Does The Failure To Exhibit The Complaint Of The Complainant By The Prosecuting Counsel In Defamatory Cases, Along With The Charge And Other Originating Processes Render The Whole Proceedings Invalid? By Chioma Angela Okeke

^[1] It does not apply to Court martial.^[2] The focus of this article is to examine the present requirement of the law in cases where a complaint of defamation has been made to the police and the police after investigation decide to prosecute the accused person(s). Section 141 of the Criminal Procedural Code provides that: No Court shall take cognisance of any offence falling under chapter XXI or chapter XXIII of the Penal Code or under sections 383 to 386 of the same Code, except upon a complaint made by some person aggrieved by such offence…   Chapter XXI and XXIII of the Penal Code deals generally with criminal breach of contract of service and defamation, while sections 383 to 386 covers offences relating to marriage and incest. Complaint under the CPC, means the allegations made orally or in writing to a court with a view it its taking action under the CPC that someone whether known or unknown has committed an offence, but except where the context otherwise requires, it does not include a police report.^[3] To take cognisance, under the same CPC is, to take notice in an official capacity.⁴ The import of section 141 is that for the court to assume jurisdiction over matters falling under the chapter XXI or chapter XXIII of the Penal Code or under sections 383 to 386 of the same Code, there must be a complaint and the complaint must be made by some persons aggrieved. In other words, certain condition precedents must be complied with, and in the absence of which the court lacks jurisdiction. The Black’s Law Dictionary 8th Edition defines a condition precedent as “an act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises”. In AG Kwara & Anor V Alhaji Saka Adeyemo & ORS,^[4] the Supreme Court adopted the definition of a condition precedent in J.S. Atolagbe & Ors v. Alhaji Muhammadu Awuni & Ors,^[5] as “one which delays the vesting of a right until the happening of an event”. Also in the Miscellaneous Offences Tribunal & Anor V Nwammiri Ekpe Okoroafor & Anor, the Supreme Court stated that, “A court has the necessary competence to exercise jurisdiction in a cause or matter, if inter alia, the condition to the exercise of its jurisdiction has been fulfilled”.^[6] Invariably, any proceedings conducted without the fulfilling of such condition precedent renders the whole proceedings a nullity no matter how brilliantly or well conducted.^[7] THE CURRENT POSITION UNDER THE ACJA. Part 8 of the ACJA generally provides for criminal trials and inquiries. It provides for the right of a person to make complaint and the form of complaint but did not make presence of a complaint made by some person aggrieved of the offence a condition precedent before the court takes cognizance. In fact, to show how relaxed the Act is on the issue, its section 88(2), in cases of assault, the police may make a complaint even though the aggrieved person declines or refuses to make complaint. Such complaint even need not be in writing except the law upon which it is founded requires it to be so written and/ or made on oath.^[8] The import of the foregoing therefore is, before the enactment of ACJA, the prosecutor must before the court assumes jurisdiction, show the existence of a complaint made by an aggrieved person in respect of offences relating to criminal breach of contract of service, defamation, marriage and incest.^[9] However, the current position in respect to these offences and indeed were the ACJA applies the prosecution need not show a formal complaint by an aggrieved party before the court assumes jurisdiction unless the law establishing such offence specifically provides otherwise. Mrs. Chioma Angela Okeke is a lawyer with over 13 years legal experience. She holds a B.L and MBA. She also has an LLM in Criminal Law and Criminal Justice from the University of Sussex, UK. She is a Chartered Secretary/Administrator and a Chartered Mediator/Conciliator. [1] Section 493, ACJA. [2] Section 2(2) ACJA. [3] Section 1, CPC. ⁴ Ibid. [4] (2016) LPELR- 41147. [5] (1997) 9 NWLR (Pt. 522) 537 at 565. [6] (2001) LPELR-3190  Ejiwunmi JSC. [7] Madukolu v. Nkemdilim (1962) 2 SCNLR 34. [8] Section 89, ACJA. [9] Offences falling under chapter XXI or chapter XXIII of the Penal Code or under sections 383 to 386 of the same Code.]]>