DEFERRED PROSECUTION/PROSECUTORIAL IMMUNITY
A prosecution is said to be deferred when it is expected to commence or take place on a future
date by reason of the operation of the law. By virtue of the Constitution,337 the law allows
certain class of people to which criminal proceedings would have been instituted against or who
would have been arraigned before a court of competent jurisdiction to be delayed to a future
date. Although, when such cases would later come before a court, if there ever did, the case or
evidence would have been tattered out and many a potential witnesses could have also changed
places and positions. In some other circumstances, the investigation police officer would have
retired, retrenched or even died. This will affect the course of administration of criminal justice
of prompt prosecution. When a prosecution is deferred, the delay has the propensity to be justice
denied of a successful prosecution and completion which would have aided the course of justice.
Invariably therefore, any exemption from a duty, liability or service of process especially granted
by law to a public officer or government units for the purpose of not commencing or carrying out
criminal charge is deferred prosecution. Deferred prosecution can as well be said is an immunity
of criminal nature under this research confer by law on a particular class of officers who are by
this conferment excluded from prosecution from date the offence first arose to the date such law
will be attenuated. As an exclusionary rule, immunity from prosecution excludes and suppresses
evidence despite the illegality committed by accused that cannot be brought to law court to
answer for any charge. In particular circumstance, the court can exclude evidence from being
admitted even though relevant in the event of it being declared unwarranted.
In Global Excellence Comm. Ltd v. Donald Duke338 the Supreme Court held that; from the
words used by the framers of section 308 of the 1999 Constitution, it is clear that their intention
is explicitly to confer absolute immunity on the responded and others therein mentioned without
corresponding disability on them to exercise of their rights to institution actions in their
capacities in any relevant of law for redress during their term of office, as in the instant case.
c. THE ISSUANCE OF LEGAL ADVICE/PROSECUTORIAL DISCRETION
The ACJA provides for issuance of legal advice and other directives to the police thus:
(1) The Attorney-General of the Federation may issue legal advice or such other
directive to the Police or any other law enforcement agency in respect of an
offence created by an Act of the National Assembly.
One of the notorious difficulties accompanying administration of criminal justice in the nation
remains the delay in the issuance of legal advice by the office of the Attorney-General,
irrespective of the enactment of the ACJA. Most of the cases in the magistrates‟ courts devote
donkey's years waiting for the DPP‟s advice. One of the mantras the Police Prosecutors is
known within the magistrate courts where they reign as dinosaurs when cases are called is:
“Case file awaiting DPP‟s Advice, Your Worship.”
Whereas most times, it has been learnt that the Police case file still await duplication at the
Police Station while the Prosecutor informed his worship that it is awaiting DPP‟s advice.
Thus, Adebayo remarked that “this trend should be adequately addressed by providing enough
resources to the police to assist them in carrying out their duties effectively and efficiently.”339
The status of the Attorney General is never in doubt, for he bestrides the apogee of the law office
as colossus. The AG as he is fondly called also has prosecutorial discretion to institute criminal
proceedings or not. His power to institute, discontinued or even take over criminal is
incontestably incontrovertible. He can order the police to forward the file of a case they are
investigating whether the matter has been charged to court or not. According to Kayode Eso JSC
(as he then was) who observed in State v. Ilori340 thus:
The pre-eminent and incontestable position of the Attorney General, under the
common law, as the chief legal officer of the state, either generally as legal
adviser or specially in all courts proceedings to which the state is a party has
long been recognised by the courts. In regard to these powers, and subject only to
ultimate control by public opinion and that of the parliament or the legislature,
the Attorney General has, at common law, been a master unto himself, law unto
himself and under no control whatsoever, judicial or otherwise, vis-à-vis his
power of instituting or discontinuing criminal proceedings…
From the above therefore, the Attorney General has absolute discretion in deciding who to
prosecute341 and for what offence(s) and his decisions in criminal cases are normally convey
through legal advice which are issued in respect to any matter whether or not charge. This is
what is referred to as the DPP‟s Legal Advice. The legal advice from the above can be inferred
339 Adebayo, A.M. op. cit. p.273
340 [2001] FWLR (PT 52) 2182
341 Amaefule v. State [1988] 2 NWLR (PT. 75) 156.
to contain and convey the opinion of the Attorney General on a criminal matter and stating
whether to be prosecuted or not to be.
As a matter of interest this research finds342 out that there is even no constitutional provision to
that effect for the issuance of Legal Advice by the Attorney General. Only that it is prise out
from the unlimited powers bequeathed to the Attorney General given by the Constitution and just
like the plea bargain and nolle prosequi. But by the combine effect of section 74 of
Administration of Criminal justice Law343 and the section 105 first abovementioned the void has
been filled.
Be that as it may, it is the lacuna that has been filled; it is not the problem that has been cured.
The concern of this researcher is that legal advice has the capacity of wreaking havoc to the
purpose of administration criminal justice in this country, it should only embellished the face of
the ACJA.
The problem associated with the Constitution and the ACJA
The administration of criminal justice can be greatly affected where there are grey areas or
provisions contesting the supremacy of the constitution. In this therefore the Courts being the
custodian of the constitution can compound the problems of ACJA from realising its purposes, as
where any provision assumes too much air and acts ultra vires. True as this may sound, the
Constitution does not come with a teaching guide yet it needs a lot of clarifications or
explanations. This supremacy comes to be significant where there is a need to choose the law
that has primacy of authority between contending laws, in this case under ACJA „detention
time limit‟344 and „reasonable time‟ under the Constitution345
This detention time limit appears to be inconsistent with section 35(5) of the CFRN. By virtue of
section 1(3) of the Constitution which provides that:
342 Adebayo, A.M. op. cit. pp.270-273
343 Lagos State Laws, 2011
344 Ss.293-299
345 S.35(4-5) CFRN
If any other law is inconsistent with the provisions of this Constitution, this
Constitution shall prevail, and that other law shall, to the extent of the
inconsistency, be void.
This brings to fore the inconsistency rule in constitutional law. It also extends to every
inconsistency that arises between the Act of the National Assembly or the law of a State and the
provisions of the Constitution. As a consequence where any other law be it that of the National
Assembly or a State House of Assembly with provision of the Constitution, the Constitution will
have predominance over that other law to the point where the inconsistency exists.346 According
to John Ademola Yakubu:
Constitutional supremacy relates to granting the Constitution the status of a
grundnorm –the god father of laws from which other laws derived their validity,
extent, operation and efficacy. Whatever maybe the lingering doubt about
supremacy of the constitutional democratic set up in Nigeria has been removed
by various constitutions of Nigeria that granted such constitutions primacy of
authority347
Moreover, under the United States (US) the supremacy and interpretation of constitution is referred
to as the principle of Judicial Review. The principle consequently states that the courts and ultimately
the Supreme Court, not even the legislatures, not even the president have the final words in saying
what the constitutions provision means.348 In 1803349, the Supreme Court of United, headed by
Chief Justice John Marshall, resolves in the momentous case of Marbury v. Madison,350 and settles
the legal principle of judicial review as the capacity of the Supreme Court to limit Congressional
influence by proclaiming statute unconstitutional, in the then new nation.
The court ruled that the new president, Thomas Jefferson, using his secretary of state, James Madison,
was in the wrong to foil William Marbury‟s appointment as justice of the peace for Washington County in
the District of Columbia. Conversely too, it ruled that the court had no authority in the case and could not
force Jefferson and Madison to bench Marbury. Although, the Supreme Court jurisdiction was
bequeathed by the Judiciary Act of 1789, but the Marshall court had ruled the Act of 1789 to be an
unconstitutional addition of judiciary power into the realm of the executive.
346 Adebayo, A.M. op. cit. p.3
347 John Ademola Yakubu (2003), the Nigerian Constitutional Law pg. 44
348 Joel Samaha op. cit. pp25-27
349This Day in History February 24, 1803, available at http://www.history.com/this-day-in-history/marbury-v-
madison-establishes-judicial-review retrieved on 31/08/2016
350 5 U.S. 137 (1803)
This brought about the principle of judicial review which stated that “acts of Congress in
conflict with the Constitution are not law and therefore are non-binding to the courts, and that
the judiciary‟s first responsibility is always to uphold the Constitution. If two laws conflict
especially the constitution and any other, the court bears the responsibility for deciding which
law applies in any given case.” Joel Samaha, accordingly said that:
The supremacy clause and judicial review together establish that criminal
procedure has to answer to the US Constitution, and courts determine which
procedures are in line with the Constitution. All courts can interpret the
constitution but the US Supreme Court has the last words. Its decision binds all
other courts, legislatures, executive and criminal justice officials.351
The implication here is that even in Nigeria, the administration of criminal justice expectedly
should be answerable to the constitution, and only courts can determine which processes are in
line with the provisions of the constitution in particular to a subject matter. In PDP v. CPC352
Fabiyi JSC explaining the principle of supremacy of the Constitution353 said:
“The Constitution of Nigeria is the grundnorm, otherwise known as the basic
norm from which all the other laws of the society derived their validity. Each
legal norm of the society derived its validity from the basic norm. Any other law
that is in conflict with the provision of the Constitution must give way or
abate.”354
In Fabiyi‟s elucidation, the supremacy is so sweeping that taking it hook, line and sinker would
mean to cover even up to any other laws in the society. This would have been the case had the
Nigerian state developed from the concept of social contract without the existence of Customary
and Islamic laws lurking at the corner of her legal system. Notwithstanding, the intendment
means laws appropriately so called enacted by sovereignly constituted body recognize by law
and not just any law in the society. If not, one may be tempted to ask whether Islamic laws and
customary laws derived their validity from the constitution. Further, where in the exercise of the
legislative powers a law is enacted which the Constitution has already made provisions covering
its subject matter that other law must give way to the provisions of the Constitution. In
351 Samaha, J. op. cit. pg. 28
352 [2011] 17 NWLR (pt. 1277) 485 at 511
353 CFRN 1999
354 See also Itsueli v. SEC [2012] 2 NWLR (pt. 1284) 329 at 362
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd355 it is recognised that the
doctrine of covering the field involves any contradiction that may rise from such other laws and
the requirements of the Constitution, in any case except the contrary is shown, the Constitution
will prevail. Accordingly, in West v Commissioner of Taxation (NSW),356 it was stated that
anywhere the Constitution has ordained specifically or impliedly thoroughly on any matter
neither the National Assembly nor the House of Assembly of a State can validly legislate on the
same subject matter.357 Hence, in INEC & ANOR V. Musa358 per Ayoola JSC the Supreme Court
maintained that:
“… Some interrelated propositions…flow from the acknowledged supremacy
of the Constitution… First, all powers, legislative, executive and judicial must
ultimately trace to the Constitution. Secondly, the legislative powers of the
legislature cannot be exercised inconsistently with the Constitution. Where it is
exercised, it is invalid to the extent of the inconsistency. Thirdly, where the
constitution has enacted exhaustively in respect of any situation, conduct, or
subject, a body that claims to legislate in addition to what the constitution had
enacted must show that it has derived the legislative authority to do so from the
Constitution. Fourthly, where the Constitution sets the conditions for doing a
thing, no legislation of the National Assembly can alter those conditions in any
way directly or indirectly, unless, of course the Constitution itself as an attribute
of its supremacy expressly authorized.”
The question then is whether the constitution has not exhaustively provided for a detention time
limit and whether the position of the Supreme Court in Chief Pat Enwere v, C.O.P.359 case
particularly on Holding Charge has not been superseded by ACJA‟s detention time limit
provided in sections 293-299 of ACJA. If in the affirmative whether these provisions are not
inconsistent with sections 33-46 of the CFRN thereby creating the problem of application and
operation of the ACJA?
355 (1920) 28 CLR 129, 153, 154 see also Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, available at
https://tnaidike.wordpress.com/doctrine-of-covering-the-field-in-federal-constitutional-theory/ retrieved on
16/09/2016
356 (1937) 56 CLR 657, 682
357 Adebayo, A. M. (2012), Constitution of the Federal Republic of Nigeria, 1999 (as amended) Annotated with
Cases, 1st Ed., Princeton, pp. 3-4
358 [2003] 3 NWLR (pt. 806) 72
359 [1993] 6 NWLR (Pt. 299) 333
Under the ACJA360 it is provided that when a person is arrested for an offence which a court has
no jurisdiction to try (shall) within a reasonable time of arrest the suspect should be brought
before a High Court for remand; An application for remand should be made ex parte and in the
prescribed, verified on oath and contain reasons for the remand request. The constitution did not
make provision for a court without jurisdiction. Rather, it is provided that “the judicial powers of
the Federation shall be vested in the courts to which this section relates, being courts established
for the Federation and those courts are listed under the constitution.361 Also that the judicial
powers entrusted those courts have no limitation on all inherent powers and sanctions of court of
law; all matters between persons, or between government or authority and to any persons in
Nigeria, and to all actions and proceedings relating thereto, for the determination of any question
as to the civil rights and obligations of that person. Of interest is s.6 (5)(k) which states that:
(j) such other courts as may be authorised by law to exercise jurisdiction on
matters with respect to which the National Assembly may make laws.
The import from the above is that the Constitution did not envisage any court to be without a
proper jurisdiction. Moreover the inherent powers of a court cannot be exercise outside the
purview of the Constitution and these are the internal rules and orders of the courts; because the
courts of law are the custodian of the Constitution. Evidently, every court is adequately provided
for. Criminal matters may be, are not a cause that ought to be tried on ex parte application since
the life and liberty of an accused person is in a limbo. In this wise the law provided for fair
hearing that “a person cannot be convicted of a criminal offence without that offence being
defined and the penalty therefore prescribed in a written law, and a written law refers to an Act
of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the
provisions of a law.”
An ex parte application, based on the principles of fair hearing particularly: audi alterem partem
and nemo judex in causa sua, is strange to criminal law. If the law state that Nemo dot quod non
Habet that is, one cannot give what one does not have; so how will the court examine the reason
for the arrest; the request for remand; and becomes satisfied that there is a probable cause to
remand the suspect pending the receipt of a copy of legal advice, without attempt on the nature
360 S. 293(1) ACJA
361 S.6(5)(a-k) CFRN
and seriousness of the alleged offence? Or reasons whether the accused person is involve in its
commission and believe the accused person may abscond without going into subject matter
which it has no power to in ex parte application?
There is presumption of innocence and the proof is beyond reasonable. Such proof cannot be
determined in a court that has no jurisdiction, on the pretext of waiting for a copy of legal advice.
This process and the whole gamut in it impedes the purposes of justice and the rights of the
accused person. It makes the prosecution irresponsible and lazy about the work yet seeks the
court to assistance at the expense of the other. According to legal Dictionary362
An ex parte judicial proceeding is conducted for the benefit of only one party.
Ex parte may also describe contact with a person represented by an attorney,
outside the presence of the attorney. The term ex parte is used in a case name to
signify that the suit was brought by the person whose name follows the term.
However, under the Constitution,363 "No person shall … be deprived of life,
liberty, or property, without DUE PROCESS of law." A bedrock feature of due
process is fair notice to parties who may be affected by legal proceedings. An ex
parte judicial proceeding, conducted without notice to, and outside the presence
of, affected parties, would appear to violate the Constitution. However,
adequate notice of judicial proceedings to concerned parties may at times work
irreparable harm to one or more of those parties. In such a case, the threatened
party or parties may receive an ex parte court hearing to request temporary
judicial relief without notice to, and outside the presence of, other persons
affected by the hearing.
The point is that there is no semblance of due process of law in that provision. Moreover it has
not address the issue of why a suspect should be charge before a court when the police have not
completed investigation or why the alleged offender should even be brought before a court that
has no jurisdiction to try the offence at all. These issues are germane to the realisation of its goals
as enumerated under S. 1(1)(2) and S.470(2)(a-h) of ACJA.
362 legal-dictionary.thefreedictionary.com/ex+parte
363 S. 17 of CFRN
Accordingly, Lord Wright in Mcardle v. Egan364 showed that the responsibility is ministerial
and not judicial when he said:
“It has to be remembered that police officers, in determining whether or not to
arrest, are not finally to decide the guilt or innocence of the person arrested.
Their functions are not judicial, but ministerial.”
Furthermore, the Constitution provides that reasonable time means arrest or detention where
there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day
24 hours or at worst two days (48 hours) or more considered by the court to be reasonable365.
„Reasonableness‟ here is accorded to import; rational, common sense and not expecting more
than is possible; not exorbitant and more. The phrase “a court of competent jurisdiction” has it
meaning thus:
Competence and jurisdiction, in law, the authority of a court to deal with
specific matters. Competence refers to the legal “ability” of a court to exert
jurisdiction over a person or a “thing” (property) that is the subject of a suit.
Jurisdiction that, which a competent court may exert, is the power to hear and
determine a suit in court. Jurisdiction also may be defined as an authority
conferred upon a court (thus making it competent) to hear and determine cases
and causes. Jurisdictional authority is constitutionally determined.366
The above means “a court, (place where cases are heard) that has the authority to do a certain
act or hear a certain dispute”367 or criminal matters. From the above also, it can be concluded that
the police have no business bringing an accused before a Magistrate‟s Court that has neither the
competence nor the authority to hear the matter under whatever pretext. Thus in Nwosu v. Imo
State Environmental Sanitation Authority368 it was held that
Where a court lacks the necessary vires to entertain a suit, any step taken in
relation to the matter is a nullity and void. Any proceedings conducted without
364 [1933] ALL E.R. REP. 611 at 613
365 S.35(5)(a)(b) CFRN
366“Editors of Encyclopædia Britannica” ©2016 Encyclopædia Britannica, Inc. available at
https://www.britannica.com/editor/The-Editors-of-Encyclopdia-Britannica/4419 retrieved on 31/08/2016.
367 TransLegal 2015 available at https://www.translegal.com/ retrieved on 31/08/2016
368 Aremo II. v Adekanye (2004) 11 MJSC 11; Madukolu vs. Nkemdilim
(1962) 2 SCNLR 341; (1962) 1 All NLR 587; (2001) 3 SCM 185; Adesola vs. Abidoye (1999) 14
NWLR (PT 637) 28.
jurisdiction amounts to a nullity, no matter how well it is conducted; and, without
the necessary jurisdiction a Court cannot make any valid order.369
Jurisdiction is the power of the court to decide a matter in controversy and presupposes the
existence of a duly constituted court with control over the subject matter and the parties …
the power of courts to inquire into facts, apply the law, make decisions and declare judgment;
the legal rights by which judges exercise their authority.370
Moreover by this, the ACJA is not sincere with its purposes to achieve expeditious dispensation
of justice. The proper court where applications for remand could be made should be the court
that has the competency and authority to hear and try the matter to avoid delay, courts and prison
congestions. When a court has no jurisdiction and competence what is the importance of it
investigating reasons for arrest, determining apparent reason just before committal to custody
except an interloper and a busybody in another man‟s matter? It goes to no issue claiming
to awaits the receipt of a copy of legal advice from the attorney general of the Federation and
arraignment of the suspect before appropriate court.371
The detention time limit372of ACJA arrogates too much vires and thus contradicts the provisions
of the Constitution. More so, the ACJA cannot validate and invalidate. It cannot hope to bring a
solution by aggravating the process itself. The reasons behind this submission is on the ground
that firstly induced to wit police may arrest when they are first instructed to or when there is a
reasonable suspicion; second the matter being brought to court with no competent jurisdiction.
On the first Lord Delvin in Shasban Bin Hussain v. Chong Fook Kam373 explained that „the
test of what is reasonable suspicion is not as high as establishing a prima facie.‟ In his words:
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof
is lacking; „I suspect but I cannot prove.‟ Suspicion arises at or near the
starting point of an investigation of which the obtaining of prima facie proof is
the end. When such proof has been obtained, the police case is complete; it is
indeed desirable as a general rule that an arrest should not be made until the
case is complete. But if arrest before that were forbidden, it could seriously
hamper the police. To give power to arrest on reasonable suspicion does not
mean that it is always or even ordinarily to be exercised. It means that there is
369 Multichoice Nigeria Limited V. Hon Jerry Akpan Citation: (2014) Lpelr-22681(Ca)
370 Black‟s Law Dictionary 2004 9th edition pg.927
371 S.294 of ACJA
372 Part 30; sections 293-299 of ACJA
373 [1969] 3 All E.R. 1926
an executive discretion. In the exercise of it many factors have to be considered
besides the strength of the case. The possibility of escape, the prevention of
further crime and the obstruction of police enquiries are examples of those
factors with which all judges that have had to grant or refuse bail are familiar.
There is no serious danger in a large measure of executive discretion in the first
instance because in countries where common law principles prevail the
discretion is subject indirectly to judicial control.”
In Fawehinmi v. IGP374 the Supreme Court per Uwaifo JSC the Supreme Court held in obiter 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.”
If the police as a criminal justice institution fail to do the needful and proper thing should the
ACJA follow suits by responding to the scourge of so called “holding charge;” remand and
Detention Time Limits in 14 Days in the first instance, further remand for a period not exceeding
another 14 Days and, in exceptional circumstances, for a final period of 14 days. Conflicting also
the remand time limits with the longer periods prescribed under the Terrorism (Prevention) Act
(TPA375): Detention for offences related to terrorism: s. 27(1) the court may, pursuant to an ex-
parte application, grant an order for the detention of a suspect under this Act for a period not
exceeding 90 days subject to renewal for a similar period until the conclusion of the investigation
and prosecution of the matter that led to the arrest and detention is dispensed with.
The point being made is that the validity test of the ACJA is what the court will say. After all it
has been various submitted that the constitution has the final word for criminal procedure and the
courts alone have the ears of the constitution to speak its mind and intentions. Invariably,
therefore, the Constitution is not final because it is reliable, but Constitution is reliable only
because it is final.376
From all the deductions under this part from it preceding, it is trite and settled principle of law;
that the Nigerian criminal justice system is accusatorial in nature, where judges or magistrates do
374 (2002) 7 NWLR Pt. 767 Pg. 606
375 S.27(Terrorism (Prevention) Act No. 10, 2011
376 Robert H. Johnson Associate Justice of the Supreme Court of the United States in Brown v. Allen, 344 U.S.
443."We are not final because we are infallible, but we are infallible only because we are final." Available at retrieved
https://en.wikipedia.org/wiki/Robert_H._Jackson on 1/09/2016 see also Chukwudifu 'Socrates' Oputa (1918-2014) -
`not descend to the arena unlike the inquisitorial system. Being so, there are certain fundamental
norms operational in the Nigerian legal system that the prosecution of accused persons under the
former in the courts are began and continued by accusation rather than inquisition.377 It is
inconsequential the weightiness or gravity of the crime apparently committed by a defendant, the
charge or information upon which he is to be prosecuted before a court still remains an allegation
until properly proved beyond reasonable doubt.
Further from the preceding, it should not be lost in a hurry that the constitution is the custodian
of the Nigerian legal system. Under the administration of criminal justice, this system should be
jealously guided, entrenched and followed as it is in section 36(5) of the CFRN. Further, is
section 135(1) of the Evidence Act378 which stipulates the standard of proof require in criminal
matters in order to rebuttal the innocence of an accused person is, „prove beyond reasonable
doubt.‟ This burden is that he who alleges a commission of act or an omission of performance
of an act which is a criminal offence should prove it.379 On the other hand, where there is a
lingering doubt regarding the guilt of an accused person, the court has no other option except to
accord the accused person the benefit of doubt.380 Hence, a court that has no competent
jurisdiction in a subject should not allowed by the ACJA to play Pilate to command remand on
holding charge and destroy the life of innocent suspect compounding woes to administration of
criminal justice.
4.3 CONCLUSION
The troubles attendant and faced with coordinating the activities of various criminal justice
agencies ably captured by AB Mahmoud when he was acting as a Director of Public
Prosecutions (DPP) Kano, thus;
“I realised the difficulty of tracking suspects or their as they move through these
various agencies. The Police are often the first port of call of the suspect. A file is
opened. It is given a name and a number where there are several suspects, say
five, Moses, Isa, Nwankwo, Taiwo and John, the file may read COP v. Moses and
4 others. These suspects are arraigned before a magistrate court. The file will
carry the courts case number and titled COP v. Moses and 4 others. The
377 Adebayo, A. M op.cit p. 100
378 Cap E14 LFN, 2011
379 S.139 Evidence Act 2011
380 See Amusa v. The State [2002] FWLR (Pt.85) 382.
magistrate will remands all five of them to prison custody. In prison, each
prisoner acquires his separate identity and separate number. The Police
meanwhile send the file to the DPP who immediately opens the case file and gives
it the ministry‟s reference number. He decides to charge the four of the suspects
dropping Moses, against whom he finds no evidence. The case is file in the High
Court now as the State v. Isa and 3 others. The file also carries its own charge
number of the High Court. The High Court number of the case means nothing to
the Police. And because the file name is now Isa and 3 others, different from
Moses and four others, it may not easily be recognised.”381
From the above, the problem that can be inferred is inefficient and inelegant record system. Next
to this is absence of tracking system; for even the „Citizen Moses‟ whom DPP fines no
probative evidence against is unawares of this and so he continues to languish in jail or he has
connections thus left off the hook. Moreover, the tracking of records system in the country is a
problem for another day on its own. In the meanwhile it is confusion and often a very slow
process. It is no doubt to have had cases where after a few years the records are lost or they
simply cannot be match against the real persons. Mahmoud buttress this with a succinct
illustration that if a Police Officer who investigated a case in Gwarzo in Kano State and was later
transferred to Idominasi in Ondo State, it will become superhuman for any other police officer to
track adequately the case or its records for the purpose of trial and speedy dispensation of justice.
Invariably therefore this research has found that the coming up on stream of the ACJA has not
completely obliterated these issues. Consequently, inherited them and could malign the progress
of the ACJA. Why? Because this research has found out that these institutions in themselves
cannot cure these ailment. There are agents to a principal. For instance, a police officer was
approached on the relevance of the provision382 on obtaining confession, where a suspect who is
arrested with or without a warrant volunteers to make a confessional statement, the police officer
shall ensure that the making and taking of the statement shall be in writing and may be recorded
electronically on a retrievable video compact disc or such other audio visual means.
The police officer in reply said, “No criminal suspect in Nigeria will volunteer a free confession
or admission without some form of prodding even in Plea bargain.” The reasons is that those
381 A.B. Mahmoud, op. cit. p.14
382 S.15(4) ACJA
facilities like lie dictator and criminal profiling which aid investigations are out of price and out
of place for our agencies in this country. More, Mahmoud also pointed out that “the police
appreciated the problem on tracking of records complained of but that they are handicapped
because decisions on issues of this nature can only be taken from the Force Headquarters.”
In the circumstance of this nature, tragedy is not relegated as convicts have been executed in
mistake while their appeals were still pending because of institutional frameworks of criminal
justice agencies. In Bello & Ors v. Attorney General of Oyo State383 the appellants, dependents
of a deceased who was convicted of armed robbery and sentenced to death and who had filed a
notice of appeal but before his appeal was heard and determined by the Court of Appeal, the
sentence of death had been carried out on him by the Government of Oyo State.384
The appreciation of these problems of institutional framework will constrain the realisation of
the purpose in Criminal Justice Administration under the ACJA. Moreover the Administration of
Criminal Justice Committee provided under the ACJA expected to meet regularly to discuss and
coordinate the activities of their various institutions will however never really be effective. It is
therefore difficult if not insurmountable from the above to see some of the impediments of
improper planning, inadequate funding and control as the clogs that will ground the wheels of
ACJA which were not thought along with in the making of the law. Yes, the law though has been
repealed not the institutions or persons who were or may still be feeding fat there from.
