1.1. INTRODUCTION
The practice of discontinuing Proceedings in court by entering a nolle prosequi is very instrumental in the judicial system of any country. Under this Chapter, the application of nolle prosequi shall be analyzed in two folds; in the Criminal Law[1] justice system and in the Civil Law[2] Justice System
1.2. NOLLE PROSEQUI AS A TOOL IN THE CRIMINAL JUSTICE SYSTEM IN CAMEROON
A crime is considered a wrong against the state and against the victim and for this reason, Criminal Proceedings are generally instituted by the State Counsel[3]. The statute governing the prosecution of crimes before Courts with ordinary Criminal jurisdiction[4] in Cameroon is law No.2005/015 of July 2005 to lay down the Criminal Procedure Code.
Under the above statute, Criminal Proceedings may be discontinued under the circumstances as provided in Section 62. This provision states: (1) Criminal proceedings shall be discontinued in the following cases;
(a) death of the suspect or accused or defendant;
(b) prescription;
(c) amnesty;
(d) repeal of the law;
(e) after a successful plea of convict or acquit;
(f) by agreement between parties if the law expressly so provide;
(g) the withdrawal of the complaint where the lodging of such complaint is a precondition for the commencement of prosecution;
(h) the withdrawal of the complaint or the civil claim by the civil party who lodged the complaint in respect of a simple offence or a misdemeanor.
For a better understanding of what Section 62 of the Criminal Procedure Code above provides, we shall give a detailed analysis of it below seriatim.
(a) Death of the Suspect, Accused or Defendant
In Criminal Proceedings, the parties involved are the State V. the Accused. The appellation Suspect, Accused, Defendant may actually be referring to the same person, but depending on the level at which the prosecution has gone.
When a matter is still at the level of Police investigation, we have a suspect, at the level of an Examining Magistrate[5], we have a Defendant while when the matter is before a Trial Judge in Court, we have an Accused. At any of these stages, the death of the purported offender (the Accused) has to terminate Criminal proceedings against him. This is so because Criminal responsibility is personal[6]. Where before judgment the Accused dies, the Prosecutor ought to enter a nolle prosequi, as he cannot continue to maintain proceedings against a dead man. The Prosecutor or any other interested party who wants to notify the court of his wish to discontinue proceedings against a dead man has to do so tendering the death certificate of the suspect/defendant or accused.
(b) Prescription
According to Section 65(1) CPC prescription shall be the barring of criminal of prosecution following the failure to commence action within the prescribed limitation period. The limitation period for felonies[7] is ten (10) years from the date of the offence or from the last step taken, three (3) years for misdemeanors[8] while for offences classified as Simple offences[9], they become time barred after One (1) year from the last step taken. This means if criminal proceedings had been instituted against an Accused person, and after the above limitation periods have elapsed depending on the offence charged with[10], the proceedings ought to be discontinued by the State Counsel or State Prosecutor for being time barred.
(c) Amnesty
Amnesty has been defined by the Black’s Law Dictionary 4th Edition[11] as “A sovereign act of oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or delict, generally political offences,– treason, sedition, rebellion,—and often conditioned upon their return to obedience and duty within a prescribed time”. When an Accused person is a beneficiary of an Amnesty, Criminal Proceedings against him has to be discontinued and if already convicted, he shall be free from all the penalties imposed by the judgment of the court[12]
(d) Repeal of the Law
A law is repealed when it has been abolished, abrogated or annulled by a new law. The Black’s Law Dictionary 4th Edition[13] defines Repeal as “the abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated, (which is called express repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force, (called implied repeal)….”
Criminal proceedings can only be discontinued under this sub section if the new law does not incriminate or does not attach punishment to the act which the old law punished. But where the new law rather modifies the punishment by increasing or reducing its severity, then the provisions of Section 4(1)&(2)[14] of the Penal Code shall apply, and not discontinuance of Proceedings.
(e) After a Successful Plea of Convict or Acquit
Criminal proceedings will be discontinued under this subtitle where the accused or the court notices that the same accused had previously been tried and convicted already or acquitted on the same allegations as on the charge sheet. This will be done so as to avoid double jeopardy[15].
(f) By Agreement between the Parties if the Law So Expressly Provides
This provision is most applicable if the charges or the proceedings were instituted by private prosecution as permitted under the CPC.[16] Parties can agree to resolve their scuffles out of court, the agreement which will be made in writing and copies given to the court and the legal department which is a principal party in all criminal proceedings.[17]
However, the discontinuance of proceedings under this sub-provision does not apply to all categories of offences; offences against personal interest such as defamation, slander, adultery and intellectual property theft can be discontinued, while others like rape, murder, grievous harm, assault occasioning death, capital murder, aggravated theft etc. cannot be discontinued under this provision.
(g) The withdrawal of a Complaint, where the Lodging of such a Complaint is a Precondition for the Commencement of Prosecution
Under this provision, criminal proceedings will be discontinued if the party who lodged a complaint withdraws such a complaint. This applies to those offences specifically identified by law that commencement of actions shall be conditioned on the lodging of a complaint by the victim of the offence. Such offences include Abuse under Section 307 PC, Defamation under Section 305 PC, Invasion of Residence under Section 299 PC and Infringements of Patents under Section 328 PC.
(h) The withdrawal of the Complaint or the Civil Claim by the Civil Party who lodged the
Complaint in respect of a Simple Offence or a Misdemeanour
Under this provision, criminal proceedings will be terminated on the withdrawal of the complaint or civil claim lodged by the civil party but only in respect of offences classified as misdemeanours or simple offences under Section 21[18] of the Penal Code.
1.3. NOLLE PROSEQUI AS A TOOL IN THE CIVIL LAW JUSTICE SYSTEM IN CAMEROON
Under the civil law[19] justice system, the application of nolle prosequi is more liberal. He who brought civil actions against another is allowed to discontinue the proceedings whenever and however he deems fit but before the judgment of the court. Under the civil law, civil actions can be discontinued in the following circumstances; death of the a party, time bar, agreement between the parties for amicable settlement, withdrawal of the civil claim and a plea of autrefois acquit, autrefois convict (which is a plea against being tried for a second time for a claim previously tried and acquitted or convicted respectively)[20].
[1] The branch or division of law which treats crimes and their punishments. In the plural- ‘’criminal laws’’_the term may denote the laws which define and prohibit the various species of crimes and establish their punishments. Source: Black’s Law Dictionary Revised 4th Edition by Henry Campbell Black, M.A (ST. Paul Minn. West Publishing Co. 1968)p. 449
[2] The division of municipal law which is occupied with the exposition and enforcement of civil rights as distinguished from criminal law -Source: Black’s Law Dictionary Revised 4th Edition by Henry Campbell Black, M.A (ST. Paul Minn. West Publishing Co. 1968)p. 312
[3] Section 128 of the Criminal Procedure Code 2005
[4] The Court of First Instance and the High Court
[5] A magistrate who conducts preliminary inquiry which is mandatory for felonies and discretional for misdemeanours as contained in section 142 of the Cameroon Criminal Procedure Code 2005
[6] Section 74(2) PC
[7] Offences punished with imprisonment of from 10 years to death sentence, see classification under Section 21 PC
[8] Offences punished with imprisonment of above 10 days, but not more than 10 years. See Section 21 PC
[9] Offences punished with imprisonment of not more than 10 days, or with a fine of not more than 25000 FCFA. See section 21 PC
[10] Whether the offence is a felony, misdemeanour or a simple offence as classified under Section 21 PC
[11] Henry Campbell Black, M.A (ST. Paul Minn. West Publishing Co. 1968)p. 108
[12] See Section 73 of the Penal Code
[13] Henry Campbell Black, M.A (ST. Paul Minn. West Publishing Co. 1968)p. 1463
[14] Section 4: Less Severe Law_ (1) A new provision of criminal law shall, if less severe, apply to any offence in respect of which judgment has not been delivered before its coming into force. (2) where the new provision is more severe, the old law shall continue to apply to offences committed before its coming into force
[15] A procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal in the same jurisdiction…. See generally https://en.m.wikipedia.org/wiki/Double_jeopardy/ visited on 27/03/2021
[16] Section 42: The civil party who institutes criminal action by private prosecution shall choose
an address for service on himself within the jurisdiction of the court, if he is resident elsewhere
[17] Section 128:
(1) The Legal Department shall be a principal party in a criminal trial before the court and shall
always be represented at such trials under pain of rendering the entire proceeding and the
decision null and void.
[18] Section 21 : Classification of Offences
(1) Offences shall be classified as felonies, misdemeanours and simple offences according to the principal penalties provided for them, as follows:
-a felony shall mean an offence punishable with death or with loss of liberty for a maximum of more than 10 (ten) years and fine where the law so provides :
-a misdemeanour shall mean an offence punishable with loss of liberty or with fine, where the loss of liberty may be for more than 1 O (ten) days but not for more than 10 (ten) years, and the fine more than CFAF 25 000 (twenty-five thousand) ;
-a simple offence shall mean an offence punishable with imprisonment for up to 10 (ten) days or with fine of up to CFAF25 000 (twenty-five thousand).
[19] That division of municipal law which is occupied with the exposition and enforcement of civil rights as distinguished from criminal law. Source: Black’s Law Dictionary by Henry Campbell Black, M.A (ST. Paul Minn. West Publishing Co. 1968)p. 312
[20] https://www.lawctopus.com/academike/autrefois-acquit-autrefois-convict / visited on 27/03/2021