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Attorney-general of Kaduna State v. Mallam Umaru Hassan (1985) – SC

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➥ CASE SUMMARY OF:
Attorney-general of Kaduna State v. Mallam Umaru Hassan (1985) – SC

by PipAr Chima

➥ COURT:
Supreme Court – SC.149/1984

➥ JUDGEMENT DELIVERED ON:
Friday, the 12th day of July, 1985

➥ AREA(S) OF LAW
Power of solicitor-general to discontinue a criminal proceedings.
Locus standi of father over son’s death.

➥ NOTABLE DICTA
⦿ THE COURT MAY MAKE CONSEQUENTIAL RELIEF WHETHER SOUGHT OR NOT
It is still trite that ‘no action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed.’ Order 15 R. 16 (English Rules of the Supreme Court, 1979). See- GUARANTY TRUST CO. OF NEW YORK v. HANNAY (1915) 2 KB. 536. – A.G. Irikefe JSC.

⦿ HISTORY OF THE OFFICE OF THE ATTORNEY GENERAL IN NIGERIA
With the inception of PAX-BRATANICA, in this country towards the end of the last century, there was always a Legal Department with the Attorney-General as its head. This Attorney-General was stricto-sensu a civil servant and pari of the executive arm of the British Colonial Administration. In the Attorney-General’s Department or Legal Department were serving legal officers designated as CROWN COUNSEL. With the introduction of the 1960 Constitution which brought into being the concept of ministerial or cabinet form of government with the Prime Minister as the head of a Cabinet of Ministers, the Attorney-General continued to be a civil servant, while a new cabinet post of Minister for Justice was created. The Constitution of 1963 made the office of Attorney-General unmistakably political either at the centre or in any of the three regions of Nigeria at that time. The various constitutions provided that the Attorney-General shall be a member either of the House of Parliament or Senate or of a Legislative House of a region. The constitution of 1960 made provisions for the office of a DIRECTOR OF PUBLIC PROSECUTIONS who was not under the MINISTER OF JUSTICE. This state of affairs subsisted until the coming into force of the 1963 Constitution which placed the Director of Public Prosecutions under the Attorney-General and Minister for Justice. Thus we had under the 1963 Constitution, an Attorney-General who was a politician with the portfolio of Justice and thus the head of that Ministry. Under him was the Solicitor-General and Permanent Secretary of that Ministry and the Director of Public Prosecutions both of whom were civil servants. With the advent of the military administration of 1966, Decree No. 55 of that year effected a restructuring of the status of the Attorney-General as follows:- ‘(1) The Head of the National Military Government may, if he thinks fit, appoint a person to be Attorney-General of the Republic. (1a) The functions of the Attorney-General of the Republic shall include the exercise, subject to the authority of the Executive Council, of general direction and control over the National Ministry of Justice, (1b) Whenever and so long as no person holds the office of Attorney-General of the Republic, any function which is conferred by this Constitution or any other law upon the Attorney-General of the Republic shall vest in the Solicitor-General of the Republic and may be performed by him notwithstanding anything in sub-section (4) of this section.’ Identically worded modification were inserted in the Constitutions of the Regions and later of the States. All these provisions operated within the framework of the 1963 Constitution modelled after the West minister Cabinet form of government as amended by the various decrees of the intervening military administrations up to 30th September, 1979. On the coming into force of the Presidential form of civilian administration on 1st October, 1979, a new office of Attorney-General was created for the Federation who was also a minister in the government. Section 138 of the Constitution makes provision for this. Similarly section 176 makes provisions for the appointment of an Attorney-General for a State, who shall be a Commissioner of the government of that State. – A.G. Irikefe JSC.

Available:  Witt & Busch Limited v Dale Power Systems Plc (2007) - SC

⦿ CONSTITUTIONAL DOCUMENTS & STATUTES ARE TO BE GIVEN THEIR ORDINARY MEANING
I think it is trite that in construing a constitutional document there is the need to look at its provisions as a whole and where possible, give such provisions their ordinary and natural meaning. See BANK OF ENGLAND v. VAGLIANO BROS. (1891) AC. 107 at 144 where Lord Herschell put the position thus:- “I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.” – A.G. Irikefe JSC.

⦿ CONSTITUTIONAL PROVISIONS ARE TO BE READ AS A WHOLE TO DISCOVER THEIR OBJECTS
The provisions in the 1979 Constitution are thus unique in the sense that they are intended to deal with the peculiar circumstances of Nigeria. A foray into the Constitutions of other nations, useful, though it may be, cannot be of much assistance. It is therefore of paramount importance when construing the Constitution, that one should look closely at the provisions themselves, in order to discover their object. This approach cannot be dogmatic and I seem to be in agreement with the versatile approach advocated by UDOMA, J.S.C. when in RABIU v. THE STATE (1980) 8/11 SC. 130 he had this to say:- “Where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the content or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.” – A.G. Irikefe JSC.

⦿ CONFLICTING DECISIONS OF TWO COORDINATE COURTS ARE PERSUASIVE
Since the conflicting decisions of the two courts of co-ordinate jurisdiction are persuasive only and not binding, the High Courts of the Northern States are at liberty to follow either until the matter is settled by the Court of Appeal or this Court. – M. Bello, JSC.

⦿ 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.

Available:  M. O. Eperokun & Ors. v. University of Lagos (1986)

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

➥ LEAD JUDGEMENT DELIVERED BY:
A.G. Irikefe, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Mrs. Donli, AG Kaduna State.

⦿ FOR THE RESPONDENT
Mr. Akinyili.

➥ CASE HISTORY
Following upon an outbreak of communal violence at JIKAMSHI VILLAGE, in the KANKIA LOCAL GOVERNMENT AREA OF KADUNA STATE, one ABDUL RASHID UMARU lost his life, and arising therefrom, certain villagers were arrested and charged with the culpable homicide not punishable by death of the said ABDUL RASHID UMARU.

After a preliminary hearing at the Magistrate’s Court, some of those arrested were committed for trial at the High Court.

After arraignment at the High Court and the recording of pleas, the Solicitor-General of Kaduna State, MR. J. B. MAIGIDA who was leading the prosecution on behalf of the State, entered a note prosequi in respect of the charges, stating that he did so, in reliance upon Section 130(1) C.P.C. and Section 191(2)(c) of the Constitution of Nigeria, 1979.

Thereupon, the learned trial Judge, AROYEWUN, J. struck out the charges, resulting in the discharge of the accused persons. The respondent to this appeal Mallam Umaru Hassan, the father of the deceased ABDUL RASHID UMARU, being aggrieved by the action of the Solicitor-General, initiated the instant proceedings by means of an originating summons seeking a declaration on the incompetence of the Solicitor-General to terminate the criminal proceedings as he had done.

The learned trial judge, Chigbue, J., ruled that Mallam Hassan had locus standi to initiate the proceedings and went further to rule that the action which the Solicitor-General purportedly took under Section 191 of the Constitution of the Federal Republic of Nigeria, 1979, was ‘incompetent, unconstitutional, unlawful, null and void and of no effect whatsoever.’ The Court of Appeal upheld this ruling.

Available:  Shinning Star Nig. Ltd. & Anor. v. AKS Steel Nigeria Ltd. & Ors. (2011) - SC. 101/2010

This is a further appeal.

➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED WITH N300 COST FAVOURING THE RESPONDENT]

I. Whether the Respondent has locus standi to institute the action questioning the power of the solicitor-general ?

RULING: IN RESPONDENT’S FAVOUR.
A. If as the record shows, the respondent’s son was killed in circumstances warranting the commencement of a criminal prosecution against those alleged to have been involved in the killing, he (the respondent) would be entitled to hold as an infringement of his civil rights the arbitrary termination of the said criminal prosecution by someone such as the Solicitor-General in this case, who is alleged to be incompetent to do so. He would, in my view, be able to go to court by way of an originating summons seeking a declaration that what the Solicitor-General did in withdrawing the charges was beyond his competence. Vide SENATOR ADESANYA v. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOR. (1981) 2 NCLR. 358; OLAWOYIN v. A.G. N.R (1961) ALL NLR. 270; GAMIOBA AND ORS. v. ESEZI AND ORS. (1961) ALL NLR. 586; GOURIET v. UNION OF POST OFFICE WORKERS (1977) 3 ALL E.L.R. 70; R. v. GREATER LONDON COUNCIL, Ex Parte BLACKBURN AND ANOR. (1976) 1 WLR. 550.
.
.
II. Whether the solicitor-general can terminate a criminal trial via a nolle prosequi?

RULING:
A. I am in no doubt that the powers entrusted to the ATTORNEY-GENERAL by the express provisions of Section 191 of the 1979 Constitution must be an incumbent in the office to act as donor and an appropriate officer in his department or ministry who can be a donee of the power. If the powers can be exercised without being donated, then the officers in the ATTORNEY-GENERAL’S Department would have access to the powers on the footing of equality with him and the draftsman could easily have inserted ‘and’ instead of ‘or’ between person and through. This would surely be a recipe for chaos and would make nonsense of the ensuing provision under Section 191(3). With all the foregoing in mind, I have no doubt that the learned judge of the Kaduna High Court was right in saying that the Solicitor-General was incompetent to terminate the proceedings in the criminal prosecution.

B. I also hold that the powers conferred on the Attorney-General by the provisions of section 191 of the Constitution can only be exercised by the Attorney-General in person or by any officer in his department to whom the Attorney-General has expressly delegated the powers. In the absence of express delegation to him by the Attorney-General, the Solicitor-General or any other officer in the department has no constitutional right to exercise the powers under the said section.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 275(2), 213(5), 191, 176, 6(6)(b) 1979 Nigerian Constitution.

➥ REFERENCED (CASE)
⦿ VOID vs VOIDABLE
Denning, L.J. (as he then was) observed in Wiseman v Wiseman (1953-56) Probate Div. 79 at p.91:- “The distinction between a transaction which is void and one that is only voidable, as I understand it is this if a transaction is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order to set it aside. It is automatically null and void without more ado although it is sometimes convenient to have the court declare it to be so.”

➥ REFERENCED (OTHERS)

End

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