Criminal Litigation Nigerian Law Procedural Law Uncategorized

The Law of Nolle Prosequi in Nigeria – Abolade Akinkunmi Saheed

Latin Maxims once injected electric fright into my fragile veins. But as soon as I got to understand a good number of them the same way I am writing about it at the moment, they became my serfs. One of such Latin Maxims that gave me serious challenges initially was a crucial term in Constitutional Law called Nolle Prosequi. It would not confuse you beyond this paragraph. This article puts it up in the lights of comprehension.

Nolle prosequi is a Latin term pronounced as /nole prosekai/. When directly translated to English Language, it literally denotes “shall not prosecute’’. It is the exclusive power vested in the Attorney-General (AG) of the Federation, or a State within the Federation to refuse to press charges or withdraw them when a criminal case has already been instituted. Like many other countries of the world, the Nigerian Constitution vests this power in the Attorney General. Section 174(c) & 211(c) provide that the Attorney General of the Federation and State respectively shall have the power to discontinue any criminal proceeding at any point in time as long as a judgment has not been given. However, subsections 3 of both sections provide that this power should be exercised in public interest, interest of justice and the need to prevent abuse of legal process.

There are several questions that have popped up as regards the exercise of this power. These questions include:

  • Whether the Attorney General can discontinue a criminal proceeding even when there is enough evidence pointing to the guilt of the accused?
  • If he does have such power, does the victim or their family members have any remedy?
  • Whether the AG must necessarily appear in person to exercise this power?
  • If he does not need to appear to exercise this power, then can he appoint a person outside his department to appear on his behalf?
  • Whether there is a difference between a nolle prosequi and a withdrawal of charges

These questions are briefly but comprehensively analysed. Thereafter, the position of the law on nolle prosequi is juxtaposed with the recent controversial action of the incumbent Sokoto State Governor, Aminu Tambuwal in exercising this power.

ISSUE 1
Whether the Attorney General can discontinue a criminal proceeding even when there is enough evidence pointing to the guilt of the accused?
With respect to this first issue, my submission is in the affirmative. The Attorney General’s power to enter a nolle prosequi is supreme and unquestionable. In the notorious judicial authority of EZOMO V. ATTORNEY-GENERAL BENDEL STATE (1986) LPELR-SC.65/1985, the Supreme Court held that the power of the AG is not subject to review by anybody; not even the Courts! Thus, when the AG exercises this power, he cannot be compelled to do otherwise or take back his words even by the Court.

Furthermore, in the case of Chief Lere Adebayo v. The State (2012) LPELR-CA/I/232C/2010, the AG’s prosecution of some persons while leaving some other persons out of the charge was in order and in tandem with the law clothing the AG with prosecutorial powers.

ISSUE 2
If he does have such power, does the victim or their family members have any remedy?
It must be clearly noted that a civil action to recover damages for improper or wrongful exercise of the power of nolle prosequi may be instituted against the AG. This was the decision in the Supreme Court case of AG Kaduna v. Hassan (1985) LPELR-SC.149/1984. Therefore, a victim or their relative might just be able to recover damages if the Attorney-General exercises this power wrongly.

ISSUE 3
Whether the AG must necessarily appear in person to exercise this power?
On this issue, it is submitted that the powers of the AG are not necessarily exercisable by him in person. The AG is empowered to delegate the power of nolle prosequi to anybody he so wishes. This delegation meanwhile has certain crucial qualifications. This is deducible from the wordings of the relevant section of the Constitution. More so, the Supreme Court has affirmed this principle in the case of SARAKI V. FRN (2016) LPELR-SC.852/2015 where it held that the AG could delegate his powers to anybody within his department. It was further held that the AG could delegate his powers to other law enforcement agencies having prosecutorial powers such as the Police, the Economic and Financial Crimes Commission etc. It is thus inferable that the AG can delegate his powers to an officer outside his department.

ISSUE 4
Whether there is a difference between a nolle prosequi and a withdrawal of charges?
Judicial authorities that have clearly distinguished these two concepts are scanty. However, this does not obliterate the fact that there are slight but noteworthy differences between the power of nolle prosequi and the power of Withdrawal of Charges.

Undoubtedly, a nolle prosequi can only be exercised by the Attorney General. A fortiori, he can exercise this power for whatever reason he deems fit without justifying his action. Conversely, by law, the power of Withdrawal is exercisable by any prosecutor subject to the overriding permission of the Court. By virtue of Section 108 of the Administration of Criminal Justice Act 2015 (ACJA), a prosecutor is empowered to withdraw a charge upon the orders of the AG, either totally or partially. A total withdrawal occurs where all charges pressed against the defendant are withdrawn while a partial withdrawal occurs where one or some rather than all the charges are withdrawn against the Defendant.

At this juncture, certain very crucial points of law must be committed to heart with respect to Withdrawal. What is the legal effect of a withdrawal? The answer is neither in the negative or in the affirmative but depends on certain salient circumstances.

Section 108 (supra) reads thus:
(1) In any trial or proceeding before a court, a prosecutor may, or on the instruction of the AG, in case of offence against an Act of the National Assembly, may, at any stage before judgment is pronounced, withdraw the charge against any defendant either generally or in respect of one or more of the offences with which the defendant is charged.
(2) On the withdrawal, where it is made:
(a) before the defendant is called upon to make his defence, he shall be discharged of the offence; and
(b) after the defendant is called upon to make his defence, he shall be acquitted of the offence.

By the provision excerpted above, (as a general rule) where a withdrawal is done before the defence opens its case, such withdrawal is tantamount to a mere discharge. Where a withdrawal occurs after the defence opens its case, such withdrawal would operate as an acquittal. Meanwhile, the exception to the general rule stated above is clearly provided under section 108(3) as follows:

(3) In any trial before a court in which the prosecutor withdraws in respect of the prosecution of an offence before the defendant is called upon to make his defence, the court may, in its discretion, order the defendant to be acquitted if it is satisfied, on the merits of the case, that the order is a proper one, and when an order of acquittal is made, the court shall endorse its reasons for making the order on the record.

Thus, by Section 108(3), notwithstanding that the power of withdrawal is exercised before the defence opens its case, the Court may discretionarily order an acquittal where it is convinced from the findings of facts in the case that such order (acquittal) can properly issue with respect to the charge.
In continuation, Section 237 (supra) also provides for another legal situation where withdrawal may arise. Here, where a defendant is charged for more than one criminal offence, and conviction is secured on one or more of those charges (rather than all the charges), two situations may arise:

  1. The prosecution may withdraw the remaining charges with the consent of the Court; or
  2. The Court may stay the trial of the one or more remaining charges.

Where the above situations arise, the defendant is deemed acquitted of the charges which have been withdrawn or whose trial have been stayed by the Court. This is however subject to the order of a superior Court acting within its judicial competence.

A withdrawal could also be occasioned by the complainant (victim) in line with the provisions of Section 355 of ACJA if it can be proved that there are sufficient reasons to do so. It is also provided that this would operate as an acquittal. In the case of FRN v. ONONYE (2018) LPELR-CA/E/58C/2016, the Court of Appeal held that it was within the rights of a complainant (victim) to compound a crime and withdraw the complaint/charge in court and this would amount to a withdrawal as continuous prosecution would constitute a waste of time if the defendant is not ready to cooperate with the prosecution. However, it should be noted that this applies only if the crime is particularly against the victim and not a crime such as corruption which is against the State.

GOVERNOR AMINU TAMBUWAL IN FOCUS
Finally, the action of Governor Tambuwal comes to fore. The Sokoto State Governor purportedly granted pardon on some defendants to a charge by withdrawing the charge and publishing notice of same on the official gazette. This action was challenged in the case of FRN V. ALKALI & ANOR (2018) LPELR-CA/S/179C/2017. The Court of Appeal held that the action was not in compliance with extant laws. According to the Court, a pardon cannot be granted where there has been no conviction. Furthermore, in the case of AG Kaduna V. Hassan (supra), the Court held that the action of the Solicitor-General in purportedly entering a nolle prosequi was invalid despite the absence of an incumbent Attorney-General at the time.

However, this does not mean a criminal prosecution cannot be withdrawn by a prosecutor other than the AG. Section 75 of the Criminal Procedure Act provides that a prosecutor may withdraw a criminal prosecution against a person with the consent of the court or by the instruction of the AG.
In conclusion, these afore-cited judicial authorities point to the settled law that the power to enter a nolle prosequi is exclusive to the AG and only delegable by the AG. It is however appropriate to advise strongly that the power of nolle prosequi should only be exercised in good faith as the Constitution provides.

Abolade Akinkunmi Saheed

Associate, Law Axis 360°

Abolade is a law student of the prestigious Obafemi Awolowo University. He is a Student Rights Activist with keen interest in Human Rights and Constitutional Law.

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2 comments

  1. As said above if the act of Nolle prosequi is deemed as Unquestionabe and supreme on the part of the AG of what use is the civil action of the victim which is wrongly indicted

    Liked by 1 person

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