The general position of law is that any individual may make an allegation against any other person who is said to have committed an offence unless it appears that the law upon which the allegation is predicated provides that only a particular person or class of persons can make such allegations. This simply provides for prosecution by a private individual subject to certain restrictive provisions of any enactment or law. What then does prosecution mean if any man is entitled to an extent by law to forward his complaint?
It is the institution of legal proceedings, particularly criminal, against a person. Definitions from Oxford Languages defines prosecution as the act of conducting legal proceedings against someone in respect of a criminal charge. According to Merriam-Webster, it is the institution or continuance of a criminal suit involving the process of pursuing formal charges against an offender to final judgment. Cambridge Dictionary views it as an official accusation of commission of an illegal act, and this is done by bringing a case against that person in the court of law. From the plethora of meanings given above, it is safe to conclude that prosecution is a lawful process of instituting a criminal action against a suspect in the court of law.
Apart from the Attorney General of the Federation and of the State, the Police, Special Prosecutors and Fiated Prosecutors, the law also recognizes prosecution by private individuals, and the procedure of conducting this would be concisely examined in the course of this article. The four jurisdictions considered are the Criminal Procedure Code Law in the North, the Criminal Procedure Act in the South, the Administration of Criminal Justice (Repeal and Re-enactment) Laws of Lagos State, 2011, and the Administration of Criminal Justice Act, 2015 applicable in the Federal Capital Territory, Abuja.
Criminal Procedure Code Law -CPCL
Section 143 (e) of the CPCL gives a private individual the right to file an information once he or she has reasons to believe or suspect that a crime has been committed. This right is however restricted to certain offences committed against a married woman and an unmarried woman. In the case of the former, only her husband is lawfully recognized to bring a complaint and in the case of the latter, her father or guardian; section 142 (1) (a) and (b) of the CPCL. Sub-section 2 of this restrictive section gives allowance for anyone, other than the husband or father or guardian, as the case may be, to institute proceedings, but with leave of the court where this class of persons is below the age of eighteen or is an idiot or a lunatic.
It is important to note that there is generally no requirement for the approval or endorsement in any form of the Attorney General of the state before a private person can prosecute under the CPCL states, except in the special circumstance as noted earlier.
Criminal Procedure Act -CPA
The reception by a Registrar of an information filed by a private person is predicated on the following criteria as provided in section 342 (a) and (b) of the CPA;
i. That it has been endorsed or certified by a law officer to the effect that he has seen such information and declines to prosecute at public instance; and
ii. That such private person has entered into a recognizance in the sum of one hundred naira (N100.00) alongside one surety to be approved by the Registrar in the same sum, to prosecute the said information to the end at the times at which the accused shall be required to appear and
iii. To pay such costs as may be ordered by the court, OR
iv. In lieu of entering into such recognizance, the individual shall have deposited one hundred naira (N100:00) in court to fulfill the same conditions.
Upon complying with the above provisions, the information shall be signed by the private person or any other person designated by the Governor. It is the individual who signs the information that shall be entitled to prosecution.
Administration of Criminal Justice (Repeal and Re-enactment) Laws of Lagos State, 2011-ACJL
Section 254 of the ACJL provides as follows;
The Chief Registrar of the High Court shall receive an information from a private person if—
(a) it has endorsed on a certificate by a Law Officer to the effect that he has seen such information and declines to prosecute at the public instance the offence contained in the information; and
(b) such private person has entered into a recognisance in the sum of ten thousand Naira (N10, 000:00) together with one surety to be approved by the Chief Registrar in the like sum, to prosecute the information to conclusion and to pay such costs as shall be ordered by the Court,or, in lieu of entering into such recognisance, to deposit the said sum in Court to abide by the same conditions.
From the above, this provision is similar with the criteria under the CPA but for the variance in the sum of recognizance. It is worthy of note that private prosecution in Lagos State where the ACJL applies is limited to only perjury for indictable offences and no limitation for non-indictable offences as held in Atake v Afejuku (1996). 3 NWLR (PT.437) 483.
Where the Attorney General of the Federation or of the State, or any law Officer acting on his behalf, refuses to endorse on the certificate that he accepts or declines to prosecute, he can be compelled by mandamus to endorse his position on the certificate as this is a gremane criterion for private proseution under the CPA, ACJL and ACJA as would be later seen. The decision of the court in the famous case of Fawehinmi v Akilu (1987) LCN/2012(SC) illustrates a clear position of the law on this subject matter.
Administration of Criminal Justice Act, 2015 -ACJA
Section 383 (1) of the ACJA provides thus;
(1) The registrar shall receive an information from a private legal practitioner where:
(a) the information is endorsed by the Attorney-General of the Federation or a law officer acting on his behalf stating that he has seen the information and has declined to prosecute the offence set out in the information; and
(b) the private legal practitioner shall enter into a recognizance in:
(i) such sum as may be fixed by the court, with a surety, to prosecute the information to conclusion from the time the defendant shall be required to appear,
(ii) pay such costs as may be ordered by the court, or
(iii) deposit in the registry of the court, such sum of money as the court may fix.
From the foregoing, it presupposes that only a private legal practitioner and not just any private individual can prosecute privately under the ACJA, and the sum of recognizance is not one that is stipulated as in the CPA and ACJL, but as it may be fixed by the court. This is left to the discretion of the court and as such cannot be duly regulated.
Though, this is seen as a gap in this Act, further recourse places a check on the Attorney General of the Federation by providing that where he declines to grant consent to the application of the private legal practitioner, he shall give reasons for his refusal in writing within 15 working days from the date he receives the application; section 383 (2) of the ACJA. This is regarded as a very commendable tool of regulating the discretionary power attached to the office of the Attorney General of the Federation. Upon complying with the provisions of section 383 (1) of ACJA, the private legal practitioner shall sign the information and be entitled to prosecute same; section 384 of ACJA.
What Is The Difference Under The Administration of Criminal Justice Act, 2015?
The provision that such private individual shall be a private legal practitioner is commendable as this advocates for competence and professionalism in proseution.
There is no limit to the offences that the private legal practitioner can prosecute compared to what obtains under the CPCL and ACJL.
A stipulated period of 15 working days from the date of receipt of application by the Attorney General of Federation or a law Officer acting on his behalf, to give reasons for his refusal to grant consent for private proscution as provided for under the ACJA is a welcome improvement in the criminal justice system as it promotes accountability.
It is suggested that having a fixed cost for the recognizance under ACJA as provided in CPA and ACJL would lubricate the machinery of Justice for fast and diligent prosecution.
Now that you know what the law says on private prosecution, let us hear your views under the comment section. Thank you for your time.