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In The Supreme Court of
On Friday, the 25th day of
February 1983
Before Their Lordships
S.C. 42/1982
Between
And
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
"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
"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
"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
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
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
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
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.
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
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
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.
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