Criminal proceedings in Nigeria are governed by a structured legal framework that delineates who may initiate prosecutions and the permissible methods for doing so. These processes reflect the balance between state authority, private rights, and institutional mandates. This article examines the key actors empowered to institute criminal cases, the powers of the Attorney General, and the procedural modes for initiating such proceedings across Nigeria’s judicial divisions.
Persons Empowered to Institute Criminal Proceedings
There are several classes of persons who may institute criminal proceedings in Nigerian law. These include:
1. The Attorney General (AG)
The Federal and State Attorneys General hold broad constitutional authority to initiate, oversee, or terminate criminal proceedings. Key powers include:
- Instituting cases in any court except Court Martial (Sections 174(1) & 211(1), 1999 Constitution).
- Delegating prosecutorial powers to officers in their department (e.g., Ministry of Justice officials) (Sections 174(2) & 211(2), Constitution; Section 104(2), Administration of Criminal Justice Act [ACJA]).
- Issuing legal advice to law enforcement agencies to guide investigations (Section 105(1), ACJA).
2. The Police
The Nigeria Police Force retains prosecutorial authority under the Police Act, though this is subject to the AG’s overriding powers. Notably:
- Police officers may prosecute cases up to the Supreme Court (Osahon v. FRN).
- Their authority is not explicitly codified in Sections 106 & 381 of the ACJA, creating ambiguity in jurisdictions governed by the Act.
3. Private Persons
Private individuals may initiate criminal proceedings under strict conditions:
- Requires AG’s written endorsement. If refused, a writ of mandamus may compel prosecution (Anambra State v. Nwobodo).
- Must enter a recognizance (binding agreement) and provide financial surety to cover costs (Section 343, Criminal Procedure Law [CPL]; Section 383, ACJA).
4. Private Legal Practitioners
In Southern states, lawyers require a fiat (written authorization) from the AG to prosecute (State v. Gwanto). Northern states permit private prosecution without a fiat, reflecting regional procedural variations.
5. Special Prosecutors
Statutory agencies like the EFCC, ICPC, and Customs possess exclusive prosecutorial mandates under their enabling laws. Courts presume the AG’s implied consent for such cases (Ehindero v. FRN).
Powers of the Attorney General
The AG’s constitutional powers are near-absolute:
- Institute and Undertake Proceedings: Directly initiate or assume control of any prosecution (Section 174(1)(a), Constitution).
- Take Over Ongoing Cases: Supersede other prosecutors mid-trial (Section 174(1)(b)).
- Discontinue via Nolle Prosequi: Terminate proceedings at any stage before judgment (Section 174(1)(c)).
- Courts cannot question the AG’s discretion in exercising these powers (State v. Ilori).
Modes of Instituting Criminal Proceedings
The specific procedures by which criminal cases may be instituted before the Courts in Nigeria differ depending on the Court and the State.
Magistrate Courts
In the Southern States, cases are commenced by Charge filed by police or law officers or by oral/written complaint submitted to a magistrate.
In the Northern States, cases are commenced by Complaint or First Information Report (FIR), which is a police report detailing alleged offences.
High Courts
In the Southern States, cases are commenced by Information, which is Filed directly by prosecutors. Under the CPL, however, High Court consent is mandatory. For minor offences, cases may also be commenced by way of Complaint.
In the Northern States, cases can be brought before the High Courts by way of a Charge, with the leave of the Court. For minor offences, cases may also be commenced by way of Complaint.
Conclusion
Nigeria’s criminal justice system accommodates diverse actors and procedural rules shaped by constitutional provisions, regional laws, and judicial precedents. While the Attorney General retains overarching authority, statutory agencies, police, and even private citizens play defined roles. Understanding these modes is critical for ensuring lawful and efficient prosecutions.