The Power of the Attorney-General to Enter a <i>nolle prosequi</i> Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved

Andrew Ejovwo Abuza

doi:doi:10.11648/j.ijsqa.20210702.11

| Peer-Reviewed

The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved

Andrew Ejovwo Abuza

Published in International Journal of Science and Qualitative Analysis (Volume 7, Issue 2)

Received: 22 August 2020 Accepted: 10 November 2020 Published: 9 July 2021

Views: Downloads:

Download PDF

Share This Article

Twitter
Linked In
Facebook

Abstract

The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. Since the coming into effect of the Constitution above on 29 May 1999, some Attorneys-General in Nigeria have hidden under the Constitution above to free persons standing trial in court for serious criminal offences through the exercise of the constitutional power of nolle prosequi for their selfish interest or political considerations or selfish or vested interest of Nigerian leaders or other interest other than the interest of justice, contrary to section 174 (3) or section 211 (3) of the Constitution above. This article analyses the issues involved in the constitutional power above. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The article finds that the exercise of the constitutional power above for the selfish interest or political considerations of the Attorney-General is unconstitutional. The article concludes that the problem of some Attorneys-General in Nigeria entering nolle prosequi in criminal trials under the Constitution above for their selfish interest or political considerations and so on under the guise or subterfuge of entering nolle prosequi in the public interest and so on should be effectively addressed or tackled in Nigeria. The article recommends the subjection of the exercise of the constitutional power above to the permission of the court in line with the approach in other countries, including the United States of America (USA) and Kenya.

Published in	International Journal of Science and Qualitative Analysis (Volume 7, Issue 2)
DOI	10.11648/j.ijsqa.20210702.11
Page(s)	41-54
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2021. Published by Science Publishing Group

Keywords

Attorney-General, nolle prosequi, Public Interest, Interest of Justice, Abuse of Legal Process

References

[1]	Cap C 23 Laws of the Federation of Nigeria (LFN) 2004.
[2]	See Garner, B. A (ed). Black’s Law Dictionary [B]. St Paul: MN 8th edn, West Publishing Company, 2004, 139.
[3]	See, also, section 195 (1) of the Constitution which creates the office of Attorney-General of a State who shall, also, be the Chief Law Officer of a State and Commissioner for Justice of the Government of a State.
[4]	Damola, F. O. (2016), The Position and Power of an Attorney-General in a Democracy: An injustice in the Administration of Justice in Nigeria [J]. Port Harcourt Journal of Business Law 2 (1): 243, 248-254.
[5]	Note that section 211 (1) of the Constitution contains the legal functions of the Attorney-General of a State.
[6]	Section 174 (1), (2), & (3) above is the same in wordings with section 211 (1), (2), & (3) of the Constitution which contains the legal functions of the Attorney-General of a State, except that he is empowered 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 of his State and the same is to operate within his State.
[7]	accessed 23 April 2020.
[8]	[1981] 2 SCNLR 410, 414 or [1981] 2 NCLR 410, 718.
[9]	See Abuza, A. E. (2016), A Reflection on the Regulation of Strikes in Nigeria [J]. Commonwealth Law Bulletin 4 (1): 6. Doi.org/10.1080/03050718.2015.1115731.
[10]	See Cap 100 Laws of the Federation of Nigeria and Lagos (Revised Edition) 1958.
[11]	No 47 of 1951.
[12]	No 1 of 1955.
[13]	No 1652 of 1960.
[14]	See, for example, section 97 of the 1960 Parliamentary Constitution of the Federation, section 48 of the Parliamentary Constitution of Northern Region and section 47 of the Parliamentary Constitutions of Western and Eastern Regions.
[15]	See, for example, Rule 04107 (1)-(XVII) of the Federal Civil Service Rules, as revised up to 1 April 1974 made pursuant to section 150 (1) of the Constitution of the Federation 1960.
[16]	See the Parliamentary Constitution of the Federation No 20 of 1963, section 104; Parliamentary Constitution of Northern Nigeria No 33 of 1963, section 49; Parliamentary Constitution of Western Nigeria No 26 of 1963, section 47; Parliamentary Constitution of Eastern Nigeria No 8 of 1963, section 49; and Parliamentary Constitution of Mid-Western Nigeria No 3 of 1964, section 47.
[17]	Cap 62 LFN 1990, sections 160 & 191.
[18]	[1984] 5 NCLR 52.
[19]	Cap 31 Laws of Lagos State 1973.
[20]	(Unreported) Suit No 1D/1544c/2015, ruling of Oluwatoyin Ipaye, J of the High Court of Lagos State, Ikeja delivered on 13 July 2017.
[21]	Cap C 17 Laws of Lagos State 2011.
[22]	accessed 29 April 2020. Note, also, that in Attorney-General of Kaduna State v Umaru Hassan [1985] NWLR (pt 8) 483, the Supreme Court of Nigeria (per Ayo Irikefe, JSC) held correctly that the Solicitor-General of Kaduna State could not validly exercise the power of the Attorney-General to enter a nolle prosequi in criminal proceedings under s 191 (1) (c) of the 1979 Presidential Constitution in the absence of an incumbent in the office of the Attorney-General or when there was no substantive Attorney-General of Kaduna State.
[23]	See Tobechukwu, O. H and Chukwuma, S. C. (2014), Rethinking the Power of Nolle Prosequi in Nigeria: The case of State v ILori [J]. Global Journal of Politics and Law Research 2 (1): 8 accessed 9 November 2020.
[24]	See Omorogie, E. B. (2004), Power of the Attorney-General over Public Prosecution under the Nigerian Constitution: Need for a Judicial Restatement, University of Benin, Faculty of Law, [M]. Lecture series No 4 November 7 < https://www.worldcat.org/title/power-of-the-attorney-general-over-public-prosecution-under-the-nigerian-constitution-need-for-judicial-restatement/oclc/697804738> accessed 9 November 2020.
[25]	Note that the stance of the Court of Appeal is supported by some learned Nigerian writers. For example, see Etose, G. O. Aziegbemhin, J. U and Aghede-Ehikwe, P. U. (2018), An Appraisal of the Application of the Doctrine of NolleProsequi in Nigeria [J]. Cranbrook Law Review 8 (1): 13 accessed 9 November 2020 and Akande, J. O. Introduction to the Constitution of Nigeria. [B]. Lagos: MIJ Professional Publishers Ltd., 2000, 321.
[26]	See, also, Musa Baba-Panya v President of the Federal Republic of Nigeria and Two Others [2018] 15 NWLR (pt. 1643) 395, 401-02, Court of Appeal (CA).
[27]	See the decision of the Supreme Court of Nigeria in Mohammed Sanni Abacha v The State [2002] 11 NWLR (pt. 779) 437 or [2002] LPELR 16.
[28]	See, for example, The Queen on the Protection of JD Tomlinson v Comptroller-General of Patents Designs and Trade [1899] 1 QB 914; London County Council v The Attorney-General [1902] AC 165, 168-69; The Queen v Allen [1862] 121 ER 929; and Alfred Njau and Others v City Council of Nairobi [1982-1988] 1 KAR 229. 4. See, also, Akande, J. O. Introduction to the Constitution of Nigeria. [B]. Lagos: MIJ Professional Publishers Ltd., 2000, 321.
[29]	See, for example, the Interpretation Act Cap 123 LFN 2004, section 32 (1).
[30]	Note that the history of reception laws in Nigeria dates back to Ordinance No 3 of 1863 which introduced English Law into the Colony of Lagos.
[31]	[2002] FWLR (pt. 25) 1666, 1671.
[32]	[2002] 6 NWLR (pt. 763) 264.
[33]	[2013] 7 NWLR (pt. 1352) 1, 8.
[34]	See Garner, B. A. (ed). Black’s Law Dictionary [B]. St Paul: MN 8th edn, West Publishing Company, 2004, 1266.
[35]	accessed 27 May 2020.
[36]	Philips, P et al (eds). AS Hornsby’s Oxford Advanced Learner’s Dictionary-International Students Edition [B]. Oxford: 8th edn, Oxford University Press, 2010, 13, 45 500, 849, 1618, 1626 & 1631.
[37]	and accessed 27 May 2020.
[38]	accessed 20 April 2020.
[39]	Note that the position above is in tune with what obtains in other countries. See, for example, article 37 of the Constitution of India 1949.
[40]	See section 13 of the Constitution. See, also, the Constitution of India 1949, article 37.
[41]	See, for example, sections 174 (1) (b) and 211 (1) (b) of the Constitution as well as section 106 of the Administration of Criminal Justice Act 2015.
[42]	See Danladi, K. M. (2014), An Examination of Problems and Challenges of Protection and Promotion of Human Rights under European Convention and African Charter [J]. Port Harcourt Law Journal 6 (1): 83.
[43]	Abuza, A. E. (2017), Derogation from Fundamental Rights in Nigeria: A Contemporary Discourse [J]. East African Journal of Science and Technology 7 (1): 121-22. accessed 9 November 2020.
[44]	See African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 LFN 1990 (now Cap A9 LFN 2004).
[45]	[2000] 6 NWLR (pt 660) 228, 251.
[46]	For an incisive discourse on the ILori case and criticisms of the decision of the Supreme Court in the case, and Igwenyi, B. O. (2016), Jurisprudential Appraisal of Nolle Prosequi in Nigeria [J]. Global Journal of Politics and Law Research 4 (4): 10-19, accessed 9 November 2020. Note that Nigeria is not the only country practicing the common-law and constitutional democracy that still sticks to the position of the Attorney-General under the common-law, going by the decision of the courts above. This is, also, the position in Malaysia and Singapore. Both nations are, also, practicing the common-law and constitutional democracy. These States have, also, provided in their constitutions the power of the Attorney-General to enter a nolle prosequi in criminal proceedings. A relevant case to note is the Singaporean case of Tan Eng Hong v Attorney-General [2012] 4 SLR 476, quoted in Kok Yew, G. C. (2013), Prosecutorial Discretion and the Legal Limits in Singapore [J]. Singapore Academy of Law Journal 25: (1) 15-50, accessed 9 November 2020, where the Court of Appeal (per VK Rajah, JA) upheld the unquestionable or absolute constitutional powers of the Attorney-General of Singapore to institute, conduct and discontinue any proceedings for any offence.
[47]	Oni, O. Towards a Socialist Political System for Nigeria [B]. Ibadan: Progress Books Nigeria Ltd., 1996, quoted in Abuza, A. E. (2007), The Problem of Vandalization of Oil Pipelines and Installations in Nigeria: A Sociological Approach [J]. Delsu Law Review 2 (2): 276.
[48]	See Clark and Others v Attorney-General of Lagos State [1986] 1 QLRN 119.
[49]	Akanle, O. (1991), Pollution Control Regulation in Nigerian Oil Industry [M]. Published as Occasional Paper 16 by the Nigerian Institute of Advanced Legal Studies, Lagos, 14.
[50]	fg-files for nol…> accessed 20 April 2020.
[51]	accessed 21 August 2018.
[52]	It was in these circumstances, according to the social contract theorists, that men in the state of nature came together and contracted with one another to surrender their right to govern themselves to a group of persons in the society constituting the government for the purpose of ruling over or governing them, provided their fundamental rights, including rights to life and properties were protected. See Abuza, A. E. Environmental Law: Post-Rio Discussions on Environmental Protection-A Reflection, Nirmal B. C. and Singh, R. K. (eds). Contemporary Issues in International Law-Environment, International Trade, Information Technology and Legal Education [B]. Singapore: Springer Nature Pte Ltd., 2018, 94. DOI.org/10.1007/978-981-10-6277-3_6. See, also, https://www.britannica.com>topic, accessed 12 June 2020.
[53]	accessed 23 April 2020. It should be noted that more recently, that is on 18 August 2020, soldiers in Mali seized political power from President Ibrahim Boubacar Keita following protests spear-headed by the Rally of Patriotic forces known as the M5-RPF which had demanded that Keita should step down from power due to his mis-rule of Mali. accessed 12 September 12, 2020.
[54]	accessed 11 November 2011.
[55]	See, for example, section 1 (2) of the Constitution and article 23 of the ACDEG.
[56]	Note that section 14 (1) of the Constitution declares that Nigeria shall be a State based on democratic principles and social justice.
[57]	The Convention was adopted in Maputo, Mozambique on 11 July 2003.
[58]	See, for example, Rule 48 of the USA Federal Practice and Procedure Rules 1946, as amended in 2019, article 157 of the Constitution of Kenya 2010 and the Kenyan case of Republic v Muneh Wanjiku Ikigu [2016] KLR.case law>cases>view> accessed 27 April 2020.
[59]	Quoted by Abuza, A. E. Environmental Law: Post-Rio Discussions on Environmental Protection-A Reflection, Nirmal, B. C. and Singh, RK. (eds). Contemporary Issues in International Law-Environment, International Trade, Information Technology and Legal Education [B]. Singapore: Springer Nature Pte Ltd., 2018, 97. DOI.org/10.1007/978-981-10-6277-3_6. See, also, https://www.britannica.com>topic, accessed 12 June 2020.
[60]	accessed 9 February 2016.

Cite This Article

Plain Text BibTeX RIS

APA Style

Andrew Ejovwo Abuza. (2021). The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved. International Journal of Science and Qualitative Analysis, 7(2), 41-54. https://doi.org/10.11648/j.ijsqa.20210702.11

Copy | Download

ACS Style

Andrew Ejovwo Abuza. The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved. Int. J. Sci. Qual. Anal. 2021, 7(2), 41-54. doi: 10.11648/j.ijsqa.20210702.11

Copy | Download

AMA Style

Andrew Ejovwo Abuza. The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved. Int J Sci Qual Anal. 2021;7(2):41-54. doi: 10.11648/j.ijsqa.20210702.11

Copy | Download

@article{10.11648/j.ijsqa.20210702.11,
  author = {Andrew Ejovwo Abuza},
  title = {The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved},
  journal = {International Journal of Science and Qualitative Analysis},
  volume = {7},
  number = {2},
  pages = {41-54},
  doi = {10.11648/j.ijsqa.20210702.11},
  url = {https://doi.org/10.11648/j.ijsqa.20210702.11},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijsqa.20210702.11},
  abstract = {The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. Since the coming into effect of the Constitution above on 29 May 1999, some Attorneys-General in Nigeria have hidden under the Constitution above to free persons standing trial in court for serious criminal offences through the exercise of the constitutional power of nolle prosequi for their selfish interest or political considerations or selfish or vested interest of Nigerian leaders or other interest other than the interest of justice, contrary to section 174 (3) or section 211 (3) of the Constitution above. This article analyses the issues involved in the constitutional power above. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The article finds that the exercise of the constitutional power above for the selfish interest or political considerations of the Attorney-General is unconstitutional. The article concludes that the problem of some Attorneys-General in Nigeria entering nolle prosequi in criminal trials under the Constitution above for their selfish interest or political considerations and so on under the guise or subterfuge of entering nolle prosequi in the public interest and so on should be effectively addressed or tackled in Nigeria. The article recommends the subjection of the exercise of the constitutional power above to the permission of the court in line with the approach in other countries, including the United States of America (USA) and Kenya.},
 year = {2021}
}

Copy | Download

TY  - JOUR
T1  - The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved
AU  - Andrew Ejovwo Abuza
Y1  - 2021/07/09
PY  - 2021
N1  - https://doi.org/10.11648/j.ijsqa.20210702.11
DO  - 10.11648/j.ijsqa.20210702.11
T2  - International Journal of Science and Qualitative Analysis
JF  - International Journal of Science and Qualitative Analysis
JO  - International Journal of Science and Qualitative Analysis
SP  - 41
EP  - 54
PB  - Science Publishing Group
SN  - 2469-8164
UR  - https://doi.org/10.11648/j.ijsqa.20210702.11
AB  - The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. Since the coming into effect of the Constitution above on 29 May 1999, some Attorneys-General in Nigeria have hidden under the Constitution above to free persons standing trial in court for serious criminal offences through the exercise of the constitutional power of nolle prosequi for their selfish interest or political considerations or selfish or vested interest of Nigerian leaders or other interest other than the interest of justice, contrary to section 174 (3) or section 211 (3) of the Constitution above. This article analyses the issues involved in the constitutional power above. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The article finds that the exercise of the constitutional power above for the selfish interest or political considerations of the Attorney-General is unconstitutional. The article concludes that the problem of some Attorneys-General in Nigeria entering nolle prosequi in criminal trials under the Constitution above for their selfish interest or political considerations and so on under the guise or subterfuge of entering nolle prosequi in the public interest and so on should be effectively addressed or tackled in Nigeria. The article recommends the subjection of the exercise of the constitutional power above to the permission of the court in line with the approach in other countries, including the United States of America (USA) and Kenya.
VL  - 7
IS  - 2
ER  -

Copy | Download

Author Information

Andrew Ejovwo Abuza

Department of Private Law, Faculty of Law, Delta State University, Oleh Campus, Oleh, Nigeria

Download PDF

Sections

Plain Text BibTeX RIS

APA Style

Andrew Ejovwo Abuza. (2021). The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved. International Journal of Science and Qualitative Analysis, 7(2), 41-54. https://doi.org/10.11648/j.ijsqa.20210702.11

Copy | Download

ACS Style

Andrew Ejovwo Abuza. The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved. Int. J. Sci. Qual. Anal. 2021, 7(2), 41-54. doi: 10.11648/j.ijsqa.20210702.11

Copy | Download

AMA Style

Andrew Ejovwo Abuza. The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved. Int J Sci Qual Anal. 2021;7(2):41-54. doi: 10.11648/j.ijsqa.20210702.11

Copy | Download

@article{10.11648/j.ijsqa.20210702.11,
  author = {Andrew Ejovwo Abuza},
  title = {The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved},
  journal = {International Journal of Science and Qualitative Analysis},
  volume = {7},
  number = {2},
  pages = {41-54},
  doi = {10.11648/j.ijsqa.20210702.11},
  url = {https://doi.org/10.11648/j.ijsqa.20210702.11},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijsqa.20210702.11},
  abstract = {The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. Since the coming into effect of the Constitution above on 29 May 1999, some Attorneys-General in Nigeria have hidden under the Constitution above to free persons standing trial in court for serious criminal offences through the exercise of the constitutional power of nolle prosequi for their selfish interest or political considerations or selfish or vested interest of Nigerian leaders or other interest other than the interest of justice, contrary to section 174 (3) or section 211 (3) of the Constitution above. This article analyses the issues involved in the constitutional power above. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The article finds that the exercise of the constitutional power above for the selfish interest or political considerations of the Attorney-General is unconstitutional. The article concludes that the problem of some Attorneys-General in Nigeria entering nolle prosequi in criminal trials under the Constitution above for their selfish interest or political considerations and so on under the guise or subterfuge of entering nolle prosequi in the public interest and so on should be effectively addressed or tackled in Nigeria. The article recommends the subjection of the exercise of the constitutional power above to the permission of the court in line with the approach in other countries, including the United States of America (USA) and Kenya.},
 year = {2021}
}

Copy | Download

TY  - JOUR
T1  - The Power of the Attorney-General to Enter a nolle prosequi Under the 1999 Constitution of Nigeria: An Analysis of the Issues Involved
AU  - Andrew Ejovwo Abuza
Y1  - 2021/07/09
PY  - 2021
N1  - https://doi.org/10.11648/j.ijsqa.20210702.11
DO  - 10.11648/j.ijsqa.20210702.11
T2  - International Journal of Science and Qualitative Analysis
JF  - International Journal of Science and Qualitative Analysis
JO  - International Journal of Science and Qualitative Analysis
SP  - 41
EP  - 54
PB  - Science Publishing Group
SN  - 2469-8164
UR  - https://doi.org/10.11648/j.ijsqa.20210702.11
AB  - The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. Since the coming into effect of the Constitution above on 29 May 1999, some Attorneys-General in Nigeria have hidden under the Constitution above to free persons standing trial in court for serious criminal offences through the exercise of the constitutional power of nolle prosequi for their selfish interest or political considerations or selfish or vested interest of Nigerian leaders or other interest other than the interest of justice, contrary to section 174 (3) or section 211 (3) of the Constitution above. This article analyses the issues involved in the constitutional power above. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The article finds that the exercise of the constitutional power above for the selfish interest or political considerations of the Attorney-General is unconstitutional. The article concludes that the problem of some Attorneys-General in Nigeria entering nolle prosequi in criminal trials under the Constitution above for their selfish interest or political considerations and so on under the guise or subterfuge of entering nolle prosequi in the public interest and so on should be effectively addressed or tackled in Nigeria. The article recommends the subjection of the exercise of the constitutional power above to the permission of the court in line with the approach in other countries, including the United States of America (USA) and Kenya.
VL  - 7
IS  - 2
ER  -

Copy | Download