is a qualified legal practitioner or a lay person. It is indisputable that the draughtsmen of the ACJL, ACJA and the Police Act have their rationale for subjecting the prosecutorial power of the Police to the power of the Attorney-General and delineating the extent of the power exercisable by different classes of prosecuting Police officers. The prosecution of any offences by a prosecuting Police officer in excess of the limit of his prosecutorial power is a travesty of justice and an act of injustice to the nominal complainant, the defendants and the society, whose laws are violated.

His Worship Emmanuel J. Samaila, Esq is of the Upper Customary Court, Gwantu, Kaduna State and can be reached on samailaemmanuelj@gmail.com

Footnotes

[1] Criminal Procedure Code CAP.43 Laws of Kaduna State, 1991; s493 ACJL

[2] Administration of Criminal Justice Act (ACJA) 2015

[3] See s211 CFRN 1999 (as amended)

[4] Olusemo v COP (1998) 11 NWLR (PT.575) 547 at 558, Paras G-H; Tonga v State (2017) LPELR-43327 (CA), Pp 9-10, Paras B-A; COP v ALI & ORS (2002) LPELR-11889 (CA); Adekanye v FRN. (2005) 15 NWLR (Pt 949) 433

[5] (2006) 5 NWLR (PT. 973) 361; (2006) 2 SCNJ 348 at 363

[6] (2010) 11 NWLR (PT 1206) 500

[7] s103(5) ACJL

[8]  ss117 and 119 of the ACJL; ss104 & 106 ACJA

[9]  See ss103(3) & 122(a) ACJL

[10] 10 s491(2)

[11] For a detailed judicial interpretation of the expression “subject to”, see Tukur v Govt of Gongola State (1989) 4 NWLR (Pt 117) 517 at 565; Oke v Oke (1974) ALL NLR (Pt 1) 443 at 350; Labiyi v Anretiola (1992) 8 NWLR (Pt 258) 139 at 163-164; Aqua Ltd v Ondo State Sports Council (1988) 4 NWLR (pt. 9) 622; Ajakaiye & Anor VS. FRN (supra)

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