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In The Supreme Court of Nigeria

On Friday, the 25th day of February 1983

 

Before Their Lordships

 

Atanda Fatai-Williams

......

Chief Justice of Nigeria

Ayo Gabriel Irikefe

......

Justice, Supreme Court

Chekwuweinke Idigbe

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Anthony Nnaemezie Aniagolu

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

 

S.C. 42/1982

 

 

Between

 

The State

 .......

Appellant

 

And

 

S.O. Ilori & Ors

.......

Respondents

 

 

Judgement of the Court

Delivered by

Kayode Eso. J.S.C

 

 

On the 26th of October, 1978, an information was filed in the Lagos High Court by the Director of Public Prosecutions of Lagos State to prosecute Fred Egbe, who is the appellant in the present appeal to this Court, and who would hereinafter in this judgment be referred to as the appellant. The information was for the offence of inducing delivery of money by false pretences and also for stealing. The appellant, by a motion dated 21st November, 1978, brought an application for an order to quash the indictment but his application was dismissed by the court. On appeal, the Federal Court of Appeal, hereinafter referred to as the Court of Appeal, in a lead judgment, delivered by Uthman Mohammed JCA, to which Coker and Nnaemeka-Agu JJCA concurred, allowed the appeal and quashed the information.

 

It was in consequence of this decision of the Court of Appeal that the appellant wrote a letter to the Attorney-General of Lagos State on 8th May, 1979, wherein he requested for the prosecution of the respondents for the offences of conspiracy to bring false accusations against the appel­lant, contrary to s.125 of the Criminal Code (Cap. 31) Laws of Lagos State and conspiracy to injure the appellant in his trade or profession by maliciously procuring the seizure and detention of the properties of his clients contrary to s. 518(4) of the Criminal Code. The Attorney-General of Lagos State, by a letter dated 9th January, 1980, declined to accede to the request of the appellant. He said in that letter

 

"2.        You are at present standing trial in Charge No LCD/24/78 (The State versus Fred Egbe) on a count of inducing delivery of money, contrary to section 419 of the Criminal Code, and on count of stealing contrary to section 390 of the Criminal Code, Cap. 31, Laws of Lagos State.

 

3.         In considering whether or not to exercise the powers vested by section 191 of the Constitution, I am of the view that it will not be in the public interest, but an abuse of legal process, to encourage or allow accused persons, instead of defending themselves on the charges preferred against them, to turn round to request that public officers connected with bringing them to court should face prosecution for doing their duty."

 

He then attached the following certificate to the information

 

"I certify that I have seen the above information and the evidence in support thereof and upon serious deliberation thereon, I consider prose­cution of the information will be against public policy and an abuse of legal process and that I refuse to prosecute the same."

 

The appellant thereupon decided to initiate a private prosecution against the respondents. The first respondent was the Director of Public Prosecutions at the material time while the second and third respondents were the police officers who investigated the case that was brought against the appellant. The appellant filed his papers for this private prosecution on 11th April, 1980. The papers contained, among others, the information and the proof of evidence which he intended to rely upon for the prosecu­tion of the respondents. He also paid the necessary deposit in compliance with the law.

 

Now, on 9th June, 1980, following the action of the appellant, as aforesaid, the Attorney-General of Lagos State filed a nolle prosequi in the action. It reads

 

"Nolle Prosequi

 

In exercise of the powers conferred by and by virtue of paragraph (c) of sub-section (1) of section 191 of the Constitution of the Federal Republic of Nigeria 1979 and of all other powers enabling in that behalf, I, Sanu Sobowale, The Attorney-General of Lagos State, hereby discontinue the criminal proceedings against the accused person(s) in the above-mentioned charge."

 

Though the criminal information was listed for hearing in the High Court of Lagos State before Oladipo Williams J. on 10th June, 1980, on that day, the learned judge only took arguments on the propriety of the nolle prosequi which was filed in the case by the Attorney-General. And after Mr. Adefioye, the learned counsel representing the Attorney-General, the appellant and the first respondent had severally made various submissions on this issue to the court, the court decided to rise for the purpose of writing the ruling in the case. It will be necessary at this stage to quote what followed from the court record. The record reads

 

"Court:      I will rise to write my ruling. Mr. Fred Egbe says he will like to address the court for another four hours on a day to be agreed because what the Attorney-General appears to be doing is unconstitutional.

 

Court:       I will adjourn for a ruling."

 

This ruling was given by the learned judge on the same day. He upheld the submissions of Mr. Adefioye and the 1st respondent on the notice of nolle prosequi filed by the Attorney-General and discharged the respondents. In his ruling which was very short but to the point, the learned judge said

 

"It subsequently appeared from the address of Mr. Egbe that he would be bringing in facts to show that the Attorney-General was biased in one way or the other and that he was not competent to discontinue these proceedings. I made it clear that I would not allow this simple matter of nolle prosequi or discontinuance to escalate into unnecessary dimen­sions and I therefore indicate (sic) my intention to rule on the matter before me immediately.

It seems to me that the Attorney-General has the right to discontinue any criminal proceedings instituted by him or any other person at any stage before judgment. There cannot be any doubt about that."

 

(Italics mine.)

 

The appellant who was dissatisfied with this ruling appealed to the Court of Appeal on the ground that the trial court should have taken evidence and examined his allegations, against the Attorney-General, of malice and extraneous consideration, in pursuance of the provisions of s.l91(3) of the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the 1979 Constitution. However, that Court took a point suo motu to the effect that an information by private persons for an indictable offence should, like the other informations for indictable offences, be filed with the consent of a judge. As the appeal, in this Court, only turns on the constitutional issue of the interpretation of s. 191 of the 1979 Constitution, I will not deal with the point taken by the Court of Appeal on their own motion, but will reserve that point for decision until it arises again in another case and this Court has the advantage of a full argument on the matter.

 

In their judgment, delivered by Kazeem JCA, the Court of Appeal held that by virtue of sub-section (3) of s.191 of the 1979 Constitution, the position in Nigeria is now different from the position at common law and also under the provision of the Constitution of the Federal Republic 1963 No. 20, which is hereinafter referred to as the 1963 Constitution; Kazeem JCA said

 

"It was decided in R. v. Comptroller-General of Patents (1899) I Q.B. 909 at page 914 that in England when the Attorney-General is exercis­ing his functions as an officer of the Crown such functions were not subject to review by the Court of Queen's Bench Division or any other court. But in this country the powers of the Attorney-General are provided for under sec. 191 of the 1979 Constitution as follows:

 

"(1)      The Attorney-General of a State shall have power

(a)       to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any Law of the House of Assembly;

 

(b)       to take over and continue any such criminal proceedings that may have been instituted by any other authority or persons; and

 

(c)        to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

 

(2)        The powers conferred upon the Attorney-General under sub-sec­tion (1) of this section may be exercised by him in person or through officers of his department.

 

(3)        In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process."

 

Unlike section 104(2) of the 1963 Constitution sub-section (3) hereof now specifically provides for the additional safeguards which the Attor­ney-General should show regard for when exercising his powers under sub-section (2). These are the public interest, the interest of justice and the need to prevent abuse of legal process. Hence whenever an ag­grieved person complains of an infraction of his fundamental right and that the Attorney-General has failed to have regard for those safeguards in exercising his powers, and he can successfully prove it, I am of the opinion that the courts in this country in exercise of their wide powers under section 6(6)(b) of the 1979 Constitution can inquire into such complaint and grant appropriate remedies."

 

The learned Justice of Appeal further said

 

"in filing a notice of discontinuance in respect of a purported private prosecution ... the Attorney-General ... is presumed to have taken into consideration, unless the contrary is shown, 'public interest, the interests of justice and the need to prevent abuse of legal process as provided for under sub-section (3) of section 191 of the 1979 Constitu­tion ..."

 

(Italics in the quotations above mine.)

 

In the view of the Court of Appeal, therefore, while the Attorney-General is presumed to have regard to the public interest, the interests of justice and the need to prevent abuse of legal process, and he is not obliged to give or state his reasons expressly either orally or in the document filed before the court while entering a nolle prosequi, a person aggrieved may adduce evidence and prove that in the exercise of entering such nolle prosequi, the Attorney-General did not have regard to the provisions of s.l91(3) of the 1979 Constitution. In concluding his judg­ment therefore, Kazeem JCA said

 

"Until the appellant has been able to establish in the proceedings here that they acted maliciously or that they were motivated by ill-will against him or that they did not act in the interest of justice, the appellant cannot ask the court to go behind the certificate of discontinuance filed by the Attorney-General under section 191(l){c) of the 1979 Constitution to discontinue the case."

 

(Italics mine.)

 

The Court of Appeal has thus created a distinction between the situa­tion at common law, the pre-1979 Constitutions and the situation follow­ing the provision of s.191 of the 1979 Constitution.

 

It is against this judgment of the Court of Appeal that the appellant has appealed to this Court relying on five grounds of appeal. I will only be concerned with the last three grounds of appeal as these are the only rounds which are relevant to my consideration of the constitutional issues in this case, that is, the interpretation to be placed on s.!91(3) of the 1979 Constitution. The first two grounds of appeal deal with the issue of consent of a judge to an information for indictable offence, a point, which as I have said earlier on, will abide a time when the issue arises again in this Court. The appellant has also filed a copious brief but again I will concern myself only with that part of the brief that deals with the afore­mentioned constitutional interpretation.

 

The theme of the brief of the appellant is that as the powers conferred under s. 191 of the 1979 Constitution are statutory, there is need for bona fides and this has been reinforced by sub-section (3) of s.191 of the 1979 Constitution. The oral submission of the appellant is also to the same effect. Though there is a presumption that the Attorney-General acts in accordance with public interest, the appellant contended that the pre­sumption is rebuttable. Sub-section (3) of s.191, he says, has introduced a new element to the common law. In concluding on this point, the appel­lant submitted that the words "shall have regard" in sub-section (3) of s.191 provides a condition which must be complied with by the Attorney-General precedent to the exercise of his power to enter a nolle prosequi.

 

We did not take oral submission from the learned counsel for the respondents as he failed to file a brief in this case.

 

The issue which has been raised in this case is, without doubt, of considerable constitutional importance. It raises the extent to which the constitutional powers of the Attorney-General at common law and pre-the 1979 Constitution have, if at all, been affected by the 1979 Constitution. I would like to emphasise at this stage that though this judgment is con­cerned with the interpretation of s.191 of the 1979 Constitution, especial­ly sub-section (3) thereof, whatever interpretation is placed on that provi­sion also affects s.160 of the Constitution. S.191 of the 1979 Constitution deals with the power of a State Attorney-General while the corresponding provision in regard to the Federal Attorney-General is section 160 of the Constitution.

 

Sub-section (1) of section 191 of the 1979 Constitution gives power to the Attorney-General of a State to institute and undertake criminal pro­ceedings against any person, take over and continue such criminal pro­ceedings which may have been instituted by any other authority or person and discontinue, at any stage before judgment is delivered, in any criminal proceedings, such criminal proceedings which have been institut­ed by the Attorney-General himself or indeed by any other person or authority. All these powers are analogous to the powers of the Attorney-General under the common law, the powers of the Director of Public Prosecutions under the Nigeria (Constitution) Order-in-Council 1960, S.I. 1960 No. 1652, the schedules to which contained the Constitutions of the Federation of Nigeria and of the Regions, hereinafter referred to as the 1960 Constitution, and the powers of the Attorney-General under the 1963 Constitution.

 

The point which is for the determination of this Court therefore is whether, by virtue of the provision of sub-section (3) of s. 191 of the 1979 Constitution, which (though it has been quoted earlier in this judgment is repeated again for emphasis) reads

 

"In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process,"

 

The position has changed from what it was under the common law and the aforesaid 1960 and 1963 Constitutions, and the powers of the Attorney-General are now by virtue of the provision of the said s.l91(3) of the 1979 Constitution circumscribed by a precondition or, notwithstanding the provision of the sub-section, the legal position is still the same.

 

The pre-eminent and incontestable position of the Attorney-General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognised by the courts, In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General has, at com­mon law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.

 

In The Queen, on the Prosecution of Tomlinson v. The Comptroller-General of Patents, Designs, and Trade Marks (1899) 1 Q.B., 909, A. L. Smith LJ in the Court of Appeal in England stated this pre-eminent position of the Attorney-General with an abundant clarity. The learned Lord Justice, in declaring what the position was at English common law, said

 

"I wish to say a word or two about the position of the Attorney-General, because in my judgment it is of importance in this case ... Everybody knows that he is the head of the English Bar."

 

The Learned Lord Justice dealt with the Attorney-General's power to issue or withhold a fiat. And having done so, he went on

 

"Another case in which the Attorney-General is pre-eminent is the power to enter a nolle prosequi in a criminal case. I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case; but the Attorney-General alone has power to enter a nolle prosequi, and that power is not subject to any control."

 

He concluded on this point

 

"It follows that his decisions (sic. Attorney-General's), when exercising such functions, were not subject to review by the Queen's Bench Division or this Court (sic. Court of Appeal)''''

 

 (italics in all the quotations are mine).

 

And so, since from about the mid-sixteenth century, the power to enter a nolle prosequi in a criminal case has been recognised as an undoubted power vested only in the Attorney-General. It is a power which is recog­nised as a branch of the prerogative entrusted to the Attorney-General's own responsibility. He is to determine whether a prosecution shall go on or not (see Blackburn J. in Reg. v. Alien IX Cox C. C. 120 at p. 123). Indeed, if after a nolle prosequi has been entered, and the court has acted upon it, fresh or further proceedings on the same indictment are commenced, there is nothing to stop the Attorney-General from entering yet another nolle prosequi. This he can do for as many times as the proceedings rear their head. (Again see the case of Reg. v. Alien (supra) as per Cockburn CJ especially as reported in 1 B & S 850 at 854).

 

This common law prerogative, as I have said earlier on, was vested only in the Attorney-General (see R. v. Dunn (1843) 1 C & K. 730 at p. 733). It was the Attorney-General alone who could exercise the power except where he had given specific authorisation to others for such exercise, but even then, this was done only in particular cases. However, in this country, after the 1960 Constitution, but before the 1979 Constitution, there was no longer necessity for a specific authorisation. A general au­thority was sufficient. Under the 1960 Constitution, the power was not vested in the Attorney-General but in the Directors of Public Prosecutions of the Federation and each Region, as the case may be, and it was these Directors who exercised the power in person or through the legally quali­fied members of their staff who acted under and in accordance with the Directors’ general or special instructions. By and under the 1963 Consti­tution however, the power had been taken from the Directors of Public Prosecutions and vested in the Attorney-General (see s. 104(2) of the 1963 Constitution). Again, a general authority was sufficient. The Director of Public Prosecutions and other officers of the Attorney-General's depart­ment may exercise the powers in accordance with the general or special instructions of the Attorney-General. By 1979, under the 1979 Constitu­tion, the powers are still exercised by the Attorney-General himself and where they are exercised by officers of his department, they have to be exercised through him. Sub-section (2) of s. 191 provides simpliciter - that the powers shall be

 

"exercised by him in person or through officers of his department."

 

These powers, whether under the common law of conferred by the 1960 and 1963 Constitutions (aforesaid), were not just exercised by the Attor­ney-General arbitrarily or on a rule of thumb. As the Chief Law Officer of the State, the Attorney-General has always exercised the powers with regard to the public interest, interests of justice and the need to prevent abuse of legal process. But what happens is that he takes sole responsibility in coming to a decision, in the exercise of his discretion, as to what amounts to public interest, interests of justice and the need to prevent abuse of legal process. It is in his taking this responsibility, that he is a master of his house and a law unto himself. Whether or not he makes any consultation is a matter peculiarly within his discretion, but whatever decision he arrives at, is his responsibility.

 

And so, whether the question is one of the institution or undertaking of criminal proceedings against any person, of continuing such criminal proceedings that may have been instituted by any other authority or person, or of discontinuing any such criminal proceedings instituted by him, or, as in the instant case, by any other person, the Attorney-General has, at common law and under the Constitutions operative before the 1979 Constitution had regard to the public interest, justice of the matter and the need to prevent abuse of legal process.

 

An examination of some of the various cases in which the Attorney-General has exercised his powers both in the United Kingdom and this country bears testimony to this. Thus in R. v, Bereford (1952) 36 Cr. App. R. 1, the Attorney-General entered a nolle prosequi against the indictment of an accused person after a coroner's jury had returned a verdict of manslaughter against the man, whereas he had been previously convicted of dangerous driving in respect of the same death. In R. v, Harrison (1951) 1 K.B. 107 the Attorney-General entered a nolle prosequi against the second count of an indictment were the jury had discharged the accused person on one count of the indictment but disagreed on the other count. In this country, the Federal Supreme Court, in Shittu Layiwola & Ors. v. The Queen (1959) 4 F.S.C. 119 as per Abbot Ag. CJ.F. had stated in very clear terms the powers of law officers in the exercise of this discretion. The learned Acting Chief Justice said, and I would respectfully like to adopt his reasoning

 

"The judge expressed the view that all the persons identified as taking part... should... have been charged ... and he goes on 'in my opinion it was not open for the prosecution to elect or select which of the accused persons should be charged ...' With due respect to the learned trial judge, we find ourselves quite unable to agree with this view. It is without question the province of the Law Officers of the Crown (in the present case, the Attorney-General or any officer of his department) to decide, in the light of what public interest requires in any particular case, who shall be charged, and with what offence. It is entirely a matter for this Officer's quasi judicial discretion, and, in our view, in order to secure the proper administration of justice, he must be left to exercise his discretion according to his own judgment, neither acting on any rule of thumb nor taking into account any other consideration other than public interest".

 

What applies to the exercise of the Attorney-General's discretion in the institution of criminal proceedings also applies to the discontinuance of such proceedings.

 

All these cases have shown that both in England and in this country before the 1979 Constitution, what guided the Attorney-General in the exercise of his discretion, whether in the institution or in the discontinu­ance of a case were public interest, interests of justice and the need to prevent abuse of legal process. When sub-section (3) of section 191 prescribes what the Attorney-General "shall have regard to", therefore, in the exercise of his powers under s.191 of the 1979 Constitution, what had obtained at common law and under the Constitutions which preceded the 1979 Constitutions. It is merely a restatement of the common law in the 1979 Constitution. In other words, under the provision of sub-section (1) of section 191 of the 1979 Constitution, the Attorney-General, as in the period before the 1979 Constitution, still has an unquestioned discretion in the exercise of his powers to institute or discontinue criminal proceed­ings. His common law pre-eminent and incontestable position in this regard is still preserved by that provision and notwithstanding sub-section (3) thereof, which is a restatement of the law up to 1979, he is still not subject to any control, in so far as the exercise of his powers under $.191 of the Constitution is concerned, and, except for public opinion, and the reaction of his appointor, he is still, in so far as the exercise of those powers are concerned, law unto himself. To my mind therefore, sub-section (3) of 191 of the 1979 Constitution has in no way altered the pre-1979 constitu­tional position of the Attorney-General.

 

The test to be adopted under sub-section (3) of s.191 of the 1979 Constitution is the same test that was adopted in examining the exercise of his discretion prior to 1979. It is subjective. It is exercise of his discretion according to his own judgment. What the Attorney-General "shall have regard to," under sub-section (3) of s.191 of the Constitution, that is, "public interest, the interest of justice and the need to prevent abuse of legal process," are matters which he had hitherto had regard to. An Attorney-General, who proposes to act under his powers to institute and undertake, take over and continue or discontinue criminal proceed­ings would need to bear in mind public interest, interests of justice and the need to prevent abuse of legal process before he exercises his powers, since if he ignores any of these, he would run the risk of exposing himself to removal or reassignment by his appointor, and above all - and this is most important - also to public opinion.

 

It is one thing to point out the dangers of an Attorney-General in arriving at a decision without taking into consideration what he is expect­ed to have regard to. However, to my mind, it would be completely wrong to regard this as a precondition to the exercise of his powers under s. 191 of the 1979 Constitution. The exercise of these powers by the Attorney-General, that is, the institution and discontinuance of criminal proceed­ings cannot be questioned, and subject to the reserved right of his appoin­tor to remove or even reassign him without giving any reason whatsoever for so doing, neither that appointor nor any other person for that matter can question such exercise of his powers. And so, the only sanction, where there is an abuse of his powers by an Attorney-General, is this reaction of his appointor or adverse public opinion which may force him to resign.

 

With respect, I do not share the view of Kazeem JCA when the learned Justice said that "whenever an aggrieved person complains of an infrac­tion of his fundamental right and that the Attorney-General has failed to have regard for those safeguards in exercising his powers, and he can successfully prove it... the courts in this country in exercise of their wide powers under section 6(6)(b) of the 1979 Constitution can inquire into such complaint and grant appropriate remedies." With great respect, the Court of Appeal is in complete misconception of the provision of sub­section (3) of s.191 of the 1979 Constitution which states that the Attor­ney-General shall have regard to in exercising his powers under s. 191 of the Constitution.

 

It is to be observed, and this is of great importance, that sub-section (3) of s. 191 applies to the entire section. If the Court of Appeal is right, then whenever the Attorney-General, in pursuance of paragraph (a) of sub­section (1) of section 191, institutes or undertakes criminal proceedings against any person, and that person complains that the Attorney-General has failed to have regard to the content of sub-section (3), then the court must stop the prosecution, commence an enquiry into the complaint by the accused person, and determine that complaint as a condition prece­dent to the prosecution of that person. Surely, this cannot be in the contemplation of the 1979 Constitution. And, if anything at all, it does not accord with commonsense. I hold the view that the expression "shall have regard to" only enable something to be done. The expression is what is known in the interpretation of statutes as a permissive language. A language which imports a discretion but certainly does not create a condition.

 

I have given deep consideration to the contention of the appellant in this case, and I have come to the firm view that the 1979 Constitution, in using the permissive expression "shall have regard to" in sub-section (3) of s.191 thereof, does not intend to delimit and has not delimited the powers which the Attorney-General had either at common law or under the Constitutions preceding the 1979 Constitution, in so far as the insti­tuting or discontinuing of criminal proceedings is concerned. Again, the words "shall have regard to," are certainly not equivocal. They are plain and unambiguous. They are words which are merely declaratory of what the Attorney-General takes into consideration in the exercise of his pow­ers. {See the dictum of Earl Cairns L.C. in Julius v. Lord Bishop of Oxford (180) 5 A.C. (H.L.) 214; at p.222 where the Lord Chancellor interpreted similar expression as "directory, permissory and enabling"). Such words are merely potential and never in themselves significant of any obligation (see Julius v. Lord Bishop of Oxford ibid p.235 as per Lord Selborne).

 

The position of the law therefore in regard to the powers of the Attor­ney-General to institute and discontinue criminal proceedings is as it was when the Federal Supreme Court gave its decision in Shittu Layiwola & Ors. v. The Queen (supra). The powers of the Attorney-General under s. 191, (and notwithstanding sub-section (3) thereof) are still a matter for his quasi-judicial discretion and one within his complete province. He still possesses the constitutional powers in full and the responsibility for any decision thereupon rests solely on him.

 

The appellant has strenuously harped on the possibility of abuse of his powers by an Attorney-General who is left with this absolute discretion. I have already pointed out earlier, that the sanction lies in the reaction of his appointor and also in public opinion. But more importantly is the fact that a person who has suffered from the unjust exercise of his powers by an unscrupulous Attorney-General is not without remedy; for he can invoke other proceedings against the Attorney-General. But certainly, his remedy is not to ask the court to question or review the exercise of the powers of the Attorney-General. In any event, whatever may be this reme­dy, it is certainly not to form part of the proceedings in the case where the Attorney-General has exercised his powers to institute, take over and continue or discontinue criminal proceedings. It has to be the subject matter of another proceedings.

 

In the instant case, the Attorney-General of Lagos State has entered a nolle prosequi in the matter of a private prosecution which the appellant has taken against the respondents. Whatever may be the criticisms against the Attorney-General, in so far as those criminal prosecutions are con­cerned, that is the end of the matter.

 

The appeal therefore fails and it is hereby dismissed. The decision of the High Court Lagos (Oladipo Williams J.) dated 10th June, 1980 dis­charging the respondents after the Attorney-General Lagos State had entered a nolle prosequi in the matter is affirmed. The decision of the Court of Appeal, dismissing the appeal of the appellant, is also hereby affirmed, though for different reasons.

 

 

Judgement delivered by

Atanda Fatai-Williams. CJN

 

I entirely agree with the lead judgment of my learned brother, Kayode Eso, Justice, Supreme Court, which I had the advantage of reading in draft. For the reasons which he has given therein, I too would dismiss the appeal.

 

I would, however, like to stress the following points which I consider pertinent. The Attorney-General of a State in Nigeria has many powers and duties with regard to criminal proceedings in respect of any offence created by or under any law of the House of Assembly of the State. These powers are clearly spelt out in section 191 of the 1979 Constitution. He may, for example, stop any prosecution under a State Law by entering a nolle prosequi. He need not give any reasons for his decision. All he needed to do when deciding to discontinue any such criminal proceedings at any stage of the proceedings is to "have regard to the public interest, the interest of justice, and the need to prevent abuse of legal process." A number of factors, known to the Attorney-General, must, of necessity, come to his mind when he decides whether to prosecute or not. It may not be in the public interest to disclose any of these.

 

To my knowledge, and presumably for these reasons, the courts have never sought to interfere with the exercise of that power. That is how it should be, bearing in mind that the Attorney-General is the principal law officer of the State coupled with the fact that he should not be subjected to any pressure either by the Executive or by the Courts in the exercise of this enormous power.

 

Incidentally, the Attorney-General of the Federation has the same pow­ers and duties under section 160 of the same Constitution with regard to criminal proceedings in respect of any offence created by or under any Act of the National Assembly.

 

It must, of course, be understood that any Attorney-General, be he the Attorney-General of the Federation or of a State, is answerable for his actions not only to his appointor, but also to the National or State Assembly as the case may be. He is, of course, also subject to the comments, favourable or otherwise, of the members of the legal profes­sion and to the glaring scrutiny of public opinion. It may not be out of place to record, in this context, the public's general aversion to mixing politics with the enforcement of the criminal law. The supreme impor­tance of maintaining the independence of the Attorney-General when discharging his responsibility, inherent in his office, for the proper admin­istration of the criminal law must, therefore, be emphasised.

 

For all these reasons, it cannot be too strongly stressed that this pre­eminent position of the Attorney-General with respect to criminal pro­ceedings in our Constitution carries with it grave and onerous responsibi­lity which should not be discharged with levity. Because of this, it is of paramount importance that when an Attorney-General is being appoin­ted, the appointor should, at all times, bear in mind the integrity, ability, experience, and maturity required of the person holding this high and important office. He should be a person who, in the discharge of his duties, will always "have regard to the public interest, the interest of justice, and to the need to prevent any abuse of legal process."

 

 

Judgement delivered by

Ayo Gabriel Irikefe, J.S.C.

 

I had the advantage of a preview of the judgment just read by my learned brother, Eso, J.S.C. I agree absolutely with the reasoning and conclusions on all aspects of the legal issues raised therein. It seems to me that only two matters call for a pronouncement by this Court, namely;—

 

(a)           What effect, if any, has the entry of a nolle-prosequi on a pending indictment?

 

(b)           If an Attorney-General enters a nolle-prosequi not in furtherance of the cause of justice but as the result of bribe-received, is an aggrieved prosecutor left without legal means of redress against the erring Attorney-General?

 

I agree as stated in the lead judgment that the nolle entered puts an end to the prosecution for the time being, and that such prosecution may, in an appropriate case, be later revived on the same facts at the behest of the Attorney-General. What the prosecutor cannot do, is to compel the judge trying the case to institute an inquiry into the motive or bona-fides of the Attorney-General who entered the nolle. Such an inquiry can only, if at all, be held dehors the proceedings in which the nolle was entered.

 

I would also dismiss this appeal and it is hereby dismissed.

 

 

Judgement delivered by

Chukwuweinke Idigbe, J.S.C

 

Having had the advantage of a preview of the judgment just read by my learned brother, Kayode Eso, J.S.C, I agree that for the reasons so clearly stated in the said judgment I also would dismiss this appeal.

 

However, I would like to add a few comments in regard to the miscon­ception in some quarters that the powers of the Attorney-General at common law in respect of initiation and discontinuance of criminal proceedings and which powers are available to his counterpart in this country, prior to and during the operation of the pre-1979 Constitutions of this country, have been whittled down by the provisions of sections 160 and 191 of the 1979 Constitution of the Federal Republic of Nigeria (hereinafter referred to as "The 1979 Constitution"). At common law a nolle prosequi is entered only by the fiat of the Attorney-General [See R. v. Comptroller General of Patents (1909) 1 Q.B. 909, in which case A. L. Smith L.J. has been quoted—NOT in the English Report of the case but— in the Annotation to Volume 69 A.L.R. (American Law Reports) at p.241 as having said; "who can enter a nolle prosequi excepting the fiat of the Attorney-General? ..." (italics by me)]. The fiat of the Attorney-General is a necessary requirement in many cases before proceedings in which the Crown has an interest can be commenced; and also there are many statutory provisions which require the fiat of the Attorney-General before prosecution for offences under those statutes can be initiated.

 

At common law the decision of the Attorney-General in granting or refusing his fiat is final and conclusive. While the court, in appropriate cases, can compel him (by mandamus) to hear or entertain applications for his fiat, no court can compel him to grant his fiat nor question the propriety of his refusal of the same [Ex pane Newton (1855) 4 F & B 869; also 119 E.R. 323] In Ex parte Newton (supra): Lord Campbell CJ ob­serves:—

 

"... If he (the Attorney-General) refuses to hear and consider the application for a fiat we should compel him by mandamus to hear and consider it; but when he has heard and considered and refused, we cannot interfere. The Attorney-General may be made responsible to Parliament. If he has made an improper decision the Crown may and if, properly advised, will dismiss him; but we cannot review his decision. No authority has been cited, not does any exist ..." [See 119 E.R. at 323: brackets and contents by me, italics by me].

 

The Attorney-General, however, does not act arbitrarily in exercising his discretion on the grant or refusal of his fiat. At common law he has always had to consider the interests of justice, the need to prevent abuse of legal process and the general public interest whenever he needs to exercise his discretion in respect of his fiat (i.e. certificate) for the initiation and discontinuation of a proceedings—civil and criminal—which under the laws are required to be commenced by his fiat; and these are all that sections 160(3) and 191(3) require him to do in respect of criminal proceedings. These sections state that the exercise of his powers in the institution or undertaking of criminal proceedings, taking over and/or discontinuing any such proceedings, he (the Attorney-General) "shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process."

 

Adverting to the duties and obligations of the Attorney-General in the exercise of his powers in respect of his fiat, Sir E. M. Pollock M.R. observed:

 

"... A grave and important day is cast on the Attorney-General as to whether or not he will grant his fiat and allow an action to be brought, either in his own name or upon the relation of others, either by himself or with others joined with him as plaintiffs. After what Lord Halsbury has said, the duty of deciding whether the action is one proper to bring to enforce certain rights must be vested in him, and in him alone, and I have no doubt that that jurisdiction has been exercised, as it has always been, with very great care and with due regard to the public interest and to the responsibility which lies on the Attorney-General ... Having regard to the position which the Attorney-General occupies before this Court, it does not seem to me to be possible to be questioned, as a matter of discretion, whether or not he is entitled to the redress which he asks in the public interest, in reference to a matter upon which a public authority has exercised his powers." [See Attorney-General v. Westminster City Council (1924) 2 Ch. 417 at 421; italics by me.]

 

The above observations, of course, are taken from a civil matter; they relate, however, to the exercise of the discretion of the Attorney-General in granting or refusing his fiat, and to the like effect are the observations of Lord Langdale M.R. in relation to the entry of a nolle prosequi in proceedings by scire facias. [See The Queen v. Prosser (1848) 11 Beav 306 at 313-315; also 50 E.R. 834 at 837-838]. That was a case in which a patentee's application to the Attorney-General for a stay of proceedings in respect of his patent or entry of a nolle prosequi having been refused by the Attorney-General, his application for the same to the Rolls Court was refused by the Master of the Rolls.

 

The foregoing, in my view, show beyond doubt that the Attorney-General has always at common law taken into consideration the general public interest, interests of justice and the need to prevent abuse of legal process in exercising his powers of entering a nolle prosequi and that there is nothing new in the provisions of sections 160(3) and 191(3); and those provisions can never be construed, without doing violence to English language and the ordinary rules of construction and interpretation of statutes, to imply that the courts can pronounce on the validity of the exercise of the powers of the Attorney-General under sections 160(1) and (2) and 193(1) and (2) by virtue of the provisions of sub-sections (3), in each case of 160 and 191.

 

As already stated earlier I am in complete agreement with the reasons stated by my learned brother Eso J.S.C. in the lead judgment for dismiss­ing this appeal and I endorse the orders in the said judgment.

 

 

 

Judgement delivered by

Anthony Nnaemezie Aniagolu, J.S.C

 

 

My learned brother, Kayode Eso, JSC, had made available to me in draft his delightful judgment just read by him of which I am in complete agreement that for the reasons stated in the said judgment, this appeal should be, and is hereby, dismissed.

 

I am constrained to add a few comments, not out of any disagreement with the contents of his said judgment so far as they go, but out of my concern for the aspect not pursued by the judgment and which I think arises on a consideration of that sub-section 3 of section 191 of the 1979 Constitution.

 

Before I go into it I must emphasise my agreement with the view he has expressed that where the Attorney-General has entered his nolle prosequi, that would be the temporary end of that case and there would be nothing left for the court before which the nolle has been entered than to stop the case and discharge the accused persons before him. As Blackburn, J., has remarked at p. 121 of IX Cox C. C. in the consideration of Reg. v. Alien, the power of nolle prosequi is a prerogative right for the Crown exercised on behalf of the Crown by the Attorney-General. I may add that if the King or Queen of England had chosen personally to enter the nolle instead of his or her Attorney-General doing it, his or her own courts could not challenge or question his or her exercise of that right, on the English legal theory that the King or Queen, being the fountain of justice, could do no wrong.

 

So completely is the Attorney-General in full control of that power on behalf of the Crown, that, as Cockburn, J. has stated in Reg. v. Alien (supra),

 

"there is nothing to prevent the Attorney-General entering a nolle prosequi toties quoties." (Italics are mine for emphasis.)

 

The Attorney-General may, therefore, enter the nolle prosequi for as many times as the occasion demands. It is to be appreciated that a nolle prosequi is only a temporary proceeding which has the effect only of a stay and not of a quashing of the indictment which technically may later be prosecuted without a fresh indictment. (See: R. v. Mitchel (1848) 3 Cox C.C.93; Poole v R.(1961) A.C. 223,(196Q) 3 All E.R.398-P.C.: Sey v. The King (1950) 13 W.A.C.A. 128.)

 

Mr. Egbe has submitted that where the bona fides of the Attorney-General in entering nolle prosequi is challenged and he, for example, is being accused of malice in the exercise of the power, the trial judge, in the same proceedings, should commence a trial within a trial of the allegation against the Attorney-General—a voire dire proceeding—in order to deter­mine the bona fides of the Attorney-General in entering the nolle prosequi. I certainly to not subscribe to that view. The trial judge, in my view, is under no such procedural obligation. In any case the Attorney-General whose conduct is being pilloried is not a party to the proceedings before the judge who is currently seised with a case between the State and the accused persons. For the judge to decide on the accusation levelled against the Attorney-General, he must, on the principle of natural justice of audi alteram partem, give a hearing to the Attorney-General who must then be served and made a party to the proceedings. That cannot be done, or accommodated, in the current proceedings before the judge who must dispose of those proceedings on the nolle which has been entered. I have no doubt whatever on this.

 

Where, however, the problem arises, is in the contention that the Attorney-General is so unchallengeable, so impregnable in his position in the exercise of that power, that not even in a separate and subsequent proceedings can his conduct be questioned by the courts. Suppose, for example, 'A' stole the property of 'B' who lodged a complaint leading to the prosecution of 'A' and the Attorney-General received a bribe from 'A' in consequence of which he entered nolle prosequi thus terminating the proceedings against 'A', could 'B' not institute a civil suit against the Attorney-General seeing the court's declaration that the Attorney-General entered the nolle prosequi aforementioned in consequence of his receipt of a bribe—a declaratory judgment, by a court of competent jurisdiction, which would prove that the Attorney-General, in exercise of his undoubt­ed power under s.191 of the 1979 Constitution, instead of acting in the public interest, interests of justice, and interest to prevent abuse of legal process as required by sub-section 3 of the said section 191 of the Constitu­tion, acted from corrupt motives? I am by no means convinced that such a suit cannot be entertained by the court. The immunity of the Attorney-General from legal process, in my view, is not all that pervading to exclude the jurisdiction of the courts in that regard, or to neutralize the express provisions of s.6(6)(a) and (b) of the 1979 Constitution as to judicial powers of the courts, or a citizen's right of fair hearing of a case he has brought to court under s.33 of the same Constitution.

 

No doubt, as the lead judgment rightly points out, an Attorney-General who exercises his power contrary to the spirit of sub-section 3 of s. 191 of the 1979 Constitution could easily fall out of the favour of his appointor or the National or State Assembly, as the case may be, but I am equally convinced that an aggrieved person, such as 'B' in the above example, armed with a declaratory judgment of a court of competent jurisdiction with which he faces whoever has the responsibility of the removal of the Attorney-General, will quite easily force the hand of that person, or indeed, force the Attorney-General to resign from his office. Thereafter, since in the above example, the nolle prosequi was entered corruptly or dishonestly, and since the effect of the entry of the nolle is to cause a stay of the proceedings and not to quash the indictment, a succeeding Attor­ney-General, or other Law Officer, could then recommence the stayed proceedings and prosecute it to finality.

 

Prima facie, as I have already stated, a nolle prosequi from an Attorney-General must be treated by a court on its face value, as terminating the proceedings in respect of which it is filed. Experience has shown, however, that in many parts of the world, especially in the developing countries, bizarre and unprecedented events do occur and what goes without ques­tion, and are taken for granted, in more developed countries, sometimes present extreme difficulties by reason of persons charged with the respon­sibility of exercising sensitive powers in trust for the citizenry, deviating from the spirit and intendment of the laws which they are supposed to enforce.

 

The safe-guard lies in the courts and the judges, under whose benign supervision, in strict conformity with the constitution, the citizen must always look up to, for protection and guidance. What I have said must not be understood as a criticism of the nolle entered in the present case the subject-matter of this appeal. I am only drawing attention to the necessity of the courts being wary whenever any issue which has not been expressly, by law, excluded from their jurisdiction is sought to be shielded from their gaze and scrutiny, especially having regard to the wide provisions of our 1979 Constitution designed to protect the rights of the citizens of this country.

 

Even in England where the theory of the Sovereign never doing wrong was developed, the courts have never fought shy of employing the prerog­ative writs in compelling officials of the Sovereign to do their duty to the citizen. In Ex parte Blackburn (1956) 3 All E.R. 334 at p.337 for example, Singleton, LJ, conceded that in a proper case an order for mandamus could be made against the Attorney-General for him to issue his certifi­cate authorizing an appeal to the House of Lords under s.1(6) of the Criminal Appeal Act, 1907.

 

My learned brother, Kayode Eso, J.S.C., while asserting the Attorney-General's "absolute discretion" in entering a nolle prosequi, has recog­nised the invidious position of a citizen who falls victim to an unscrupu­lous Attorney-General, and agreed that such a citizen

 

is not without remedy"

 

although his remedy

 

"is not a question or review the exercise of the powers of the Attorney-General."

 

I agree with him that whatever may be the remedy available to him, it will not, as I have shown, form part of the proceedings in the case in which the Attorney-General has entered his nolle prosequi.

 

With these few concurring words, the appeal stands dismissed as herein­before stated.

 

 

 

Judgement delivered by

Augustine Nnamani, J.S.C

 

I had a preview of the judgment just delivered by my learned brother, Eso, J.S.C. and I am in entire agreement with it. For the reasons so clearly stated therein I would also dismiss this appeal.

 

At common law the authority of the Attorney-General alone to enter a nolle prosequi after the signing of the indictment and before judgment has long been established: See R. v. Dunn 1843 1 Car & Kir 732; R, v. Allen 1 B & S 850. The Attorney-General in the exercise of this power is pre­eminent such that his decisions are not subject to review by the courts. Nor is the exercise subject to the control of the courts. See R. v. Comptrol­ler General of Patents (1899) 1 Q.B. 909, 914.

 

The nature of the power so vested in the Attorney-General is such that once the certificate is entered, the court does not go behind it, nor question the Attorney-General as to the reasons for so exercising his powers. Its effect on the relevant proceedings is to stay it and if the defendant is in custody he is discharged although he may be indicted afresh on the same charge: See Gilchrist v. Garther (1891) 12 N.S.W.L.R, 184; Adedoyin v. R. (1959) 4 F.S.C. 185; R. v. Sey (1950) 13 W.A.C.A. 128.

 

It is also pertinent to mention that in the exercise of his power to enter a nolle, the Attorney-General has always taken into account the public interest which is wide enough to subsume interest of justice and the need to prevent abuse of judicial process.

 

That the position has been the same in this country can clearly be seen in the various pre-1979 Constitutions of this country and in such deci­sions of our courts as Layiwola and 3 others v. The Queen (1959) 4 F.S.C. 109; R. v. Adedoyin (supra) and State v. Chukwurah (1964) N.M.L.R. 64. Sections 160( 1 )(c) and 191 (1 )(c) of the Constitution of the Federal Repub­lic of Nigeria 1979 now embody this power of the Attorney-General with respect to the entry of a nolle. But it is now being contended that the provisions of sections 160(3) and 191(3) of the same Constitution have introduced a new element such that the exercise of such power would now be open to review by the courts. This argument is predicated on the ground that the use of the words "shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process" is intended to subject the exercise of that power to the control of the courts. Mr. Egbe, learned counsel to the appellant, put it so high as to regard the use of "shall have regard ... process" as a condition governing the exercise of those powers. I would join in rejecting these arguments. I do not see anything in those sections to justify such circumscribing of the powers which Attorneys-General have enjoyed over the ages. While I do not wish to convey the impression that the Constitution has installed the Attorney-General as a tyrant for there are obvious checks and balances (these have been set down in the judgment of Eso, J.S.C. and will not bear repetition here), I must state that an interpretation such as was urged on this court would lead to absurdities. To begin with it has to be appreciated that section 191(3) applies to all the provisions of section 191 of the 1979 Constitution. Secondly, and only to take one example, it would certainly be bizarre and tragic in the extreme if an Attorney-General who exercised his power to enter a nolle prosequi in the interest of the security of the State was obliged to state his reasons for acting before a court of law.

 

Finally, with respect I do not think that any rebuttable presumption (such as was decided by the Federal Court of Appeal in The State v. Adakole Akor and Ors. (1981) 2 N.C.L.R. 710) arises with respect to the matters set down in section 191(3) of the 1979 Constitution. I think that the matters set down in that section of the Constitution are matters which the Attorney-General ought to take into consideration in exercising his powers therein"and I cannot put it higher than an assumption that he has duly considered them. The appeal is hereby dismissed.

 

 

 

Judgement delivered by

Muhammadu Lawal Uwais, J.S.C

 

I have had the opportunity of reading in draft the judg­ment read by my learned brother Eso, J.S.C, I am also of the opinion that in entering a nolle prosequi under section 191 of the Constitution of the Federal Republic of Nigeria 1979, the Attorney-General of Lagos State was not obliged to state that he was doing so after having "regard to public interest, the interest of justice and to prevent abuse of legal process," as envisaged by subsection (3) of the section. His power to terminate crimi­nal proceedings is absolute under the common law as well as the 1979 Constitution. The exercise of the power is not therefore subject to the fiat of the court which is seised with the proceedings to be terminated as was contended by Mr. Egbe in this appeal.

 

There can be no doubt that each time the Attorney-General decides to terminate criminal proceedings he must be guided by the provisions of section 191 subsection (3) of the 1979 Constitution. If he failed to be so guided he would be acting at his peril. He might incur the displeasure of the Chief Executive that appointed him or indeed the public.

 

Admittedly therefore the occasion may sometimes arise when for cer­tain reasons, such as abuse of office or misconduct, the exercise of the Attorney-General's power to enter nolle prosequi may be questioned in court. In such event the proceedings will of course be different and separate from the criminal proceedings which have been terminated.

 

I entirely agree with the judgment read by my learned brother Eso, J.S.C. Accordingly, I will dismiss the appeal and affirm the decision of the Federal Court of Appeal.