By Sani Ammani Esq

You’ll notice a post titled, ‘HENCEFORTH, ONLY POLICE OFFICERS WHO ARE LEGAL PRACTITIONERS MAY PROSECUTE A CASE IN COURT IN NIGERIA’ going round on social media platforms. If you haven’t seen it yet, you’ll probably see it before the end of the day. Be patient. Someone will personally send it to you or to (a) group(s) you belong.

The post reads:

‘By section 66(1) of the Police Act 2020, ONLY a Police Officer who is a LEGAL PRACTITIONER, can prosecute. Section 23 which hitherto gave non-Police lawyers prosecutorial powers no longer hold any potency in law, the entire old Police Act,cap P.19,LFN,2004, having been REPEALED by the Police Act, 2020 recently ASSENTED to by Mr. President. In effect, any prosecution by a non-Police lawyer is null and void, and of no effect whatsoever, by virtue of section 66(1) of the Act(supra).Thus, it’s a valid ground for objection to any prosecution being conducted by a Police Officer who is NOT a LEGAL PRACTITIONER. That’s one of the high points of the the new Police Act 2020.(sic)’

At the end of the post, the word ‘Copied’ is written without a period.

I’m not writing to discuss the inconsistency of using the word MAY in the title and CAN in the body of the post. I’m equally careful not to discuss how garrulous and vicious the content is. My concern is about the substance, the message, the very point which the anonymous writer sets out to project.

When I read the post for the first time, I was touched. When I read it for the second time, I was surprised. When I read it for the third time, I was sad. When I read it for the fourth time, I became concerned and swore never to read it again.

I was touched because a senior lawyer I respected shared it. I was surprised when lawyers began to share it like a gospel. I was sad when I read lawyers exclaim, ‘I’ll surprise those prosecutors in court.’ I know, if something isn’t done, in a hurry, a lot of our colleagues will display their ignorance of the law in court. This is why I’m concerned to write this piece and clarify the issue.

‘Since brevity is the soul of wit, I shall be brief.’ Wait a minute. Before you say it, let me confess. They aren’t my words. I borrowed them from Shakespeare. That’s by the way.

On the way now, Section 66 of the Nigeria Police Force (Establishment) Act, 2020 has three subsections. Subsections 1 and 2 apply to this piece. Subsection 3 doesn’t. For reference purpose, I reproduce the relevant subsections below:

’66 (1) Subject to the provisions of sections 174 and 211 of the Constitution and section 106 of the Administration of Criminal Justice Act which relates to the powers of the Attorney-General of the Federation and of a State to institute, take 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 in person before any court whether or not the information or complaint is laid in his name.

(2) A police officer may, subject to the provisions of the relevant criminal procedure laws in force at the Federal or State level, prosecute before any court those offences which non-qualified legal practitioners can prosecute.

You’ll observe that the draft of the section, like most sections of the Act, is loose and the meaning is fluid. That’ll be a topic for another time.

This time, the aim is to decipher the section. Section 66(1) begins with the phrase, ‘Subject to the provisions of…’ What does, ‘subject to the provisions of’ mean when used in a statute?

In Oloruntoba-Oju & Ors. v. Abdul-raheem & Ors. (2009) LPELR-2596(SC) at P.60, Paras B-E, the Supreme Court Per Adekeye J.S.C interpreted the phrase ‘subject to’ as follows:

‘Whenever the phase “subject to” is used in a statute the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient liable subordinate and inferior to the provisions of the other enactment.’

What the authority is saying is that the provisions of section 66(1) and (2) are inferior, dependent on, or limited and restricted in application to sections 174 and 211 of the Constitution and section 106 of the Administration of Criminal Justice Act.

Section 174 of the Constitution deals with powers of Attorney-General of the Federation to prosecute, take over prosecution, continue and discontinue prosecution if needs be. Section 211 confers the same powers on States Attorneys-General of States. Section 106 of the ACJA is a duplicate of section 174 of the Constitution.

The combined effect of section 66(1) of the Act and sections 174 and 211 of the Constitution together with section 106 of ACJA is that a police officer who is a legal practitioner can prosecute offences two requirements are met:

i. when the Attorney-General of the Federation or State, as the case may be, hasn’t taken over prosecution in the court where the police officer is prosecuting; and

ii. where the Criminal Procedure Law or Administration of Criminal Justice Law of the State allows it.

I believe there’s no disagreement on this point.

To make it plain, section 66(2) is saying, where the law allows it, a police officer who isn’t a legal practitioner can prosecute offences which non-qualified legal practitioner can prosecute.

There are two problems with this subsection. 1) the whole Act is silent about the meaning of offences that can be prosecuted by a non-qualified legal practitioner; and 2) the term ‘non-qualified legal practitioner’ tastes odd on my tongue.

On issue number 1, I take those offences that the police prosecute in magistrates’ courts to mean the what the drafters mean. I find section 123(2) of the Kano State Administration of Criminal Justice Law, 2019 to be an interpreter of this subsection. It reads:

‘Nothing in this section shall prevent a Police Officer from prosecuting any offence triable by any Magistrate’s Court.(sic)’

On issue number 2, who could possibly be a ‘non-qualified legal practitioner’? The term itself suggests that among legal practitioners, there are qualified and non-qualified ones. I think, one is either a legal practitioner or he isn’t.

What Section 66(2) means is that if the Administration of Criminal Justice Law or Criminal Procedure Law of a state allows a police officer who isn’t a legal practitioner to prosecute offences triable by Magistrates’ Courts, he can rightly do that.

In Kano State for example, the Attorney-General has taken over prosecution of criminal cases in all courts within Kano Metropolis. Yet, police officers still prosecute cases in areas not designated as Metropolis. This is because section 123(2) of the Kano State Administration of Criminal Justice Law 2019 (cited above) permits them to prosecute, subject to the powers of the Attorney-General.

Before you object to the appearance of any police officer in a Magistrate’s Court, study the procedural law in the state. Find out whether a police officer can prosecute or not. Be sure about it before you make the objection.

Thank you for reading.

Sani Ammani Esq. is a Kano based legal practitioner, poet, speech writer and legislative drafter. You can contact him via [email protected] or 07066077777 (text only).