DOES A PRIVATE PROSECUTOR NEED THE FIAT OF THE STATE A.G UNDER THE AKS. ACJL: A CUL-DE-SAC OR A CATHARSIS FOR PRIVATE PRACTITIONERS?

DOES A PRIVATE PROSECUTOR NEED THE FIAT OF THE STATE A.G UNDER THE AKS. ACJL: A CUL-DE-SAC OR A CATHARSIS FOR PRIVATE PRACTITIONERS?

By ~ Meti M. Ukpeh, Esq.

ABSTRACT

With our immediate biosphere threatened, with Nigeria a major victim of criminality, social decadence, religious uprising and upheaval, kidnapping, countless bombing, among other criminal activities, one cannot help, but to find solace in the law even when its enforceability is gravely challenged. Consequently, the gazetted Administration of Criminal Justice Law of Akwa Ibom State in 26th May, 2022, is a long awaited succor in effective criminal justice system in the state, hence, a sigh of relief for legal practitioners. Be that as it may, this work will x-ray the need and/or propriety of procuring a fiat from the Attorney-General (A.G) of the state before a private prosecutor can prosecute offence under the new law and resolutions thereof.

INTRODUCTION

This work, without hesitations, will proceed to appraise the meaning of fiat and a private prosecutor, the nature of the powers of the Attorney-General (A.G), the propriety of procurement of fiat by private prosecutors for inferior courts and superior courts of records with particular reference to the Magistrates’ Courts and the State High court. The A.G made mention in the course of this work means the Akwa Ibom State A.G, except expressly stated to include the A.G of the Federation, Nigeria.

A FIAT

Blacks Law Dictionary, (9th Edn.) at page 700, defines fiat as a latin word, meaning “let it be done”

The supreme court, in defining a fiat, had this to say: 

“Fiat means: technically, therefore, it denotes the grant or conferment o of power on another by a person having complete authority on the issue upon which the fiat was given; in matters of prosecution, the A.G of States and Federation can give such a fiat” Per Ibrahim Tanko Muhammad, JSC in EBE V. COP (2008) LPELR-984(SC)

Once a fiat is used, it remains valid through the duration of the case, all through to appeal when it gets to that stage. See EBE V.COP (supra); COP V. UGWUMBA (2020)LPELR-49546(CA)

Note: the A.G can revoke or withdraw its fiat any time. see AJI V. ABBA & ORS (2014) LPELR- 24362(CA); EZE V. N.A.M.A. & ORS (2016) LPELR-41453(CA)

For the avoidance of doubts, a fiat, loosely put, is an authorization, permission or a sanction or an approval given or delegated by a person of authority to another for the performance of a specific function.

Thus, an Attorney-General of the state can give such authority already bestowed on him by the constitution, to another for the prosecution of criminal proceedings in Nigerian courts.

Section 211 of Constitution Of the Federal Republic of Nigeria, 1999, 2011 as amended (hereinafter referred to as “CFRN”) provides:

The Attorney-General of a state shall have power:

To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the house of assembly;

To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person

Section 104 of Administration of Criminal Justice Law of Akwa Ibom State (hereinafter referred to as ACJL or Law or loosely here as “new law”) provides: 

The Attorney-General may prefer information in any court in respect of an offence created by a law of the state.

The Attorney-General may authorize any other person to exercise any or all the powers conferred on him under this section

WHO OR WHAT CONSTITUTES A PRIVATE PROSECUTOR

It is worthy of note that, the new law, ACJL, itself, does not ameliorate the definitive hardship with a clear/concise definition of the term, “private prosecutor”. 

In section 492 of the law, a private prosecutor is given an inclusive meaning, viz: 

“a private prosecutor does not include a person prosecuting on behalf of the state or a public officer prosecuting in his official capacity”.

From the section above, one could deduce the following:

A private prosecutor is not a prosecutor on behalf of the state;

A private prosecutor is not a public officer prosecuting in his official capacity.

Consequently, when the above set of prosecutors are left out of who or what constitutes a private prosecutor, one is inevitably left with the literal meaning of a private prosecutor as defined below:

A Private Prosecutor: this one of the persons allowed in law to maintain a criminal action against an offender.

Put differently, a private prosecutor could be:

A private individual (put differently, a lay prosecutor,)

A private legal practitioner or a private lawyer or a lawyer private prosecutor (for the purpose of this work, a lawyer private prosecutor shall be adopted)

 Propriety of a Fiat From A.G Of State By a Private Prosecutor in The Magistrates’ Court

In the case of a private prosecutor, whether a private lawyer or a layman, criminal proceedings, PRIOR to the new law (ACJL), could be instituted by a person other than a law officer or a police officer. Put differently, a private prosecutor could institute criminal proceedings under certain conditions,  viz:

 A private prosecutor must seek and procure an endorsement on the information by a law officer certifying that he has seen such information but does not intend to prosecute the offence contained therein at the instance of the public.

The private prosecutor must enter into a recognizance in a prescribed sum, together with a surety in like sum and undertake to prosecute the said information diligently.

It is very pertinent to note that, while the constitution vests authority on the Attorney-General (A.G) to elect whether to institute criminal proceedings or not, it does not give him the discretion to endorse or not to endorse private information. See powers of the A.G in Sections 174 and 211; 104 and 105 of the Constitution of the Federal Republic of Nigeria (CFRN), 2011 as amended and ACJL, 2022, respectively.

Thus, where the A.G refuses to endorse a private information, or charge the offender, he may be compelled by an order of mandamus. See A.G, Anambra State V. Nwobodo (1992) 7 NWLR. (Pt.256).

However, in the new law, the first arm or first type of private prosecutor, that is, a lay prosecutor is not given relevance; better still, a layman private prosecutor has been jettisoned, hence, a lay private prosecutor is not mentioned as one of the persons who can initiate criminal proceedings in court. Consequently, the requirement or conditions hitherto furnished before the institution of a criminal proceedings by a lay private prosecutor diminishes and dies a natural death.

For the avoidance of doubts, Section 106 of the law provides:

“Subject to the provisions of the constitution relating to the powers of prosecution by the A.G, prosecution of all offences in any court shall be undertaken by:

The attorney-general or a law officer in the state of ministry of justice;

A legal practitioner authorized by the attorney-general;

A legal practitioner authorized to prosecute by this law or any other law of the state; and

The police, who must be a legal practitioner”

By rule of interpretation, Expressio Unis Est Exclusion Alterius rule, a lay private prosecutor is not mentioned or included as one of the persons that can institute criminal proceedings under the new law.

However, it is the strong submission of this writer that, the second-arm definition of a private prosecutor, that is, a lawyer private prosecutor is carefully and conveniently saved from extinction by the law with particular reference to section 106(c) of the new law, ACJL. It reads:

“a legal practitioner authorized by this law or any other law of the state”.

Here, a lawyer who is in private practice, a private legal prosecutor (a lawyer private prosecutor) is already authorized by the new law, ACJL; thus, the hitherto requirement for the fiat of the A.G is outrightly dispensed with, especially in Magistrates’ Courts.

Note: this does not in any way take away the overriding powers of the A.G enshrined in the sections 174 and 211 of CFRN; and sections 104 and 105 of the new law, ACJL, 2022.

Consequently, we can comfortably submit, that a lawyer private prosecutor can: 

Institute criminal proceedings by reason of s.106(c), 109(e) and 110 of the new law, ACJL, 2022 without necessarily procuring the fiat of the state A.G

Undertake criminal proceedings in any court subject to the powers of A.G.

Can withdraw from the prosecution of Criminal proceedings though with attendant consequences. See: section 108 (4) of ACJL, viz:

“ where a private prosecutor withdraws from a prosecution for [sic] an offence under the provisions of this section, the court may, in its discretion, award costs against the prosecutor”.

Be held accountable in cost or compensation or in any other wise the law provides, in a case instituted by such a private prosecutor (in this case, a lawyer private prosecutor). Section 230 of the ACJL reads: 

“ the court may, in a proceedings instituted by a private prosecutor or a summons or complaint of a private person, on acquittal of the defendant, order the private prosecutor or person to pay to the defendant such reasonable costs as the court may deem fit”

The Propriety of Procuring Fiat of The State A.G By the Private Prosecutor in State High Court

Without hesitations, it is pertinent to x-ray section 381 which provides thus:

s.381(1) “ the registrar shall receive an information from a private legal practitioner where-

The information is endorsed by the Attorney-General or a law office acting on his behalf stating that he has seen the information and has declined to prosecute the offence set out in the information;

The private legal practitioner shall enter into a recognizance in-

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;

Pay such costs as may be ordered by the court; or

Deposit in the registry of the court, such sum of money as the court may fix.

Subsection (2): where an application for consent to prosecute is made to the Attorney-General by a private legal practitioner and the A.G declines to grant such consent, he shall give his reasons for doing so in writing within fifteen working days from the date of the receipt of the application.”

Section 382 provides thus: 

“Where a private legal practitioner has complied with the provisions of subsection (1) of the section 381 of this law, the information shall be signed by such private legal practitioner who shall be entitled to prosecute the information.”

To better appreciate the provisions of s.381 of the law, two approaches would be immensely beneficial, to wit:

Firstly, a lawyer private prosecutor or a private legal prosecutor, who seeks and procures an authorization, a sanction or a consent (simply put, a fiat) of the state A.G before instituting a criminal proceedings by information in the high court, comfortably becomes a prosecutor under s.106(b), hence he is prosecuting on behalf of the A.G and invariably the state. In this wise, such a lawyer cannot, strict sensu, be regarded as a lawyer private prosecutor or a private legal prosecutor under s.492 of the law.

Consequently, the state A.G can refuse to grant consent to such a private legal prosecutor to prosecute on behalf of the state, furnishing his reasons for such refusal within 15 working days of receipt of the application for fiat.

However, secondly, where a lawyer private prosecutor has presented an information to the state A.G or a law officer acting on his behalf, the A.G or his delegate declines the prosecution of the information, three options are now available for the lawyer private prosecutor, to wit:

The lawyer private prosecutor may give up on prosecuting the unendorsed information and the case dies a natural death.

Apply to the high court for order of mandamus to compel the state A.G to either prosecute the offence or grant consent (fiat) to the lawyer private prosecutor to prosecute the offence.

 The lawyer private prosecutor may proceed with institution of the criminal proceedings by information in which case, the law mandates the registrar to receive the information from a private legal practitioner whom:

 “ shall enter into recognizance in-

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;

Pay such costs as may be ordered by the court; or

Deposit in the registry of the court, such sum of money as the court may fix.”

And when such conditions above are fulfilled, the lawyer private prosecutor/private legal practitioner is entitled to prosecute the information.

Note: it is the strong position of this writer that the endorsement to decline by the A.G envisaged in s.381(1)(a) cannot be construed to mean a fiat. A fiat must be distinguished from endorsement to decline--- whereas the former is an express consent or authority or approval given to another to prosecute an offence, latter is not which eventually leaves the lawyer private prosecutor with the three options explained above.

RECOMMENDATIONS:

 These include, but not limited to the following:

Most criminal proceedings originate from the Magistrates’ Court, hence it is a catharsis (a relief) for a lawyer private prosecutor/private legal prosecutor, having been well armed by the new law, ACJL, to take up criminal proceedings in the Magistrates’ Court as procurement of a fiat from the state A.G is not expressly required nor express necessity for a lawyer private prosecutor for the institution of criminal proceedings under inferior courts.

The coming into force of the new law, ACJL, is apparently a welcome development , but with the attendant consequences, as the exit of lay police prosecutors by reason of s.106(d) of the new law, leaves a huge vacuum and inevitable workload  on the scanty police legal prosecutors and law officers; thus, a recruitment exercise and partnership of the  Ministry of Justice through the state Judiciary Service Commission and the  Nigeria Police Force with the private practitioners through the Nigerian Bar Association (Akwa Ibom Branches) should not be met with a stiff rejection, but seen as a necessity for expedient and efficient administration of the criminal justice system in the state.

The ACJL Monitoring Committee should partner with major stake-holders in the legal profession, civil societies, the media, among others, in the state and beyond, to organize more seminars on the new law for law enforcement agencies in the state and even to the indigenes of the state

CONCLUSION: These include:

A fiat is a consent, sanction, approval or authority given to prosecute a criminal matter by the Attorneys-General

A private prosecutor could be a lay prosecutor or a private legal prosecutor/lawyer private prosecutor

The new law gives credence to only the lawyer private prosecutor/private legal prosecutor

A lawyer private practitioner or a legal private prosecutor does not need the fiat of the A.G to prosecute criminal cases in the Magistrates’ Courts.

A lawyer private prosecutor needs the fiat of the A.G to prosecute an information in the State High Court except where fiat is denied. Hence, a lawyer private prosecutor does not need the fiat of the A.G when consent/fiat prior sought, upon presentation of a private information, is endorsed declined.

It is indeed a catharsis for private legal practitioners than a cul-de-sac