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THE PROPRIETY OF ENTERING A NOLLE PROSEQUI MAY BE QUESTIONED IN A CIVIL ACTION

Dictum

Following our decision in The State v. S. O. Ilori & Ors., (1983) 1 SCNLR 94 at pp. 111; 116 and 119, it is settled, that where a nolle prosequi is entered in a criminal case, by an Attorney-General, under the provisions of either section 160 or 191 of the Constitution of the Federal Republic of Nigeria, 1979; the propriety of exercising the power may be questioned in a civil action which can be brought by a person whose civil rights and or obligations have thereby been affected. It follows a fortiori that the exercise of the same power by a legal officer employed in the Ministry of Justice, as in the present case, can be the subject of similar proceedings.

– M.L. Uwais, JSC. AG Kaduna State v. Hassan (1985) – SC.149/1984

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THE ATTORNEY GENERAL ALONE HAS POWER TO ENTER A NOLLE PROSEQUI

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: “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 I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case; but the Attorney-General alone has power to enter a nolle prosequi, and that power is not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.” “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)”

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SOME CASES WHERE THE AG HAS ENTERED A NOLLE PROSEQUI

✓ 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.

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THE ATTORNEY GENERAL HAS ULTIMATE POWERS IN CONTINUING OR DISCONTINUING A CRIMINAL PROCEEDINGS

State v. S.O. Ilori and 2 Ors. (1983) 2 S.C. 155 per Eso JSC: “on the extensive and unfettered powers of the Attorney-General, Eso, J.S.C. who wrote the Court’s lead judgment said at page 178, “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 specifically in all court proceeding to which the State is a party, has long been recognized 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.”

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THE POWER OF THE ATTORNEY GENERAL TO DISCONTINUE A PROCEEDING IS PERSONAL

What this Court said in THE STATE v. ILORI And Others (supra) is sufficient for the statement that the powers of the Attorney-General of a State (and therefore of the Kaduna State in this appeal) are personal to him and are exercisable personally by him. Ideally, I think the makers of the Constitution were wise to make it so, because whereas the Solicitor-General, the Director of Public Prosecutions and all the other officers down the line, in the Ministry of Justice, are by designation, civil servants who are not answerable politically for acts done in the Ministry, the Attorney-General is both the legal as well as the political officer who is answerable politically for acts done in that Ministry and since the powers exercisable under section 191 of the Constitution, in many cases, may have political over-or-under tone, even though those powers have to be exercised with due regard ‘to the public interest, the interests of justice and the need to prevent abuse of legal process’, it is only right that the person who has to bear the brunt and responsibility of the political ‘fall-outs’ of any decision taken under that section, should solely be responsible for taking the legal decisions required under the section. Put in another way, it is he who has to take the rap for the decisions taken; it is only fair that he should be left solely with the juridical power to take the steps resulting in those decisions, so that whatever may be the political effect of the legal steps he has taken, he is fully and personally answerable for it for good or for evil.

– A.N. Aniagolu, JSC. AG Kaduna State v. Hassan (1985) – SC.149/1984

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AG POWERS “NOLLE PROSEQUI” BELONG TO HIM ALONE – OTHERS CAN ONLY EXERCISE IF SPECIFICALLY DELEGATED

There can be no doubt that the powers given to the Attorney-General of a State under section 191 of the Constitution belong to him alone and not in common with the officers of the Ministry of Justice. Such Officers can only exercise the powers when they are specifically delegated to them by the Attorney-General. The delegation usually takes the form of a notice in the Official Gazette. As there was no Attorney-General appointed for Kaduna State at the time mate rialto this case, his powers under section 191 could not have been delegated to the Solicitor-General.

– M.L. Uwais, JSC. AG Kaduna State v. Hassan (1985) – SC.149/1984

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