Compulaw - 1st Indigenous Digital Law Library

Brief

Nolle prosequi - - -
A.G’s discretion to prosecute
Interpretation of statutes
Remedies against AG’s abuse of power

Facts

On appeal, the Federal Court of Appeal, hereinafter referred to as the Court of Appeal, in a lead judgment, delivered by Uthman Mohammed, J.C.A. to which Coker and Nnaemeka-Agu. JJ.C.A. concurred, allowed the appeal and quashed the information.

It was 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 and conspiracy to injure the appellant in his "trade or profession by maliciously procurring the seizure and detention of the properties of his clients contrary t s.518(4) of the Criminal Code. The Attorney-General of Lagos State, by a letter dated 9th January 1980, declined to accede to the request of the appellant.

The Attorney-General of Lagos State, by a letter dated 9th January 1980, declined to accede to the request of the appellant.

The appellant thereupon decided to initiate a private prosecution against the respondents. The first respondent was the Director of Public Prosecutions at the material time while the second and third respondents were the police officers who investigated the case that was brought against the appellant. The appellant filed his papers for this private prosecution on 11th April, 1980. The papers contained among others, the information and the proof of evidence which he intended to rely upon for the prosecution of the respondents. He also paid the necessary deposit in compliance with the law.

Now, on 9th June, 1980 following the action of the appellant, as aforesaid, the attorney-General of Lagos Stale filed a nolle prosequi in the action.

Though the criminal information was listed for hearing in the High Court of Lagos State before Oladipo Williams, J. on 10th June 1980, on that day, the learned judge only took arguments on the propriety of the nolle prosequi which was filed the case by the Attorney-General. And after Mr. Adefioye, the learned counsel presenting the Attorney-General, the appellant and the first respondent had severally made various submissions on this issue to the court, the court decided to rise for the purpose of writing the ruling in the case.

This ruling was given by the learned judge on the same day. He upheld the sub-missions of Mr. Adefioye and the 1st respondent on the notice of nolle prosequi filed by the Attorney-General and discharged the respondents.

The appellant who was dissatisfied with this ruling appealed to the Court of Ap-peal on the ground that the trial court should have taken evidence and examined his allegations, against the Attorney-General, of malice and extraneous consider-ation, in pursuance of the provisions of s.191 (3) of the Constitution of the Federal Republic of Nigeria 1979

In their judgment, delivered by Kazeem, J.C.A. the Court of Appeal held that by virtue of sub-section (3) of s.191 of the 1979 Constitution, the position in Nigeria is now different from the position at common law and also under the provision of the Constitution of the Federal Republic 1963 No.20, which is hereinafter referred to as the 1963 Constitution; Kazeem, J.C.A. said: "It was decided in R. vs. Comptroller-General of Patents (1899) 1 Q.B. 909 40 at page 914 that in England when the Attorney-General is exercising his functions as an officer of the Crown such functions were not subject to review by the Court of Queen’s Bench Division or any other court. But in this country the powers of the Attorney-General are provided for under sec. 191 of the 1979 Constitution as follows:-

1
The Attorney-General of a State shall have power -

a
a. 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;
b
to take over and continue any such criminal proceedings that may have been instituted by any other authority or persons; and
c
to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
2
The powers conferred upon the Attorney-General under sub-section (1) of this section may be exercised by him in person or through officers of his department.
3
In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process."

Unlike section 104(2) of the 1963 Constitution, sub- section (3) hereof now specifically provides for the additional safeguards which the Attorney-General should show regard for when exercising his powers under sub-section (2). These are the public interest, the interest of justice and the need to prevent abuse of legal process. Hence whenever an aggrieved person complains of an infraction of his fundamental right and that the Attorney-General has failed to have regard for those safeguards in exercising his powers, and he can successfully prove it, l am of the opinion that the courts in this country in exercise of their wide powers under section 6(6)(b) of the 1979 Constitution can inquire into such complaint and grant appropriate remedies."

Issues

The main issue raised for determination is one of locus standi. Have the...

State V. Ilori (1983) CLR 2(a) (SC)

Judgement delivered on February 25th 1983

Brief

Facts

Issues