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(2018) LPELR-44240(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of April, 2018


Before Their Lordships

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria





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This appeal borders on the issue of whether a private person can prepare, sign and prosecute criminal complaints before the Magistrate Court.

This appeal is from the 6th July 2017 judgment of the Appellate Session of the Kwara State High Court sitting in Ilorin (Coram Daibu, I. A. Yusuf and A. L. Ishaq JJ.) dismissing the appeal of appellant from the judgment of the Magistrate Court and allowing the cross-appeal of the respondent.

The appellant Mrs. Tolulope Oniyide pursuant to Section 143 of the Criminal Procedure Code Law of Kwara State initiated a direct criminal complaint before the Magistrate Court against the respondent, her husband. Her complaint was about domestic violence. She alleged that he voluntarily caused her grievous harm without provocation, criminal force, assault and mischief contrary to Sections 240, 242, 243, 247, 262, 268 and 326 of the Penal Code Law. ???The said criminal complaint was mentioned to respondent at the Magistrates Court and his plea was accordingly taken. Before taking his plea, however, respondent had already filed a five-ground notice of preliminary objection challenging the jurisdiction of the Court. That objection was argued and sustained by the trial Magistrate Court and the Direct Criminal Complaint of appellant struck out on the ground that the legal practitioner who signed the complaint signed on behalf of the International Federation of Women Lawyers (FIDA).

The appellant was dissatisfied with that ruling hence her appeal to the appellate Session of the High Court of Kwara State. The respondent also cross-appealed against the same decision on the ground that the trial Magistrate Court chose to depart from the decision of the High Court of Kwara State in Suit No: KWS/3/37M/2016 between Abdulrahman Ishola v. Mr. Sunday Aremu by ruling that a private person can initiate and prosecute without the Attorney-General's fiat, a direct criminal complaint before the Magistrate Court. After hearing counsel on both sides, the High Court dismissed the appeal of the appellant and allowed the cross-appeal of the respondent in its judgment of 6th day of July 2017.

The appellant, Mrs. Oniyide, also a lawyer like her husband the respondent, was still dissatisfied with that judgment hence this appeal.

The Court adopted the issues formulated by the Appellant for the determination of the appeal. The issues are:
1. Whether the lower Court was right to have upheld the trial Court's decision by holding that the legal practitioner who signed the direct criminal complaint in this case signed on behalf of International Federation of Women lawyers and not on behalf of the appellant.
2. Whether the lower Court was right to have allowed the respondent's cross-appeal thereby holding in error that an individual could not file a direct complaint and initiate private prosecution without the fiat of the Honourable Attorney-General first obtained as held in the High Court case of Mr. Abdulraheem Ishola Salami v. Mr. Sunday Aremu & Ors Unreported Suit No KWS/37/M/2016 delivered on 16th December 2016, as against the Supreme Court's decision in Controller of Prisons v. Adekeye (sic: Adekanye) & Ors (2002) 7 S.C. 164.
???In the final analysis, the Court of Appeal held that the appeal succeeds and it was allowed and the decision of the appellate session of the High Court of Kwara State of 6th July 2017 in Appeal No. KWS/3CA/2017 affirming the Ruling of Chief Magistrate S.B. Olanipekun (Mrs.) upholding the preliminary objection of the Respondent and striking out the Appellant's criminal complaint in Charge No. MC1A/614/2015 between Mrs. Tolulope Oniyide v. Mr. Taiye Ayotunde Oniyide was thereby set aside. The said preliminary objection was also overruled and dismissed and the trial of the said complaint/Charge No: MC1A/614/2015 ordered to proceed before the Magistrate Court of Kwara State, but by a Magistrate other than Mrs. S.B. Olanipekun.

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