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Published online by Cambridge University Press: 28 July 2009
In most modern legal systems the prosecution of offences is conducted by government-employed or appointed officials on behalf of the State. Nevertheless it is generally recognised that private individuals also have an important, if somewhat diminished, role to play in this process. Recent legislation introduced into one of the 21 states of Nigeria has however partially abolished the right of private prosecution except in relation to the offence of perjury. This and the additional controversy surrounding one man's attempts to prosecute two government security agents for the murder of his friend has generated a surge of interest in a topic which has for the most part been largely ignored.
This article traces from an historical perspective the role of the private prosecutor in Nigerian traditional society and under its present legal system. An attempt is then made to examine the powers, obligations and importance of the private prosecutor in Nigeria today, and to identify and suggest the checks and balances that are needed to preserve the right of the citizen to seek judicial redress by private prosecution when otherwise justice would be denied.
1 Milner, A., The Nigerian Penal System, London, 1972, 31Google Scholar.
2 Yusuf, A. B., Nigerian Legal System: Pluralism and Conflict of Laws in the Northern States, New Delhi, 1982, 30–31Google Scholar. While Islamic law is the dominant law in Northern Nigeria it should not be thought that it has entirely supplanted customary laws. Even in strongholds of Islam such as Kano and Sokoto, local laws and customs continue to be accommodated, while in the socalled “non-believer” communities purely ethnic laws predominate, Yusuf, 34, 45. In modern Nigerian jurisprudence, Islamic law is in fact categorised as only one of a species of customary law in Northern Nigeria, see Obilade, A. O., The Nigerian Legal System, London, 1979, 83Google Scholar.
3 Yusuf, , op. cit., pp. 36–41Google Scholar.
4 Yusuf, , op. cit., at p. 34Google Scholar; Milner, op. cit., at p. 33Google Scholar.
5 Anderson, J., Islamic Law in Africa, London, 1954, 197Google Scholar; Yusuf, , op. cit., at p. 35Google Scholar.
6 Milner, op. cit., at p. 41Google Scholar.
7 Adewoye, , The Judicial System in Southern Nigeria 1854–1954, London, 1977, 6Google Scholar.
8 Ordeals might consist of the use of poison, pushing a feather through the tongue of the suspect, dropping the suspect into a crocodile infested river or requiring him to retrieve objects from boiling oil or water etc.
9 Driberg, J. H., “The African Conception of Law”, (1955) Journal of the African SocietyGoogle Scholar.
10 Hailey, , An African Survey Revised, 1956, 625Google Scholar.
11 Under Islamic law, in the case of homicide even if the relatives of the deceased pardoned the offence, the local ruler still imposed a punishment of 100 lashes and one year's imprisonment, Anderson, op. cit., at p. 199Google Scholar.
12 For a detailed account of this process see Okagbue, I. E., “Developments In Criminal Law and Procedure” in, The Challenge of the Nigerian Nation; An Examination of its Legal Development 1960–1985, ed. Aguda, T. A., Lagos, 1985, 67–69Google Scholar.
13 This provision first appeared in s. 22(10) Constitution of Nigeria, 1960. It is presently found in s. 33(12) of the 1979 Constitution.
14 Cap. 42, Laws of the Federation of Nigeria and Lagos, 1958.
15 Cap. 43, Laws of the Federation of Nigeria and Lagos, 1958. The Criminal Procedure Act (CPA) was enacted in 1945 and is largely based on English rules of procedure.
16 Cap. 89, Laws of Northern Nigeria, 1963.
17 Cap. 30, Laws of Northern Nigeria, 1963, (CPC).
18 The Attorney-General of each State has identical powers in relation to criminal proceedings in respect of criminal offences under state laws as does the Attorney-General of the Federation in respect of offences under Federal laws. See s. 191 of the 1979 Constitution.
19 See s. 160 of the 1979 Constitution.
20 Under the 1960 Constitution all the powers currently exercised by the Attorney-General were vested in the Director of Public Prosecutions. Because the Director, being a civil servant, could not be held accountable for his actions by the Government of the day this situation was changed in the 1963 and subsequent constitutions. See Ekundayo, A. A., Constitutional Provision of Nolle Prosequi: A Blessing or a Curse?, Lagos, 1988, 9Google Scholar. Today the Director of Public Prosecutions is a career officer in the Ministry of Justice, working under the overall control and supervision of the Attorney-General and Minister of Justice and with no statutorily defined powers or responsibilities.
21 See Nwadialo, F., The Criminal Procedure of the Southern States of Nigeria, 2nd ed. Lagos, 1987, 21Google Scholar. Such prosecutions are conducted by a police officer who need not necessarily be a lawyer.
22 Note that in legal theory, police officers are not regarded as conducting prosecutions in their capacity of private citizens but act on behalf of the State. See s. 255(5) CPA.
23 See s. 59(1) CPA and s. 143(e) CPC.
24 On the different ways of instituting proceedings in the High Court see, Nwadialo, , op. cit., at p. 117Google Scholar. Prosecutions may be initiated in the magistrates courts on complaint, whetherunder oath or not, that a person whose presence the magistrate has power to compel, has committed an offence and an application to that magistrate to issue either a summons or a warrant of arrest. See s. 78(a) CPA.
25 S.342(a) CPA.
26 S.342(b) CPA. In the event of an unsuccessful prosecution the court may order the private prosecutor to pay costs to the accused s. 255(2) CPA.
27 S.350(2)(b) CPA., See also Atanda v. Attorney-General for Western Nigeria (1965) N.M.L.R. 225Google Scholar.
28 S. 186(2) CPA.
29 Offences which require the consent of the Attorney-General to prosecute include sedition, treachery, refusal by a public officer to perform his duty, breach of contract by persons employed in the public service, prosecution of fugitive offenders, and defamation of a dead person. For a more complete listing see Elias, T. O., “The Office and Duties of the Federal Attorney-General in Nigeria”, (1972) Nigerian Law Journal 154Google Scholar, Nwadialo, , op. cit., at pp. 369–370Google Scholar. See also s. 140 CPC.
30 S.143(d) and (e) CPC. Certain offences such as defamation, adultery and offences against marriage can only be prosecuted on the complaint of the person aggrieved.
31 S. 150 CPC.
32 There are no statistics available on the incidence of private prosecutions in Nigeria. However this assertion was made in the course of an interview by me with Mr F. Nwadialo, the present Director of Public Prosecutions in the Federal Ministry of Justice.
33 (1987) 4N.W.L.R. 797.
34 At the time, the office of the Attorney-General, to whom the application should more appropriately have been made, was vacant.
35 Under the High Court of Lagos State (Civil Procedure) Rules, Order 53, rule 1(1) it is first necessary to obtain leave to apply for an order of mandamus as a preliminary to applying for the actual order.
36 It should be noted that the remedy being sought was not to compel prosecution—a matter that is entirely within the discretion of the Attorney-General—but to compel the endorsement on the certificate that he would not exercise his discretion to prosecute at the public instance, a duty which the public prosecutor is statutorily required to perform.
37 (1987) 4 N.W.L.R. 797, per Obaseki, J.S.C., at 832Google Scholar.
38 Chief Fawehinmi has since filed charges of professional misconduct against the Attorney- General, Mrs Eniola Fadayomi, before the Legal Practitioners Disciplinary Committee alleging that the case was deliberately mishandled to pervert the course of justice.
39 See Akilu & Togun v. Fawehinmi (No. 2) (1989) 2 N.W.L.R. Part 102, 122Google Scholar. The Supreme Court was of the opinion that the cause of action in the two proceedings was not the same. The mandamus proceedings were based on the death of Dele Giwa while the libel proceedings were based on the publication of information to the general public alleging the commission of murder by the accused persons. While both cases might relate to the same event they did not relate to the same subject matter. This being so the decision in one case would not affect the outcome of the other and there was no basis on which to grant a stay. See the ruling of Karibiwhyte. J.S.C, at 169.
40 See Akilu & Togun v. Fawehinmi (Suit Nos, ID/312/88—ID/313/88;—06 12, 1989 unreported)Google Scholar. It should be noted that the accused persons succeeded in their libel suit because of the publication to the public of the libel complained of. There would have been no cause of action if the information had been published to the Attorney-General in the ordinary course of duty, see the obiter dictum of Karibi-Whyte, J. S. C., in Akilu & Togun v. Fawehinmi (No. 2) (1989) 2 N.W.L.R. 122 at 169Google Scholar.
41 See Administration of Justice (Miscellaneous Provisions) Law No. 4 of 1979 and the Criminal Procedure (Amendment) Edict No. 7 of 1987. In view of this the Supreme Court was of the opinion that, since Chief Fawehinmi's second application for mandamus was made after the amendment, it must necessarily fail, the applicant no longer having any right to take action. This was therefore an additional reason for not granting a stay in the libel proceedings. See Akilu & Togun v. Fawehinmi (No. 2) (1989) 2 N.W.L.R. part 102, 122 at 171–172Google Scholar.
42 See ss. 78(a) and 81(1) CPA read together with s. 59(1) CPA.
43 See Dession, G., “Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction”, (1955) 65 Yale LJ. 210, 227Google Scholar; See also Williams, G., “The Power to Prosecute”, (1955) Crim. L.R. 596, 599Google Scholar
44 See The State v. Ilori (1984) 5 N.C.L.R. 40 at 49Google Scholar.
45 See Gardenas, “The Crime Victim in the Prosecutorial Process”, (1986) 9 Harvard Journal of Law and Public Policy 357, 361Google Scholar, see also Hay, D., “Controlling the English Prosecutor”, (1983) 21 Osgoode Hall Law Journal 165, 167Google Scholar.
46 See Burns, P., “Private Prosecutions in Canada: A Proposal for Change”, (1975) 21 McGill Law Journal 269, 288–289Google Scholar. See also Dession, op. cit., at 227–228Google Scholar.
47 Dession, op. cit., at 228Google Scholar. See also Cohen, M. R., “Moral Principles of the Criminal Law”, (1940) 49 Yale, LJ. 987Google Scholar, 1010–1012 who states that it is “sentimental foolishness” to ignore the motive of retribution which exists in human relationships.
48 Stephens, J., A History of the Criminal Law in England, 496Google Scholar.
49 Meister v. People (1875) 31 Mich. 99Google Scholar
50 R v. Whiteford, (1947) 1 W.W.R. 903, 89 C.C.C. 74 (Canada)Google Scholar.
51 See generally, Sidman, A., “The Outmoded Concept of Private Prosecution”, (1976) 25 Am.U.L.Rev. 74Google Scholar, See also Cardenas, op. cit., at 374–375Google Scholar.
52 Jerry v. State (1930) 99 Fla. 1330 at 128; So. 2d 807 at 809Google Scholar
53 On the ethical considerations in private prosecutions see, Sidman, op cit., at 773 ffGoogle Scholar. One wonders however how realistic it is to say that the District Attorney has no personal interest in securing convictions when his re-election to the position to a large extent depends on his performance in doing so.
54 See generally, Dression, op. cit., and Cardenas, op. cit.
55 S. 149(1) CPC.
56 S. 150(1) CPC.
57 Ss. 150 (1) and (3) CPC. For further discussion see S. Richardson and Williams, T. H., The Criminal Procedure Code in Northern Nigeria, London, 1963, 77–78Google Scholar
58 Ss. 81(1) and 340(2) (b) CPA. The State v. Isuman (1965/66) M.N.L.R. 118Google Scholar.
59 With regard to this aspect it may be necessary to explore the possibility of providing legal aid to impoverished complainants who wish to prosecute privately.
60 S.256 CPA and S.166 CPC. The maximum specified amounts of $20 and $50 respectively which the court may award in such circumstances, is however, much too low and needs revision.
61 S.342 CPA.
62 (1987) 4N.W.L.R. 797.Google Scholar
63 Ibid, at 824.
64 S. 143(d) and (e) CPC.
65 It should be noted that in Nigeria this power may be exercised under the criminal procedure laws (s. 73 CPA, s. 253 CPC) in which case it must be exercised by the Attorney-General personally, State v. Chukwurah (1964) N.M.L.R. 64) or under the Constitution (ss. 160, 191)Google Scholar in which case the power may be exercised by the Attorney-General or through officers of the department such as the Solicitor-General or Director of Public Prosecutions (ss. 160(2), 191(2) See however, Attorney-General of Kaduna State v. Hassan (1985) 2 N.W.L.R. 483Google Scholar where the Supreme Court held that the power must be specifically delegated so that if the office of Attorney-General is vacant, the Solicitor-General or any other officer cannot exercise this power. The delegated exercise of nolle prosequi powers is not to be confused with a prosecutor's right to withdraw criminal proceedings with the consent of the court. (SS.75, 284 CPA).
66 (1982) 2 W.L.R. 849.Google Scholar
67 For a detailed analysis of this case see, Kodwoh-Bentil, , “Private Criminal Proceedings and the Director of Public Prosecutions”, (1983) 127 Solicitors Journal 516Google Scholar.
68 See Hay, op. cit., at 186Google Scholar.
69 Nwabueze, B. O., Nigeria's Presidential Constitution 1979–1983: The Second Experiment in Constitutional Democracy, New York, Longman, 1985, 309Google Scholar.
70 National Concord, 07 15, 1982, 1Google Scholar. Apparently 21 instances of nolle prosequi had been entered between October 1979 and 08 1982Google Scholar. In reply the Attorney-General merely stated that he had been exercising his constitutional powers, see the duplicated copy of the press conference by B. I. Obasuyi Esq., Hon. Attorney-General and Commissioner for Justice, Bendel State, August 31, 1982 quoted in Ekundayo, op. cit., at a. 62 above at pp. 25–27Google Scholar. See also the comments of the Minister of Police Affairs on the “indiscriminate withdrawal of cases” in New Nigerian newspaper 04 6, 1983, 3Google Scholar. For dramatic instances of the abuse of nolle prosequi powers, see Ekundayo, , op. cit., at 21–24Google Scholar;
71 See s. 160(3) of the 1979 Constitution.
72 (1984) 5N.C.L.R. 40.Google Scholar
73 Ibid. Per Kayode-Eso, J.S.C., at 51. It was suggested obiter (per Aniagolu, J.S.C., at 57) that the remedy might lie in a civil action and a declaratory judgment that the Attorney- General did not act in the public interest. This could then be used to force the removal of the Attorney-General from office. In view of the decision in the English case of Raymond v. Attorney-General (above), which is of persuasive authority in Nigeria, it is unlikely that such an action would in fact succeed.
74 Ibid. Per Aniagolu, J.S.C., at 58.
75 See Karibi-Whyte, A. G., The Relevance of the Judiciary in the Polity-In Historical Perspective, Lagos, 1987, 83–84Google Scholar.
76 Hay, op. cit., at 186Google Scholar.
