powers of the attorneys-general

As a matter of fact, there are some specific provisions of Federal laws and State laws that went further, beyond just saying that the A.G. or his delegates have the power to discontinue a case to state specifically what would be the effect, depending under what stage and circumstance the discontinuation was done. Under Section 75 of the CPA, if the nolle is entered at the stage of inquiry, it shall have the effect of only discharge, if after trial has commenced but before the accused is called upon to enter his defence, it shall also have the effect of only a discharge. But where the trial has commenced and gone as far as the accused person having commenced his defence of the charge(s), it shall have the effect of not only discharge, but also of his being acquitted of those charges, and never to be subsequently charged and tried on those same facts.

Not really. In the case of The State V. Ilori (1983) 1 SCNLR 94 the Supreme Court held that the A. G’s entry of nolle prosequi cannot be questioned, not even by an aggrieved party; that his exercise of those powers donated to him by the Constitution is not justiciable because the seeming qualification of his being required to exercise the powers with regards to public interest, interest of justice and the need to prevent abuse of legal process are merely declaratory and not mandatory. His powers under sections 174 and 211 of the CFRN, 1999 (as amended) are “unchallenged and unchallengeable’, the Court held.

According to S. 73 and 74 of the CPA, and S. 253 of the CPC, the A.G’s entering of a nolle against the prosecution of any criminal trial shall have the effect of the proceeding being terminated and the accused discharged. Being that the accused is only discharged and not acquitted, it does not operate as a bar against any subsequent prosecution of the person on those same facts. Once the nolle is entered, the person, if already in prison or on Police bail, he shall forthwith be released to goes his way, or the recognizance of his bail discharged, leaving him to be released. See Clark v. A.G. Lagos State (1986) 1 QLRN 119

The magistrates in the Northern States derive their powers to draft charges for suspects to be tried in Magistrates and High Courts from Section 160 of the CPC. It had long been established in Ibeziakor V. COP (1963) 1 All NLR 61 that the framing of charges by Magistrates after they had satisfied themselves that there is a prima facie case established against the accused, provided under S. 160 of the Criminal Procedure Code, and the subsequent trial of the accused does not violate the Constitutional presumption of innocence of the accused as what the Magistrate does at the pre-trial is not a trial or a hearing to determine the innocence or guilt the accused but only to establish the existence of a prima facie case.

The commission of a crime is a violation of public right, the prosecution of which is for the protection of the individual victim, and even more, for the public good of enthroning justice, law and order. By the provisions of Section 174 (for Federal) and Section 211 (for States) of the Constitution of the Federal republic of Nigeria, 1999 (as amended), Section 104(1)&(2) of the Administration of Criminal Justice Act, 2015, Section 23 of the Police Act, Section 59 of the Criminal Procedure Act, Cap C41, LFN 2004, as well as Section 143 of the Criminal Procedure Code, are all to the effect that only the Attorneys-General of the Federation and of the States can institute, takeover or discontinue criminal proceedings, with the single exception of a Court Martial. Under and through their delegated authorities or Fiat, other judicial officers of Ministry of Justice and other Government law enforcement agencies, Special Prosecutors and Private legal practitioners do also institute and prosecute criminal charges. See The State V Adili (1989) 3 S.C (Pt.1) 1 @ 7. KOMOLAFE V. THE STATE (2018) HELAR

No, that does not easily happen because the A.G. Federation exercises his powers over cases of violation of Federal laws – laws enacted by the National Assembly (matters in Part 1, 2nd Schedule to the 1999 Constitution, that is the Exclusive Legislative List), while the A.G. State oversees matters of violation of their State laws – those laws enacted by the State Assembly (that is, matters contained in Part 2, 2nd Schedule to the 1999 Constitution, the Concurrent List). See Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344 @ 403; Anyebe v. The State (1986) 1 NWLR (Pt. 14) 39.

Not actually so. The A.G. Federation can prosecute the violation of State laws if the State A.G. so expressly authorizes him. Same kind of express authorization of the A.G. Federation can empower the State A.G. to prosecute a violation of Federal law. It was only the absence of such authorization by the A.G. Federation in the case of Anyebe v. The State (1986) 1 NWLR (Pt. 14) 39 that made the Supreme Court to allow the appeal against a conviction secured by the A.G. of the State of violation of a Federal law. It does also happen, quite infrequently, yes, that the National Assembly makes a law expressed to operate as State laws. The A.G. of a State has powers to prosecute violations of such laws exactly as he would one enacted by his State legislature. This was actually what happened in the case of Emelogu v. The State (1988) 2 NWLR (Pt. 78) 524 where the court found that although the Robbery & Firearms (Special Provisions) Act, 1970 was a law enacted by the NASS, it was meant to operate as a State law, and so, the A. G. of the State was found to be within his right in prosecuting violators of that NASS enacted law without first being authorized by the A.G. Federation.

No, they are not all exactly the same. The powers of the Attorneys-General as provided under the CFRN, 1999 are “notwithstanding any provisions contained in any other laws in force in Nigeria”. So, any contradictory variation in any other law, like the one giving powers of drafting and signing of Charges, as provided under S. 78(b) of the CPA, to Police Officers, was, in the case of The State v. Okpegboro (1980) (2) NCR 291 subjugated to the A.G’s authority under S.211 and so made null and void, as the charge drafted and signed by a pupil lawyer in the office of the A.G’s office was held as valid, being done pursuant to S.211 of the Constitution.

No, they do not. As a matter of fact, herein lies the slightest semblance of a limitation to the awesome powers of the Attorneys-General in this regard. The A.G. of the Federation can file an information or prefer a charge in the high Courts of the Southern or Northern States, respectively, only with the consent of a High Court Judge. Failure to first seek and obtain this consent will be fatal to his prosecutorial powers at the State High Court level, except, of course, in those States like Kano and Lagos States that have amended their criminal procedure laws to permit the A. G. to institute a case in their High Courts without the need for a State High Court Judge’s Consent. See Abacha v. The State (2001) 3 NWLR (Pt. 699) 35. Alao V. F.R.N. (2018) HELAR

The A.G’s power to discontinue and terminate the prosecution of any particular criminal proceedings, particularly referred to as Nolle prosequi, is provided, for the A.G. Federation, under Section 174, and for the State A.G. under Section 211(1) and (2) of the CFRN, 1999 (as amended). There are no particular steps or requirements stated which he must follow. He can takeover or discontinue the proceedings at whatever stage it is before judgment is delivered. If he appears in court in person, oral application suffices. Where he does so through his representative, he only needs to have it be by a written application.

The provisions of Sections 174 and 211 of the CFRN, 1999 (as amended) that the A.Gs can donate their powers of institution, takeover or discontinuation of cases to officers of their departments includes State Counsel, even of the pupil lawyer (lawyers on National Youth Service), Directors of Public Prosecution, and lawyers in the Federal Law Enforcement Agencies. See Attorney-General, Kaduna State V. Hassan ((1985) 2 NWLR (Pt. 8) 483. Alao V. F.R.N. (2018) HELAR Yes, the A.G. can by his fiat, delegate his powers to a private legal practitioner. See Director Public Prosecution v Akozor (1962)1 ALL NLR 235. And this applies to all cases, whether criminal or civil, See Tukur V. Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 77 @ 150. That the A.G. can delegate a Private Legal Practitioner to appear for him, either alone or with other lawyers, including legal officers from the A.G’s office, has been restated in a long line of cases, including Rabiu V. The State 1980 (2) NCR 117; The State V. Gwonto (1983) 1 SCNLR 142; The State V. Aibangbee (1988) 3 NWLR (Pt.84) 548. Some are still arguing that the provisions of Sections 174(2) and 211(2) expressly stated officers in his department which they argue cannot include private legal practitioners.