The problem Associated with jurisdiction of Court
Another problem likely to be associated with administration of criminal justice under the ACJA is
that of jurisdiction of court. Jurisdiction has been defined to mean „A court‟s power to decide a
case or issue a decree.‟313 Jurisdiction is rule in the sense that they prescribe the authority of
the court within the system and are also constitutionally provided. The constitution also limits
jurisdiction. Under the CFRN which establishes the jurisdiction of all superior courts there are
limits to the jurisdiction of federal and state courts. These limitations traditionally operate in two
areas: jurisdiction of the subject matter and jurisdiction over person. The Nigerian states unlike
their US counterpart have no exclusive state constitutions which provides and define the
authority of various courts within the system. This is not denying the fact that within each state,
the state laws defining the type of state courts based on the law of the state. For instance state
laws recognize adultery as a crime while others do not.
The criminal jurisdiction of the ACJA is provided and bestowed on the federal high court and
other courts created by reason of an Act of the National Assembly with criminal trial jurisdiction
except the Court Martial. This conferment can traced to the CFRN where it is provided that the
Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal
causes and matters in respect of which jurisdiction is conferred by subsection (1) of this
section.314 One could infer from the above that state courts will not apply the provisions of the
ACJA. Nevertheless the position in section 86 is not very clear; particularly that the ACJA is
applicable to all criminal trials and proceedings except there is express provision made in respect
of any particular court or form of trial or proceeding. The confusion is one of whether the ACJA
is covering the field in criminal jurisdiction. Because in INEC v. Musa315 the court observed that
the doctrine of covering the field arise where a state House of Assembly enacted a law which the
National Assembly had already enacted an Act covering the matter.
Nevertheless, the Supreme Court per Commassie JSC in Martins v. C.O.P316 that:
“a criminal court to validly exercise the powers conferred by the provisions it
must be shown that:
a. The offence for which the accused person was charged was within the
jurisdiction of the court;
b. The accused person must have been convicted of the said offence;
c. There must be evidence before the court which evidence must be such that, in
the opinion of the court, would be capable of making the amount of
compensation to be awarded recoverable by civil suit.
Another problem arises where the ACJA provides317 that “court “means Federal Courts and the
Magistrates‟ Court; and that “Magistrates‟ Court” means Magistrates‟ Court established under the
law of a State or of the Federal Capital Territory. The question then is whether the magistrates Court
not created by an Act of the National Assembly can apply an Act enacted by the National Assembly?
In what cases and how will it applies or whether this interpretation does not lend itself to
evasiveness? This is so because jurisdiction is fundamental to the realisation of criminal justice
administration‟s goals. For the reason that the prosecutor will not be at lost on which court to
approach, to institute criminal proceedings against an accused person. Conversely, in a situation
where the jurisdiction of the court is indeterminate it will lead to running from pillar to post in
search of a court with criminal jurisdiction. In George v. FRN318 it was held that the National
Assembly alone does not have a monopoly on legislation in the country. That the power of the
Lagos state House of Assembly to legislate on criminal law is derived from the residual
legislative list under the CFRN 1999. This is why the National Assembly cannot legislate on a
criminal code for the whole country but for the FCT in respect of residual powers to make laws.
Prior, it has been said that jurisdiction is the power of the court over a subject matter and
issuance of decree. Under s. 87 the ACJA provides that a court has authority to compel the
attendance before it of a suspect who is within the jurisdiction and is charged with an offence
committed within the State, Federation or the Federal Capital Territory, Abuja, as the case may
be, or which according to law may be dealt with as if the offence had been committed within the
jurisdiction and to deal with the suspect according to law. Nonetheless it when on to state that a
criminal charge can be filed and tried in any division of the Federal High Court irrespective of
where the alleged offence was committed.319 This establishes that the Federal High Court320 the
exclusive jurisdiction in matters under the ACJA and any other court in the FCT.
Conversely, the ACJA further provided for the mode of instituting criminal proceedings in
Magistrates‟ courts.321 It did not avail the opportunity of whether that power is exclusive or not as
in the case of the Federal High Court or the High court of FCT, which Magistrates‟ Courts
since in its interpretation magistrate‟s court include those of a state. Second, jurisdiction has
been said is the power of the court to issue a decree and which this research is of the belief that it
must emanate from the Act which establishes it or conferred by the Constitution. Yet, it is
provided that a suspect arrested for an offence which a court has no jurisdiction to try shall
within a reasonable time of arrest be brought before a High Court for remand.322
In most of its provisions, the language denote as though the ACJA is addressing all the Courts in
the federation irrespective of legislative limitation under the constitution. As the above paragraph
apparently runs counter and as well inconceivable of the ACJA bent on the need to ensure that:
(a)criminal matters are speedily dealt with; (b) congestion of cases in courts is drastically
reduced; (c) congestion of prisons is reduced to the barest minimum; and (d) persons awaiting
trial are, as far as possible, not detained in prison custody for a length of time beyond; to allow a
court that has no jurisdiction to make a decree for remand. It will only show that Nemo damnum
facit, nisi qui id fecit quod facere jus non habet; that is, no one does damage except the person
who did what he has no right to do. Again, because that court cannot give what it does not
possess. For the ACJA to delegate powers to a court that has no jurisdiction relate to what the
bible says that placing “confidence in an unfaithful man in time of trouble is like a broken tooth;
and a foot out of joint.”323
Generally, the issue of jurisdiction is fundamental to the administration of criminal justice in the
country. As has been said above that courts have been structured as constitutional creatures or
statutory providence and it is either the Constitution or Statutes that created a particular court
that determines and donates jurisdiction. In Madukolu v. Nkemdilim324 it was held that a court
cannot entertain a matter which it lacked the jurisdiction to adjudicate upon and that where a
court takes upon itself to exercise a jurisdiction which it does not possess its decision amounts to
nothing. This was the position in Peenok Ltd. v. Hotel Presidential Ltd.325 A court can only
claim jurisdiction where is properly constituted and the subject matter of the case is within its
jurisdiction and there is no feature in the case which prevents the court from exercising its
jurisdiction. Moreover, the action must be initiated by due process of law and any condition
precedent to the exercise of its jurisdiction has been fulfilled.
Hence, in Okereke v. Yar‟Adua326 the Supreme held that the issue of jurisdiction cannot
therefore be subjected to the dictates of any statute, including rules of court. Any case which
therefore is an abuse it was held327 must go under the hammer so as to halt the drift created
abuse. In this vein, for the ACJA to bring a charge to a court that has no jurisdiction is to
encourage abuse of process which will advertently affect the administration of criminal justice.
The problem(s) associated with prosecution
Administration of criminal justice swims or sinks on twin pillars of investigation and
prosecution. Investigation has earlier on been said to be the energy of prosecution, that is, it
determines „prosecutable‟ criminal offence having been committed by an accused person. An
indictment is subject to prosecution when it is capable of being prosecuted or where the prosecuting
agency is able to commence and carry out legal action. However, there are circumstances that may
hinder prosecuting agency from commencing criminal proceedings or institution of criminal cases.
According to Ribadu328 “Prosecution is simply the process of trying to prove in a court of
competent jurisdiction that somebody is guilty of a crime for which he/she
has been duly charged.” He went on further to state that:
The success or otherwise of prosecution will depend on several factors amongst
which are
a. Cooperation from person/institutions who should furnish relevant
information;
b. The quality of evidence gathered at the investigation
stage; c. The transparency of investigation of the case itself;
d. The prosecutorial competences of the prosecuting counsel;
e. The transparency and fairness of the presiding judge in the trail;
and, f. Lacunas or gaps in the law guiding law guiding prosecution.
The constitution in sections 174 and 211 provided for the powers of the Attorney General of the
Federation and those of the States and others who could by fiat, to commence the prosecution on
the behalf of the state. The Osahon‟s Case has put to rest the imbroglio between who has the
power to prosecute or not between relevant authorities and other relevant rules of courts. This
may seem as winning the battle and yet to win the war because prosecution follows after arrest
has been made. The constitution also provides that upon arrest,329 within 24 hours or at most 48
hours because of the location of the court, a person arrested of having committed criminal
offence duly prohibited and the punishment prescribed should be taken to court and criminal
charges press on the indicted person or persons. But over the years it has seem impracticable
because of a number of issues. Further, the police have been found to obey these provisions in
half-truths as they duly will bring a suspect on a‟ holding charge‟ rather that a criminal
charge to a court that has no jurisdiction for an order by application for remand. This has even
been canonised in section 293(1) of the ACJA.
However, the problems militating against prosecution as means to realising the purpose of
administration criminal justice, by the findings of this research, are:
a. Absence of probable cause
b. Deferred prosecution/prosecutorial immunity
c. The issuance of Legal advice/Prosecutorial discretion
d. Selective/Vindictive prosecution, and
e. Prosecutorial misconduct
The abovementioned, which only the first three shall hereunder be consider, have the capacity to
clog or ground the wheels of progress put in place by the ACJA 2015.
a. ABSENCE OF PROBABLE CAUSE
It is no longer in doubt that the police have power to arrest or that even when a private person,
judicial officer or any other arresting agency makes arrest; they handover those apprehended to
the police. However, it is important that such arrest must be “reasonably necessary” because of
the fact either that a crime has actually occurred, was occurring when the accused was
apprehended, or will eventually occur if not nib in the bud by the detective ingenuity of the
police for prevention of crime occurrence. Thus, by detection, investigation and inspection the
apprehending officers reasonably believe that there were reasons enough that warranted their
acting so. And the reason for that action, aside prevention, is for the purpose of gathering
information and evidence that will be usable to commence a trial and reasonable enough to grant
a conviction when the matter is prosecuted in the court of law.
The Black‟s Law Dictionary inform that the presence of a probable cause or probable cause
connotes reasonable grounds to suspect that a person has committed or is committing, or has
some specific items connected with a committed crime in a particular place. A probable cause
the dictionary says is less than evidence and more than a mere suspicion that would justify a
conviction upon prosecution of the matter. It must be shown in the cause of application for arrest
before arrest warrant and search warrant may be issued by a court with competent authority to
grant the request. It is the reason for the arrest and must be a tangible one, sufficiently capable to
sustain the administration of criminal charge against a suspect.
According to a US case law authority, Beck v. Ohio330 a probable cause may not be established
simply by showing that the officer who made the challenged arrest or search subjectively
believed he had grounds for his action. The police must whenever practicable, obtain advance
judicial approval through warrant procedure. This is because, if subjective good faith alone were
the test, the protection under the constitution would evaporate, and the people would be secure in
the persons, houses, papers and effects only in the discretion of the police. The probable cause
test then is an objective one and for there to be probable cause, the facts must be such as would
warrant a belief by a reasonable man.
Also in another US case, Terry v. Ohio331 where it was observed that an entire rubric of police
conduct, necessarily swift action predicated upon the on the spot observation of the police officer
on the beat, which historically has not been, and as a practicable matter could not be subject to
warrant procedure. Notwithstanding, there are two notions which underlie police conduct:
warrant procedure and probable cause procedure. In order to assess reasonableness of officer‟s
conduct as a general proposition, it was reasoned that; it is necessary first to focus upon
governmental interest which allegedly justify police action upon constitutionally protected
interests of private citizens, for there is no ready test for determining reasonableness other than
by balancing the interest of the government and those of private citizens provided by the
constitution. It was held that in “justifying the particular intrusion (or arrest) the officer must be
able to point out specific and articulate facts which taken together with rational inferences from
those facts reasonably warrant that intrusion (or arrest)
By reason of the ACJA, the government interest is traceable to effective prevention, detection
and protection of the society against crime. However, an arrest is wholly different kind of
intrusion on an individual freedom and liberty because it is the initial stage of a criminal
prosecution. Drawing from the preceding, in a situation where the Nigerian police arrest and
charge on a „Holding Charge‟ rather than a criminal charge before the court and dump the
accused person in order to go and scavenge for evidence that would be used to convict the
apprehended person would exhaust the aims and purposes of administration criminal justice. In
330 379 US 89 (1964).
331 392 US. 1: 88 S. Ct. 1868; 20 Led 2d 889 (1968)
Uwazurike v. Att. Gen. Federation332 where the prosecution arraigned the appellants but did not
file proof of evidence along with charge sheet, it was held by the Supreme Court that the accused
person has a right to know the reason of his arrest and the charge against him.
Consequently, a probable cause from the above will also denote the rights to know the details of
the offence for which an accused is arrested and charged with beforehand and he is under the
constitution and even the ACJA guaranteed adequate time for his defence. The police must have
clear certainty for the claim of an offence committed by the person arrested before prosecution
which they would use to confront the accused. The absence of reasonable grounds or suspicion
will drained the system as such conduct will be declare illegal and unlawful as it was dome in the
case of Ekanem v. Assistant Inspector General of Police(AIGP).333 Therefore, arrest is a legal
authority in respond to a criminal charge of bringing a person before a court. Arrest required a
probable cause and the absence of a probable cause means no prosecution. Under the Canadian
Criminal Procedure and Practice probable cause is defined thus:
Reasonable grounds for arrest (pre-1985 was referred to as "reasonable and
probable grounds') has an objective and subjective component.334
A reasonable ground is a standard lower than a prima facie case and is less
than a balance of probabilities.
An arresting officer is not required the same scrutiny as a justice of a peace
would need to be in considering a search warrant.
Police cannot arrest first and then determine after the fact whether the accused
had a connection with their investigation.
The officer must take into account both inculpatory as well as exculpatory
evidence. Only evidence that is unreliable can be ignored. The officer must
make inquiry as the circumstances reasonably permit.
332 [2008] 10 NWLR (Pt. 1096) 444
333 [2008] 5 NWLR (Pt. 1079) 97
334 R. v. Storrey (1990), 53 C.C.C. 316 (SCC) [2] R. v. Grotheim 2001 SKCA 116 (SaskCA) [3], R. v. McClelland,
(1995), 165 A.R. 332 (C.A.) at Para 21 see R. v. Debot 1986 CanLII 113 (ON CA), (1986), 17 O.A.C. 141, affirmed
1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 see R. v. Polashek 1999 CanLII 3714 (ON CA), (1999), 45 O.R. (3d)
434 see R. v. Whitaker, 2008 ; BCCA 174, and R. v. Chaif-Gust, 2011 BCCA 528 (CanLII), 2011 BCCA
528. Chartier v. Quebec (A.G.), [1979] 2 S.C.R. 474 [4] R. v. Golub, 1997 CanLII 6316 (ON C.A.) [5] At Para. 21
R. v. Chin, 2003 ABPC 118 at Para. 60 [6] R. v. Rajaratnam, 2006 ABCA 333 at Para. 25 R v. Juan, 2007 BCCA
351, at paras. 27-28 [7] R. v. Lal (1998), 130 C.C.C. (3d) 413 (B.C.C.A.) [8] Eccles v. Bourque, [1975] 2 S.C.R.
739 [9] available at https://en.wikibooks.org/wiki/Canadian_Criminal_Procedure_and_Practice/Arrest_and_Detention/
Warrantless_Arre sts#cite_ref-3. Retrieved on 6/09/2016.
The officer may base his belief upon assumptions or secondary sources.
However, the belief cannot be only a hunch. The circumstances must be
sufficient to convince a reasonably fair-minded person put in the same position
as the officer that the grounds for his or her belief are reasonable. The facts
must not be considered piecemeal but in a holistic manner.
The officer may use his training and experience in determining objective
reasonableness. For example, what may appear to be innocent objects to the
general public may have a very different meaning to an officer experienced in
drug operations This objective standard while "standing in the shoes of the
police officer" has been interpreted as taking into account the officer's
experience and training.
A conclusory statement from one officer to another, such as “a drug
transaction has taken place”, will not support an objective finding of
reasonable and probable grounds for an arrest.
The subjective grounds must be based on a bona fides belief to a relevant fact.
It is not necessary that the fact actually be true.335
In Fawehinmi v. IGP336 by the Supreme Court per Uwaifo, JSC observed thus:
“I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient
evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone cautions a suspect,
before the police look for evidence implicating him.”
