➥ CASE SUMMARY OF:
The State v. S.O. Ilori & Ors. (1983) – SC
by PipAr Chima
Supreme Court – S.C. 42/1982
➥ JUDGEMENT DELIVERED ON:
Friday, the 25th day of February 1983
➥ AREA(S) OF LAW
Power of Attorney General to enter a nolle prosequi;
➥ NOTABLE DICTA
➥ LEAD JUDGEMENT DELIVERED BY:
Kayode Eso, J.S.C
⦿ FOR THE APPELLANT
– Mr. Egbe.
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
On the 26th of October, 1978, an information was filed in the Lagos High Court by the Director of Public Prosecutions of Lagos State to prosecute Fred Egbe, who is the appellant in the present appeal to this Court, and who would hereinafter in this judgment be referred to as the appellant. The information was for the offence of inducing delivery of money by false pretences and also for stealing.
The appellant, by a motion dated 21st November, 1978, brought an application for an order to quash the indictment but his application was dismissed by the court.
On appeal, the Federal Court of Appeal, hereinafter referred to as the Court of Appeal, in a lead judgment, delivered by Uthman Mohammed JCA, to which Coker and Nnaemeka-Agu JJCA concurred, allowed the appeal and quashed the information.
In consequence of this decision of the Court of Appeal that the appellant wrote a letter to the Attorney-General of Lagos State on 8th May, 1979, wherein he requested for the prosecution of the respondents for the offences of conspiracy to bring false accusations against the appellant, contrary to s.125 of the Criminal Code (Cap. 31) Laws of Lagos State.
The Attorney General refused citing public policy as a reason. Fred Egbe then instituted a private criminal prosecution against the Respondent’s at the High Court. Nonetheless, the Attorney General of Lagos State entered a nolle prosequi for discontinuance of the prosecution, and succeeded.
➥ ISSUE(S) & RESOLUTION
I. Whether the Attorney General can discontinue a Criminal proceeding, even for no reason?
RULING: THE COURT HELD AN ATTORNEY GENERAL CAN DISCONTINUE A CRIMINAL PROCEEDINGS VIA A NOLLE PROSEQUI.
A. 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 specially in all court proceedings to which the State is a party, has long been recognised 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. These powers of the Attorney-General are not confined to cases 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. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.
B. All these cases have shown that both in England and in this country before the 1979 Constitution, what guided the Attorney-General in the exercise of his discretion, whether in the institution or in the discontinuance of a case were public interest, interests of justice and the need to prevent abuse of legal process. When sub-section (3) of section 191 prescribes what the Attorney-General “shall have regard to”, therefore, in the exercise of his powers under s.191 of the 1979 Constitution, what had obtained at common law and under the Constitutions which preceded the 1979 Constitutions. It is merely a restatement of the common law in the 1979 Constitution. In other words, under the provision of sub-section (1) of section 191 of the 1979 Constitution, the Attorney-General, as in the period before the 1979 Constitution, still has an unquestioned discretion in the exercise of his powers to institute or discontinue criminal proceedings. His common law pre-eminent and incontestable position in this regard is still preserved by that provision and notwithstanding sub-section (3) thereof, which is a restatement of the law up to 1979, he is still not subject to any control, in so far as the exercise of his powers under $.191 of the Constitution is concerned, and, except for public opinion, and the reaction of his appointor, he is still, in so far as the exercise of those powers are concerned, law unto himself. To my mind therefore, sub-section (3) of 191 of the 1979 Constitution has in no way altered the pre-1979 constitutional position of the Attorney-General.
C. The appellant has strenuously harped on the possibility of abuse of his powers by an Attorney-General who is left with this absolute discretion. I have already pointed out earlier, that the sanction lies in the reaction of his appointor and also in public opinion. But more importantly is the fact that a person who has suffered from the unjust exercise of his powers by an unscrupulous Attorney-General is not without remedy; for he can invoke other proceedings against the Attorney-General. But certainly, his remedy is not to ask the court to question or review the exercise of the powers of the Attorney-General. In any event, whatever may be this remedy, it is certainly not to form part of the proceedings in the case where the Attorney-General has exercised his powers to institute, take over and continue or discontinue criminal proceedings. It has to be the subject matter of another proceedings.
D. In the instant case, the Attorney-General of Lagos State has entered a nolle prosequi in the matter of a private prosecution which the appellant has taken against the respondents. Whatever may be the criticisms against the Attorney-General, in so far as those criminal prosecutions are concerned, that is the end of the matter.
The appeal therefore fails and it is hereby dismissed. The decision of the High Court Lagos (Oladipo Williams J.) dated 10th June, 1980 discharging the respondents after the Attorney-General Lagos State had entered a nolle prosequi in the matter is affirmed. The decision of the Court of Appeal, dismissing the appeal of the appellant, is also hereby affirmed, though for different reasons.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 191 of 1979 Constitution.
➥ REFERENCED (CASE)
⦿ 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)”
⦿ 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.
➥ REFERENCED (OTHERS)