According to S.211 of the Constitution of the federal republic of Nigeria, it is the Attorney General of the state who has the power to institute and prosecute crimes in the state. By the subsequent provision of subsection 2 of this section, these powers of the attorney general can also be delegated to officers in the state ministry of justice only.
This provision by its reason, therefore, introduced a rule which has stood for a long time in the Nigeria legal system and the rule is that institution and prosecution of crimes is reserved exclusively for the Attorney General of the state, therefore private citizens or private legal practitioners cannot exercise that power unless that such private individual who wishes to prosecute a crime applies to the Attorney General to delegate such power to him and the Attorney General can thereby delegate the power to the private citizen to prosecute crime by the issuance of a legal document known as “fiat” to that private citizen.
This has been a long-held rule that a private citizen cannot institute and prosecute crime in Nigeria excerpt with the consent and authorization of the attorney General of the state but this rule has been overruled by the recent (2022) judgment of the Supreme Court of Nigeria in the case of RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS (2022) 17 NWLR (PT. 1857) 377 at 405 Paras E- F. His Lordship Aboki JSC while reading the leading judgment held inter alia thus;
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“A private legal practitioner or indeed a private citizen, has the indisputable right, under section 301(1) of the Anambra State Administration of Criminal Justice Law, 2010, to lay a complaint and prosecute same, without the fiat of the Attorney General of the State”
By the above judgment, the Supreme Court of Nigeria, the long-known and long-held position of the law that it is only the Attorney General of the State can prosecute or authorize the prosecution of criminal complaints in the Courts has been overturned.
The Supreme court further emphasized that the notion that the provision of the Administration of the Criminal Justice Act/ Law granting powers to private legal practitioners or private citizens to prosecute without the authority of the Attorney General of the State is in conflict with Section 211 of the Constitution of the Federal Republic of Nigeria 1999 ( As Amended) is held in error, therefore, the power issued to private citizens by the ACJL to prosecute crimes is not in conflict with any constitutional provision.
This is the new position of the law as ruled by the supreme court of Nigeria, therefore lawyers and students of the law should thereby take note of it.