COMPLAINTS IN COURTS: Examination of Powers of Magistrates under Sections 89, 90 and 111(b) of the Administration of Criminal Justice Law of Oyo State, 2016
Lecture delivered at the Lower Court Judges’ Seminar held at the Mini Conference Hall, High Court Complex, Ring Road, Ibadan
4th March 2020
Adebayo Adenipekun, SAN, FCIArb.
[Managing Partner, Afe Babalola & Co.]
[Member, Permanent Court of Arbitration, The Hague, Netherlands]
80, Fajuyi Road, Ekotedo, Ibadan
Before I delve into the substance of this lecture, I consider it a privilege to be invited to speak on this all-important topic in our criminal jurisprudence. My appreciation goes to the organizers, and by extension, the entire Oyo State magistracy, for considering it expedient to hold a seminar solely to deliberate on issues relating to the effectiveness of the Administration of Criminal Justice Law of Oyo State. This seminar is, indeed, a step in the right direction, not only to further ratify the existing synergy between the Bar and the Lower Bench, but also as an avenue for intellectual discourse on some of the provisions of the Administration of Criminal Justice Law of Oyo State. It is equally an avenue to share thoughts on the practicability and effectiveness of the Law of Oyo State in relation to the jurisdictional authority of the magistrate court.
Magistrate Courts in Nigeria are the most important Courts when talking about the criminal justice system as more than 90% of criminal cases that get tried commence in the court (Pedro 2012) and 80% of those cases terminate in the magistrate courts (Yusuf Ali 2006). Unfortunately, the same court is relegated to the background by the managers of the system as allocation to the judicial sector is spent on other levels of the court system.
No doubt, a proper implementation of the Administration of Criminal Justice Law will not only promote the efficient management of the criminal justice system and speedy dispensation of justice, but will also reduce the spate of criminality in Oyo State and ensure the protection of the rights of victims and suspects alike.
Therefore, the topic being considered in this lecture, Complaints in Courts: Examination of Powers of Magistrates under Sections 89, 90 and 111(B) of the Administration of Criminal Justice Law of Oyo State, 2016, is one which is of paramount importance in our criminal jurisprudence as it seeks to appraise the powers of magistrates in Oyo State under sections 89, 90 and 111(b) of the Administration of Criminal Justice Law, 2016, and indeed some of the other relevant provisions, vis-à-vis one of the modes of instituting criminal proceedings – Complaint.
Increase in Criminality in Nigeria
Criminality in Nigeria dates back to the nation’s pre-independence era; starting with simple and less organized delinquencies and gradually degenerating into complex and well-organized crimes that we have today. According to reports, Nigeria has one of the alarming crime rates in the world (Uche, 2008 and Financial, 2011). Causes of crimes have been attributed to biogenetic and socio-environmental factors. In the former, biogenetic factor, criminologists are opinioned that criminal activities are due to the effect of biologically caused or inherited factors. According to Lombrose (1911), a criminal is born, not made. In the latter, socio-environmental factors, the environment is said to play a significant role in determining criminal behaviour. Environmental factors which mostly influence criminal behaviour include poverty, unemployment, corruption, urbanization, family, moral decadence, non-education or undereducation, technology, child abuse, among others.
Statistically, Nigeria currently has one of the highest crime rates in the world. After the erstwhile subtle rate of criminality in pre-independence Nigeria, the rate of crime took an alarming turn after independence, with the 1980s witnessing the growth of crime to nearly epidemic proportions, particularly in Lagos and other urbanized areas characterized by rapid growth and change, stark economic inequality and deprivation.
Annual crime rates fluctuated at around 200 per 100,000 population until the early 1960s and then steadily increased to more than 300 per 100,000 by the mid-70s. Available data from the 1980s indicated a continuing increase. Total reported crime rose from almost 211,000 in 1981 to between 330,000 and 355,000 between 1984 – 85. The British High Commission in Lagos cited more than 3000 cases of forgery annually. In the early 1990s, there was a growing number of robberies from 1,937 in 1990 to 2,419 in 1996, and later, the figure declined to 2,291 in 1999. Throughout the 1990s, assault and theft constituted the later category of the crimes reported. Generally, the crime data grew from 244,354 in 1991 to 289,156 in 1993 (Cleen, 1993) and continued to decline from 241,091 in 1994 t0 167,492 in 1999 (Cleen, 2003). The number of crimes slightly declined to 162,039 in 2006, a reduction of 8% from 2005 (Cleen, 2006).
Without a doubt, the current Nigerian economic and socio-political realities have engendered an astronomical increase in the spate of criminality, with ceaseless reports of kidnappings, ritual killings, acts of terrorism, domestic murders, among several others.
Combating increase in criminality through the effective use of Sections 89, 90 and 111b of the ACJL 2016
The need to enact a law which conforms to current realities birthed the enactment of the Administration of Criminal Justice Law, 2016 as an effective tool in combating the flurry of criminality in Oyo State. According to its section 3, the purpose of the law is to promote speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the defendant and victim.
Sections 89, 90 and 111b of the Law generally make provisions as to the right of any person, or his legal practitioner, to make a complaint to police officers or directly to the court, thereby instituting criminal proceedings where an offence is alleged. The sections equally make provisions for the power of a Magistrate to immediately issue summons or warrant of arrest to compel the presence of a person against whom a complaint is made.
No doubt, these provisions are intended to facilitate easy access to the courts in the administration of criminal justice as individuals can, by complaint, institute criminal proceedings directly. In the foreseeable future, the proper sensitisation of the public to these rights will prompt the lodging of more criminal complaints, thereby setting the machinery of criminal justice in progress against offenders, and in effect, curtailing the incidence of criminality in the State.
What is a Complaint?
Complaint as a means of instituting criminal proceedings originated from England, where Nigeria imported most of its laws.
The first enactment which provided for complaint as a means of commencement of criminal proceedings is the Criminal Procedure Act of 1945, which operated in pre-independence Nigeria. Upon independence, the Criminal Procedure Code (CPC) was enacted to regulate criminal proceedings in the Northern States while the CPA continued to operate in Southern Nigeria. Subsequently, however, the National Assembly enacted the Administration of Criminal Justice Act (ACJA) which, in effect, repealed the CPA, consequent upon which many States, including Oyo State, domesticated ACJA to govern criminal proceedings in their respective States. Just as in the previous criminal procedure laws, the new Administration of Criminal Justice Act and Laws equally makes provision for Complaint as a means of instituting criminal proceedings in the Magistrate Courts.
Section 110 of the Oyo State Administration of Criminal Justice Law (ACJL) provides:
Subject to any other law, criminal proceedings may, in accordance with this Law, be instituted:
- in a Magistrate court, by a charge or a complaint whether or not on oath;
Under the ACJL, complaint means an allegation that any named person has committed an offence, made before a court or police officer for the purpose of moving him to issue process under the Law. Therefore, by this definition, the requirements for a valid complaint are two-fold – it must be against a named person and can be laid directly to the court, or to a police officer. There is no requirement that complaints must be made on oath.
The provisions on complaints seek to emphasise the right of private persons to initiate criminal proceedings. Private prosecutions have remained an integral part of the Nigerian criminal jurisprudence over a long period of time. See Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as Sections 59(1) Criminal Procedure Act and 143(e) of the Criminal Procedure Code. The right of private prosecution is permitted except in instances where the law specifically provides that the proceedings in question can only be brought by a particular person or class of persons. In the case of the ACJL, a private person may
initiate proceedings at the Magistrate Court by way of a complaint. Its origin as a means of initiating criminal proceedings in magistrate courts is therefore rooted in private prosecution.
Who can make a Complaint?
The right of a person to make a complaint is enshrined in Section 89(1) of the ACJL which provides thus:
A person may make a complaint against any other alleged to have committed or to be committing an offence.
From the above, there is no strict requirement that it is only the victim of an offence that can lay a complaint, either before a Magistrate or to the Police. In fact, in some circumstances where a victim chooses not to make a complaint, the law empowers the police, particularly in cases of assault, to make complaints on behalf of a victim who declines to make such complaint.
Furthermore, a private person may make a complaint and institute criminal proceedings in that regard, however subject to the fulfilment of certain conditions under the law. In Oniyide v. Oniyide the Court of Appeal, citing Doherty’s Criminal Procedure in Nigeria, held thus:
‘Private persons may institute criminal proceedings against a person alleged to have committed an offence by laying a complaint before a Court. In practice, private persons usually lay their complaints at the police station.’
The Court further held:
‘Of course a private person who proceeds under the provision of section 143(d) and (e) above by instituting a direct complaint in Court cannot seriously expect the police to prosecute it for him; he will ordinarily be expected to prosecute his complaint by himself or counsel of his choice as the Respondent did’
Under the ACJL, however, all complaints made to the Court directly may first be referred to the police for investigation before any action is taken by the Court. This is more practical because a magistrate has no investigatory authority. An allegation of crime ought to be first investigated by the police and upon the existence of a prima facie evidence of commission of crime, the court may then proceed to take both facts and evidence in determining the criminal liability of an accused person.
How are Complaints made?
Under ACJL, there is no specific requirement for a complaint to be made in writing. A complaint can be made orally, either to the Court or to the Police. Where an oral, direct complaint is made to the Court, the registrar of the Court has a mandatory duty to reduce such complaint into writing. It is submitted that this provision seeks to encourage illiterate citizens who may have a grievance to approach the Court directly to register their complaints. While the practicability of such direct access may be uncertain, particularly with reference to the need to first investigate the crime alleged, it is indeed a provision that opens the doors of the Courts to the entire citizenry – lettered or not – to register their complaints particularly where a crime has been committed, and by extension, ensure the speedy dispensation of justice.
Where, on the other hand, a complaint is made to the police, the police have the duty to not only investigate, but also to issue a formal complaint, or a charge, in court on behalf of the complainant, particularly where there is prima facie evidence of commission of a crime. As noted earlier, in cases of assault, the police have the right to make a complaint on behalf of an aggrieved person even when such person declines or refuses to make a complaint.
Furthermore, there is no requirement that complaints must be made on oath. The implication, therefore, is that a person can, out of malice, lay a complaint against another person. In that regard, the person against whom such complaint is laid may have no other remedy besides malicious prosecution or compensation. It is therefore highly recommended that magistrates should insist on only receiving complaints made on oath – whether the complainant is literate or not, and at the point of receiving complaints, complainants must be informed about the implications of committing perjury.
An examination of Form No. 3(complaint) in the schedule to the ACJL, however, suggests that complaints are to be made on oath.
The form is reproduced below:
FORM NO 3
(General Title- Form No.1)
The complaint of C.D (address and description), who upon oath (or affirmation) states that A,B of (address and description) on the ………. day of………………..20……….at……………………..in the …………above–mentioned, did* ……………………………………………………………..
……………………………………………………………………………………….……………… taken before me this …………………….. day of ………………….
(*State concisely the substance of the complaint)
Judge (or Magistrate)
From the words, who upon oath (or affirmation), it suggests that the importance of making complaints on oath is recognized. However, in order to ensure formal compliance, complainants should be directed to depose to verifying affidavits to state that the contents of the Complaints are true to the best of their knowledge.
Furthermore, complaints can be made in the form of letters addressed to the Registrar of the Magistrate Court. This, indeed, was the style adopted by the complainant in Oniyide v. Oniyide. In that case, Mrs Tolulope Oniyide, a legal practitioner, pursuant to Section 143 of the Criminal Procedure Law of Kwara State, initiated a direct criminal complaint before the Magistrate Court against her husband, also a legal practitioner, about domestic violence, criminal assault and grievous bodily harm, contrary to the provisions of the Penal Code Law.
The complaint itself was a letter written on the letterhead of FIDA (The International Federation of Women Lawyers) and signed by one Abung Bridget (Mrs.) as Solicitor to the complainant. The Court of Appeal, in affirming the validity of the said complaint, held thus:
‘Besides and perhaps most importantly as said earlier, a criminal complaint under Section 143(e) of the Criminal Procedure Code Law of Kwara State is not one of those documents that only a lawyer called to the Bar can prepare. So Mrs Abung’s description of herself as solicitor or the fact that it was the medium of FIDA the appellant used to make her criminal complaint is of no consequence to its validity. A hood, it is said, doesn’t make the Monk, as Eko, JSC also recently pointed out in Achonu v. Okuwobi (2017) All FWLR (Pt. 1297) 1335.
It must not be forgotten, too, that the clear aim of Section 143 of the Criminal Procedure Code Law of Kwara State in issue and similar provisions in the Criminal Procedure Code Laws of all the States constituting the old Northern Region of Nigeria is to make the initiation of criminal complaints simple so that any member of the general public who has any genuine criminal complaint can approach the Courts directly to lay it. It is something suggestive of an all hands on deck in the fight against crimes approach. That laudable objective ought not to be, and should not be allowed to be defeated by dry technical objections like the instant one of the means by which a person chose to notify the Court of his/her criminal complaint’
Therefore, from the foregoing, it will suffice if a complainant writes the Registrar of the Magistrate Court to lay out a specific allegation against a named person. As earlier opined, such complaints should only be received when accompanied by an affidavit to verify the facts stated in the complaint.
Also, a complaint shall relate to one specific offence only, and must contain sufficient particulars necessary to describe the offence and to give reasonable information as to the nature of the charge. There is however some uncertainty as regards how a complaint which alleges multiple offences ought to be presented. For instance, a victim may make an allegation of stealing, assault and battery against a person within the same transaction. Should such victim take out multiple complaints, each accompanied with multiple verifying affidavits, and institute multiple actions? Or can the victim be permitted to lay out all the allegations in a single complaint? The latter seems to be the tidier approach. It is submitted the magistrate before whom multiple complaints are made has the power to order that such allegations be reduced into a single complaint, accompanied by a verifying affidavit. Such will prevent multiplicity of criminal actions arising from singular transactions.
Power of Magistrates to Issue Summons and Warrants.
The Administration of Criminal Justice Law makes provisions on the scope of the powers of Magistrates in criminal actions instituted by complaints. It provides thus:
‘Criminal proceedings instituted in a Magistrate Court may be:-
- subject to the provision of section 90 of this Law, by complaint to the court, whether or not on oath, that an offence has been committed by a person whose presence the Magistrate has power to compel, and an application to the Magistrate, in the manner set out in this section for the issue of either a summons directed to, or a warrant to arrest, the person.
From the foregoing, a valid complaint can only lie against a person whom the Magistrate has power to compel under law. Who then is compellable by a Magistrate?
Generally, the power of a magistrate to compel the attendance of a person, either as an accused person or as a witness, is derived under Section 88 of the ACJL which provides thus:
A court has the authority to compel the attendance before it of a person who is within the jurisdiction and is charged with an offence committed within the State, or which according to law may be dealt with as if the offence had been committed within the jurisdiction and to deal with the person according to law’
From the foregoing provision, two things are easily decipherable in determining the power of a magistrate to compel the attendance of a person. The first consideration is for the person to be within the jurisdiction of the court; and second, the offence charged must have been committed within the State. In this regard, where the accused person is not within the territorial jurisdiction of the magistrate, and where the offence(s) charged are not committed within the State, no summons, warrant of arrest or subpoena can lie from the court to compel the attendance of such accused.
On the other hand, a disparity appears in Section 113 of the ACJL on the power of the court to compel a person who has committed an offence either within or outside the state. The section provides as follows:
A court may issue summons or warrant as provided in this Law to compel the appearance before it of a person accused of having committed an offence in any place, whether within or outside the State.
This subsequent provision appears contradictory to the afore-referenced Section 88 which seems to limit the power of a magistrate to compel the attendance of a person only to those who have committed an offence within the State. It would, however, seem that Section 113 is more applicable, particularly in criminal proceedings instituted by complaint, and in this regard, a magistrate has the power to compel the attendance of a person who has committed an offence at any place, whether within or outside the State. This position is further established having due regard to Section 115 which makes provision for the issuance of summons or warrant of arrest upon a consideration of the complaint. It provides thus:
‘Subject to section 90 of this Law who believes from a reasonable or probable cause that an offence has been committed by another person whose appearance a Magistrate has power to compel, may make a complaint of the commission of the offence to a Magistrate who shall consider the allegation of the complaint and may-
- in his discretion, refuse to issue process and shall record his reason for such refusal or
- issue a summons or warrant as he shall deem fit to compel the attendance of the defendant before a Magistrate Court in the district’
A communal reading of Sections 113 and 115 in this regard largely suggests that the issuance of summons or warrant (in section 115) is to compel the appearance of a person accused of committing an offence within or outside the state (as in section 113). Therefore, it is safe to conclude that a magistrate has the power to compel the attendance of a person, whether the offence alleged was committed within Oyo state or not.
Upon receipt of a complaint, a magistrate generally has 3 options: first, to refuse to issue any process, thereby discountenancing the complaint, second, to issue a summons, third, to issue a warrant of arrest. Under the Law, summons and warrant of arrest are the principal modes of enforcing the appearance of a person. However, the power of a magistrate to issue summons or warrant of arrest usually depends on the circumstance(s) of each case. The law provides:
‘In every case, the court may proceed either by way of summons to the defendant or by way of a warrant for his arrest in the first instance according to the nature and circumstances of the case.
A magistrate may issue summons where there is no apprehension that the Defendant is likely to abscond or evade service. The summons is to be directed to the suspect, stating concisely the substance of the complaint and requiring him to appear at a certain time and place not less than 48 hours after the service of the summons to answer the complaint.
Where, however, a summons has been issued and served on a Defendant who, regardless, fails to appear at the appointed place and time, a magistrate may issue a warrant of arrest to compel his attendance in court. A magistrate is equally empowered by law to issue a warrant of arrest as at first instance, upon receipt of the complaint.
Dismissal and Withdrawal of Complaints
At the date fixed for the hearing of a complaint, where the Defendant is present, the court has two options where the complainant is absent: First, where the court is satisfied that the complainant has due notice of the date and time fixed for hearing, and there is no justifiable reason for the complainant’s absence, the court may proceed to dismiss the complaint. Second, where there is a reasonable excuse for the absence of the complainant or his representative, the court is mandatorily required to adjourn the hearing of the complaint to another date and, as a matter of practice, issue hearing notices on the complainant.
Conversely, where a defendant fails to appear at the hearing of the complaint, and no reasonable excuse is proffered for his absence, the court may issue a bench warrant for the arrest of the defendant if the court is satisfied that a summons had been served, or where not satisfied, the court must adjourn the hearing of the complaint to a later date.
Where, however, both the complainant and the defendant are not present on the date fixed for the hearing, the court has the discretion to make such orders as the justice of the case requires. In the judicious exercise of such discretion, the court should first determine whether both parties have due notice of such hearing date and where satisfied, it may dismiss the complaint, adjourn the hearing to a future date, or order the payment of punitive costs as it may so determine.
A complainant may equally decide to withdraw a complaint at any time before judgment. However, he must satisfy the court that there are sufficient grounds for the withdrawal of his complaint. This provision accords discretionary powers to the magistrate to permit the withdrawal of a complaint after being satisfied that there are reasonable grounds for the withdrawal – it is quite subjective, as what magistrate A considers sufficient ground for withdrawal may not be a sufficient ground enough to convince magistrate B – after all, all offences are deemed to have been committed against the State. The effect of such withdrawal is an acquittal of the defendant.
Factors militating against the proper use of Complaints in the Magistrate Courts.
The proper and effective use of complaints as a means of initiating criminal proceedings in Nigeria is a function of adequate sensitization of the public as to their right to lay complaints, either to the police or directly to the court. In this regard, the police need to be properly informed as to their role in the administration of criminal justice when a complaint is made. of the defendant.
The rationale behind the use of complaints to commence criminal proceedings at the magistrate court is to afford private persons the right to make a direct complaint to the court and also to prosecute an offender particularly when the Police refuse, or are reluctant, to act.
However, Complaints by private individuals are sparsely effective as a means of initiating criminal proceedings at the magistrate court, largely due to its practicality and partly due to the absence of adequate provisions in the law which prescribes the appropriate rules of practice and procedure for criminal proceedings by complaints. Certain questions like how will a private person who is not a legal practitioner carry out the effective prosecution of a complaint? How is he guided by the principles of evidence, having not received any training in trial advocacy, and the role of the magistrate in that regard? The duty and extent of the powers of the police in crimes which are prosecuted by direct complaints, among others, remain unanswered till date.
The inadequacy of procedural guidelines on the steps to be taken after the laying of complaints and the issuance of summons or warrant of arrest will certainly constitute a clog in the effective implementation of complaints as a means of institution of criminal proceedings in the magistrate court.
Some other factors militating against the proper and effective use of complaints in the magistrate courts are as follows:
i. Public awareness:
Perhaps the most important factor militating against the proper use of complaints in the magistrate courts is public unawareness as to the right to institute criminal proceedings by direct complaints in court. The public perception on the institution of criminal proceedings is, no doubt, limited to reporting a crime to the police who will, in turn, file a formal charge in Court. However, this procedure gives the police a wide scope of authority in the choice of whether to prosecute or not, and by extension, allowing certain corrupt police officials to alter the course of justice by refusing to prosecute a suspect with deep pockets. However, when the public is made aware that they can institute criminal proceedings on their own without necessarily first reporting to the police, it will whittle down the prosecutorial powers of the police and afford the public the opportunity to ventilate their grievances directly in court.
ii. Form of Complaint:
Although the ACJL prescribes that complaints can be initiated by Criminal Form 3 contained in the First Schedule to the Law, this can however be restrictive, particularly to a complainant who has no idea that such form exists in the first place. In this regard, it should suffice if a person can make a complaint simply by writing to the Chief Magistrate, stating his complaints and giving specific particulars as to the time, date, location and any other useful information. This was the procedure adopted in Oniyide’s case referenced above.
Against the backdrop of the foregoing, the following are recommended:
i. Convening Public symposiums and sponsored adverts
The Oyo State Magistracy should look into the possibility of holding a public symposium to discuss the provisions of the ACJL, especially the right of a person to lay a direct complaint before a magistrate and its intricacies. Beyond this, sponsored adverts can equally be utilized as a way of properly sensitizing the public in this regard.
ii. Complaints by Letters:
In order to ensure greater ease of laying complaints, it is recommended that a practice direction be enacted to identify different ways by which a complaint can be laid, including by writing a well-detailed letter to the Chief Magistrate.
iii. Taking complaints on oath:
It is also recommended that complaints should only be received when there is a verifying affidavit attached thereto. Even in the case of oral complaints which the Registrars are mandated to reduce into writing, the complainant must be required to depose to an affidavit stating that he understands what had been written by the Registrar and can verify its truthfulness. Such will definitely reduce the incidence of false complaints and make such complainant liable for perjury.
iv. Practice Directions:
The Chief Judge is empowered under Section 478 of the Law to make rules and regulations guiding the effective implementation of the Law. It is recommended that the Chief Judge should make practice directions to serve as operational guideline for the direct, private prosecution of crimes by Complaints, as well as giving effect to some of the other recommendations made at this lecture. The rules should include the procedure for trial by complaints where the Police or State fails or refuses to initiate criminal proceedings.
v. Legal Aid:
Provision should be made for legal aid council to assist laymen to make direct criminal complaints and institute criminal proceedings in that regard.
Distinguished gentlemen of the Lower Bench, I wish to once again express my sincere appreciation for the opportunity you have given me to address such an esteemed audience. Indeed, the successful administration of criminal justice in Oyo State, and in Nigeria as a whole, is not the singular duty of the jurists, but must be a function of a collective effort from all stakeholders – the jurists, the legal practitioners and the laity.
Thank you once again.