By Ewulum Ifechukwu Christopher.

 

Introduction.

With the Enactment of the New Police act 2020  which repealed the old police act, Cap 19, Laws of the Federation of Nigeria 2004, one would easily notice that there have been an influx of articles and posts that examined the  innovative provisions of the New Police Act 2020.

On a proper analysis of these posts, I observed  that  the majority agreed that by virtue of  Section 66(1) of the Police Act 2020, police officers who are not legal practitioners can no longer prosecute offences at the superior Court of record.

I am not comfortable with the view that police officers who are not legal practitioners cannot prosecute offences at the superior Court of records. This therefore  prompted me  to revisit the supreme court case  of  FRN v George Osahon [2006] 5 NWLR (Pt. 973) 36 in this short write-up and what appears to me will be position  when the Court will have the opportunity to interpret the aforementioned section in the future, Having in mind that  no matter the quantum of dexterity, artistry, elegancy, innovations, assiduity or craft invested in drafting and enacting legislations, they must be prone to interpretation by the judiciary [see Obande Festus Ogbuiunya, Guidelines to interpretation of Nigerian Statutes (Enugu : Snaap Press Nigeria Ltd 2019)1].

 What happened in FRN v George Osahon?

George Osahon is a case decided in 2006 and presided by seven justices of the Supreme Court which borders on the interpretation of sections 174 and 211 of the CFRN 1999, section 23 of the then police act and other statutory provisions.

In this case, the respondents sought to have the charges against them quashed on the ground that the Police Officer purporting to prosecute them is not a law officer or a State counselor even a legal practitioner authorized to prosecute on behalf of the Attorney-General. They equally referred the court to Section 56(1) of the Federal High Court Act which prescribes the qualification, or competence of lawyers who may prosecute a case in that court. The contention of the respondents that the Police Officer seeking to prosecute the case was not competent to do so was dismissed by the Federal High Court but was reversed by Court of Appeal hence the appeal to the Supreme Court.

The main issue at the Supreme Court which is germane to our discussion is “Whether the Court of Appeal was right when interpreting section 56(1) of the Federal High Court Act, section 23 of the Police Act and section 174(1) of the 1999 Constitution came to the conclusion that the Police Officer prosecuting the respondents lack the competence to initiate or conduct prosecution before the Federal High Court.”

Section 174 of the CFRN 1999 which relates to powers of the Attorney General of federation and states in pari material with Section 211 of the same constitution states as follows :

The Attorney-General of the Federation shall have power –

(a) 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 Act of the National Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

The Supreme Court per Belgore JSC who delivered the leading judgment and relying on Ezeadukwa v Maduka [1997] 8 NWLR (Pt. 518) 635,657  held as follows:

Where two provisions, one each from an Act of National Assembly conflict in relation to the same subject-matter, as in this instance, question of right to prosecute criminal matter in Federal High Court, the conflict cannot be isolated to the two provisions only insofar as there are constitutional provisions on the same matter. In such a situation, the provisions of the Constitution shall govern the interpretation.

What follows therefore was that even though Section 56 of the Federal High Court Act was inconsistent with section 23 of the Police Act, both acts must be construed in the light of Section 174 of the Constitution. .

Based on Rules of interpretation, the court reasoned that the provision of the Constitution supersedes any other law. Since Section 174 of the Constitution aforementioned provides under Paragraph b and c that the Attorney General can continue or discontinue any criminal proceedings that may have been instituted by any other person(Emphasis mine)

Moreover, since the constitution was given a liberal interpretation in this case, that other person whom the attorney General can discontinue or continue his proceedings can be a police officer whether a legal practitioner or not. This according to the Supreme Court will resolve the controversy including the Section 2 Subsection 1 of the Legal Practitioners Act.

 Belgore JSC  was succinct when he came to the conclusion that:

The Constitution cannot be strictly interpreted like an Act of National Assembly or a Law of State Assembly. it must be construed without ambiguity because it being fountain of all laws, it is not supposed to be ambiguous’.

On the Dissenting Judgment of Learned  Justice Katsina Alu JSC,  his lordship insisted  that:

The power to institute and undertake such proceedings before any court of law is that of the Attorney-General only. The Constitution does not confer such power on “any other authority or person”. I think that is plain enough. It is a cardinal rule of interpretation that if the words of an enactment are clear and unambiguous, the courts must expound those words in their natural and ordinary sense.

His Lordship came to the conclusion that it is the duty of the court to ascertain the intention of the lawmakers, once this is attained, it will be an act of invading in the powers of the legislature for the courts to infuse  their own words into the enactment:

and as It relates to  Section 56 of the Federal High Court Act, there is nowhere in the said high Court Act police officers was expressly mentioned, moreover, Section 23 of the Police Act  was inadequate as it failed to state the particular court which the police officer should prosecute offences. Based on these reasoning, His learned Justice of the Supreme Court came to the conclusion that police officers lack power to prosecute criminal cases for the government. The same reasoning was manifest in the dissenting Judgment of  Musdaphar JSC.

The following points can be gleaned from the majority decision in this case ;

  1. That the constitution supersedes any law in Nigeria being the fons et origio.
  2. That where there are Conflicting provisions of two federal laws, the doctrine of implied repeal cannot hold any water if they have the same subject-matter with the constitution as the constitution will always supersede.
  3. That the constitution should always be given a liberal interpretation except for in exceptional circumstances where it will lead to absurdities.
  4. That Any power given by the Constitution, cannot therefore be taken away by any Act of National Assembly or Law of a state or a subsidiary legislation without first amending the constitution.
  5. That “any other authority or person”  used in sections 174 and 211 of the constitution  can definitely institute criminal prosecution. The powers of the Attorney-General of the Federation or of the State are not exclusive, any other person or authority can prosecute.
  6. That any police officer, irrespective of the fact that he is a qualified legal practitioner, has the power under section 23 of the Police Act and section 174(1)(b) of the 1999 Constitution to institute criminal proceedings in any court in Nigeria.

Furthermore, in  Ezekiel v A-G Federation [2017] 12 NWLR (Pt. 1578) p. 1, the Supreme Court held that by virtue of the provisions of Section 174 of the constitution all agencies with Prosecutorial Powers can institute and prosecute criminal offences in our courts. See also  Comptroller, Nigeria Prison services v Adekanye (2002) 15 NWLR (Pt. 790)318; Amadi v F.R.N (2008) 18 NWLR (Pt. 1119) 259. It should be noted that under the police act 2020, police officers who are not legal practitioners were not expressly given Prosecutorial Powers. Unlike the repealed police act, however it will be  short-sighted to hastily hold that police officers by virtue of the new act no longer have Prosecutorial Powers at the superior Courts.

 

The question which should crop up in our mind with the above analysis is ; How will the courts Approach Section 66 of the Police Act 2020 when it comes to it for interpretation?

For proper understanding, it is pertinent to state what section 66 of the police act says :

subject to the provisions of Section 174 and 211 of the constitution and section 106 of the Administration of criminal Justice Act 2015 which relates to powers of the Attorney-General of the Federation and of a state to institute over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria, a police officer who is a legal practitioner, may prosecute better any court whether or not the information or complaint is laid in his name.

Subsection 2 provides that : a police officer may subject to the provisions of the relevant criminal procedure laws in force at the federal or state level, prosecute before the courts those offences which non-qualified legal practitioners can prosecute.This Subsection is defective . It fails to state those  offences which non-qualified legal practitioners can prosecute.

Observations and comments.

Section 66 of the police 2020 was expressly made subject to sections 174 and 211 of the constitution which relates to powers of the Attorney-General.

In Lagos State Development & Property Corporation v Foreign Finance Corp. [1987] 1 NWLR (Pt. 50) 413 at page 461,

the court ruled that :

The phrase “subject to” is used  to subject or subsume provision of a subject statute, be it substantive or adjective, to the provisions of a master enactment.

If we are to follow the decision in George Osahon, it means that as far as the attorney General can “take over or discontinue any criminal proceedings instituted by any person” such other person can be a police officer whether a legal practitioner or not as ruled by the Supreme Court.

In  George Osahon, the court  could have relied on the implied repeal doctrine since it agreed that the provisions of the repealed police act are inconsistent with the then Federal High Court Act, yet it held that since those provisions made reference to the constitution, the constitution should supersede.

It is pertinent to note that  irrespective that the police act 2020 appeared  have restricted those powers to police officers, it should be read in conjunction with the relevant state administration of criminal justice laws. And on this ground, it will not be reasonable to carelessly state that police officers who are not legal practitioners cannot prosecute offences at the superior courts.

 

for instance, Section 104 of Administration of Criminal Justice Law(ACJL) of Abia State, Enacted in 2017 copied the position in Administration if criminal justice Act 2015.

However, In Section 181(d) of Enugu State ACJL 2017. It was expressly mentioned that a police officer can prosecute offences without limiting it to legal practitioners.

Section 107(d) of Delta State ACJL 2017 Expressly mentioned that the Police officers that can prosecute must be Legal practitioners or in his absence, a police officer that can prosecute offences in the high court of the state.

The Anambra State ACJL 2010 states under Section 165  that a prosecution can be initiated by any person other than the attorney General or Any public officer subject to the directives of the Attorney-General of Anambra state. There is no doubt that such other person or such public officer can include a Police officer whether qualified as a legal practitioner or not.

One may argue that the issue of Police Officers falls under the exclusive legislative list, yet we are not unaware that states have the power to enact their own criminal procedural laws. They therefore have the power to regulate who can prosecute offences but  must subject it to powers of the Attorney-General under sections 211 and 174 of the constitution.

I stand to be corrected.

Ewulum Ifechukwu Christopher is a 300 level law student of the University of Nigeria, Nsukka. He is a writer and researcher.

Contact : https://www.linkedin.com/in/ewulum-ifechukwu-christopher-6963271b7 or [email protected].