Illegality Of Non – Lawyers’ Police Officers Prosecuting Cases Before Magistrates Courts By Femi F. Dodo, Esq

• INTRODUCTION

Prosecution of criminal offences is provided by a the Administration of Criminal Justice Act, the Administration of Criminal Justice Laws of the States of the Federation, the laws establishing the various law enforcement agencies and the laws establishing various courts with criminal jurisdiction.

The overall chief prosecution officers are the Attorney General of the Federation, the various Attorney Generals of the States of the Federation and the Law officers under their controls. However certain Law enforcement agencies such as the Economic and Financial Crimes Commission [EFCC], the National Drug Law Enforcement Agency, the Police amongst others are empowered to prosecute criminal offences before the Nigerian Courts but subject to the powers of Attorney General of the Federation, the various Attorney Generals of the States of the Federation to take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria.

This article seeks to examine and study the legal basis for non – legal practitioners’ police officers or lay police officers, prosecuting cases before the Courts. Being a practice prevalent in the Magistrates Courts, the discussion in this article will be centered on the prosecution before the Magistrates Court.

Further, the legal analysis in this article will be centered on Section 66 [1] & [2] of the Nigeria Police Act 2020, Section 65 of the Magistrates Court Law of Lagos state 2009 and Sections 8 [1] of the Legal Practitioners Act 2004 and other relevant Laws of Lagos State of Nigeria while trying to also capture other jurisdictions with similar provisions.

 

• BACKGROUND

There is a growing concern among Lawyers in respect of non – Legal Practitioner Police officers [lay police prosecutors] prosecuting criminal offences before the Magistrate Courts. The arguments against lay police prosecutors are hinged on the unprofessional and unlawyerly conduct of prosecution by Police prosecutors. Further, police prosecutors are not bound by the Rules of Professional Conduct which applies to Lawyers therefore there is little or no avenue for complaint against their unethical conducts, unlike Lawyers who have a license to protect.

This paper will analyze the issue of appearance and prosecution of criminal offences by Non – Legal Practitioner Police officers from the general scope of the Legal Practitioners Act and specifically, the Magistrates Court law of Lagos State 2009.

 

• DEFINITION OF A LEGAL PRACTITIONER AND THE RIGHT OF AUDIENCE BEFORE THE COURTS.

All persons whether or not they are Lawyers are entitled to the right of audience before the courts but is only a legal Practitioner that is entitled to institute an action or represent other persons, whether private or Public in Court.

Section 2 [1] of the legal practitioners act define a person who is entitled to practice as a Legal Practitioner as follows:

”Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor, if and only if, his name is on the roll.”

The import of the above proviso of the Legal Practitioners Act is to the effect that ALL persons whether or not they are Lawyers are entitled to the right of audience before the courts but it is only a person whose name is on the role of legal Practitioner that is entitled to practice as a barrister and solicitor in Nigeria such as to institute an action or represent other persons, whether private or Public in Court.

It follows therefore that a non Lawyer has a right of audience before the Court but only to the extent of conducting his personal case and also entitled to be represented by a Legal Practitioner.

The right of audience of a person whose name is on the roll of Legal Practitioners and entitled to practice as a Barrister and solicitor is not absolute but subject to the fulfillment of some conditions precedent as stated by Section 8 [2] of the Legal Practitioners Act which provides as follows:

No Legal Practitioner [other than such a person as is mentioned in subsection (3) of section 2 of this Act] shall be accorded the right of audience in any court in Nigeria in any year, unless he has paid to the registrar in respect of that year, a practicing fee as is from time to time prescribed by the Attorney – General of the Federation after consultation with the association.

The payment of annual Bar Practicing fees is one of the pre – condition for the exercise of the right of audience of a Legal Practitioner failure upon which a Legal Practitioner will be denied a right of audience before the courts despite been properly enrolled at the Supreme Court.

 

• THE POWERS OF POLICE OFFICERS TO PROSECUTE OFFENCES

The old Section 23 of the Police Act 2004 under which Police Prosecutors were permitted to conduct prosecutions in any court has been repealed by the Police Act 2020. Part VII of the Police Act 2020 provides for the Powers of Police Officers. For the avoidance of doubt, the extant prosecutorial powers of the Police are clearly spelt out at Section 66, under Part VII of the Police Act 2020, which repealed Section 23 of the Police Act 2004 provides unambiguously as follows:

“[l] Subject to the provisions of section 174 and 211 of the Constitution and section 106 of the Administration of the 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 the courts those offences which non-qualified legal practitioners can prosecute.

[3] There shall be assigned to every Police Division at least one police officer-

[a]  who is qualified to practice as legal practitioner in accordance with the Legal Practitioners Act ; and

[b] whose responsibility is to promote human rights compliance by officers of the Division.”

We submit that while sub – section 1 of Section 66 of the Police Act is clear on the powers of Police officers who are Legal Practitioners to prosecute criminal charges before any Court, subsection 2 of section 66 is a failed attempt at giving power to police officers who are not Legal Practitioners to prosecute criminal charges as there are no offences which qualify as offences which non – qualified Legal Practitioners can prosecute and there is no such definition or classification of offences such as offences which non – qualified Legal Practitioners can prosecute in the classification of offences in our Laws. The classifications of offences are limited to felonies, misdemeanor and capital offence.

It is also important to note that sub – section 3 of the same section 66 of the Police Act 2020 makes it mandatory for the Police Force to assign at least one Police Officer who is a Legal Practitioner to every Police Station.

That is to say that every Police Station in Nigeria should have at least a Police Officer who is a Legal Practitioner, if not more; and it is therefore inconceivable that a non – Legal Practitioner Police Officer is given Right of Audience in Court contrary to the express provisions of the Legal Practitioners Act.

It is also submitted that the intent of the Legislator in enacting section 66 [3](a) of the Police Act 2020, which mandate the Police to assign at least a Police Officer at every Police station is for the purpose of carrying out the functions of the Police which requires the knowledge and skills of a Legal Practitioner such as Court appearances on behalf of the Police and Prosecution of criminal charges, for the purpose of compliance with the provisions of the Legal Practitioners Act.

In the case of RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS [2017] LPELR – 43455 [CA], the Court of Appeal confirmed the powers of a Police Prosecutor to institute and prosecute criminal proceedings in Court, by virtue of the now repealed Section 23 of the Police Act 2004 whether or not he is a Legal Practitioner, relying on the case of FRN V OSAHON 2006 5 N.W.L.R. Part 973 Page 36 .

It is worthy to recall that the prosecuting powers of lay police officers were contained in the old section 23 of the Police Act 2004 were interpreted by the Supreme Court in the case of FRN V OSAHON 2006 5 N.W.L.R. Part 973, wherein the Supreme Court interpreting the provisions of the repealed section 23 of the Police Act 2004 held in a majority judgment of 5 to 2, that a Police Officer, irrespective of whether he was a qualified legal practitioner could sue not just in the Federal High Court, but any court.

However, with the advent of Section 66 [1] of the Police Act 2020, the position of the law has changed. And, when the same case, was appealed to the Supreme Court, now RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS 2022 17 N.W.L.R. Part 1859 Page 377 at 400-402, the Supreme Court held inter alia that:

“By the provisions of section 106 of the Administration of Criminal Justice Act 2015 and section 66[1] of the Nigeria Police Act 2020, prosecution of criminal proceedings can be undertaken by either a law officer in the ministry or department of the Attorney-General or a private legal practitioners authorised by the Attorney-General or a police officer who is a legal practitioner. These are the persons statutorily authorised to prosecute a charge at either the Magistrate Court or superior courts of record. (P. 400, paras. E-F)”.

 

• RESTRICTION OF NON – LEGAL PRACTITIONERS TO PROSECUTE CRIMINAL CHARGES IN THE MAGISTRATES COURT OF LAGOS STATE

The  Magistrates Court Law of Lagos State 2009 provides at Section 65 that:

“Prosecution in criminal cases in Magistrate Courts in the State shall be undertaken by-

[a] Law Officers; and

[b] Police Officers and other law enforcement agents who are legal practitioners.”

It is submitted that by virtue of the provisions of Section 65[b] of the Magistrates Court Law of Lagos State 2009, only Police Officers who are Legal Practitioners are empowered to prosecute criminal offences in Lagos State.

The use of the word “and” in Section 65[b] of the Magistrates Court Law of Lagos State 2009 simply means that only Police Officers and other law enforcement agents who are legal practitioners can undertake Prosecution in criminal cases in Magistrate Courts in Lagos State.

For instance, if the provisions of a statute which states that: “criminal appeal can only be heard by Judges and Justices of the Court of Appeal who are female”, this will automatically exclude Judges and Justices of the Court of Appeal who are male from hearing criminal appeals.

Another example is if for instance a Law states that: “affidavits can only be deposed to before Magistrates and Notary Publics who are 20 years at the Bar”, any Magistrates or Notary Public less than 20 years post call cannot validly attest to depositions on oath of any affidavit.

The Law is settled that the word “AND” when used in a statute is a conjunctive which means “in addition to” as in section 65 of the Magistrates Court Law. The meaning and use of the word “and” was defined in a plethora of authorities among which is the case of RUBICON PROPERTIES AND DEVELOPERS LTD & ANOR v. NACRDB LTD [2021] LPELR – 54820 [CA], where the Court of Appeal citing an earlier pronouncement made in the case of DASUKI v. DIRECTOR GENERAL STATE SECURITY & ORS [2019] LPELR – 48113 [CA] held as follows:

“In DASUKI v DIRECTOR GENERAL STATE SECURITY & ORS [2019] LPELR – 48113 [CA]: “In ordinary usage, the word “and” is a conjunctive. Black’s Law Dictionary 6th Edition described the word “and” as “a conjunction connecting words or phrase expressing the idea that the latter is to be added to or taken along with the first. Added to; together with, joined with as well as including.” Per TINUADE AKOMOLAFE – WILSON, JCA [PP. 30 – 31, PARAS E – A]. See also OGUNYADE v OSHUNKEYE [2007] LPELR – 2355 [SC]; AMAECHI v INEC & ORS [2008] VOL. 158 LRCN PAGE 1 AT PAGE 21, PARA. K.” Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA [Pp 20 – 21 Paras E – B]”

Also in AMAECHI v. INEC & ORS [2008] LPELR – 446 [SC] the Supreme Court stated while interpreting the phrase “cogent and verifiable reason” as used in Section 34[2] of Electoral Act 2006 and held in relation to the word “and” in the said section Per PIUS OLAYIWOLA ADEREMI, JSC at page 255 Paras B – E]” as follows:

“The word “and” standing between the two words “cogent” and “verifiable” in Section 34[2] supra, is conjunctive and its ordinary meaning is “in addition”. So the reasons to be adduced before the substitution of candidates can be allowed in law must be cogent in addition to being verifiable. See Ezekwesili v. Onwuagbu (1998) 3 NWLR (Pt.541) 217; and Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt.854) 406. This Court in the often quoted decision of it in Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367 after giving the definitions of “cogent” and “verifiable” said, providing or adducing cogent reason and providing materials upon which to confirm the truthfulness of these reasons must co-exist.”

Police officers are Law enforcement agents. The phrase “and other Law enforcement Agents who are Legal practitioners” means Police Officers in addition to other Law enforcement Agents who must be Legal practitioners before they can lawfully Prosecute criminal cases in Magistrate Courts in Lagos State.

• THE RIGHT OF AUDIENCE IN COURT AS THE EXCLUSIVE PRESERVE OF LEGAL PRACTITIONERS

Lastly, Section 8[1] of the Legal Practitioners Act gives the exclusive right of audience in Court to Legal Practitioners only where its states as follows:

“[…] a legal practitioner shall have the right of audience in all courts of law sitting in Nigeria”.

[2]    No legal practitioner [other than such a person as is mentioned in subsection [3] of section 2 of this Act] shall be accorded the right of audience in any court in Nigeria in any year, unless he has paid to the registrar in respect of that year, a practicing fee-[…]”

The law is settled beyond dispute that where the words used in a statute are clear and unambiguous, they must be given their clear and grammatical meaning. In the case of JEGEDE & ANOR v. INEC & ORS (2021) LPELR-55481 (SC), the Supreme Court held as follows:

“The law is elementary, that the Courts cannot import into or export out of the clear, unambiguous and plain words of a statute and/or Constitution in the construction and application of the provisions.”

Furthermore, there was an old maxim which was very popular in the Latin days of the Law, which was expressed thus: expressio unius est exclusio alterius, meaning the express mention of one thing is the exclusion of another. The application of this maxim which is well known in our Law and decided authorities is to the effect that the express mention of Legal Practitioner in Section 8[1] of the Legal Practitioners Act is exclusive of any person who is not a Legal Practitioner. Therefore the right of Audience before the Courts is exclusive to a person who is a Legal Practitioners and Legal Practitioners Only.

In the case of UDOH & ORS V ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD 7 ANOR (1993) LPELR-3308 (SC) the Supreme Court said on the applicability of the principle of expressio unius est exclusion alterius in construction of statute and held Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC as follows:

“It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See AG of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbuanyinya v. Okudo (1979) 6-9 SC 32, Military Gov. of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280.”  [Pp 11 – 11 Paras D – F]

The use of the word shall in section 66 [3](a) of the Police Act 2020 and Section 8[1] & [2] of the Legal Practitioners Act connotes a command which cannot be derogated and indicate that the said provision is mandatory. In the case of SPEAKER KADUNA STATE HOUSE OF ASSEMBLY & ORS. V. NKOM & ANOR (2019) LPELR-50961(CA) the court of appeal interpreted the meaning of the word “shall” when used in a statute as follows:

“The word “shall” in its ordinary meaning is a word of command which is normally given a compulsory meaning. The word is intended to denote an obligation. The word “shall” when used in a statutory provision imports that a thing must be done. It is not merely permissive, it in mandatory. See Nwankwo v Yar Adua (2010) 12 NWLR part 1209 p 518.” Per OBIETONBARA OWUPELE DANIEL-KALIO, JCA (Pp 13 – 14 Paras E – A)

Also in LINGO [NIG] LTD V. ARTCO IND LTD (2020) LPELR-51744(CA) the Court of Appeal had this to say:

“It is clear that there was the use of the word “shall” which in its ordinary meaning when used connotes a command, and that which must be given a compulsory meaning. See the case of ACHINEKU VS. ISHAGBA (1988) 4 NWLR (PTC 89) 411.” Per MOHAMMED BABA IDRIS, JCA (Pp 13 – 13 Paras B – C)

In the case of FRN v. OSAHON & ORS (2006) LPELR – 3174 [SC] the Supreme Court held on when the plain and literal interpretation of a statute will be rejected as follows:

“…Lord Reid had in the case of Westminster Bank Ltd. v. Zang (1965) AC 182 p. 222 said “No Principle of interpretation of statutes is more firmly settled than the rule that the court must deduce the intention of parliament from the words used in the Act. If these words are in any way ambiguous if they are reasonably capable of more than one meaning of the provision in question, is contradicted by or is incompatible with any other provision in the Acts, the court may depart from the natural meaning of the words in question.” Per IGNATIUS CHUKWUDI PATS-ACHOLONU, JSC (Pp 44 – 44 Paras A – C)

It is submitted that the above section 66 [3](a) of the Police Act 2020, Section 65 of the Magistrates Court Law of Lagos state and Section 8[1] & [2] of the Legal Practitioners Act are not ambiguous, not capable of more than one meaning and therefore ought to be given their ordinary grammatical meaning as stated in the said provisions of the relevant statutes to this discourse.

The Law is settled that only Legal practitioners have business with the court as it relate to the right of audience for any matter whatsoever and a non – Legal Practitioner is not authorized by any statute to prosecute offences in any Court including the Magistrates Court.

 

• CONCLUSION

From the above discourse, one can recapitulate the following points:

1. Section 23 of the Police Act 2004 which was interpreted by the Supreme Court in the case of OSAHON V. FRN to give power to Police Officers who are not Legal practitioners to prosecute criminal Charges in any Court has been abrogated and replaced with the extant Police Act, 2020.
2. By the express provisions of the Legal Practitioners Act, only Legal Practitioners have the right of audience before any court.
3. The Magistrate Court Law of Lagos State specifically state that onlyPolice Officers and other law enforcement agents who are legal practitioners can undertake Prosecution in criminal cases in Magistrate Courts in Lagos State.

It is therefore suggested that Lawyers who are into criminal defence at the various Magistrates Court in Lagos State and in other states whether or not there are provisions similar to that of section 65 of the Magistrates Court Law of Lagos State 2009, should arm themselves with appropriate legal authorities to challenge the appearances of Non – Legal Practitioners Police Officers.

And if the trend is kept up, the Police Force will have no other Choice other than to embark on a mass employment of Lawyers into the Police to prosecute criminal charges for and on behalf of the Police and this in turn, will create more job for our young Lawyers and by extension the youth all over the Country; as the police is and still remains one of the busiest prosecutorial Agency in Nigeria.

 

-The writer: Femi F. Dodo, Esq., is a Lagos based Legal Practitioner, Human & Animal Rights activist and a Partner in the Law firm of Dodo Tafari Legal Practitioners [DTLP]. He is a member of the Nigerian Bar Association, Ikeja Branch [The Tiger Bar] and can be reached via his mobile number +2347085555443 or via email address femidodoesq@gmail.com, for comments, critiques and further legal discussions.

Disclaimer: The Legal Arguments in this article represents the exclusive and personal position of the writer and cannot take the place of a legal advice.