In The Supreme Court of Nigeria
On Friday, the 25th day of February 1983
S.C. 42/1982
Between
The State ....... Appellant
And
S.O. Ilori & Ors ....... Respondents
Judgement of the Court
Delivered by
Kayode Eso. J.S.C
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.
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 procuring the seizure and detention of the properties of his clients contrary to 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. He said in that letter
"2. You are at present standing trial in Charge No LCD/24/78 (The State versus Fred Egbe) on a count of inducing delivery of money, contrary to section 419 of the Criminal Code, and on count of stealing contrary to section 390 of the Criminal Code, Cap. 31, Laws of Lagos State.
3. In considering whether or not to exercise the powers vested by section 191 of the Constitution, I am of the view that it will not be in the public interest, but an abuse of legal process, to encourage or allow accused persons, instead of defending themselves on the charges preferred against them, to turn round to request that public officers connected with bringing them to court should face prosecution for doing their duty."
He then attached the following certificate to the information
"I certify that I have seen the above information and the evidence in support thereof and upon serious deliberation thereon, I consider prosecution of the information will be against public policy and an abuse of legal process and that I refuse to prosecute the same."
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 State filed a nolle prosequi in the action. It reads
"Nolle Prosequi
In exercise of the powers conferred by and by virtue of paragraph (c) of sub-section (1) of section 191 of the Constitution of the Federal Republic of Nigeria 1979 and of all other powers enabling in that behalf, I, Sanu Sobowale, The Attorney-General of Lagos State, hereby discontinue the criminal proceedings against the accused person(s) in the above-mentioned charge."
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 in the case by the Attorney-General. And after Mr. Adefioye, the learned counsel representing 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. It will be necessary at this stage to quote what followed from the court record. The record reads
"Court: I will rise to write my ruling. Mr. Fred Egbe says he will like to address the court for another four hours on a day to be agreed because what the Attorney-General appears to be doing is unconstitutional.
Court: I will adjourn for a ruling."
This ruling was given by the learned judge on the same day. He upheld the submissions of Mr. Adefioye and the 1st respondent on the notice of nolle prosequi filed by the Attorney-General and discharged the respondents. In his ruling which was very short but to the point, the learned judge said
"It subsequently appeared from the address of Mr. Egbe that he would be bringing in facts to show that the Attorney-General was biased in one way or the other and that he was not competent to discontinue these proceedings. I made it clear that I would not allow this simple matter of nolle prosequi or discontinuance to escalate into unnecessary dimensions and I therefore indicate (sic) my intention to rule on the matter before me immediately.
It seems to me that the Attorney-General has the right to discontinue any criminal proceedings instituted by him or any other person at any stage before judgment. There cannot be any doubt about that."
(Italics mine.)
The appellant who was dissatisfied with this ruling appealed to the Court of Appeal on the ground that the trial court should have taken evidence and examined his allegations, against the Attorney-General, of malice and extraneous consideration, in pursuance of the provisions of s.l91(3) of the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the 1979 Constitution. However, that Court took a point suo motu to the effect that an information by private persons for an indictable offence should, like the other informations for indictable offences, be filed with the consent of a judge. As the appeal, in this Court, only turns on the constitutional issue of the interpretation of s. 191 of the 1979 Constitution, I will not deal with the point taken by the Court of Appeal on their own motion, but will reserve that point for decision until it arises again in another case and this Court has the advantage of a full argument on the matter.
In their judgment, delivered by Kazeem JCA, 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 JCA said
"It was decided in R. v. Comptroller-General of Patents (1899) I Q.B. 909 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) 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, I 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."
The learned Justice of Appeal further said
"in filing a notice of discontinuance in respect of a purported private prosecution ... the Attorney-General ... is presumed to have taken into consideration, unless the contrary is shown, 'public interest, the interests of justice and the need to prevent abuse of legal process as provided for under sub-section (3) of section 191 of the 1979 Constitution ..."
(Italics in the quotations above mine.)
In the view of the Court of Appeal, therefore, while the Attorney-General is presumed to have regard to the public interest, the interests of justice and the need to prevent abuse of legal process, and he is not obliged to give or state his reasons expressly either orally or in the document filed before the court while entering a nolle prosequi, a person aggrieved may adduce evidence and prove that in the exercise of entering such nolle prosequi, the Attorney-General did not have regard to the provisions of s.l91(3) of the 1979 Constitution. In concluding his judgment therefore, Kazeem JCA said
"Until the appellant has been able to establish in the proceedings here that they acted maliciously or that they were motivated by ill-will against him or that they did not act in the interest of justice, the appellant cannot ask the court to go behind the certificate of discontinuance filed by the Attorney-General under section 191(l){c) of the 1979 Constitution to discontinue the case."
(Italics mine.)
The Court of Appeal has thus created a distinction between the situation at common law, the pre-1979 Constitutions and the situation following the provision of s.191 of the 1979 Constitution.
It is against this judgment of the Court of Appeal that the appellant has appealed to this Court relying on five grounds of appeal. I will only be concerned with the last three grounds of appeal as these are the only rounds which are relevant to my consideration of the constitutional issues in this case, that is, the interpretation to be placed on s.!91(3) of the 1979 Constitution. The first two grounds of appeal deal with the issue of consent of a judge to an information for indictable offence, a point, which as I have said earlier on, will abide a time when the issue arises again in this Court. The appellant has also filed a copious brief but again I will concern myself only with that part of the brief that deals with the aforementioned constitutional interpretation.
The theme of the brief of the appellant is that as the powers conferred under s. 191 of the 1979 Constitution are statutory, there is need for bona fides and this has been reinforced by sub-section (3) of s.191 of the 1979 Constitution. The oral submission of the appellant is also to the same effect. Though there is a presumption that the Attorney-General acts in accordance with public interest, the appellant contended that the presumption is rebuttable. Sub-section (3) of s.191, he says, has introduced a new element to the common law. In concluding on this point, the appellant submitted that the words "shall have regard" in sub-section (3) of s.191 provides a condition which must be complied with by the Attorney-General precedent to the exercise of his power to enter a nolle prosequi.
We did not take oral submission from the learned counsel for the respondents as he failed to file a brief in this case.
The issue which has been raised in this case is, without doubt, of considerable constitutional importance. It raises the extent to which the constitutional powers of the Attorney-General at common law and pre-the 1979 Constitution have, if at all, been affected by the 1979 Constitution. I would like to emphasise at this stage that though this judgment is concerned with the interpretation of s.191 of the 1979 Constitution, especially sub-section (3) thereof, whatever interpretation is placed on that provision also affects s.160 of the Constitution. S.191 of the 1979 Constitution deals with the power of a State Attorney-General while the corresponding provision in regard to the Federal Attorney-General is section 160 of the Constitution.
Sub-section (1) of section 191 of the 1979 Constitution gives power to the Attorney-General of a State to institute and undertake criminal proceedings against any person, take over and continue such criminal proceedings which may have been instituted by any other authority or person and discontinue, at any stage before judgment is delivered, in any criminal proceedings, such criminal proceedings which have been instituted by the Attorney-General himself or indeed by any other person or authority. All these powers are analogous to the powers of the Attorney-General under the common law, the powers of the Director of Public Prosecutions under the Nigeria (Constitution) Order-in-Council 1960, S.I. 1960 No. 1652, the schedules to which contained the Constitutions of the Federation of Nigeria and of the Regions, hereinafter referred to as the 1960 Constitution, and the powers of the Attorney-General under the 1963 Constitution.
The point which is for the determination of this Court therefore is whether, by virtue of the provision of sub-section (3) of s. 191 of the 1979 Constitution, which (though it has been quoted earlier in this judgment is repeated again for emphasis) reads
"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,"
The position has changed from what it was under the common law and the aforesaid 1960 and 1963 Constitutions, and the powers of the Attorney-General are now by virtue of the provision of the said s.l91(3) of the 1979 Constitution circumscribed by a precondition or, notwithstanding the provision of the sub-section, the legal position is still the same.
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.
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 in the Court of Appeal in England stated this pre-eminent position of the Attorney-General with an abundant clarity. The learned Lord Justice, in declaring what the position was at English common law, said
"I wish to say a word or two about the position of the Attorney-General, because in my judgment it is of importance in this case ... Everybody knows that he is the head of the English Bar."
The Learned Lord Justice dealt with the Attorney-General's power to issue or withhold a fiat. And having done so, he went on
"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."
He concluded on this point
"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)''''
(italics in all the quotations are mine).
And so, since from about the mid-sixteenth century, the power to enter a nolle prosequi in a criminal case has been recognised as an undoubted power vested only in the Attorney-General. It is a power which is recognised as a branch of the prerogative entrusted to the Attorney-General's own responsibility. He is to determine whether a prosecution shall go on or not (see Blackburn J. in Reg. v. Alien IX Cox C. C. 120 at p. 123). Indeed, if after a nolle prosequi has been entered, and the court has acted upon it, fresh or further proceedings on the same indictment are commenced, there is nothing to stop the Attorney-General from entering yet another nolle prosequi. This he can do for as many times as the proceedings rear their head. (Again see the case of Reg. v. Alien (supra) as per Cockburn CJ especially as reported in 1 B & S 850 at 854).
This common law prerogative, as I have said earlier on, was vested only in the Attorney-General (see R. v. Dunn (1843) 1 C & K. 730 at p. 733). It was the Attorney-General alone who could exercise the power except where he had given specific authorisation to others for such exercise, but even then, this was done only in particular cases. However, in this country, after the 1960 Constitution, but before the 1979 Constitution, there was no longer necessity for a specific authorisation. A general authority was sufficient. Under the 1960 Constitution, the power was not vested in the Attorney-General but in the Directors of Public Prosecutions of the Federation and each Region, as the case may be, and it was these Directors who exercised the power in person or through the legally qualified members of their staff who acted under and in accordance with the Directors general or special instructions. By and under the 1963 Constitution however, the power had been taken from the Directors of Public Prosecutions and vested in the Attorney-General (see s. 104(2) of the 1963 Constitution). Again, a general authority was sufficient. The Director of Public Prosecutions and other officers of the Attorney-General's department may exercise the powers in accordance with the general or special instructions of the Attorney-General. By 1979, under the 1979 Constitution, the powers are still exercised by the Attorney-General himself and where they are exercised by officers of his department, they have to be exercised through him. Sub-section (2) of s. 191 provides simpliciter - that the powers shall be
"exercised by him in person or through officers of his department."
These powers, whether under the common law of conferred by the 1960 and 1963 Constitutions (aforesaid), were not just exercised by the Attorney-General arbitrarily or on a rule of thumb. As the Chief Law Officer of the State, the Attorney-General has always exercised the powers with regard to the public interest, interests of justice and the need to prevent abuse of legal process. But what happens is that he takes sole responsibility in coming to a decision, in the exercise of his discretion, as to what amounts to public interest, interests of justice and the need to prevent abuse of legal process. It is in his taking this responsibility, that he is a master of his house and a law unto himself. Whether or not he makes any consultation is a matter peculiarly within his discretion, but whatever decision he arrives at, is his responsibility.
And so, whether the question is one of the institution or undertaking of criminal proceedings against any person, of continuing such criminal proceedings that may have been instituted by any other authority or person, or of discontinuing any such criminal proceedings instituted by him, or, as in the instant case, by any other person, the Attorney-General has, at common law and under the Constitutions operative before the 1979 Constitution had regard to the public interest, justice of the matter and the need to prevent abuse of legal process.
An examination of some of the various cases in which the Attorney-General has exercised his powers both in the United Kingdom and this country bears testimony to this. Thus 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. In this country, the Federal Supreme Court, in Shittu Layiwola & Ors. v. The Queen (1959) 4 F.S.C. 119 as per Abbot Ag. CJ.F. had stated in very clear terms the powers of law officers in the exercise of this discretion. The learned Acting Chief Justice said, and I would respectfully like to adopt his reasoning
"The judge expressed the view that all the persons identified as taking part... should... have been charged ... and he goes on 'in my opinion it was not open for the prosecution to elect or select which of the accused persons should be charged ...' With due respect to the learned trial judge, we find ourselves quite unable to agree with this view. It is without question the province of the Law Officers of the Crown (in the present case, the Attorney-General or any officer of his department) to decide, in the light of what public interest requires in any particular case, who shall be charged, and with what offence. It is entirely a matter for this Officer's quasi judicial discretion, and, in our view, in order to secure the proper administration of justice, he must be left to exercise his discretion according to his own judgment, neither acting on any rule of thumb nor taking into account any other consideration other than public interest".
What applies to the exercise of the Attorney-General's discretion in the institution of criminal proceedings also applies to the discontinuance of such proceedings.
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.
The test to be adopted under sub-section (3) of s.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 exercise of his discretion according to his own judgment. What the Attorney-General "shall have regard to," under sub-section (3) of s.191 of the Constitution, that is, "public interest, the interest of justice and the need to prevent abuse of legal process," are matters which he had hitherto had regard to. An Attorney-General, who proposes to act under his powers to institute and undertake, take over and continue or discontinue criminal proceedings would need to bear in mind public interest, interests of justice and the need to prevent abuse of legal process before he exercises his powers, since if he ignores any of these, he would run the risk of exposing himself to removal or reassignment by his appointor, and above all - and this is most important - also to public opinion.
It is one thing to point out the dangers of an Attorney-General in arriving at a decision without taking into consideration what he is expected to have regard to. However, to my mind, it would be completely wrong to regard this as a precondition to the exercise of his powers under s. 191 of the 1979 Constitution. The exercise of these powers by the Attorney-General, that is, the institution and discontinuance of criminal proceedings cannot be questioned, and subject to the reserved right of his appointor to remove or even reassign him without giving any reason whatsoever for so doing, neither that appointor nor any other person for that matter can question such exercise of his powers. And so, the only sanction, where there is an abuse of his powers by an Attorney-General, is this reaction of his appointor or adverse public opinion which may force him to resign.
With respect, I do not share the view of Kazeem JCA when the learned Justice said that "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... 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." With great respect, the Court of Appeal is in complete misconception of the provision of subsection (3) of s.191 of the 1979 Constitution which states that the Attorney-General shall have regard to in exercising his powers under s. 191 of the Constitution.
It is to be observed, and this is of great importance, that sub-section (3) of s. 191 applies to the entire section. If the Court of Appeal is right, then whenever the Attorney-General, in pursuance of paragraph (a) of subsection (1) of section 191, institutes or undertakes criminal proceedings against any person, and that person complains that the Attorney-General has failed to have regard to the content of sub-section (3), then the court must stop the prosecution, commence an enquiry into the complaint by the accused person, and determine that complaint as a condition precedent to the prosecution of that person. Surely, this cannot be in the contemplation of the 1979 Constitution. And, if anything at all, it does not accord with commonsense. I hold the view that the expression "shall have regard to" only enable something to be done. The expression is what is known in the interpretation of statutes as a permissive language. A language which imports a discretion but certainly does not create a condition.
I have given deep consideration to the contention of the appellant in this case, and I have come to the firm view that the 1979 Constitution, in using the permissive expression "shall have regard to" in sub-section (3) of s.191 thereof, does not intend to delimit and has not delimited the powers which the Attorney-General had either at common law or under the Constitutions preceding the 1979 Constitution, in so far as the instituting or discontinuing of criminal proceedings is concerned. Again, the words "shall have regard to," are certainly not equivocal. They are plain and unambiguous. They are words which are merely declaratory of what the Attorney-General takes into consideration in the exercise of his powers. {See the dictum of Earl Cairns L.C. in Julius v. Lord Bishop of Oxford (180) 5 A.C. (H.L.) 214; at p.222 where the Lord Chancellor interpreted similar expression as "directory, permissory and enabling"). Such words are merely potential and never in themselves significant of any obligation (see Julius v. Lord Bishop of Oxford ibid p.235 as per Lord Selborne).
The position of the law therefore in regard to the powers of the Attorney-General to institute and discontinue criminal proceedings is as it was when the Federal Supreme Court gave its decision in Shittu Layiwola & Ors. v. The Queen (supra). The powers of the Attorney-General under s. 191, (and notwithstanding sub-section (3) thereof) are still a matter for his quasi-judicial discretion and one within his complete province. He still possesses the constitutional powers in full and the responsibility for any decision thereupon rests solely on him.