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In our criminal justice administration, the wheels of the law are set in motion when a nominal complainant brings to the notice of the law enforcement agencies the fact of the occurrence of a criminal act carried out by a person(s) known or unknown. From the time law enforcement agents arrests the suspect to the time judgment is passed on the offender, the nominal complainant has a key role to play particularly if the prosecution of the offender rests solely or in part on his/her evidence. However, the scenario gets interesting where the nominal complainant applies to the Court to withdraw his complaint but the Court refuses to honour the complainants’ wish.

As a matter of practice, the withdrawal of a complaint by the nominal complainant usually results in the acquittal of the offender because without the evidence of the nominal complainant, particularly if he or she was an eyewitness to the fact of the commission of the offence, the matter dies a natural death.

The question that come to mind regarding the decision of the Court in the above scenario is, is the Court right in law in refusing to consider the matter a dead one? Section 355 of the Administration of Criminal Justice Act, “Where a complainant, at any time before a final order is made in a case, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the complaint and shall thereupon acquit the defendant.” From the above, the acquittal of the offender is left to the discretion of the Court. Apparently, the Court in this case appears to be acting on the principle of law elucidated in PML

(NIGERIA) LTD v FRN by the Supreme Court and which was applied with approval by the Court of Appeal in the case of FRN v ONONYE which addressed the issue of compounding a crime and compounding an offence. Per Augie JSC:

Compounding a crime is also “a criminal act in which a person agrees not to report the occurrence of a crime or not to prosecute a criminal offender in exchange for money or other consideration” – see legal dictionary, thefreedictionary.com, wherein it was further explained-

Under the Common Law and most modern statutes, a compounding offense consists of three basic elements: (1) knowledge of the crime; (2) the agreement not to prosecute or inform; and (3) the receipt of consideration. The offense is complete when there is an agreement to either withhold evidence of the crime, conceal it, or fail to prosecute it.

“Compounding of offences” on the other hand, is an act on the part of the victim, who decides to pardon the offence committed by the accused person, and requests the Court to exonerate him. This does not mean that the offence has not been committed; it only means that the victim is willing to pardon it, or has accepted some form of compensation for what he or she has suffered. So, the compounding of offences terminates the legal proceeding against the offender and he is entitled to an acquittal – see UKESSAYS – published: 27/3/2015.

The Court of Appeal in the prior cited case of FRN v ONONYE threw more light on the subject when Helen Moronkeji Ogunwumiju JCA asserted:

…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. These are not the scenarios in this case.

However, I can only conclude that the primary complainant in this case has the right to compound the offence and cause a withdrawal of the charge against the accused. In other words, due consideration must be given to the overall outlook of the case in question.

Questions that may agitate the mind of the Court are: How far have the court proceedings gone? Does the acquittal/discharge of the complainant deal injustice to any of the parties? Furthermore, In the Nigerian Copyright Commission vs. MTN case where the nominal complainant sought to withdraw his criminal complaint against the offender (MTN), the Court per Nnamdi Dimgba, J. stated that by virtue of the provision of Section 494 of the Administration of Criminal Justice Act 2015, the term ‘complainant’ applied to both the nominal complainant as ‘the informant’ and the National Communications Commission (NCC) as the prosecutor and the ‘official complainant’ and that public policy may militate against the prosecutor withdrawing the matter. Also, in the case of Ubochi Ezenwa v The State, the Court held that it can exercise its discretion depending on the circumstances of the case.

The Court further added that if upon the withdrawal of the criminal complainant by the complainant, there is still a credible witness or evidence on which the criminal action may proceed, it will not discharge or acquit the accused without concluding the trial. .

Flowing from the above, it is clear that the Court is more inclined to accept a withdrawal of the criminal complaint by the nominal complainant where the latter in court, pleads with the Court to pardon the offence of the offender and requests the Court to exonerate him thus compounding the offence. This would be inevitable if the offence for which the offender is charged does not concern pilfering taxpayer’s money (corruption) and is not a case of murder.

If the Court declines to exercise its discretion in favour of acquitting the offender upon the application of the nominal complainant, it is then the place of the counsel to the offender to use his crisis management skills to prevail on the prosecutor to enter a nolle prosequi in favour of the offender. That way, the Court may, except where public policy dictates otherwise, exercise its discretion in favour of compounding the offences.

Furthermore, given the full docket of Nigerian Courts, it would be in the interest of the health of our criminal justice administration if the Courts take to heart the wisdom shown by the Court in Adejumo v State wherein the Court of Appeal enjoined members of the Bench to encourage amicable settlement of criminal matters (subject to public policy considerations) if the charges touch on misdemeanors or where the offender has offered compensation to the nominal complainant or has complied with an order of Court thus dispensing with the need of making a formal withdrawal of the matter as per the powers of the Attorney-General under the Constitution.

From the foregoing, it is clear that the withdrawal of a criminal complaint by the nominal complainant does not ipso facto result in the acquittal of the offender, but is predicated on the exercise of the discretion of the Court in favour of compounding the offence subject to public policy considerations.