INTRODUCTION:
The power of prosecution is constitutionally vested in the Attorney-General of the Federation and the Attorney-General of each state, but it can also be exercised by other agencies and individuals like the police and private legal practitioners, subject to the Attorney-General’s authority. This power involves the discretion to commence, continue, or discontinue any criminal proceeding, which must be exercised fairly, independently, and in the public interest, the Attorney-General holds the ultimate power to prosecute, discontinue, or take over any criminal case. The Attorney-General can delegate this authority to other officers within their ministry or to legal practitioners.The police and other bodies can also prosecute cases, but this power is subordinate to the Attorney-General’s overriding authority and must be exercised within legal boundaries, while the police have prosecutorial powers, they are subject to the Attorney-General’s control, for higher courts, police officers must be qualified legal practitioners. Prosecutors have broad discretion, including the power to choose the charge, decide whether to prosecute or not, and pursue plea bargains. The exercise of prosecutorial power is subject to judicial review to ensure fairness and adherence to the rule of law, a prosecutor must consider the public interest when deciding whether to prosecute, even if there is sufficient evidence of a crime. References to the case of Akpa V. State (2008)LPELR-368(SC)
Brief Fact of the case contain as follows:
The case of the prosecution is that the deceased, Ikechukwu Njoku, visited the appellant at Jibia and never returned. He was murdered by the appellant. At the scene of crime, police recovered a human body without legs, arms and neck. In the inner room of the appellant’s shop, police found the floor of the room and a mattress soaked with blood. They also found blood stain by the hole of the pit latrine attached to the inner room. When the pit latrine was dug open they saw two human legs. Appellant was arrested for murdering Ikechukwu Njoku on or about 3rd of December, 1989. The learned trial Judge found the appellant guilty of culpable homicide punishable with death and sentenced him to death. His appeal to the Court of Appeal was dismissed, further appeal to the Supreme Court.
ANALYSIS vis a vis DECISION OF THE CASE:
The Supreme Court, per NIKI TOBI, J.S.C. (Delivering the Leading Judgment), upheld both the judgment of trial and lower courts by dismissing the appeal of the appellant emphasizing on the power of the Prosecution to prosecute vis a vis power of the court to prosecute a person, the court held that the prosecution has an unfettered discretion to prosecute persons in Court because the discretion is unfettered, Courts of law do not have the power to question it. The only jurisdiction of the Court is to try accused persons presented before it for prosecution. A Court cannot go outside the prosecution and ask for some other person to be charged before it.
The mere fact that an accused person specifically mentioned other persons in his statement to the police in the chain of criminality or criminal liability does not necessarily mean that the persons are in fact guilty of the offence or must as a matter of law be charged to Court. And what is more, I know of no law which says that because other persons who committed an offence are not charged to Court, the accused person charged to Court must, on that ground, be discharged and acquitted. Criminal liability is personal. It cannot be transferred. This is because the mens rea or actus reus is on the accused in Court and cannot be transferred to any other person not charged. By way of recapitulation, I should say that the prosecution is not under any regimental duty or any duty at all, to charge all possible accused persons. I should perhaps mention here the practice where the prosecution, instead of charging a particular suspect, decides to call him as a witness, to ensure the conviction of a particular accused person or particular accused persons.
However, in other hand their are circumstances in which the order of mandamus is directed to an individual, body, tribunal or inferior court requiring the performance of some specified thing in the nature of a public duty appertaining to his office. The performance of the duty need not involve a judicial function.” References to the famous case of Fawehenmi V. Halilu Akilu (1987) SC
Brief fact of the case of Fawehenmi V. Halilu Akilu (supra)
This is an appeal against the judgment of the Court of Appeal. The facts of this case was that on Sunday, the 19th October 1986, Mr. Dele Giwa, a Journalist and Editor-In-Chief of a weekly magazine, NEWSWATCH, was killed in his residence at Ikeja in Lagos State by a parcel bomb. On the 3rd of November, 1986, the Appellant, a friend and legal adviser to Mr. Dele Giwa (deceased) submitted to the respondent a 39 page documentation containing all details of the investigation he conducted together with an information accusing two army officers of the murder of Dele Giwa. The two army officers are: Col. Halilu Akilu, the Director of Military Intelligence and Lt. Col. A.K. Togun, Deputy Director of the State Security Service. Pursuant to Section 342 of the Criminal Procedure Law of Lagos State, the applicant acting as a private prosecutor requested the Respondent as Director of Public Prosecutions, Lagos State to exercise his discretion whether or not, he would prosecute Col. Akilu and Lt. Col. A.K. Togun for the murder of Mr. Dele Giwa and if he declines to prosecute, to endorse a certificate to that effect on the information submitted to him by the applicant/Appellant. This is to enable the applicant/Appellant to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for the murder.
Subsequently, the Appellant met the Respondent in the Respondent’s office, as he could not meet the Respondent on Wednesday the 5th of November 1986. The Respondent informed him that he could not come to a decision whether or not to prosecute Col Halilu Akilu and Lt.Col A.K. Togun for the murder of Mr. Dele Giwa until he received a Police Report of Police Investigation. The Appellant filed an application in the High Court of Lagos State for leave to apply for an Order of Mandamus to compel the Respondent to decide whether or not to prosecute these two accused persons and if he decides not to prosecute, to endorse the information that he has seen the information but he had decided not to prosecute at public instance. The learned trial Judge dismissed the application. The Appellant appealed to the Court of Appeal which dismissed his Appeal on the ground that the Appellant has no Locus Standi in the death of Dele Giwa to bring the Application he has brought. Secondly, the Court of Appeal held that the Chief Judge of Lagos State was right in refusing appellant’s leave on the limited materials before him. The two Courts i.e. the High Court and the Court of Appeal held that the Appellant’s application was hopeless. frivolous, improper, ill-timed, hasty and pre-mature. The Appellant appealed to the Supreme Court against the decision of the Court of Appeal.
From the above fact of this case it’s extremely clear that where prosecution failure to prosecute a person, a court of law can compel the prosecution for a specific performance in other to grant an individual or private individual power of fiat to prosecute such matter by way of applying or seeking the leave of the court to grant an order of mandamus.
ANALYSIS vis a vis DECISION OF THE CASE OF FAWEHENMI V HALILU AKILU (supra)
ANDREWS OTUTU OBASEKI, J.S.C.(Delivering the Leading Judgement): This appeal raises two important questions which will continue to be debated in legal circles for a long time. The 1st question touches the locus standi of the appellant to initiate and institute these proceedings in the High Court. In other words, has the appellant established his locus standi entitling him to seek leave of the High Court to apply for an order of mandamus? The second question concerns the quantum or sufficiency of the facts deposed to and placed before the High Court in an application of this sort.
The law has being settled by vesting power on the Attorney-General to grant a fiat to an individual who so wish to prosecute their case personally, failure of the Attorney-General to grant such fiat will avail such an individual to seek the leave of the court for an order of mandamus to enable personal prosecution (individual) have the locus standi in which the court can compel a body or public prosecution to appertaining it office responsibility. References to CBN V. SYSTEM APPLICATION PRODUCTS (NIG) LTD (2004) LPELR-5432(CA)
The order of mandamus requested by a party is among the prerogative orders which are discretionary common law remedies which a High Court may grant in the exercise of its supervisory jurisdiction over the proceedings and decisions of inferior Courts and Tribunal and control of governmental duties and powers. It is a public law remedy and is directed against officers in their capacity as such or against public bodies such as the CBN, A.G PSC and other government parastatals. It aims at compelling the performance of a public duty in which the person applying for it has sufficient legal interest. In the case of Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40, cited by the learned trial Judge, Idigbe, JSC, said – “The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do same particular thing therein specified, which appertains to his or their office, and is in the nature of a public duty.” The case of the Queen v. Western Urhobo Rating Authority and Ors Ex-Parte Odje and Ors (1961) All NLR 796, a public duty to do the act in question, has been held to be one that must be imposed upon the person against whom the order is sought. In Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797, it was held that the proposed recipient of an order of mandamus must be an individual body, or Tribunal, or Inferior Court with a public duty to the applicant. And, finally, such public duty need not to be imposed by statute only. It may be a duty under the common law, and even duty under customary law is enforceable by an order of mandamus. See: Layanju v. Araoye (1961) 1 All NLR 83, (1959) 4 FSC 154 at 157; The Queen (Ex-Parte Ekpenga v. Ozogula II (1962) 1 All NLR 796. It must be noted however that the person enjoined to perform the act must have failed upon demand to do it. See R v. I.R.C. (1962) 1 SCNLR 423; Re-Nathan (1884) 12 QBD 461.” Per IBRAHIM TANKO MUHAMMAD, JCA (Pp 21 – 23 Paras F – C)
In light of the above the prosecution has power to prosecute and tender evidence/exhibits in other for the court to convict the defendant, the defendant can only be convicted where the prosecution have established a prima facie case by linking the act of the defendant to the crime alleged to have being committed or after the close of prosecution case and the defendant file a No Case Submission and it has being overruled by the court and failure of defendant to open a defense in an allegation of criminal offence against him in this circumstances the defendant is exposing himself to risk and gambling that may warrant or land him to have committed such offence before a court of law. References to the case of Adamu V. State (2014)LPELR-22696 (SC), Ejibade V State (2012)LPELR-15531 (SC). Unreported case of Federal Republic of Nigeria V. Nnamdi Kanu FHC/ABJ/CR/383/2015
Attorney-General’s Constitutional Power
The power to prosecute is established in Nigeria’s Constitution 1999 as amended. Section 174 grants this power to the Attorney-General of the Federation, and Section 211 grants it to the Attorneys-General of the states.
(a) This authority includes the power to commence, continue, and discontinue any criminal proceedings.
(b) The Attorney-General can exercise this power personally or through officers in their ministry or department.
Delegation and Limitations
(a) The Attorney-General can authorize others to prosecute, such as the police or other legal practitioners.
(b) The police have a statutory role in prosecution but are ultimately subject to the Attorney-General’s overriding authority.
(c) While private citizens can be empowered by law to lay a complaint, they cannot prosecute that complaint in court without the Attorney-General’s explicit authorization or “fiat”.
Discretionary Power
(a) The Attorney-General has broad discretion in exercising this power.
(b)This discretion can be used to decide which charges to file and what plea deals to offer, potentially impacting the outcome of a case.
(c) The Attorney-General has discretion include the power to enter a nolle prosequi, which discontinues a prosecution without a formal acquittal.
From the above analysis it’s obvious that both parties, that the Attorney General of either a State or the Federation has unfettered discretion power to either prosecute or discontinue prosecution of a criminal case against any person. The discretion of the Attorney General can be exercised by him in person or through officers of his department and once the power or discretion has been properly exercised no one can question it, including the Courts. See Section 174 (1) – (3) and Section 211 (1) – (3) of the 1999 Constitution (as amended), references to the following cases: AUDU V. A.G. FED. (2013) 8 NWLR (Pt. 1355) 175, STATE V. ILORI & 2 ORS. (1983) 2 SC 155, ALHAJI ATTA V. C.O.P. (2003)5 F.R. 186, SHIDALI V. F.R.N. (2008) ALL FWLR (Pt. 421) 899, ABACHA V. STATE (2002) 11 NSCQR 345 at 381, FRN V. OSAHON (2006)25 NSCQR 512.” Per ADAMU JAURO, JCA (Pp 12 – 12 Paras A – E)
The Supreme Court of Nigeria in the famous case of STATE V. ISIJOLA (2023) LPELR-59935(SC), Per MOHAMMED LAWAL GARBA, JSC (Pp 15 – 16 Paras D – A) In a dissenting opinion that:
“Whether a person can be tried by a High Court where no charge has been filed/preferred against him“
“Section 185 (b) of the CPC, Cap 35, Laws of Niger State of Nigeria (Revised Edition) 1989 pursuant to which the application was made and granted, simply provides that: “185. No person shall be tried by the High Court unless:- (b) a charge is prepared against him without the holding of a preliminary inquiry by leave of a Judge of the High Court.” Briefly, these provisions prescribe that the trial High Court shall not try any person unless a charge is preferred or filed against him in that Court with the leave of a Judge thereof.”
It’s from the above judicial authority which this article center on which I also derive my opinion that their is no any court of law in Nigeria that can either compel the prosecution neither the court itself prosecute a person without no any charge filed/preferred against a person before a court of law as such any party who front load an originating process seeking an order of mandamus or certiorari to compel the prosecution to prosecute a person which is not initiatiated by the prosecution itself such matter instituted against prosecution is dead on arrival, because the choice of who to prosecute is exclusively that of prosecution. References to the case of GOLIT V. IGP (2018) LPELR-46188(CA).
Furthermore, “the law is now fully settled that a Court cannot interfere with the prosecutor’s right to file a charge nor can it prevent the EFCC from initiating a charge or information against any person in the Federal High Court, High Court of a State or the FCT High Court once the matter or criminal proceedings has to do with economic or financial crimes and there is a law in place whether under Act of National Assembly or law of a state for instance criminal code law or Penal Code Law criminalizing the crimes or offences for which the Defendant is arraigned or charged within a State High Court. References to the famous case of ALIYU V. F.R.N. & ORS (2020) LPELR-50517(CA) and also see ISIAKA MUMINI V. FRN (2018) 11 SCM 127 at 137 – 138 A – B per EKO JSC who said: “I think it has to be borne in mind that the choice of the charge to prefer against the accused person on a given set of facts is the prerogative of the prosecutor. Neither the Court nor the accused person can interfere with the prerogative of the prosecutor in this regard. From a line of cases, including Yongo V. Commissioner of Police (1992) 8 NWLR (Pt. 257) 36; Alake V. The State (1992) 9 NWLR (Pt. 265) 260: Chima Ijioffor V. The State (2001) 4 SC (pt. 11) 1; (2001) NWLR (Pt. 718) 371, the Courts recognize and respect this prerogative of the prosecutor to prefer any charge from the facts at his disposal. Thus as Achike, JSC, Stated in IJIOFFOR V. THE STATE (supra) the prosecutor’s – Prosecutorial responsibility is to establish his case beyond reasonable doubt in order to secure the conviction of the (accused person). How he gets about discharging this is entirely his business. Under no circumstance will the accused person dictate to the prosecution what charge shall be preferred or what witnesses shall be fielded against him in discharge of the prosecutor’s prosecutorial responsibilities.” Per PETER OLABISI IGE, JCA (Pp 46 – 47 Paras D – F)
Conclusion:
The law is clear that the power of prosecution is constitutionally vested on the Attorney General of the Federation and the Attorneys General of the states, who have the authority to institute, continue, or discontinue criminal proceedings. Other bodies, such as the police, can also prosecute, but their power is subordinate to the Attorney General’s authority and is subject to limitations or restrictions by the Attorney General. Other laws may grant specific agencies concurrent prosecution powers for particular offenses and a particular individual can also prosecute by authorization of fiat.
However, the jurisdiction of a court of law is to entertain criminal proceedings initiated by the prosecution which is apparent in our legal system, court does not in anyway inherit any power to either to compel the prosecution to discharge it duty statutory vested on prosecution though in some circumstances the court can compel the prosecution to grant a fiat to an individual to prosecute their case nor the court doesn’t has power to prosecute a person.
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Full Name: MOHAMMED YAHAYA PICHIKO
Email:pichiko321@gmail.com
Number: 07033412386
Hobbies: READING & RESEARCH
Current Positions: DIRECTOR FOR MOOT & MOCK NATIONAL ASSOCIATION OF NIGER STATE LAW STUDENTS’ (NANIGLAWS NHQ) AND CURRENT JUDGE 3 UNION COURT BUK.