A.P. Anyebe V. The State (1986)

LawGlobal-Hub Lead Judgment Report

RIKEFE, C.J.N.

This appeal raises issues as to whether a State Attorney-General can prosecute a patently Federal Offence without express delegation from the Federal Attorney-General.

Mr. Horn, the Honourable Attorney-General and Commissioner for Justice, Benue State, states that he is not now opposing the appeal on the constitutional issue raised. This, in my view, would knock the bottom out of the entire case.

The charges brought against the appellant arose under a Federal law and consequently it would not have been competent to prosecute him unless and until his prosecution had been expressly authorised by the Federal Attorney General or, which is saying the same thing, powers to prosecute had been expressly delegated to the State Attorney-General. Mr. Horn confirmed that this was not the case.

It seems to me that what was done in this case flies in the teeth of our decision in Attorney-General Kaduna State vs. Hassan which is reported in Nigerian Weekly Law Reports-1985 (2 N.W.L.R. Part 8 at page 483).

Accordingly there was no legal basis for the prosecution of the appellant. In the result, I hereby declare all the proceedings against him through the two lower courts as null and void. This means in effect that he had never been prosecuted for an infraction of any known Federal Laws. The fine imposed on him by the Court of Appeal on the basis that there had been a valid prosecution leading to a lawful conviction is to be refunded to the appellant forth-with.

OBASEKI, J.S.C.: The main constitutional point raised in this appeal is whether the appellant can be prosecuted for a Federal offence. He had been prosecuted for the offence of possession of a double barrel short gun (a personal firearms) without a valid licence duly granted contrary to section 4 of the Firearms Act and punishable under section 28 of the same Act as amended by the Firearms (Amendment) Decree No.31 of 1966, a Federal offence.

The 1979 Constitution section 160(1)(e) expressly gave the Attorney-General of the Federation power to prosecute in respect of any offence created by or under any Act of the National Assembly or Decree of the Federal Military Government. He is also empowered to delegate this power. He can exercise the power personally or through officers of his department.

The learned Attorney General of Benue State has conceded that he was not delegated by the Attorney General of the Federation and that he also is not an officer of the department of the Attorney General of the Federation. It therefore appears to me that the Attorney-General of Benue State was usurping the powers of the Attorney-General of the Federation by initiating prosecution of the Appellant for an offence under the Firearms Act. He had no competence whatsoever in the matter.

It is appropriate to observe that section 191(1)(a) of the 1979 Constitution expressly limited the power of the State Attorney-General in respect of instituting and undertaking criminal proceedings against any person before any Court of Law in Nigeria other than a court martial to any offence created by or under any law of the House of Assembly i.e. he can only prosecute for a State Offence.

In Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (p.483), this Court held that the Solicitor General of a State needs a delegation of the State Attorney-General to prosecute i.e. exercise the powers of the State Attorney-General to prosecute. A fortiori the powers of the Attorney-General of the Federation to prosecute can only be exercised by those in his department who are expressly delegated to exercise them.

The Attorney-General of Benue State having exercised the powers he had not got to prosecute the appellant for a Federal Offence, the proceedings before the High Court and the Court of Appeal in respect of that offence stated above, is a nullity. The appeal therefore succeeds. The judgment of the High Court and the Court of Appeal are hereby set aside and the conviction and sentence of appellant quashed. The charge is struck out and the appellant is hereby discharged. Fine imposed if paid to be refunded.

NNAMANI, J.S.C.: The only constitutional issue arising from this appeal is whether the Attorney-General of Benue State could institute proceedings in this criminal matter which by common ground related to a matter in the exclusive legislative list – firearms. It was therefore a federal offence.

Under Section 160(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 as amended, it is only the Attorney-General of the Federation who can institute and undertake proceedings against any person in relation to such offences. By Subsection 2 of Section 160, the Attorney-General of the Federation can delegate his powers under Subsection 1 to officers of his department. The Attorney-General of Benue State is not an officer of his department. If he has to prosecute in what is obviously a federal offence it has to be by express delegation. There was none here.

It seems quite clear to me from the provisions of Sections 160 and 191 of the Constitution, that the respective powers granted to the Attorney-General of the Federation and the Attorneys-General of States are limited to the matters on which the National Assembly and Houses of Assembly can legislate. It would be incongruous if a State Attorney-General could without express delegation undertake proceedings in a matter in which only the National Assembly can legislate. There is a tendency to find solace in subsection (c) of Section 160(1) which provides – to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. This to my mind relates to the power of the Attorney-General of the Federation to enter a nolle prosequi.

In the circumstances, I do agree that the Attorney-General of Benue State had no constitutional power to institute proceedings in charge 2 which is the only charge extant. The proceedings both in the High Court and the Court of Appeal are therefore a nullity. The appeal is accordingly allowed. I would agree with the learned Chief Justice that the conviction and sentence passed on the appellant be set aside and that the N100 fine imposed on him if paid be refunded to him.

KAZEEM, J.S.C.: The fundamental point for consideration in this appeal is whether without any specific delegation given by the Attorney-General of the Federation to do so under section 160 of the Constitution of the Federal Republic of Nigeria 1979 the Attorney-General of a State can prosecute any federal offence. Whereas learned counsel for the appellant contends that he cannot, however, learned counsel for the respondent says that he can.

In this appeal, the appellant was convicted for being in unlawful possession of firearms contrary to section 4 and punishable under 28 of the Firearms Act as amended by Act No.31 of 1966; and he was sentenced to 3 years term of imprisonment which was altered to a fine of N 100.00 or six months imprisonment in default by the Court of Appeal at Jos. It is not disputed that the offence is a federal offence; nor is it disputed also that the Attorney-General of Benue State who instituted the indictment had no delegation from the Attorney-General of the Federation to prosecute the offence.

By section 160(2) of the Constitution of the Federal Republic of Nigeria 1979, the powers conferred upon the Attorney-General of the Federation to prosecute offences created by or under any Act of the National Assembly or a Decree (of which an offence under the Firearms Act is one) may be exercised by him in person or through officers of his department. There is no evidence that the Attorney-General of Benue state was a member of the department of the Attorney-General of the Federation. Hence in my view it is incompetent for him to have instituted the prosecution without any delegation. See the judgment of this court in Attorney- General of Kaduna State v. Mallam Umaru Hassan (1985) 2 N.W.L.R. (Part 8) 483 where a similar issue was decided. Even though learned counsel for the respondent relied upon L.N.73/1958 which gave general authority to the Attorney-General of Northern Region among others to prosecute federal offences, it ought to be realised that that authority had become spent when this country attained independence in 1960; and we have since had our Independence constitution which has altered the situation.

In the circumstances, I am of the view that the prosecution of the appellant in the High Court of Benue State and the proceedings at the Court of Appeal Jos were nullities. I accordingly allow the appeal; and the conviction of the appellant is hereby quashed. In substitution I make the same orders as those made by the Chief Justice of Nigeria in the lead judgment.

COKER, J.S.C.: I agree this appeal must be allowed. The short point is whether a State Attorney-General can prosecute an offence created by an Act of the National Assembly. Section 191(1)(a) of the 1979 Constitution only empowers the Attorney-General of a State to institute and undertake criminal proceedings against any person in respect of any offence created by or under any law of the House of Assembly. The appellant was prosecuted by the Benue State Attorney-General for an offence created by the National Assembly, namely, an offence punishable under Section 28 of the Firearms Act.

Similarly, section 160(1)(a) of the said Constitution specifically empowers but limits the Attorney-General of the Federation to institute and undertake criminal proceedings against any person in respect of any offence created by or under any Act of the National Assembly, And sub-section 2 of section 160 states that the powers under sub-section I may be exercised by him or through officers of his department.

It is clear that the powers of the Attorney-General of the Federation or of a State to initiate and prosecute any person for any criminal offence are clearly defined and confined to offences created by an Act of the National Assembly or of a State House of Assembly respectively. And in the absence of specific or general delegation by the Attorney-General of the Federation, the Attorney-General of Benue State was not empowered to initiate the prosecution of the Appellant for the offence with which he was convicted. The criminal proceedings, including the verdict and sentences of the appellant were therefore a nullity.

The proceedings are therefore set aside and the conviction and sentence of the appellant are therefore quashed. I agree that the fine of N100 imposed on him be returned, if paid.

KARIBI-WHYTE, J.S.C.: I agree that the appeal succeeds. The Attorney-General of a State has no general authority to exercise the powers of the Attorney-General of the Federation to prosecute in respect of Federal offences.

Appellant was prosecuted by the Attorney-General of Benue State and convicted under section 28 of the Firearms Act as amended by the Firearms (Amendment) Decree No.31 of 1966. There is no doubt that this is a Federal Offence in respect of which only the Attorney-General of the Federation has the power to prosecute. – See S. 160(1) of the Constitution 1979. The power of the Attorney-General of a State to prosecute is limited to any offence created by or under any Law of the House of Assembly S.190(1), Section 160(2) of the Constitution limits the power to prosecute on the Attorney-General of the Federation or through officers of his department.

There is no doubt that the Attorney-General of a State cannot be construed to fall within S.160(2) of the Constitution 1979, and can therefore not validly exercise the powers of the Attorney-General of the Federation in respect of offences within the jurisdiction of the Attorney-General. In the circumstances the prosecution of the appellant by the Attorney-General of Benue State for offences under S.28 of the Firearms Act, as amended by theFirearms (Amendment) Decree No.31 of 1966, was clearly unconstitutional and void.

The prosecution was therefore a nullity and the conviction is also a nullity. The entire process and proceedings under the prosecution is therefore a nullity. The appeal is therefore allowed. The conviction and sentence of the Court of Appeal imposing a fine of N100.00 or 6 months imprisonment in default is hereby set aside. The N100 fine already paid should be refunded.

KAWU, J.S.C.: The respondent, having conceded the constitutional issue that the Attorney-General of Benue State has no constitutional power to initiate criminal proceedings in the State High Court in respect of a federal offence, the appeal must and it is hereby allowed. The proceedings in the lower court are hereby declared a nullity and the conviction and sentence are hereby set aside, and an order of discharge entered.

Appeal Allowed

SC.48/1985