The whole point of arresting a bad guy is to ensure he gets punished for his alleged wrong. But we have to take him to court first and makes sure he really is guilty. So, we institute criminal proceedings.
When it comes to criminal proceedings the following three things can happen: the proceedings can be commenced, they can be withdrawn or stopped, and they can be over-taken. And the powers of those that can prosecute vary along those lines. Who are these people?
- Attorney General of the Federation: This guy is the chief prosecuting officer of the Federation. He can Institute, Take-Over (from other porsecuting authorities) and Stop (Nolle Prosequi) all cases at all courts in the Federation, except courts martial, in respect of federal offences created by an Act of National Assembly.
- Attorney General of the State: Has the same powers as the AG Fed but on the state level. He can Institute, Take-Over (from other prosecuting authorities) and Stop (Nolle Prosequi) all cases at all courts in the state, except courts martial. The AG of the state can exercise the stated powers in respect of offences created by the law of the House of Assembly. Since AG (Whether Fed or State) is one person, he cannot be going to every court everywhere to conduct cases. He needs junior lawyers like you and I to do stuff for him. That’s why there are a lot of lawyers in the Ministry of Justice. These people carry out the AG’s functions by delegation.
The AG is empowered by the constitution to delegate all three powers. There are 2 types of delegation: Implied and Express Delegation
Imagine this: a shop owner hires a manager to take care of his shop. The manager in turn hires some helps/keepers to attend to customer. The manager briefs the helps on what time to resume, how to attend to customers and all that, etc. This is a form of implied delegation. They don’t need an actual manager to tell them what to do. In fact, the shop owner may fire the manager and the helps can still go on carrying out their duties. They don’t need to be told what to do. They don’t need to be reminded or authorised to pay the bills as well. This type of delegation applies to the AG’s powers except Nolle Prosequi and is made possible by an Official Gazette. A lot of criminals are charged to court by legal officers in the Ministry of Justice without the AG necessarily knowing about it or signing off on it.
What if the manager usually gives out a bonus or discount to customers at his discretion, or what if he has been given some money by the shop owner to take care of some important things? He will most likely handle such things himself. The helps are not likely to do so without him expressly telling them to. Also if he is fired the helps cannot say ‘Oga manager used to do so and so before, so I think we can do it’. There must be a manager at hand to give them power to do those special duties. This is express delegation. It applies to Nolle prosequi. The power to issue a nolle prosequi flows directly from the person of an incumbent AG. It is attached to his person, if he is not an AG, he cannot exercise the power. Delegation does not happen as a matter of course but must be done expressly and in writing. Only the AG in person can tender a nolle prosequi orally.
Answer these: In January 2016, Mr John, the AG of Ogun State decides to stop the case of FRN v. Apkobolokeme. But before he could issue a nolle prosequi, he is kicked out of office in February 2016 and REPLACED BY Mr Paul. The junior counsel assigned to the case still feels like stopping the case, can he issue a nolle? If not what can he do? Would your answer be different if Mr John had signed the Nolle before he left office ? Comment on the validlty of the following conversation between the judge and Mr junior Officer:
Junior Officer: My Lord, I hereby tender a Nolle Prosequi on behalf of the Attorney General
Judge: Where is the document to show this?
Junior Officer: There is no document my Lord, with due respect, the AG can issue a nolle prosqui orally and without reason, and it is on that authority I stand, Sir
- The Police: They are the major prosecutors. And on the authority of FRN v. Osahon, they can prosecute in any court.
- Special persons: The EFCC has been in the news a lot recently. They are not a part of the police force not even a part of the armed forces. However they have special powers to prosecute offences under the EFCC Act. Note that they are limited to their statutory powers. Only the offences listed in the EFCC Act can be prosecuted by them. Same goes for the NDLEA Act, and other special offences.
- Private Persons: When you are called to bar in a few months do you think you can prosecute offences? The answer to that is that ordinarily you cannot. You are not, by yourself, a prosecuting authority. However the various procedureal laws make provision for private persons to be authorised to prosecute. And on the authority of Fawehinmi v. Akilu, you can get a mandamus against the AG if your application is not granted.
Only the AGs have the power to issue a nolle prosequi but does this mean if other prosecuting authority no longer wish to pursue a case they cannot opt out? Not at all, they have the power to withdraw cases. A nolle differs from a withdrawal in the following ways
- Nolle is issued by the AG alone but withdrawal is issued by other prosecuting authorities (duh!)
- Nolle amounts to a mere discharge no matter when issued but if a withdrawal is issued on the day of judgment, it amounts to an acquittal
- The AG does not need the court’s consent (cuz he is a boss like that!) while a prosecutor must seek court’s consent before withdrawing a case
- The AG does not need to back up the nolle with reason while the court can and will demand sufficient reasons to support a withdrawal
- The Nolle is the AG’s unquestionable prerogative, once he tenders it, the court must comply. A withdrawal on the other hand is subject to the court’s discretion.
Oh the answer to the question!
Mr Junior counsel cannot issue a nolle by himself; he is not an AG, neither has the power been delegated to him. If perhaps, Mr Paul feels the same way and he goes ahead to issue the nolle IN WRITING, then the junior officer can validly go ahead to tender the nolle in court, otherwise I would advise him to apply for a WITHDRAWAL of the case. Would my answer be different, Yes! Because it was issued by an AG while in office so the junior officer can validly tender it.
The Junior officer is so wrong! Yes the AG can tender a Nolle orally but if he is not coming to do so in person, he must tender it IN WRITING through any other legal officer appearing on his behalf.