EXERCISE OF THE POWERS OF SOLICITOR GENERAL TO ENTER NOLLE PROSEQUI IN THE ABSENCE OF AN INCUMBENT ATTORNEY GENERAL: A DEPARTURE FROM THE CASE OF AG KADUNA STATE V HASSAN – CHIDERA NWOKEKE
The office of the Attorney General of the Federation and State is constitutional provided for in Section 150 (1) and Section 195 (1) of the 1999 Constitution of Nigeria (hereinafter referred to as 1999 CFRN). The office of the Attorney General is a creation of law and therefore a legal person in the eyes of the law and he is the Chief Law Officer of the federation or of a state. The constitution went further to provide for the constitutional powers of the Attorney General of the Federation and State over public prosecution in Nigeria in Section 174 and Section 211 of 1999 CFRN respectively.
This article shall peruse the above raised topic with a view of showing that the Solicitor General of the Federation can exercise the powers of the Attorney General of the Federation including the power to enter Nolle Prosequi in the absence of an incumbent Attorney General and how the case of SARAKI V FRN and Law Officers’ Act, 2004 amounts to a departure from the popular case of ATTORNEY GENERAL KADUNA STATE V HASSAN.
Section 174 of 1999 CFRN provides for the powers of the Attorney General of the federation as thus:
174. (1) The Attorney-General of the Federation 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 Act of the National Assembly;
(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) To discontinue at any stage before judgement 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 of the Federation under subsection (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 of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
The Law Officers’ Act, Cap L8, Laws of the Federation of Nigeria, 2004 in sections 2 and 4 provides thus:
2. The offices of Attorney-General, Solicitor-General, and State Counsel are hereby created.
4. The Solicitor-General of the Federation in the absence of the Attorney-General of the Federation MAY perform any of the duties and SHALL have the same powers as are imposed by law on the Attorney-General of the Federation.
Deducing the intent and meaning of Section 4 of Law Officers’ Act, 2004, it is manifestly clear and barefaced that:
1. The Solicitor General of the Federation in the absence of the Attorney General of the federation may perform any of the duties. This simply means that the Solicitor General has the discretion or choice to perform any of the duties the Attorney General can perform.
2. The Solicitor General of the Federation in the absence of the Attorney General shall have the same powers as imposed by law on the Attorney General of the federation. This means the Solicitor General of the Federation can exercise the powers conferred on the Attorney General by virtue of Section 174 of the 1999 CFRN in the absence of an incumbent Attorney General. The Court in the case of ONYEMAIZU V OJIAKO (2010) ALL FWLR (PT. 523) 1870– the Court held that the word SHALL is mandatory as against directory and the requirements must be strictly complied with. Also, in the case of I.B.W.A V IMANO (NIG) LTD (1998) 1 NSCC 245, the Supreme Court held that it is a fundamental rule of the interpretation of statute that where the words used are clear and unambiguous they should be construed as they are and given their ordinary plain meaning. Perusing the provisions of the above Section 4, it is clear even to the blind that the wordings of that provision is not ambiguous and it should be read and interpreted in its clear wordings.
The office of the Attorney General is a constitutional and statutory office created by Section 150 of the 1999 CFRN, unless this office is abolished through the instrumentality of amendment of the relevant provisions of the constitution. The office like a continuum remains in existence as an artificial or juristic person. Although, the office of the Attorney General does not die, and indeed has not died, the duties and powers of the attorney General must be carried out or performed by a biological person as only a human being can legally and logically occupy the said existed office.
It is of fundamental importance to consider the powers of the Attorney General and ascertain how the Solicitor General can exercise the same powers in the absence of an incumbent Attorney General.
POWER TO INSTITUTE AND UNDERTAKE CRIMINAL LEGAL PROCEEDING
By virtue of Section 174(1) (a) of 1999 CFRN, the constitution confers power on the Attorney General to commence, institute criminal legal proceeding before any Court in Nigeria other than Court Martial. It is condign to state that the power to institute criminal proceedings against any person is not only restricted to court martial. The Attorney General cannot exercise such powers before a court that has no original jurisdiction to entertain criminal matters such as the Court of Appeal and Supreme Court. It is pertinent and instructive to reiterate the extensive powers of the attorney general with respect to public prosecution against the backdrop of Section 174 (1)(2)(3) vis a vis Section 211(1)(2)(3) of the 1999 CFRN, that the Attorney General are said to be masters of themselves such that nothing and nobody can restrain them from taking any step towards criminal prosecutions in our courts.
The power of the Attorney General to institute criminal proceedings against any person is not exclusive; other authorities like the Economic and Financial Crimes Commission (EFCC), Police, National Drug Law Enforcement Agency (NDLEA) and even private legal practitioner with fiat can initiate criminal proceedings. –DIAMOND BANK V OPARA & ORS (2018) LPELR-43907 (SC), FRN v OSAHON (2006) 5 NWLR (Pt. (973) @ p.406. The decision to prosecute or not to prosecute is at the discretion of the Attorney General of the Court cannot question the authority of the Attorney General on how or when the Attorney General will exercise the discretion – ALALADE & ANOR V STATE (2018) LPELR-CA/L/442c/2017
The Court in the case of SARAKI V FRN (2016) LPELR-SC.852/2015 held that Section 174 (1) of 1999 CFRN do not require that an officer can only exercise the power to initiate criminal proceedings if the Attorney General expressly donated his power to him. The provisions of this section presumed that any officer in any department of the Attorney General is empowered to initiate criminal proceeding unless it is proved otherwise. It is a trite principle of law that the power of initiating criminal proceedings by any officer of the department of the Attorney General is not dependent on the office of the said Attorney General having an incumbent.
It is germane to state the position of the court in the case of ADEBAYO V STATE (2012) LPELR-CA/I/232c/2010, where it held that, it is within the discretionary powers of the Attorney General to charge some offenders and declines to charge others. The court in the case of EZEA V STATE (2014) LPELR-CA/E/303/2010 held that the Attorney General in law has the power and an absolute discretion to file any charge that in his opinion is supported by the proof of evidence before him, when the Attorney General based on the proof of evidence decides to file a charge, the police in law have no power or authority to stop the Attorney General.
By virtue of Section 2 and 4 of Law Officers’ Act, 2004 and the case of SARAKI V FRN (SUPRA) the Court held that in the absence of the Attorney General, the Solicitor General or any other officers in the chambers of the Attorney General can exercise such powers or duties of the Attorney General relating to institution of criminal proceeding. The solicitor General while performing the duties and exercising the powers of the Attorney General in the absence of the latter, can also do so through any law officer in the Federal Ministry of Justice.
The Attorney General shall have the power to take over and continue any criminal proceeding that may have been instituted by any other authority or person. It is pertinent to ask at this point, can the Attorney General take over a matter at Appellate Court? In my own opinion, I believe the Attorney General still retains the power to take over at appellate court because aside the judgment of a trial court, a matter is finally laid to rest when parties exhaust their right of appeal. So since the subject matter and parties are same, the Attorney General can exercise the power of take over even up to Supreme Court.
However, it is apropos to state that by virtue of Section 4 of Law Officers’ Act, 2004, the Solicitor General in the absence of an incumbent Attorney General can exercise the power of taking over the criminal proceeding The rationale behind this is because the office of the Attorney General being a creation of the law must remain alive and active and assignment s placed on the office by the constitution or other statute must not stagnate but must be carried out by other competent officers like the Solicitor General.
Another power of the Attorney General is the power to discontinue a criminal matter at any stage before judgement. This is represented in the Latin phrase Nolle Prosequi which means, I do not want to continue to prosecute. The court in the case of OGBONNA V OGBONNA & ANOR (2014) LPELR-CA/K/200/2008 defined Nolle Prosequi as a formal notice of discontinuance of an action lodge by the prosecution. The effect of a Nolle Prosequi is that the accused is discharged but he can be prosecuted afterwards with respect to the same offence. Therefore, it is discharge and not acquittal.
The Court in the case of AKALA V FRN (2014) LPELR-CA/I/154/2013 held that the learned Trial Judge has no power to stop the prosecution of an accused. It is the Attorney General that has such powers by the provisions of Section 174(1) of the 1999 Constitution.
The only check or guiding principles for the exercise of the enormous powers reposed with the Attorney General includes; public interest, interest of justice, the need to prevent abuse of legal process. These must inform the manner in which the Attorney General exercise his powers – EZEA V STATE (2014) LPELR-CA/E/303/2010; ONYUIKE V THE PEOPLE OF LAGOS STATE & ORS (2013) LPELR-CA/L/306/2012
It is pertinent to state the decision of the Court in the wide celebrated case of ATTORNEY GENERAL KADUNA V HASSAN (1985) LPELR-SC.149/1984 where it held that:
The power of Nolle Prosequi is personal to the Attorney General and where there is no incumbent/sitting Attorney General, this power cannot be exercised by Solicitor General unlike other powers of the Attorney General which can be exercised by law officers in the Attorney General’s office even where there is no sitting Attorney General and so the Solicitor General cannot exercise this power.
However, there is a great departure from the case of AG KADUNA V HASSAN by virtue of Section 4 of Law Officers’ Act and the case of SARAKI V FRN (SUPRA), which provides that in the absence of the Attorney General, the Solicitor General can competently step into the shoes of the Attorney General to exercise the powers conferred on him by statute or the Constitution. Therefore, it will appear ridiculous to pursue an argument that where there is no person occupying the office of the Attorney General, activities in the office such as prosecution of offences in the law courts would grind to a halt. That office is a creation of the constitution. It is the same constitution that delegated the functions or activities of the office of the Attorney General to some other persons such as the Solicitor General or other officers in the ministry.
The Court in the case of SARAKI V FRN (SUPRA) per Muhammad J.S.C. held:
The effect of the absence of Attorney General from office either on the basis of non-appointment of one or on the basis of infirmity of the body or mind of the occupant of that office, that office must remain alive and active. Assignments placed on the office by the constitution or other statutes must not stagnate but must be carried out by other competent officers of the office.
The Supreme Court in the case of SARAKI V FRN (SUPRA) in considering the power of the Solicitor General to exercise the functions of the Attorney General where the office of the latter is vacant- held that the Law Officers’ Act as a complimentary law to the provisions of the constitution gives the Solicitor General the power to competently steps into the shoes of the Attorney General to exercise the powers conferred on him by any statute or the Constitution. The Law Officers Act details the matter of delegation of powers conferred on the Attorney General by statute on the Solicitor General whenever there is no incumbent Attorney General in office
Therefore, it will be preposterous for anyone to raise eye brows on the wordings of Section 4 Law Officers’ Act, 2004, to the effect that Solicitor General cannot enter Nolle Prosequi in the absence of an incumbent Attorney General because the right to perform the duties and exercise the powers of the Attorney General by the Solicitor General in the absence of the former has statutory backing.
In conclusion, it is of fundamental importance to restate that the Solicitor General by virtue of Section 4 of Law Officers’ Act; the Solicitor General shall have the same power imposed on the Attorney General by the law including the power to discontinue any criminal proceeding at any stage before judgment. The rationale behind this is because the office of the Attorney General being a creation of the law must remain alive and active and assignment s placed on the office by the constitution or other statute must not stagnate but must be carried out by other competent officers like the Solicitor General.
Chidera Nwokeke is a graduate of Law from Ebonyi State University, a law School candidate. He is academically motivated and has passion for research in several areas of law. He is a member of Amnesty International and a Fellow of Young African Leaders Initiative. He has a keen interest in developing himself in the area of Dispute Resolution, Litigation, Human Right and Corporate Law Practice. He can be reached at Nwokekechidera@gmail.com or 08120945787.