Fiat, Private Prosecution, and the Powers of the Attorney-General: Dissecting the Decision of the Supreme Court in Obijiaku v Obijiaku (2022) 17 NWLR (Pt. 1859) 377

Abstract

The power of prosecution of offenses is constitutionally vested in the Attorney-General of the Federation and Attorney-General of the State respectively under sections 174 and 211 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereinafter referred to as CFRN. However, the power of prosecution is also conferred on other agencies and private persons. Such bodies or persons can be empowered by law to lay a complaint before a court of competent jurisdiction. The inevitable question is whether such person can prosecute the complaint without the authority or fiat of the Attorney-General? To what extent will the Attorney-General have control over such process? This paper examines the power to lay a complaint and the power to prosecute by persons other than the State. While not disputing the power to lay a complaint, it will be argued that the private person will not be able to prosecute without the fiat or authority of the Attorney-General. This article examines the recent case of Obijiaku v Obijiaku and contends that the statement that a private criminal complaint can be prosecuted by a private legal practitioner without the fiat of the Attorney-General does not accord with respect, to the present position of the law. It will be shown that other than officers in the Attorney-General’s office, or agencies recognised to prosecute on his behalf, no private person can prosecute without the fiat or authority of the Attorney-General. The peculiar provision of the Administration of Criminal Justice Law of Anambra State cannot be interpreted to mean that as a rule, private persons can prosecute without the fiat of the Attorney-General.