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Power to enter nolle prosequi not subject to review by court — Justice Bwala

Justice Bwala

By Justice Bwala

The exercise of the power to enter nolle prosequi by an A.G. is subjective and not objective; The State vs Ilori supra as follows: “The test to be adopted under sub-section (3) of section 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 the exercise of his discretion according to his own judgment.”

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Thus, the power of an A.G. to enter nolle prosequi is so impregnable that even if he acted mala fide cannot be checked by a court of law— Saka Ibrahim vs The State 1986 2 S.C. 94 at 121 held as follows: “The Attorney-General’s position with regard to the exercise of his powers under sub-section (1) was impregnable whether these powers were exercise bona fide or mala fide the person aggrieved cannot sue for redress in another and appropriate proceedings.

The AG has pre-eminent power to enter nolle prosqui in all criminal cases before a court other than Court Martial and it cannot be questioned or challenged Custom vs Chima 1981 2 NCR 186 at 391 held as follows: “In spite of all this, the Attorney-General has pre-eminence power to enter a nolle prosequi in criminal cases. His rights to do so cannot be questioned by any court.”

The absolute discretion of an AG to enter nolle prosequi is so unchallengeable and impregnable that it cannot be challenged in a separate or subsequent proceedings-The State vs Ilori supra held as follows:

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.

The solution to a person who suffers at the exercise of nolle prosequi does not lie in courts A. G. Ogun vs Dr. Egenti 1986 3 NWLR (Pt 28) 265 held as follows: “…a person who suffered from the unjust exercise of his powers by an unscrupulous Attorney-General …. But certainty, his remedy is not to ask the court to question or review the exercise of the powers of the Attorney-General.

The subjective test in the exercise of the power to enter nolle prosequi under the constitution is what obtains under the Common Law Saka Ibrahim vs The State supra.

The initiation and determination of the exercise of entering nolle prosequi by an AG is beyond the jurisdiction of a court London County vs The AG  1902 A.C. 165 held as follows: “There are functions of the court, but the initiation of the litigation, and determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court.”

The A. G. is the door to entering nolle prosequi Saka Ibrahim vs The State supra  where it was held as follows: “A close study of the wording of that section will imply that the Attorney-General is the door,” that is, the A. G. has absolute discretion to enter nolle prosequi.

An A. G. cannot enter nolle prosequi before an indictment is filed against an accused person by a prosecutor Exparte Downes 1953 2 All E.L.R 750 at 751 where it was held as follows: “A nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found.”

Compare the above the decision with the contrary decision held in Sudan Govt vs Zahra Omer 1965 S.L.J.R 31. Entering of nolle prosequi by an AG is a quasi judicial function.  Layiwola vs The Queen 1959 NSCC 95 at 96 held as follows: “It is entirely a matter for this officers quasi judicial discretion and in our view, in order to secure the proper administration of justice…”

Where two or more persons are charged with criminal offence an AG can enter nolle prosequi in respect of all or some of the accused persons. R vs Teal 1809 11 East 307. The power to enter nolle prosequi is personal to an AG. Ishmael Amaefule vs The State 1988 4 S.C. 33 where it was held as follows: On a more general note it was decided that the power of the Attorney-General under section 191 of the Constitution are personal to him.

An AG has wide and unfettered discretion to enter nolle prosequi Ishmael Amafula vs The State supra. A nolle prosequi can be entered where a charge is filed in a court up to any stage before a judgment is delivered.  The State vs Ilori supra held as follows:

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.

There is no specific procedure provided for in the Constitution, the CPA or CPC for initiating or entering nolle prosequi. One must therefore resort to decisions of superior courts to know the procedure for initiating nolle prosequi. In The State vs Chukwurah 1964 NMLR 64 at 65 held as follows: “ Even where another law officer acts on behalf of the Attorney-General under section 73 of the Criminal Procedure Act Cap 43 – such officer can enter nolle prosequi when he does so in writing for it is only an Attorney-General if he appears in court that can do so orally.”

It is therefore clear a nolle prosequi can be entered in writing by an AG or he can write it and give it to a counsel in his department to deliver it to the court. In Custom vs Chima 1981 2 NCR 186 at 192 held as follows: “A nolle prosequi is usually done in writing. No such writing was submitted to me by the prosecution.”

A nolle prosequi can be entered orally when an AG appears in court in person and announces that he has entered nolle prosequi orally.

The trial court then records the exact words of the AG in the minute book.  The State vs Chukwurah supra held as follows: “Such officer can enter a nolle prosequi when he does so writing for it is only Attorney-General if he appears in court that can do so orally.”

It appears from the decision in The State vs Chukwurah supra that an AG cannot delegate a counsel in his ministry to announce to the court that he was directed by the AG to enter orally nolle prosequi on the AG’s behalf.

Courts do not have the power to entertain issue of nolle prosequi. However a contrary opinion was held in Egaji Ujah vs The A.G. Benue 1981 BNSLR 92 at 93 as follows:

“I am therefore of the view that if the Attorney-General abuses the discretion of section 191 (3) either by himself or through any officers of his, the court can declare the act as ineffective. Any interpretation otherwise is to render the provision as a toothless bull dog, an orphan close of the justiciable part of the Constitution on mere exhortations.

The decision in Sudan vs Adam Umar 1965 S.L.J.R 3 held the same opinion though it is a foreign decision which is only of persuasive authority. In The State vs Adakoke Akor 1981 2 NCLR 410 at 417 held as follows: All that the court will be doing is that the Attorney-General must properly exercise his power of nolle prosequi. In other words, where there is an improper exercise of the power of nolle prosequi, it means that no nolle prosequi has in fact been entered or that there is a failure to exercise the power.”

The decision in The State vs Adakoke Agor supra was set aside and reported on page 710 of the same volume. When a person who has no power to enter nolle prosequi enters it is null and void AG Kaduna vs Hassan 1985 2 NWLR (Pt 8) 487 held as follows: “The Solicitor General therefore has no power to discontinue criminal proceedings on behalf of the Attorney-General.

Power to enter nolle prosequi not subject to review by court — Justice Bwala(Opens in a new browser tab)

Any such discontinuance by the Solicitor General is unconstitutional, ultra vires, null and void.”

Prima facie a nolle prosequi entered by an AG is deemed proper and valid on its face value. The State vs Ilori 1983 1 SCNLR 94 at 116 held as follows: “Prima facie, as I have already stated a court on its face value, as terminating the proceedings in respect of which it is filed, must treat a nolle prosequi from an Attorney-General.”

The act of entering nolle prosequi is that of a prosecutor and not that of a court-The State vs Adakole Akor supra. Entering nolle prosequi has the effect of a stay of the proceedings and not quashing it. The State vs Ilori supra held as follows: “It is to be appreciated that a nolle prosequi is only a temporary proceeding, which has the effect only of a stay and not a quashing of the indictment.”

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