I reported my neighbor to the police and they have charged him to court. Now I have forgiven him and I don’t want the matter to proceed but the police are insisting that they will go on with the case. Is it possible for me to withdraw it without their consent?
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Well, as a general rule the answer is yes. You can withdraw a matter filed by the police without their consent if you are the complainant/victim and such is called compounding of an offence. Compounding of an offence is an act on the part of the victim pardoning the offence committed by an accused person and requesting the Court to exonerate him. It means the victim is willing to pardon the accused, or has accepted some form of compensation for what she or he has suffered, so the compounding of the offence terminates the legal proceedings against the offender and he/she is entitled to an acquittal.
In FRN v. Ononye (2018) LPELR-45067(CA), EFCC filed three count charges of issuing dishonored cheques against ONONYE at the High Court of Anambra State, Onitsha and Ononye pleaded not guilty to the said charges. After Ononye was arraigned, one Barrister Hippo C. Onwuegbuke announced his appearance for and on behalf of Chief Kenneth Ndejiobi and applied for the withdrawal and striking out of the charge and termination of the proceeding, consequent upon which the Court struck out the charge. EFCC appealed against the withdrawal of the suit and argued before the Enugu Division of the Court of Appeal that the complainant was not a party to the suit. That the complainant was merely a victim of the offence. So, only EFCC could withdraw the case, not the complainant or his lawyer who was merely holding a watching brief. The appealed failed. The Court of Appeal held that a victim has the right to compound (pardon) an offence committed against him even when the matter is before the court and a victim can withdraw the matter without the need for the consent of the state (subject however to certain exceptions were consent must be sought).
See also the case of PML (NIG) LTD v. FRN (2017) LPELR-43480(SC) where the Supreme Court pronounced on the above position of the law.
WHAT ABOUT CONDONATION?
It is a term in family and military jurisprudence which simply means an implied pardon of an offence by treating the offender as if it had not been committed.
In Family Law, condonation is a defence to an action for divorce that the innocent spouse having forgiven the adulterous spouse cannot now take proceedings. In other words there is condonation when one spouse, with full knowledge of the matrimonial wrong committed by the other spouse, reinstates the offending spouse to his or her earlier marital position, with the intention that the spouse whose wrong is so condoned does not henceforth, commit any further matrimonial offence. In such an instance it would be too late to sue your spouse because the marriage cannot be dissolved anymore. See section 26 of the. Matrimonial Causes Act and Sagay’s book on Nigerian Family Law.
As for Military Law, Section 171 (1) (c) of the Armed Forces Act provides that-
“Where a person subject to service law under this Act
(c) Has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by a Court martial or to have the case dealt with summarily under this Act”
In Nigerian, Army V. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429, Aminu Kano pleaded that by virtue of a document (Exhibit P45), in which charges against him were withdrawn and substituted with a “final warning letter”, he could not be subjected to trial anymore as it amounted to condonation by his commanding officer as provided by Section 171 of the Armed Forces Act. This plea was dismissed and at the end of the day, he was found guilty, convicted and sentenced. The Court of Appeal allowed his appeal, and in dismissing the appeal filed in the Supreme Court, Oguntade, JSC, observed-
“It is not in dispute that Section 171 of the Act divest any Court or Tribunal of competence to subject the Respondent to any further trial after having been condoned by the appropriate authority. Thus, if any Court or Tribunal should proceed to make pronouncements on persons such as the Respondent in spite of the condonation and damning the consequences of lack of competence, this Court cannot close its eyes on such abnormality or illegality.”
Let me quickly state by way of concluding remarks that compounding of offences by victims operate within a limit. In FRN v. ONONYE (supra) Per OGUNWUMIJU, J.C.A expounded on the limitation as follows:
“Of Course, I understand the public policy implication of compounding offences by complainants. It is clear that where the offence is committed against tax payers and the citizens of this country, (for example, cases of corruption) no one citizen can come out as a complainant to presume to compound such an offence. Only the State itself who could complain against corruption can withdraw the charge by way of Nolle Prosequi. Also for public policy reasons, where Life has been lost, the State is the complainant as the State must protect the right of the person whose life was unlawfully taken away by another who is not in a position to compound the offence even if he/she would have been willing to do so if alive”
O.G. Chukkol is a student, Faculty of Law, ABU, Zaria. For corrections/criticisms, he can reached via oliverchukkol@gmail.com or 08032470318
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