Institutions of Criminal Proceedings
Institution vs Commencement
| Concept | Meaning |
|---|---|
| Institution | Deals with the authority - who has the vires to bring an action in court |
| Commencement | Once authority identified, the proper mode the authority uses to commence |
Green v Green; State v Squadron Leader Olatunji; Okafor v State (1976)
Where an incompetent person approaches the court competently, the outcome will be a nullity. The incompetence of the institutor bereaves the court of its jurisdiction. An indictment without jurisdiction will be quashed even after prosecution has closed its case.
Since every offence committed is an affront on the state, the State has competence to institute. See Osahon v FRN (police authority); Lawal v Machina (proper mode - OS instead of WoS).
Persons Who Have Power to Institute Criminal Proceedings - APPPS
- The Attorney General;
- The Police;
- Private Persons;
- Private Legal Practitioners;
- Special Prosecutors.
- 1. The Attorney General -
Creation of Office
- SS150(1) & 195(1) CFRN - for Federation and States respectively;
- The AG is the chief law officer - SS174 & 211 CFRN;
- Office is a Corporation Sole - can sue and be sued;
- Qualification: at least 10 years post-call - SS150 & 195(2) CFRN.
ANPP v AGF; Saraki v FRN (2016); cf AG Kaduna v Hassan (1985)
The office of the AG can institute an action without a sitting AG. This is in contrast with the power of nolle prosequi - which cannot be exercised without an incumbent AG.
3 Powers of the AG - SS174(1) & 211(1) CFRN
- Institute and undertake;
- Take over and continue;
- Discontinue any criminal proceeding - against any offender, in any court, except a Court Martial.
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