A Legal Analysis of “Pending Prosecution” and the Saving Clause Doctrine Under Nigerian Law
By Chidi Ezenwafor Esq., MCArb, FIMC
Past Secretary, NBA Abuja Branch (Unity Bar)
- INTRODUCTION
Criminal liability is fundamentally anchored on the existence of a valid, extant written law defining an offence and prescribing its punishment. This is both a constitutional command (Section 36(12), 1999 Constitution) and a universal legal norm expressed in the Latin maxim nullum crimen, nulla poena sine lege.
However, in legislative practice, Acts of Parliament are frequently repealed, amended, or re-enacted. Where this occurs, a key question arises:
Can prosecutions commenced under the repealed law validly continue, or does the repeal extinguish the proceedings?
The answer depends almost entirely on the existence and scope of the saving clause in the new statute, as well as the legal interpretation of the term “pending prosecution.”
This paper examines the legal framework governing repeals, the meaning of “pending prosecution,” and the situations in which such prosecutions may or may not lawfully continue after repeal.
- THE CONSTITUTIONAL FRAMEWORK
2.1 Section 36(12) of the 1999 Constitution
This provision mandates that:
“A person shall not be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law.”
The implication is:
• A prosecution cannot stand where the law creating the offence no longer exists, unless a saving clause legally sustains it.
• Once the written law is dead, the offence dies with it — unless revived by statutory preservation.
Thus, any attempt to continue a prosecution under a repealed law must survive constitutional scrutiny.
- STATUTORY BASIS FOR SAVING PENDING PROSECUTIONS
3.1 Section 6 of the Interpretation Act
Section 6(c)–(e) provides a general “saving” mechanism:
• A repeal does not affect past actions taken under the old law.
• “Rights, liabilities, obligations, or penalties” remain enforceable.
• Legal proceedings may be commenced or continued as if the repeal had not occurred, unless the new Act expressly provides otherwise.
This means that continuation of a pre-repeal prosecution is the statutory default, subject to the express provisions of the new law.
- SAVING CLAUSES IN REPLACEMENT STATUTES
A saving or transitional clause is a provision in the new statute that:
• Preserves investigations, charges, prosecutions, penalties or judgments under the repealed law; and
• Enables courts to continue such proceedings as if the old law remained in force.
Saving clauses prevent the nullification of proceedings and protect the legislative intent behind criminal enforcement.
Where a new statute includes such a clause, continuity is presumed.
Where it does not, the default Interpretation Act framework applies.
Where it expressly excludes saving, prosecutions terminate instantly.
- THE MEANING OF “PENDING PROSECUTION”
5.1 Definition
A prosecution is “pending” when:
• It has been initiated in a competent court;
• A valid charge exists;
• The matter is still before the court; and
• No final judgment (acquittal, conviction, termination) has been delivered.
5.2 What is not a pending prosecution?
A prosecution is not pending when:
• The case has been struck out.
• The charge has been withdrawn, dismissed, or discharged.
• The court has delivered a final order ending the proceedings.
• The prosecution was void ab initio (for example, if the court lacked jurisdiction).
In such situations, there is nothing to “save”.
- THE PURPORT AND IMPORT OF “PENDING PROSECUTION”
6.1 Purport
The purpose is to ensure:
• Continuity and stability in criminal justice administration.
• That repeal does not inadvertently wipe out serious prosecutions.
• That offenders cannot escape liability because Parliament updated legislation.
The term “pending prosecution” therefore defines the class of cases that the law intends to preserve.
6.2 Import
The legal effect is that:
1. Only live, active cases qualify for continuation.
2. A case that has been terminated cannot be revived by a saving clause.
3. A saving clause cannot validate a nullity — if the original prosecution was void, it cannot be saved.
4. Courts must interpret “pending” strictly, because criminal statutes are construed strictly against the State.
- WHEN CAN A PENDING PROSECUTION VALIDLY CONTINUE?
A prosecution under a repealed law may continue only if all the following conditions are met:
Condition 1: The repeal must not extinguish the offence
If the new Act explicitly abolishes the offence without replacement, the trial ceases.
Condition 2: The case must have been pending at the time of repeal
The matter must have been actively before a court — not struck out, not dismissed, not discharged.
Condition 3: The saving clause must expressly or impliedly preserve prosecutions
Either:
• The new Act contains a transitional clause permitting continuation; or
• Section 6 of the Interpretation Act fills the gap.
Condition 4: The prosecution must have been competent ab initio
A saving clause cannot resurrect:
• A charge filed in a court without jurisdiction,
• A charge fundamentally defective from inception,
• A charge previously nullified by an appellate court.
Condition 5: The proceedings must concern an offence replicated under the new Act
If the offence exists under both statutes, continuation is straightforward.
If the offence is omitted in the new Act, continuation is questionable.
- WHEN A PENDING PROSECUTION CANNOT CONTINUE
A prosecution cannot validly continue where:
1. There is no saving clause AND the new Act abolishes the offence.
2. The case was not pending at repeal (e.g., struck out or discharged).
3. The repeal was intended to extinguish past liability.
4. The prior proceedings were void, not merely irregular.
5. The new Act contains language suggesting a clean slate, intentionally replacing old offences.
- JUDICIAL PRINCIPLES FROM NIGERIAN CASE LAW
Key precedents include:
• Aoko v. Fagbemi (1961) – no one can be tried for an offence not in a written law.
• AG Federation v. Abubakar (2007) 10 NWLR (Pt.1041) 1 – repealed laws cannot found prosecutions without preservation.
• UAC v. Macfoy – a total nullity cannot be saved or cured.
• Oshodin v. Att-Gen Bendel State – saving clauses operate only on valid, pending proceedings.
• Sasegbon’s Digest – repeal does not affect pending proceedings unless expressly stated.
- PRACTICAL APPLICATION: THE CRITICAL QUESTIONS
Whenever a law is repealed, a court must ask:
1. Was the prosecution validly instituted?
2. Was it pending at the time of repeal?
3. Did the new statute contain a saving clause?
4. Did the saving clause intend to preserve past prosecutions?
5. Does the prosecution concern an offence that still exists in the new statute?
6. Has any prior court order terminated the proceedings?
7. Would continuation violate Section 36(12) of the Constitution?
Positive answers to (1)–(5) generally allow continuation.
Negative answers to (6) or (7) usually bar continuation.
- CONCLUSION
A pending prosecution under a repealed statute may continue only where:
• The prosecution was alive and valid at the moment of repeal;
• The new law contains a saving clause, or the Interpretation Act preserves it;
• The offence exists under the new law or is intended to be preserved; and
• Continuation does not violate Section 36(12) of the Constitution.
Where these conditions are absent, the prosecution collapses automatically, as the constitutional requirement of a living written law is absolute.
The concept of “pending prosecution” is therefore central — it defines the boundary between proceedings that the law intends to preserve and those that are extinguished upon repeal.