Police Power Of Prosecution: Comments On FRN V Osahon


It is trite that when a point of Law has been settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling in the same tribunal or by those who are bound to follow its adjudications, unless it be for urgent and compelling reasons and in exceptional cases. This principle requires that lower courts are bound willy willy by decisions of the superior courts.

The Supreme Court decision in FRN V Osahor, which now gives police officers unlimited right to prosecute in any court in Nigeria falls within the urgent and compelling reasons as contemplated by the above doctrine of stare decisis. This is because it has laid a precedent which if followed in its entirety, might not do justice which the courts at all times seek to do. It behoves the lower courts, therefore, to distinguish subsequent cases of similar nature in the interim pending when the apex court would have the decision all over re-examine; an act that seldom occurs. That decision if applied wholesale, that is hook, line and sinker would not only whittle down the exclusive rights of legal practitioners to represent a party in court or any tribunal as encapsulated under S.36 (6) © of the 1999 Constitution of the Federal Republic of Nigeria, the office of Attorney General may also not be annoying the privileges bestowed on it by the constitution.

With due respect to our erudite jurists, that decision is a “rotten tooth” within the dentition, which if not carefully treated or better still extracted, may have the tendency of subjecting the mouth to a state of perpetual and consistent “chew with caution. The biblical injunction that we should remove not the ancient landmark which our fathers have set, might in the circumstances be interpreted with qualifications.

Time has come already for our judiciary to be swift with their decisions rather than being perpetually tethered to strict interpretation of our statutes; an inheritance of clericalism. The need to embrace the idea of considering Nigerian circumstances before arriving at certain decisions, especially where lacunae exist in such enactments has been a thing of general concern.


Hitherto, the practice has been the police was restricted to prosecuting bulk of criminal cases in the inferior courts to wit Magistrate, Customary and Area Courts.

Although no statute expressly so provided, this practice only gained currency through judiciary pronouncements. Mustapha, JSC in his dissenting adumbrated the rationale thus: Historically, the police on their authority, especially at the Magistrate and Area Courts where prosecution may also begin by a complaint or by an aggrieved person against anybody … Police Act was promulgated, the Magistrate Courts were manned by laymen mostly District Officers and the police had the infettered powers of prosecution in Magistrate Courts and later Customary, Native and Area Courts”.

Corroborating this position, Belgore, JSC in his emotion laden dictum quipped also that, from colonial period up to date, police officers of various ranks have taken up  criminal cases in magistrate and Area Courts.

Earlier in Mandara V. A.G. Federation, the Supreme Court per Irekefe, “… Law and order in the state or court is maintained by the police … Crime is investigated and … prosecution in the inferior state courts as done by the police”.

In all these situations, emphasis were on the fact that police only prosecute in the inferior courts of the land and go no further the question on whether or not police can prosecute in Superior Courts never formed an issue until the case of Olusemo V. COP which blazed the trail.


In Olusemo V. COP, the Court of Appeal interpreted S. 23 of the Police Act to mean that any police officer can prosecute in Superior Courts but that such police officer should have been called to the Nigerian Bar.

The prosecution in the case, Mr. S.G. Ehindero, was then a Commissioner of Police and a legal practitioner hence he was allowed to prosecute in the High Court. This view can be deciphered from the dictum of Kalgo, JCA at 558-559 when he said, “… since the appellant’s main objection was the appearance of Ehindero in the High Court, it is necessary to examine the relevant provisions of the Federal High Court Act as contained in Cap 510 LFN 1990 … S. 97 of the FCT Abuja High Court Act entitles any legal practitioner registered in the Supreme Court the right to practice in the Supreme Court, the right to practice in the FCT Abuja High Court, Mr. Ehindro is a legal practitioner properly registered and so entitled to appear and practice in the said High Court, so hold”.

Section 97 of the Federal Capital Territory High Court, re-echoes the provision of the 1999 Constitution (Supra) can represent himself or through a legal practitioner in a court of tribunal. And in law, a person could be an individual or members of his department. He is the law officer of the state or a corporation. A state is usually represented by the Attorney General or members of his department. He is the law officer of the state. Whatever legal practitioner, a person should engage must not be under any disability otherwise no audience will be granted him.


Before veering into the matter in controversy, it is necessary to briefly discuss some of the duties imposed by law on the prosecution. Some of the duties are directly owed to the accused while others are owed to the temple of justice, which is the court.

Prosecution means the institution and the carrying forward of a judicial prosecuting to obtain some right or to redress and punish some wrongs. This is in a loose. Strictu Sensu, a prosecution on the other hand is the actual person or perfectly instituting or conducting the prosecution. Generally the prosecution is a minister in the temple of justice.

Therefore, he is expected to know the trade or profession. A criminal tried is not like a civil tried where any person can represent himself in court or by a legal practitioner of his choice. Due to the precarious nature of criminal trials, even where a person pleads guilty to a murder charge or any other crime that attracts capital punishment, no court of law for example, enters plea of guilt against the accused. A plea of not guilty must be entered instead.

As one of his duties, a prosecution must at all times attend sittings of the court unless he had obtained leave of the court to be absent. He is equally expected to be punctual to court at all times otherwise his misfeasance is usually treated as interference with the course of justice, and some times as contempt of court if he does not furnish the court with cogent and sufficient reason for so doing. In addition to this, he must be properly dressed to the court. Similarly, a prosecution must know the correct mode of addressing the judge and professional colleagues.

It is clear that even those with legal training sometimes offend the court by not complying with practice and procedure therein. Therefore those with legal training can err very often in court, what will happen to lay prosecutors? It would be remiss of any prosecutor not to be addressing the court in the required manner.

Also, it is the duty of a prosecution to maintain the correct decorum in court. This goes beyond the day to day traditional decorum of the court.

Thus in State V. Duke (2003( 5 NWLR Pt 813, the court ailed inadvertently taking the accused plea and prosecution capitalised on it to upset the final judgment. Gus act was described as chicanery which appears as a masterstroke.

Olagunju, JCA condemned such act of the prosecution and stated that they ought to look on themselves not as advocates but as ministers of justice since their task is not to secure conviction but to help in the administration of justice. He further asserted that getting even with an accused is a mere showmanship and a negative approach to criminal justice which demands that a prosecution should never appear to be a prosecutor.

Experience so far has shown that lay prosecutions at the magistrate courts see conviction as an achievement and a sine qua non for promotion. Accordingly, they do all things to incriminate the accused or at best stifle proceedings. In Uguru V. State, Pats-Acholonu JCA noted that it was even untoward for any court to manifest or demonstrate any attitude which shows getting conviction for prosecution at all costs, as the court should not turn itself to prosecution and a prosecutor.

The prosecution’s interest should basically be to present feats as they are. He should be fair and impartial in his dealings. Thus means therefore that prosecution should be neutral. The court has held in Enahoro V. the state, as improper for a prosecution to insist on maximum position that maximum punishment be imposed on the accused person. Whatever a crime an accused is alleged to have committed, the presumption of innocence is still open to him so that prosecution does not stifle proceedings in order to have all the weapons of advocacy in the pursuit of justice and not justice delayed.

He should make available to the accused all evidence favourable to him, as this is fundamental, despite the prosecution’s personal opinion on the guilt of the accused, otherwise innocent persons may be convicted without having the benefit of available defences to them.

Similarly, where adverse decisions exists, he may at best invite the court to overrule it if such decision. Such decision was given by a lower court or he should distinguish some if by a court of coordinates jurisdiction.

Obiokolie is a Port Harcourt-based lawyer.

To be continued.

Nathaniel Obiokolie