To better understand criminal law, it would be best if the distinction between criminal and civil cases are highlighted. This would be done in the subsequent paragraphs.
Crimes are regarded as committed against the state (as the custodian of the people’s liberty) and the person who suffers the criminal action (although as a secondary party). Thus, generally, it is the state that prosecutes crime through the instrumentality of the police or the office of the Director of Public Prosecution.
However, this does not prevent private individuals from instituting their own private criminal suit. This was decided by the court in the locus classicus of Gani Fawehinmi vs Akilu & Anor (1987) vol 2 NSCC. In this case, the appellant had applied for an order of mandamus against the DPP in order to endorse a certificate of prosecution in order to enable him to privately prosecute the murderers of Dele Giwa.
The appellant, who was a legal representative to the deceased, had carried out private investigations into the murder of Dele Giwa and as a result, he got some evidence as to the killers. This evidence was submitted, together with the information, to the respondent. The respondent refused to prosecute on the basis that the evidence was not cogent enough to warrant prosecution. He also failed to endorse the certificate based on the information provided by the appellant. He thus applied for mandamus.
The trial court ruled against the appellant. At the court of appeal, his case was also dismissed on the ground that he had no locus standi based on the provision of S.6(6)(b) of the 1979 Constitution and the case of Adesanya vs President of Federal Republic of Nigeria (1985) vol 2 NCLR.
The appellant thus appealed to the Supreme Court which held inter alia that:
- The Criminal Code does not confer complaint in respect of murder on a particular set of people. Anyone, who has sufficient information in relation to the murder can bring it up to aid in the prosecution.
- The narrow confines to which 6(6)(b) have been limited have been broadened by the Criminal Procedure Laws, the Criminal Code and the Constitution itself.
Thus, by the above provisions, any private citizen can choose to prosecute a criminal case if and only if he is an eye witness or he has a reasonable basis for suspecting the accused. See also: Attorney General Anambra vs Nwobodo (1992) NWLR pt 236.
However, in civil cases, it is a necessity that only those that have been directly affected by the action would have the locus standi to institute a case in that respect.
In the case of Abraham Adesanya vs President of Nigeria & Anor, the appellant instituted an action against the respondents challenging the appointment of the second respondent by the first respondent to the post of chairman of an electoral commission. The case was dismissed due to the fact that the action of the respondents didn’t have a direct impact on the appellant. He was thus held not to possess locus standi in that case.
In Criminal cases, an Attorney General of a State or the Federation can enter a nulle prosecui to terminate a prosecution. This is supported by the provisions of S.174(1) of the Constitution for the AGF and 211(1) CFRN 1999 for the AGS. For Civil cases, the person that instituted the case can also at any time before the judgement discontinue the case and settle out of court.
In criminal cases, according to S.135 of the Evidence Act, the prosecution has to prove its case beyond reasonable doubt. This means that the prosecution has to go to greater lengths to prove its case. In Civil cases, S.134 of the Evidence Act provides that each party’s case has to be proved on the balance of probability and the preponderance of evidence. Thus, it is the party that has a weightier evidence that would walk out of the court victorious.
In criminal trials, when the accused is convicted, he is usually punished either by a death sentence, a prison term or payment of fine. In civil cases, the plaintiff, if successful is usually rewarded with an order for damages, injunction, specific performance or other consequential orders.
In criminal cases, after the conviction of the accused, the sentence is automatically enforced by the court. In civil cases, in order to enforce the sentence, the plaintiff has to get a writ of fi.fa.
SOURCES
- Lecture delivered by Dr Mrs. M.A. Abdulraheem Mustapha, Faculty of Law, University of Ilorin.
- Okonkwo and Naish: Criminal Law in Nigeria
- The Evidence Act 2011
- The Constitution of the Federal Republic of Nigeria 1999(as amended)