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Published online by Cambridge University Press: 04 July 2019
Private prosecutions have been part of the Nigerian legal system for a long time. In 2015, the Administration of Criminal Justice Act (ACJA) came into force. The ACJA provides for, inter alia, circumstances in which a person may institute a private prosecution. In this article, relying on jurisprudence emanating from Nigerian courts before the ACJA came into force, the author suggests ways in which Nigerian courts could approach the right to institute a private prosecution under the act. To achieve this objective, the author discusses: the right to institute a private prosecution; locus standi to institute a private prosecution; and measures to prevent abuse of the right to institute a private prosecution.
Professor of law, Faculty of Law, University of the Western Cape (UWC), South Africa. The author wrote this article when he was a visiting professor, Faculty of Law, University of Ibadan, Oyo State, Nigeria (July – August 2018). He is grateful to the dean of the Law Faculty, Prof Adeniyi Olatunbosun, for hosting him and to other faculty members for all the support and the discussions they had about the Nigerian criminal justice system generally. He is also grateful to the office of the Deputy Vice Chancellor: Research and Innovation (UWC) for partly funding his research trip to Nigeria under the University Capacity Development Grant programme.
1 For the meaning of the term “prosecute”, see Sunday D Bayam v Job Agana (2010) LPELR-9159 (CA) at 5. LPELR stands for LawPavilion Electronic Law Report; these reports are published online by the Nigerian Law Firm, Law Pavilion at: <http://www.lawpavilionplus.com/> (last accessed 14 May 2019).
2 AG of Kaduna State v Mallam Umaru Hassan (1985) LPELR-617 (SC) at 26.
3 [2009] 10 NWLR 63 at 85. In Mukapuli and Another v Swabou Investments (PTY) Limited (SA 49/2011) [2017] NASC 22 (23 June 2017), the Namibian Supreme Court held (para 55): “In criminal proceedings, the State is, except in private prosecutions which seldom occur, always a party and is represented by its prosecutors to look after its interests and costs are not an issue”.
4 For example, if he thinks that there is no evidence to secure a conviction. This was the reason that the Solicitor General invoked in his questionable attempt to dismiss the proceedings on behalf of the Attorney General in the case of AG of Kaduna State v Mallam Umaru Hassan, above at note 2. See also HRH Igwe GO Umeonusulu Umeanadu v AG of Anambra State and Another (2008) LPELR-3362 (SC), where the Director of Public Prosecutions refused to prosecute because he thought there was no prima facie case against the accused.
5 See generally, Okagbue, I “Private prosecution in Nigeria: Recent developments and some proposals” (1990) 34/1 Journal of African Law 53CrossRefGoogle Scholar.
6 Ibid.
7 Nigeria is a federal state, with a National Assembly and a House of Assembly in each state. Sec 4(2) of Nigeria's Constitution provides: “The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.” The legislative powers of the Houses of Assembly are provided for in the Concurrent Legislative List (see sec 4(4) of the constitution). In the light of the fact both lists are silent on matters to do with criminal law and criminal procedure, states have the power to enact their own criminal laws. However, in Abiodun Adelaja v Olatunde Fanoiki and Another [1990] NGSC 12; (1990) 3 NILR 23 (23 March 1990), the Supreme Court pointed out that matters of evidence are on the Exclusive Legislative List. For discussion of the relationship between federal and state criminal law, see Nwauche, ES “The Nigerian police force and the enforcement of religious criminal law” (2014) 14/1 African Human Rights Law Journal 203Google Scholar at 205–06.
8 ACJA, sec 2(1).
9 These states are: Abuja FCT, Anambra, Cross River, Delta, Ekiti, Enugu, Lagos, Ondo, Oyo, Kaduna, Rivers, Akwa Ibom and Ogun. See “States with ACJ legislation (December, 2017)”, available at: <http://www.nba-acj.org.ng/index.php?option=com_content&view=article&id=273&Itemid=232> (last accessed 14 October 2018). An email of 11 October 2018 (on file with the author) to the author from Dr Benson Chinedu Olugbuo, director of Cleen Foundation (a non-governmental organization based in Abuja), indicates that, in addition to these 13 states that have domesticated the ACJA, eight were in the process of domesticating it.
10 See B Madukwe “NBA inaugurates Administration of Criminal Justice Act Implementation C'ttee” (1 February 2018) Vanguard, available at: <https://www.vanguardngr.com/2018/02/nba-inaugurates-administration-criminal-justice-act-implementation-cttee/> (last accessed 14 May 2019).
11 Abdullahi, I Civil Litigation in Nigeria: A Quick Reference Guide to Practice and Procedure (2018, Malthouse Press)Google Scholar at 69. See also Bello, AO “Criminal law in Nigeria in the last 53 years: Trends and prospects for the future” (2013) 9/1 Acta Universitatis Danubius: Juridica 15Google Scholar.
12 See ACJA, sec 268(1). A similar provision appears in the relevant legislation of some of states. See for example: sec 267(1) of the Administration of Criminal Justice Law, 2016 (Oyo State); sec 70 of the Administration of Criminal Justice Bill No, 2013 (Ekiti State); and sec 70 of the Administration of Criminal Justice Law of Lagos (2011).
13 Commissioner of Police v Tobin, above at note 3; Billy Ikpongette and Another v Commissioner of Police Akwa Ibom State (2008) LPELR-3878 (CA); Federal Republic of Nigeria v Senator Olawole Julius Adewunmi (2007) LPELR-1273 (SC); Mrs Mopelola Saidu v The State and Others (2014) LPELR-22672(CA); Engr Sola Akinwumi v The State (2012) LPELR-9467 (CA).
14 Ikpongette v Commissioner of Police Akwa Ibom State, id at 6. The power could also be delegated to any government agency. See for example, Serah Ekundayo Ezekiel v Attorney General of the Federation (2017) LPELR-41908 (SC), where the Supreme Court held (para 8) that: “all Agencies charged with prosecutorial powers are qualified to initiate criminal charges in Court. Indeed, even legal practitioners briefed by the Attorney General are competent to initiate charges”.
15 Lucy Onwudinjo v The State (2014) LPELR-24061 (CA).
16 The State v Okoye and Others [2007] 16 NWLR 607 at 644–45; Marcel Nnakwe v The State (2013) LPELR-20941 (SC).
17 (2013) LPELR-20857 (CA) at 13.
18 See the Constitution, chap IV.
19 See, for example, secs 88 (right to make a complaint), 258 (right of reply by a law officer for the prosecution), 304 (defence and prosecutor's right of reply) and 433 (right of person imprisoned in default to be released on making a payment and the effect of part payment).
20 See Criminal Procedure Act, Cap C41 LFN 2004, secs 75(2), 255, 275(1)(i), 242 and 243.
21 (1987) 4 NWLR (pt 67) 797.
22 Id at 822.
23 Id at 826.
24 Ibid.
25 Id at 830.
26 Id at 834.
27 Criminal Procedure Law of Lagos State, secs 340 and 343.
28 Fawehinmi v Akilu, above at note 21 at 835.
29 Id at 858.
30 Id at 864.
31 Id at 866.
32 Oniyide v Oniyide (2018) LPELR-44240 (CA), paras 19–22. See also Sambo v Ndatse, above at note 17, where the Court of Appeal held (at 12) that, “where as in the present case, a statute like Section 211(1)(b) and (c) of the constitution of the Federal Republic of Nigeria 1999 and Section 143(e) of the Criminal Procedure Act have vested any person (or authority) with the right to commence or institute Criminal Proceedings against any other person, a court of law does not have the jurisdiction to disqualify or limit the right by using the general common law principles on the subject”.
33 Fawehinmi v Akilu, above at note 21 at 858.
34 Criminal Procedure Act, Act 51 of 1977, sec 7.
35 Criminal Procedure and Evidence Act, 2016, cap 9:07, secs 13–16.
36 Criminal Procedure and Evidence Act, 1939, cap 08:02, secs 14–22.
37 Criminal Procedure Act, Act 51 of 1977, sec 7.
38 Telecel Zimbabwe (Pvt) Ltd v AG of Zimbabwe NO [2014] ZWSC 1 (27 January 2014); National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another 2017 (1) SACR 284 (CC).
39 Above at note 2 at 30.
40 Sambo v Ndatse, above at note 17 at 11.
41 Above at note 21 at 797.
42 Id at 823.
43 Justice Nnamani referred to the court's earlier jurisprudence on locus standi. Against that background, he held (id at 853) that: “It is therefore understandable that an applicant even for leave has to have locus standi to bring the application. It is clear that all the cases in which this Court has considered the issue of locus standi have been civil causes. In determining therefore whether the appellant herein has locus standi it is necessary to consider the nature of the cause he brought to court …”.
44 Id at 825.
45 Id at 845 (emphasis original).
46 Id at 847.
47 Id at 855.
48 [1995] 4 NWLR 142.
49 Id at 164.
50 Kimani v Kahara [1983] eKLR 1.
51 Edath-Tally Nizam v Michael James Kevin Glover 1994 SCJ 409; Hurnam D v AH Foon Chui Yew Cheong and Others 2003 SCJ 26; 2003 MR 187, at 5.
52 Above at note 17.
53 The Constitution, sec 211.
54 Criminal Procedure Code, cap 39 Laws of Taraba State of Nigeria, 1997, sec 143(d) and (e).
55 Sambo v Ndatse, above at note 17 at 12.
56 However, sec 267(1) of the ACJA provides: “The complainant and defendant shall be entitled to conduct their cases by a legal practitioner or in person except in a trial for a capital offence or an offence punishable with life imprisonment.” See also Administration of Criminal Justice Law of Oyo State, sec 266.
57 See Akilu v Fawehinmi (no 2) [1989] 2 NWLR 122 at 171. For a contrary view, see Atake v Mene-Afejuku [1996] 3 NWLR 483.
58 Above at note 17 at 18.
59 Modinos v Cyprus (appln no 15070/89) (22 April 1993) at 19–20 (dissenting opinion of Judge Pikis).
60 For the definition of a juristic person, see Ndi Okereke Onyuike v The People of Lagos State and Others (2013) LPELR-24809 (CA) at 12–13.
61 In DPP v Michael Akozor (1962) 1 ANLR (reprint) 235, a lawyer instituted a private prosecution on behalf of a private company (Union Trading Company Limited), which was taken over and discontinued by the DPP.
62 See for example, secs 75, 123 and 484(2).
63 Interpretation Act, cap 192.
64 (2006) LPELR-11560 (CA).
65 (2010) LPELR-4415 (CA) at 3.
66 Id at 4.
67 (2016) LPELR-41090 (CA), paras 76–77.
68 (2001) LPELR-5973 (CA) at 8.
69 Ibid.
70 [2013] 4 NWLR 323.
71 Id at 341.
72 Above at note 21 at 825.
73 Pan Bisbilder Nigeria Ltd v FBN Ltd (2000) LPELR-2900 (SC); Prince Oil Ltd v GTB PLC (2016) LPELR-40206 (CA).
74 Incorporated Trustees of Roh Empire Mission v Opara (2017) LPELR-42463 (CA).
75 Samuel Isheno v Julius Berger Nig PLC (2008) LPELR-1544 (SC); Nicon Insurance Corporation v Mr Ayo Olowoofoyeku (2005) LPELR-5946 (CA).
76 Above at note 32.
77 See Mujuzi, JD “The right to institute a private prosecution: A comparative analysis” (2015) 4 International Human Rights Law Review 222CrossRefGoogle Scholar at 250–54.
78 In Akilu v Fawehinmi (1989) LPELR-20424 (CA), the respondent insisted on pursuing a private prosecution for murder against the applicants, although he knew that in Lagos State the law had been amended to restrict the right to institute a private prosecution to the offence of perjury. Justice Nasir observed (at 9) that “it is an abuse of process to apply to the court for leave to issue mandamus to compel the Attorney General to prosecute or allow a person who has no statutory authority to prosecute”. In Abdulraheem Ishola v Sunday Aremu, suit no KWS/37M/2016, the Kwara High Court held (at 28) that “any procedure which tends allows [sic] or permits a private person to lodge a direct criminal complaint and at the same time prosecute it under the provisions of section 143 or any other section of the Criminal Procedure Code is in breach of the fundamental right to a fair hearing of the accused person and clearly inconsistent and in conflict with the provisions of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the principles of natural justice and therefore null and void to the extent of such inconsistence”. However, this holding is debatable in light of the fact that courts in other countries have held that the fact that the prosecutor is also a witness in a case he / she is prosecuting does not violate the accused's right to a fair trial. See Porritt and Another v National DPP and Others [2015] 1 All SA 169 (SCA), 2015 (1) SACR 533 (SCA) (South Africa); Albert Gacheru Kiarie T/A Wamaitu Productions v James Maina Munene and Seven Others [2016] eKLR 1 (Kenya); R (on the application of Haase) v Independent Adjudicator [2008] EWCA Civ 1089 par 24 (United Kingdom); Cisco et al v RL [2016] LRSC 2 (22 January 2016); Yeakula et al v RL [2014] LRSC 48 (5 November 2014) (Liberia); Strachan (Private Prosecutor) v Szewcyk 2013 ONCJ 402 (CanLII) par 72 (Canada); and The People v Paul Jeremiah Lungu HNR/352/78 (30 June 1978), The People v Paul Kankota HPR/121/78 (4 August 1978) (Zambia).
79 Above at note 21 at 867.
80 See for example, secs 384 and 385 of the Administration of Criminal Justice Law, 2016 (Oyo State), and secs 246 and 247 of the Enugu State Administration of Criminal Justice Law, 2017.
81 This right is guaranteed under secs 36(1) and (4) of the Constitution. For a detailed discussion of the meaning of this right, see Chief Osigwe Egbo v Chief Titus Agbara and Others (1997) LPELR-1036 (SC) and Obiaso and Others v Okoye and Another (1989) LPELR-21609 (CA).
82 (2016) LPELR-40013 (SC).
83 (2017) LPELR-43152 (CA) at 13.
84 GP West “Charge and information” (paper presentation at the three-day legal department in-house training workshop on the Administration of Criminal Justice Act, 2015), available at: <http://icpc.gov.ng/wp-content/uploads/downloads/2015/10/Charge-and-Information-Under-ACJA-2015.pdf> (last accessed 14 May 2019).
85 (2013) LPELR-24809 (CA) at 21.
86 Above at note 3 at 88.
87 Ibid.
88 Id at 89.
89 Ibid.
90 (2012) LPELR-9464 (CA) at 10.
91 See, for example, Dr Erastus BO Akingbola v Federal Republic of Nigeria and Another (2012) LPELR-8402 (CA) 6, where the court held (at 6): “Any body or authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do as we are all our brothers’ keepers.”
92 Criminal Procedure Code Law, cap C23 of Kwara State.
93 Above at note 83.
94 Id at 13.
95 Above at note 32.
96 See Sambo v Ndatse, above at note 17.
97 Aliyu N Salihu and Others v Road Transport Employers Association of Nigeria and Others (2013) LPELR-21820 (CA).
98 See Kwara State Administration of Criminal Justice Bill 2017, available at: <http://kwha.gov.ng/Content/Images/pdfFiles/Administration-of-Criminal-Justice-Bill-2017.pdf> (last accessed 14 May 2019).
99 See id, clause 2.
100 See id, clause 142.
101 Above at note 17.
102 Id at 12.
103 See, for example, sec 384(2) of the Administration of Criminal Justice Law, 2016 (Oyo State). However, it was not included in the Enugu State Administration of Criminal Justice Law, 2017.
104 The word “shall” is used in the section. However, in HRH Igwe GO Umeonusulu Umeanadu v Attorney General of Anambra State and Another (2008) LPELR-3362 (SC) at 3–4, the Supreme Court held that there are instances “where the word ‘shall’ can be reasonably interpreted to mean ‘may’. It is not in every case that the word ‘shall’ imports a mandatory meaning into its use.”
105 Fawehinmi v Akilu, above at note 21.
106 This is the same position as in sec 384(2) of the Oyo State Administration of Criminal Justice Law, 2016, which provides that, if the Attorney General declines to grant his consent, “he shall give his reasons for doing so in writing within 15 working days from the date of the receipt of the application”.
107 Above at note 21 at 833.
108 Id at 835.
109 (1989) LPELR-20424 (CA) at 8–9.
110 This is what happened in Akilu v Fawehinmi, above at note 57. However, the DPP's lack of interest in prosecuting the suspects could easily be discerned from her failure to follow basic procedural steps: getting the judge's direction before she could proceed with the prosecution and gathering enough evidence to establish a prima facie case against the accused. When the accused's lawyer raised these two objections, the DPP indicated that “she neither supported nor opposed the preliminary objections raised to the information she filed”; because of that the High Court quashed the information against the accused.
111 See National Policy on Prosecution (2016), para 9 (criteria governing the decision to prosecute), available at: <http://www.justice.gov.ng/index.php/justice-sector-reform?task=document.viewdoc&id=77> (last accessed 14 May 2019).
112 Above at note 21 at 827–30.
113 Id at 866–67.
114 HRH Igwe GO Umeonusulu Umeanadu v AG of Anambra State and Another (2008) LPELR-3362 (SC). In this case the Attorney General of Anambra State refused to issue a fiat to the applicant to institute a private prosecution and the applicant challenged that decision before the High Court. However, before the High Court could hear that application, the applicant instituted a private prosecution against the accused in a magistrates’ court and the accused took him to court for contempt of court. The High Court did not have the opportunity to finalize the application challenging the Attorney General's decision to refuse to issue a fiat to the applicant.
115 See Mujuzi “The right to institute a private prosecution”, above at note 77 at 235–37.
116 Solomon v Magistrate, Pretoria, and Another 1950 (3) SA 603 (T) at 613.
117 Sec 322(2) provides: “In this section, ‘private prosecutor’ does not include a person prosecuting on behalf of the State, a public officer prosecuting in his official capacity and a police officer.”
118 (1987) LPELR-2786 (SC) at 3.
119 Akilu v Fawehinmi above at note 57 at 171–72.
120 Sec 323.
121 (2008) LPELR-8560 (CA) at 10.
122 See the Constitution, sec 211.
123 Major Ekundayo Awoyomi v Chief of Army Staff and Others (2013) LPELR-22121 (CA).
124 Kenyan Constitution, art 157(6)(b) and (c).
125 In Barkono v Commissioner of Police [1971] 10 (12 July 1971), the High Court of Kano State held that, once the DPP has taken over a private prosecution, he takes the place of the person who had initiated that prosecution. The court also added that, although it is desirable for the DPP to notify that private prosecutor of his intention to take over a private prosecution, failure to do so does not invalidate his decision to take over the prosecution. In Ng Chi Keung v Secretary for Justice [2016] HKCFI 668; [2016] 2 HKLRD 1330; [2017] 3 HKC 305 (21 April 2016), the High Court of Hong Kong held (para 90) that “once a private prosecution is taken over, it becomes a public prosecution”.
126 Above at note 21 at 829.
127 Above at note 2 at 23.
128 Art 157(6)(b) of the Constitution of Kenya (2010) provides that the DPP may “take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority”.
129 Id, arts 157(6)(c) and (8).
130 Constitution of Uganda (1995), art 120(3)(c).
131 Constitution of The Gambia, art 85(1).
132 Above at note 2 at 26.
133 Id at 22.
134 The State v SO Ilori and Two Others (1983) 2 SC 155.
135 (1986) LPELR-1215 (SC) at 6 (quotation marks deleted).
136 Above at note 85 at 24.
137 For discussion of this doctrine in Nigeria, see, inter alia, Adeyemi (Alafin of Oyo) and Others v AG Oyo State and Others (1984) LPELR-169 (SC) and Kadiya v Lar and Others (1983) LPELR-1643 (SC).
138 NDPP and Others v Freedom Under Law 2014 (2) SACR 107 (SCA); [2014] 4 All SA 147 (SCA).
139 Brioche and Others v AG and Another (CP 6/2013) [2013] SCCC 2 (22 October 2013).
140 Malhotra KK v DPP 2015 SCJ 261.
141 S and Another Ex parte: Trapence and Another, const cause no 1 of 2017, [2018] MWHC 799 (20 June 2018).
142 Republic v AG and Another Ex parte Anne Mutahi and 11 Others [2016] eKLR 1.
143 Mohit Jeewan v DPP 2005 PRV 31; 2006 MR 194.