Commentaries

Nolle Prosequi in Nigeria

Last year, the ruling family of a community in Anambra, through their counsel, urged the governor of Anambra State to dismiss the Attorney-general of the state- in the person of Dr. Uju Nworgu.

After the death of the ruling monarch in 2017, Igwe Gilbert Offomata, the royal family of Ezeokweghi/Ezeofor had been embroiled in a deep kingship tussle with several detracting fractions in the community. These fractions intended to depose the interim ruling family and install a new one- and this decision was reached by a consensus of the prominent members of the community.

The counsel for the Ezeokweghi/Ezeofor clan alleged that the supposed votes of majority of the elders had been doctored, and the actions of the fraction were not indeed the voice of the public. The mere act of the fraction embarking on an election was contrary to the existing political arrangement in the community and amounted to a breach of law. With this in mind, the counsel initiated the litigation process.

The protracted court battle caught the notice of the Attorney-General whom, in exercising her constitutional granted power of dismissing a court trial, prematurely halted the proceedings. This singular act, although not lacking in legality, fell under huge criticism by the ruling family- whom, by consequence, ended up on the losing side.

The “nolle” was regarded by the counsel as having been reached without duly regarding the circumstances surrounding the trial; without due consideration of the political arrangement that had sustained the community for years; and portrayed the image of the Attorney-General having a personal interest in the case. It was alluded that the Attorney-General was in cohorts with the dissident fractions and stood to gain something in the event that the fractions succeeded in completely refurbishing the monarchy. 


The Attorney-General’s power of nolle prosequi- which translates roughly to “I will not prosecute”- has been hailed, and indeed proven by the courts, to be unquestionable and entirely subjective.  The position under the common law, and the subsequent constitutional provisions, on the power of Nolle Prosequi vested on the Attorney-General or any other officer performing a similar role[ like the Director of Public Prosecutions whom by virtue of Nigeria(constitution) Order-in-Council 1960 was conferred with these powers] has been held as subject only to the discretion of the officer holding that position.

This constitutional power vested on the Attorney-General is not peculiar to Nigeria- in other common law countries, as well, the Attorney-General also has the powers to initiate, take over and discontinue any legal proceedings. It should be noted however that a termination of legal proceedings does amount to an acquittal or pardon. It is simply as it is.

At first glance, the power almost seems like an open invitation to the Attorney-General to become highhanded and arbitrary in his handling of affairs. He appears to be at liberty to stop any legal proceedings in which he favors or has a personal connection to the probable losing party. He could just swoop in and make many radical changes to the whole litigation, including stopping it altogether, provided he becomes involved before a sentencing.

Indeed, in many circumstances, criminal and civil alike, the Attorney-Generals in Nigeria’s history have started, taken over, and terminated processes against individuals. Lack of funds, wastage of resources, and long-drawn-out legal battles have been commonly cited as reasons for the Attorney-General’s involvement in several isolated cases.

It is even more common for the Attorney-General to bring the carriage of justice to a halt because of key evidence that would inadvertently render the pursuit of the suit against the defendants futile, or if it is observed that the counsel(s) had erred by omission or duplication of a step in the filing process. The proviso contained in sections 174(3) and 211(3), which are identical to each other, is that;

‘In exercising his powers under this section, the Attorney-General of the state {federation} shall have regard to the public interest, the interest of justice and the need to prevent the abuse of legal process’

The vague buzzwords contained in the statute, of course, would be applied at the discretion of the Attorney-General (AG). Since the AG is subject only to his appointor and his conscience, the interpretation and subsequent application are left up in the air.

The landmark case of R v. Comptroller-General of Patents [1899] established that the power of the Nolle is indeed absolute, leave need not be sought of the court before invocation and the powers are not subject to judicial review. The Attorney-General is not under compulsion to explain the reasons for the nolle.

“Public interest” is a disclaimer that is pretty ineffectual at this stage. Never in the history of Nigeria has an Attorney-General stepped down from office because of a public outcry of injustice. If the people call “scam”, he simply blends into the shadows not to be heard of until his next deed. The interest of justice is one of the top justifications for acts of government officials.

A close second is “national security”.  As mentioned earlier, these prerequisites that are to be fulfilled before the filing of a nolle have a subjective meaning. Whatever the AG regards as being in the interest of the public is what he carries out. It does not matter if the public in question happens to be the top 5% of the population of Nigeria whom would rather not be bothered by trivialities at the courts. The AG is not obligated to consult anybody before the filing of a nolle.


In 2017, without giving reasons for his actions, the incumbent Attorney-General abruptly terminated the proceedings meant to unravel the mystery behind the misappropriation of the Sure-P monies- amounting approximately to N5.7Bn. Till date, none of the suspects have been charged and the case has been kept out of the public eye.

No reason was given for the premature disruption as the Attorney-General is wont to do. The bottom line is that the Attorney-General has the power to abnormally take over or stop any legal proceedings in any court in Nigeria, except the Court Martial. Even the blasé warning that the Attorney-General not “prostitute the functions he has to perform” has never been enough to dissuade any of the Attorney-Generals from pursuing their personal interests.

The fact that the Attorney-General is also the Minister of Justice in Nigeria further muddles the water. This peculiar situation might have been understandable, even acceptable, under the parliamentary system of government, but seeing as Nigeria favors a republican government over the Westminster System, it is deplorable.

The very foundation which the three- armed government rests, i.e. the separation of powers, is rubbished in the face of the duality of position the AG holds. The very principle that balances the republican government and sets it apart from the parliamentary system is a clear distinction of the three arms. In a system such as ours, a person cannot be a minister and a parliamentarian at the same time and a parliamentarian also cannot be seen performing judicial duties. It does not make sense then that the offices of Minister of Justice and Attorney-General are one and the same.

This very same motion has been propounded by several legal luminaries over the course of the years. In 2017, after the then Attorney-General of Lagos State took over and subsequently terminated the infamous laundering case of State v. Khilani & Chandra, a group of lawyers ably led by Olayinka Ola-Daniel called for a separation of the commissioner of justice and Attorney-General positions.

Rather than insulating the AG’s seat from the trifles of partisan politics and ensuring neutrality of the post, the AG is mandated to carry out not only a judicial official’s duties but also to walk a tightrope with party members. The halt of the litigation process in the Chandra case came as a surprise because the Attorney General had been the one to request aa warrant of arrest on the defendants because they had failed to appear at nay of the hearings. The abnormal termination suggested the possibility that the Attorney-General had been paid off.

Proposed Solutions……

I believe the first step to revamping the Attorney-General position and the Ministry of Justice’s by extension is the separation of the Attorney-General position from that of the Chief Law Officer’s. by doing so, it would have succeeded in not only insulating the AG’s seat from the nuances of partisan politics but also totally uprooted the obvious friction of the Judicial and Executive Arms of Government.

It also retains the cordial relationship shared between the Judicature and the Attorney-General which has suffered due to the intermittent interruptions of the Attorney-General. This separation also applies to the state Attorney-Generals whom also occupy the positions of Commissioners of Justice.

The next obvious step is setting parameters for the institution, continuance and terminations of lawsuits. The Attorney-General should be allowed to only initiate processes on behalf of the Government and the power of continuance should be invoked only in a case between private individuals.

In the event that a government parastatal such as the EFCC is prosecuting individuals profiled as suspects, the Attorney-General should be disallowed from interfering in the process. The Attorney-General also should not be allowed to halt proceedings, criminal or civil, initiated by Government parastatals, or involving any.

 In the same vein, the Attorney-General should be granted the power to halt litigation process between private individuals if it is proven that the continuance would amount to a negation of the proviso attached to the statute granting him the power.

It should also be stated that any individual occupying either an elected or appointed seat is regarded as forming part of the government, and this means the Attorney-General would be statute barred from interfering in the litigation process concerning such an individual.

The Attorney-General should be mandated to submit his reasons for termination of a law suit. The court then should determine the validity of the reasons provided. To prevent arbitrary highhandedness, as man is wont to do, it is necessary to institute some form of check on the excesses of the AG. Although the court stated in the case of State v. Ilori that if a nolle is filed by the AG and the case terminated, the party against whom it was files has the option of initiating another lawsuit, which could still be stopped by the AG.

This careless disregard of the principle of jeopardy which renders the particular suit dead and never to be resurrected after its termination. Instead of ruthlessly terminating and frustrating proceedings, the AG should be tasked to provide the reason he seeks to enter the nolle.

Conclusion….

To preserve our democracy and to protect human rights, it is necessary for safeguards to be in place. In the event that one person has an arbitrary hold on any staff of office, it is human nature to abuse it.

Several examples have arisen over the years of the numerous ways the Attorney-Generals have abused and “prostituted” the powers they had been so graciously granted.  Rather than sitting down arms crossed and waiting for the final nail to be hit into the coffin, it is necessary to be proactive. The recurring issue of AGs letting perpetrators of laundries running into hundreds of millions of dollars is enough to jar any nation awake.

Although America is a common law country, they have long abandoned the omnipotent position of the AG. Kenya as well. In these countries, there is a system of answerability in place for the AG. He cannot merely tend to every of his whim and caprice, he also has to seek leave and advise from either the court or an advisory board, with actual powers, set up by the state for that sole purpose.

Until Nigeria is able to abandon the old common law ways of viewing the AG as an omnipotent body, she will not be able to boast of any substantial legal developments since her independence.

Further Readings.

  • 1. Section 211 and 174 of the 1999 Nigerian Constitution (as amended)
  • 2. Olugbenga Ademodi – Michael Aondoaka: The Minister of Injustice
  • 3. Ikechukwu Eze, Alex Echujines – Halliburton & Deepening roots of Corruption in Nigeria
  • 4. A.O. Enabulele – Delimiting the scope of the powers of the Attorney-General to re-charge an accused person after the nolle has been entered.
  • 5. Ogidi Henry Tobechukwu, Rev. Fr. Stephen Chukwuma – Rethinking the power of Nolle Prosequi in Nigeria: The case of State v. Ilori
  • 5. Dr. Benjamin O. Igwenyi (Ph.D.) – Jurisprudential appraisal of Nolle Prosequi in Nigeria.

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