“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 the legal adviser or specially in all court proceedings in which the state is a party, has long been recognised by the courts.
With 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, and under no control whatsoever, judicial or otherwise vis a vis his powers of institution and or discontinuing criminal proceedings.
These powers of the Attorney-General are not confined to cases where the State is a party. In 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 no doubt a greater ministerial prerogative coupled with greater responsibilities.” – Kayode Eso JSC
The Latin phrase Nolle Prosequi which means “I do not want to prosecute or I do not want to continue to prosecute” is used in the temporary or total termination of criminal or civil cases before judgment in most of the countries that are within Common law jurisdictions.
This concept or practice which has its prominence now in the trial of criminal matters is the basis of the power of the Attorney-General to terminate criminal cases before judgment in Nigeria.
This position of law received its strongest endorsement in the much quoted case of State v. Ilori where the Supreme Court amongst other ratios held that the Attorney-General can enter Nolle as many times as he wishes over a matter and that this decision cannot be questioned by the court or any other person.
This paper has a limited scope as it examines the instances of abuse of Nolle Prosequi and calls for judicial review of the Supreme Court decision on the said power in State v. Ilori.
- Nolle Prosequi, Abuse in Nigeria
Generally, none of the powers of the Attorney-General has raised more dust than the power to discontinue legal proceedings. The Constitution under Sections 174 and 211 provides that;
“(1) The Attorney-General of the Federation shall have power…
(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 of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department
(3) In the exercise of his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of the legal process.”
In view of the nature of the power of Nolle Prosequi, which is absolute, unchecked and not subject to judicial review, there exist possibilities of abuse of this power.
This is the crux of this paper, and instance will be drawn to the case of a former Attorney General of the Federation, Michael Aondoakaa SAN, who used the power of Nolle Prosequi to terminate several criminal proceedings bothering on corruption.
However, one of the bizarre abuses of this power was witnessed in the recent case of EFCC v. Danjuma Goje, where the defendant was standing trial on a 21 count charge of corruption and abuse of office filed by the Economic and Financial Crime Commission (EFCC).
While facing trial, he was also a senator representing Gombe Central. He threw his hat into the ring to contest the Senate presidency position in 2019 against Ahmed Lawan the presumed favoured candidate.
In a dramatic twist, Senator Goje dropped out of the race and supported Ahmed Lawan, just a few days later the office of the Attorney General took over the prosecution of Senator Goje’s case and subsequently discontinued the case against him under circumstances suspected to be a bargain for dropping out of the race. He was subsequently discharged.
At the time the office of the Attorney General of Federation entered this Nolle, there was no incumbent Attorney General as the president was yet to re-constitute his cabinet.
The Court could not question the exercise of powers in the absence of an incumbent Attorney General in view of the principle in Ilori’s case.
The exercise of this power in the aforementioned circumstance also violated the principles enunciated by the Supreme Court in Attorney General of Kaduna state v. Hassan which decided that there must be an incumbent Attorney General to donate the power to enter Nolle before same can be valid.
The issue for determination is, whether the nolle served in the above case was in the interest of justice as the Constitution stated.
The Attorney General is also enjoined to prevent an abuse of legal process, but the notice to the court for nolle was an abuse of court process in the absence of an incumbent Attorney General of the federation.
Such abuse is recorded as one of the most profound abuses of the power of nolle under Section. 174(3) of the Constitution as it exposes the weakness in the current position of law giving credence to the call for judicial review of the Ilori’s case.
In obvious unmistaken terms, the Constitution used the word ‘shall’ which is a mandatory command that the Attorney General in carrying out this power have regard for justice amongst other things.
In the light of the foregoing, it is not issue of Constitutional amendment because the section interpreted in Ilori’s case is too clear to have the meaning foist on it by the Supreme Court and as such, it is therefore important to pray the apex Court to overrule its earlier position in Ilori’s case and provide for judicial review of the power of Nolle because such power, if it remains unchecked will lead to increase in abuse as it will be left to the whims and caprices of corrupt men of influence in our society.
About the Author
Joseph Gege, is the LIFIN Campus Director for Benue State University, Makurdi. He is an avid researcher and writer.