Police power of prosecution: Comments on FRN v Osahon

Abstract

 INTRODUCTION

It is trite that when a point of law has been settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling in the same tribunal, or by those who are bound to follow its adjudications, unless it be for urgent and compelling reasons and in exceptional cases.¹ This principle² requires that lower courts are bound willy-nilly by the decisions of superior courts.

The Supreme Court decision in FRN v Osahon³ which now gives police officers⁴ unlimited right to prosecute in any court in Nigeria falls within the urgent and compelling reasons as contemplated by the above doctrine of stare decisis. This is because it has laid a precedent which, if followed in its entirety, might not do justice which the courts at all times seek to do. It behoves the lower courts therefore to distinguish subsequent cases of similar nature in the interim, pending when the apex court would have that decision all over re-examined; an act that seldom occurs. That decision if applied wholesale, that is hook line and sinker would not only whittle down the exclusive rights of legal practitioners to represent a party in court or any tribunal as encapsulated under s. 36(6) (c) of the 1999 Constitution of Federal Republic of Nigeria,⁵ the office of Attorney General may also not be enjoying the privileges bestowed on it by the Constitution. With due respect to our erudite Jurists, that decision is a "rotten tooth" within the dentition, which if not carefully treated or better still extracted, may have the tendency of subjecting the mouth to a state of perpetual and consistent "chew" with caution.