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

Justice Bwala

Nolle prosequi a Latin phrase when translated into English means unwilling or unable to proceed or prosecute. At Common Law the power to prosecute all criminal cases other than Court Martial is vested in the Attorney-General.

This is because only an Attorney-General has the power to issue criminal information. Thus, private prosecution requires the consent of an Attorney-General.

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Police prosecutions under S.33 of the Police Act in courts of any grade are done on behalf of the Attorney-General and the Attorney General (A.G.) can enter nolle prosequi at any stage of the prosecution.

An Attorney- General is therefore domino litis as regards prosecution of all criminal matters before any court other than a Court Martial. An AG can delegate his powers to prosecute criminal matters to law officers in his ministry or to any private legal practitioner of his choice. An AG can also take over any criminal case before any court other than Court Martial and continue or discontinue the prosecution.

An A.G. can enter nolle prosequi and offer no reason. The power the power to initiate a case should carry a power to terminate it London County Council vs A.G. 1902 A.C. 165. The power to enter nolle prosequi by an Attorney-General exists at Common Law and the constitution. Under the 1999 Constitution S.174 reads:

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 court-martial, in respect of any offence created by or under any Act of the National Assembly;

(b) 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.

(2) In exercising his powers under this section, the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

The power to enter nolle prosequi by a State Attorney-General is in S.211 of the Constitution.  An A. G. exercises the powers of entering a nolle prosequi in person or through law officers of his department. These officers range from a Solicitor-General to any state counsel in the Ministry of Justice Saka Ibrahim vs The State 1986 2 S.C. 91 at 120 as follows:

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Under section 191 (2) of the 1979 Constitution, the Attorney- General can exercise all or any of the powers vested in him by section 191 (1) personally or “through officers of his department.” These officers range from a Solicitor-General, Director of Public Prosecutions and all grades of State Counsel in the ministry of justice – a ministry under the Attorney-General as Minister of Justice.

The power to enter nolle prosequi is conferred upon an Attorney-General alone to the exclusion of any other officer is old dating back centuries The State vs Ilori 1983 1 SCNLR 94 at 107 as follows: And so since from about the mid sixteenth century, the power to enter nolle prosequi in a criminal case has been recognized as an undoubted power vested only in the Attorney-General.

It is a prerogative power which is entrusted to an A. G. as a responsibility The State vs Ilori supra held as follows: It is a power which is recognised as a … at the prerogative entrusted to the Attorney-General’s responsibility.

An AG can delegate all or limited powers vested in him and no authority can question it Director of Public Prosecutions vs Idowu 1981 2 NCR 355 at 360. Any person other than an AG in exercising the power to enter nolle prosequi must be acting on a general or specific powers of an AG The State vs Chukwurah 1964 NMLR 64 at 65.

Before there could be delegation of power by an AG there must be an incumbent AG., that is a person occupying the seat of an AG where this is not, there cannot be a person exercising the power to enter nolle prosequi AG. Kaduna vs Hassan 1985 2 NWLR (Pt 8) 483 at 486 as follows:

Under Section 191 of the 1999 Constitution, the exercise of the power of the Attorney-General is personal to him and cannot be exercised by any other functionary when the powers have not been delegated by him the Attorney-General. Before such delegation can take place, there must be an incumbent Attorney- General in office who can be donor of the power.

An AG can enter a nolle prosequi in respect of a criminal case whether the State is a party or not- The State vs Ilori supra as follows: These powers of the Attorney-General are not confined to case 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.

The power to enter nolle prosequi grew out of Common Law and is not subject to review by any court of law. The State vs Ilori supra held as follows: This is a power vested in the Attorney-General by Common Law and is not subject of review by any court of law.

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There is a presumption in law that a state counsel has an authority to act under S. 185 Criminal Procedure Code Alfa vs The State 1981 2 NCR 202. A court has no duty to know whether or not an A.G.  has delegated his powers upon a D.P.P- The State vs Ogunjobi 1981 2 NCL 348. A prosecution undertaken by DPP ranks equal to a prosecution done by an A.G. and requires no further consent AG; West vs African Press Ltd 1965 NMLR 158 at 161.

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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