A Chief Magistrate Court sitting as Court No. 23, Garden Street, Calabar and presided over by His Worship Magistrate Eno Iyamba Esq. has on Tuesday 8/10/2019 held that police officers are incompetent to file criminal charges before any court in Cross River State of Nigeria.
In Charge No. MC/541C/2019: COP V Sunny Ekong Asuquo, the Defendant was charged for a one count charge of willful and unlawful damage contrary to section 451 of the Criminal Code Cap C16 Vol.3, Laws of Cross River State of Nigeria 2004.
At the taking of plea, learned defence counsel F. O. Nachamada Esq. raised objection as to the competence of the charge purportedly signed by one SP. Essien Efoli, a Police Officer and Commander of the Police Anti Cultism and Kidnapping Squad (ACKS), Calabar. The lay Police Prosecutor in the case, Inspector Sunday Friday argued that the objection was one of technicality and urged the court to dismiss same and proceed to trial.
The presiding Magistrate stated that “the age long position of the law which has received judicial anointing in Osahon v. FRN is to the effect that every police officer is competent to file criminal charges and undertake prosecution before all courts in Nigeria.”
However “in 2015 the National Assembly enacted the Administration of Criminal Justice Act, 2015 which enactment has now been domesticated and known as the Cross River State ACJL, 2016. The ACJL is a novel and beautiful piece of legislation that has tremendously altered the criminal justice system especially as it relates to procedure.”
“By a community reading of sections 109 and 105 of the Cross River State ACJL, 2016 the law makers clearly intended that only the class of persons (the Attorney General, law officers/legal practitioners authorised by Attorney General, lawyers in the Nigeria police legal department) so named in section 105 of the Cross River State ACJL 2016 are competent to file criminal charges before any court in Cross River State.”
“Now the charge before me is purportedly signed by one SP. Essien Efoli, Police Officer and Commander of Police Anti Cultism, Kidnapping Squad (ACKS), Calabar. I find and hold that the said SP. Essien Efoli not being a law officer or legal practitioner as contemplated by section 105 of the ACJL 2016, he is incompetent to file or sign any criminal charge before any court in Cross River State of Nigeria. See sections 109, 105 Cross River State ACJL, 2016. Accordingly, charge No. MC/541C/2019 is hereby struck out for being grossly incompetent. I so rule.”