Attorney-general Of Kaduna State V. Mallam Umaru Hassan (1985)

LawGlobal-Hub Lead Judgment Report

A. G. IRIKEFE, J.S.C. 

Following upon an outbreak of communal violence at JIKAMSHI VILLAGE, in the KANKIA LOCAL GOVERNMENT AREA OF KADUNA STATE, one ABDUL RASHID UMARU lost his life, and arising therefrom, certain villagers were arrested and charged with the culpable homicide not punishable by death of the said ABDUL RASHID UMARU.

After a preliminary hearing at the Magistrate’s Court, some of those arrested were committed for trial at the High Court. After arraignment at the High Court and the recording of pleas, the Solicitor-General of Kaduna State, MR. J. B. MAIGIDA who was leading the prosecution on behalf of the State, entered a note prosequi in respect of the charges, stating that he did so, in reliance upon Section 130(1) C.P.C. and Section 191(2)(c) of the Constitution of Nigeria, 1979. Thereupon, the learned trial Judge, AROYEWUN, J. struck out the charges, resulting in the discharge of the accused persons.

The respondent to this appeal Mallam Umaru Hassan, the father of the deceased ABDUL RASHID UMARU, being aggrieved by the action of the Solicitor-General, initiated the instant proceedings by means of an originating summons seeking a declaration on the incompetence of the Solicitor-General to terminate the criminal proceedings as he had done. For ease of understanding, I shall set out in full the affidavit grounding the originating summons as well as the summons itself.

Affidavit in support of originating summons.

I, Mallam Hassan Umaru (m) Moslem, Farmer, Nigerian citizen of Jikamskhi Village, Kankia Local Government Area, Kaduna State make oath and say as follows:-

1. That I am the plaintiff in the above suit.
2. That one Abdul Rashid Umaru now deceased is my son.
3. That the said Abdul Rashid Umaru died on 1/2/81 in suspicious circumstances.
4. That on 4/2/81 I identified the corpse of my said son at the Ahmadu Bello University Hospital Kaduna to the doctor who performed the post-mortem examination.
5. That following the death of my said son, the police arrested the following persons namely:-

Alhaji Idi Shugaba, Alhaji Dogara Aliyu, Alhaji Garba Abdullahi, Alhaji Balla Keffi and Alhaji Yaro Tella amongst others and charged them before the Chief Magistrate Court, Kaduna for the homicide of my said son.

6. That on 21/4/81 in Suit No. KMD/13x/81, I testified as a witness for the prosecution during the Preliminary Inquiry conducted by the court in respect of my said son’s death.
7. That at the end of the Preliminary Inquiry, the enquiring magistrate held that a prima facie case in respect of the culpable homicide of my said son has been made out against the following persons namely:- Alhaji Idi Shugaba, Alhaji Dogara Aliyu, Alhaji Garba Abdullahi, Alhaji Balla Keffi and Alhaji Yaro Tella and committed them for trial at the High Court, Kaduna.
8. That the case came up for hearing before the High Court on 29/3/82 as Suit No.KDH/28/81.
9. That when the case came up before the High Court, the Solicitor-General of Kaduna State invoked powers of the Attorney-General of the State under Section 191(2) of the Constitution of the Federal Republic of Nigeria, 1979 and applied to withdraw the charges against the aforesaid accused persons.
10. That on 30/3/82, the trial Judge struck out the case on the ground that since the Solicitor-General represents the Attorney-General of the State, and as the State does not intend to continue with the trial that he has no choice other than to strike out the charges against the aforesaid accused persons and the charges were struck out accordingly. A copy of the proceedings before the court is hereby annexed as appendix ‘A’ to this affidavit.
11. That I know as a fact, that there is no person occupying the office of the Attorney-General of Kaduna State of Nigeria and to the best of my knowledge, the powers of the Attorney-General of Kaduna State have not been delegated to the Solicitor-General of Kaduna State.
12. That I swear to the contents of this affidavit conscientiously and sincerely believing the same to be true by virtue of the Oaths Act, 1963″

The annexure to the affidavit reads:-

“In the High Court of Kaduna State of Nigeria

Judicial Division

Holden At Kaduna

KDH/28/81

29th March, 1982

THE STATE

v.

1. IDI SHUGABA

2: ALHAJI DOGARA ALIYU

3. GARBA ABDULLAHI
4. ALHAJI BALA KEFFI
5. ALHAJI YARO TELLA

All the 5 accused persons in Court. Mr. MAIGIDA J. B., Solicitor-General for the State. Mr. Pat Aigbogun for all the accused persons.

COURT:- Charge read and explained to each of the accused persons and each asked whether he is guilty or not guilty of the offence or offences.

1st accused:- I understand the charges.

I am not guilty of them.

2nd accused:- I understand the charges.

I am not guilty of the 1st charge.

I am not guilty of the 2nd charge.

3rd accused:- I understand the charge.

I am not guilty of the 1st charge.

I am not guilty of the 2nd charge.

4th accused:- I understand the charge.

I am not guilty.

5th accused:- I understand the charge.

I am not my guilty.

Maigida:- I have exhaustively read the P.1 and the statement in the case diary made by each accused. From the evidence adduced at the lower court i.e. at the P.1. no reasonable tribunal should have preferred a charge against any of the accused persons. There is no evidence to support the basis on which the trial Magistrate at the lower court based his charges against the accused. There are conflicting evidence before the Ministry of Justice came in and after that no reasonable tribunal should have framed any charge. In view of the contradiction before the court below we have no evidence to offer as this would be a waste of the time of both the court, the accused and everyone connected with the administration of justice. I submit that we are not prosecuting the accused persons and they should be discharged. I apply under Section 130(1) C.P.C. and Section 191(2)(c) of the Constitution.

PAT AIGBOGUN:-

On one hand I have no objection to the application of the Solicitor-General and on the other hand I do not propose to make a cross application to protect the liberty of the accused persons. The provisions of Section 187, 185 and 189 have been met. The prosecution has told the court that evidence with which he is unable to continue to prove the guilt of the accused persons. I urge the court to apply Section 191(3) C.P.C. I urge the court to discharge the accused persons.

(JUSTICE KOLA AROYEWUN)

29/3/82

30TH MARCH, 1982

All the accused persons present.

J. B. Maigida, Solicitor-General for the State.

Pat Aigbogun for defence.

Ruling

This is a case of culpable homicide not punishable with death and abetment of the same against some of the accused persons.

At the hearing of this case the learned Solicitor-General informed me that he does not intend to prosecute any of the accused persons for the alleged offences since he was unable to adduce any sufficient evidence in support of the charges against the accused persons due to contradictions in the evidence adduced at the lower court during the preliminary investigations. He cited Section 130 C.P.c. which to my mind is inapplicable. In any case he went further to say that he is applying under Section 191(1)(4) of the Constitution 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. As the learned Solicitor’ General represents of course, the Attorney General of the State and since the State does not intend to continue with the trial I have no choice other than to strike out the charges against all the accused persons. The charges are hereby struck out.

(Sgd.)

JUSTICE KOLA AROYEWUN

30/3/82

The originating summons itself seeks a determination of the following questions:-

“1. Whether the Solicitor General, Ministry of Justice, Kaduna State can validly exercise the powers conferred on the Attorney General of Kaduna State by Section 191 of the Constitution of the Federal Republic of Nigeria 1979 when no person has been appointed to the office of the Attorney’97General of the State, and when any or all of such powers have not been specifically delegated to him by any persons holding the office of the Attorney-General of Kaduna State of Nigeria

2. Whether the Solicitor-General of Kaduna State can in purported exercise of the powers of the Attorney-General under paragraph (c) of sub-section 1 of Section 191 of the Constitution of the Federal Republic of Nigeria 1979 discontinue criminal proceedings against accused persons committed for trial at the High Court after preliminary inquiry by a magistrate when the powers conferred on the Attorney-General of the State by the said section have not been delegated to the Solicitor-General of Kaduna State by any person holding the office of the said Attorney-General of Kaduna State.

Claims against the defendant

A declaration that any purported exercise of the powers conferred upon the Attorney-General of Kaduna State, by the Solicitor-General of Kaduna State, under the provisions of Section 191 of the Constitution of the Federal Republic of Nigeria, 1979, in the absence of an incumbent to the office of the Attorney-General of Kaduna State is unconstitutional, unlawful, null and void and of no effect whatsoever.”

It is common ground that, at all times relevant to the issues raised in the originating summons, no Attorney-General had been appointed for Kaduna State. The position remained the same until the inception of this military administration. The reason for this state of affairs is not, however, an issue in this case.

Two issues fell to be determined by the Kaduna High Court as could be seen from the reserved judgment of CHIGBUE, J., delivered on 30th August, 1982 at the end of submissions in the originating summons application. These were –

(a) Did the applicant Mallam Umaru Hassan have legal competence to bring the originating summons in order to challenge the action of the Solicitor-General in Suit KDH/28c/81 – in short, did he have locus standi

(b) Did the Solicitor-General have competence to terminate the said criminal proceedings without such powers being expressly vested in him by an incumbent Attorney-General

The learned judge, CHIGBUE, J., ruled that Mallam Hassan had locus standi to initiate the proceedings and went further to rule that the action which the Solicitor-General purportedly took under Section 191 of the Constitution of the Federal Republic of Nigeria, 1979, was ‘incompetent, unconstitutional, unlawful, null and void and of no effect whatsoever.’

Being dissatisfied with the above decision, the Kaduna State Government went or appeal to the Court of Appeal on a number of grounds. I will refrain from setting these grounds down as the issues raised in them were raised again before us in this final appeal. The decision of the Court of Appeal was split, Nasir, P., Wali and Maidama, JJ.C.A. giving the majority opinion (and thus the judgment of the court) while Coker and Karibi-Whyte, JJ.C.A. gave the minority opinion. The two dissentient opinions were not, however, identical. Coker, J.C.A. (as he then was) took the view that the respondent to this appeal had no locus standi and preferred to rest his decision on this. He, however, as an obiter dictum, concluded that the Solicitor-General had competence to terminate the criminal proceedings. Karibi-Whyte, J.C.A. (as he then was) while holding that the respondent had no locus standi to intiate the proceedings yet came to the conclusion that the appeal by the State nevertheless succeeded on the ground that the Solicitor-General could exercise the powers of an Attorney-General under Section 191 of the Constitution of the Federal Republic of Nigeria 1979, the absence of an incumbent Attorney-General notwithstanding.

We took the view that the legal issues raised in this appeal are so fundamental that an opportunity should be given to all the State Attorneys-General (19 in number) as well as the Attorney-General of the Federation to make known their views as amici curiae. This court is extremely indebted to the Attorneys-General, for their several contributions, which have assisted in no small measure, in putting into proper focus, the issues with which this appeal is concerned.

The grounds argued before us read as follows:-

1. The Federal Court of Appeal erred in law in holding that the respondent had locus standi to institute the civil suit No. KDH/130/82.

Particulars

(i) The originating summons does not disclose any real controversy between the respondent and the appellant.

(ii) If it can be said that the action instituted by the respondent relates to any particular subject, the subject matter could only be the criminal charge KDH/28/82 and the respondent had not shown he had any interest in that criminal charge.

2. The Federal Court of Appeal erred in law in holding that the learned trial judge of the Kaduna High Court had jurisdiction to hear and determine civil suit No. KDH/130/82

Particulars

(i) The originating summons taken out by the respondent does not disclose any cause of action or actionable dispute between the respondent and the appellant over which the learned trial judge could have exercised jurisdiction.

(ii) If it can be said that there is such actionable dispute between the respondent and the appellant that dispute can only be found on the criminal charge No. KDH/28/82 in respect of which there was a competent order of MR. JUSTICE KOLA AROYEWUN and over which the learned trial judge cannot exercise any power of review in the light of the provisions of Sections 284 and 285 of the Criminal Procedure Code.

(iii) In the absence of any actionable dispute between the respondent and the appellant the respondent could only be inviting the learned trial judge to engage in a mere academic exercise as any declarations made will turn out to be declarations in a vacuum.

3. The Federal Court of Appeal erred in law in holding that the civil Suit No. KDH/130/82 was not in the nature of an appeal.

Particulars

(i) The originating summons did not disclose any actionable dispute between the appellant and the respondent.

(ii) In the absence of any real controversy between the appellant and the respondent the learned trial judge by entertaining suit KDH/130/82 sat as a reviewing authority over a competent decision of a court of co-ordinate jurisdiction.

(iii) In the absence of a disclosed cause of action the learned trial judge should not have invoked his powers of jurisdiction.

4. The learned judges of the Federal Court of Appeal erred in law in holding that the Solicitor-General of Kaduna State cannot validly exercise the powers conferred on the Attorney-General of

the State under Section 191 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter called the Constitution) in the absence of an incumbent in the office of Attorney-General of the State.

Particulars

(i) As no Attorney-General has ever been appointed for Kaduna State since the inception of the Constitution the Solicitor-General of Kaduna State can validly exercise the powers of the Attorney-General of Kaduna State by virtue of Section 191 of the Constitution and the doctrine of State necessity.

The learned Federal Court of Appeal judges erred in fact and law in holding that the doctrine of necessity does not apply in Kaduna State.

Particulars

(i) Since the coming into force of the Constitution an Attorney-General has never been appointed for Kaduna State because the Kaduna State House of Assembly has twice rejected nominations made by the Governor of Kaduna State.

(ii) In the absence of an Attorney-General for Kaduna State the Solicitor-General and the entire law officers of the State would not have been able to undertake criminal prosecution but for the provision of Section 191 of the Constitution.”

Mrs. Donli, the learned Attorney-General for Kaduna State in making her case before us, as would be expected in an appellant – situation, stressed that she was relying on the dissent by Coker, J.C.A. (as he then was) and Karibi-Whyte, J.C.A. (as he then was). These two opinions, as I had stated earlier on in this judgment, did not necessarily head in the same direction. Be that as it may, it was clear that the learned Attorney-General was making two points, namely:-

(a) that the respondent had no locus standi to bring the instant proceedings and

(b) that the Solicitor-General in the absence of an incumbent in the office of Attorney-General can do what the Attorney-General can.

The learned Attorney-General also, in the alternative, urged us to apply the doctrine of necessity to the Kaduna situation, as in her submission, law and order would completely break down, if, due to non-availability of an Attorney-General, the State was forced to place an embargo on criminal prosecutions and criminals were allowed to roam at large, unhindered. If indeed such a situation were permitted, then argued the learned Attorney, there would in fact be no government, as all activities of government would grind to a halt. Virtually, the same points were made in the brief filed by the learned Attorney which she also relied upon.

Mr. Akinyili, for the respondent, repeated with greater emphasis the submissions he had made in the two lower courts, to the effect that the respondent had locus standi to come by way of an originating summons for the purpose of construing the provisions of Section 191 of the Constitution of the Federal Republic of Nigeria 1979, in order to show that the Solicitor General of Kaduna State lacked competence to terminate the criminal proceedings.

The amici-curiae were also equally divided, some expressing support for the views put across on behalf of the respondent, while others supported the appellant.

Before proceeding with an examination of the two issues raised, I should like to state, in passing, that all the opinions of the Court of Appeal both major and minor are agreed that in exercising jurisdiction over the originating summons, Chigbue, J. was not invoking an appellate jurisdiction over the earlier ruling in the criminal matter given and was not a nullity and as such, could not be set aside by another judge of co-ordinate jurisdiction. See SEIFAH v. FORFIE (1958) AC. 59; MACFOY v. U.A.C. (1962) AC. 152; and SKENCONSULT (NIG.) LTD. AND ANOR. v. UKEY (1981) 1 SC. 6.

On locus standi, that is the right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law, it would be difficult to resist the conclusion that the respondent had locus standi. While I agree that, in terms with the provisions of Section 213(5) of the Constitution of the Federal Republic of Nigeria, 1979, he would not qualify for admission into the category of ‘aggrieved persons’ in a criminal matter, the same cannot be said in relation to his civil rights and obligations as enshrined in the Constitution. Section 213(5) of the Constitution 1979 reads:-

‘Any right of appeal to the Supreme Court from decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter, and if the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.’

Section 6(6)(b) of the Constitution 1979 reads:-

‘The judicial powers vested in accordance with the foregoing provisions of this section 97 shall extend to all matters between any persons or between government or authority and any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person:’-

If as the record shows, the respondent’s son was killed in circumstances warranting the commencement of a criminal prosecution against those alleged to have been involved in the killing, he (the respondent) would be entitled to hold as an infringement of his civil rights the arbitrary termination of the said criminal prosecution by someone such as the Solicitor-General in this case, who is alleged to be incompetent to do so. He would, in my view, be able to go to court by way of an originating summons seeking a declaration that what the Solicitor-General did in withdrawing the charges was beyond his competence. There was a lot of discussion by this court in the case of SENATOR ADESANYA v. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOR. (1981) 2 NCLR. 358 as to circumstances under which a person litigating a cause would have locus standi. In this connection, I would respectfully adopt the views of my learned brother BELLO, J.S.C. in the said case when he stated as follows:-

‘It seems to me that upon the construction of the subsection, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.’

See also – OLAWOYIN v. A.G. N.R (1961) ALL NLR. 270; GAMIOBA AND ORS. v. ESEZI AND ORS. (1961) ALL NLR. 586; GOURIET v. UNION OF POST OFFICE WORKERS (1977) 3 ALL E.L.R. 70; R. v. GREATER LONDON COUNCIL, Ex Parte BLACKBURN AND ANOR. (1976) 1 WLR. 550.

The appropriateness of the procedure by originating summons has not been seriously contested in this appeal. What took the respondent to court was the interpretation of the constitutional provision raised in these proceedings.

It is still trite that ‘no action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed.’ Order 15 R. 16 (English Rules of the Supreme Court, 1979). See- GUARANTY TRUST CO. OF NEW YORK v. HANNAY (1915) 2 KB. 536. Accordingly I rule that grounds 1, 2 and 3 have failed.

The remaining grounds of appeal are concerned with the powers of the State Attorney-General under Section 191 of the Constitution. Section 191(1) provides:-

“The Attorney-General of a State shall have power

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any Law of the House of Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”

Section 191(2) provides:-

‘The powers conferred upon the Attorney-General under sub-section (1) of this section may be exercised by him in person or through officers of his department. (Italics mine)

Section 191(3) provides:-

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

Before considering the above provisions in detail, I should like to set out the provisions which deal with the qualifications of the person to be appointed Attorney-General. This is to be found in Section 176 of the Constitution.

Section 176(1) provides:-

‘There shall be an Attorney-General for each State who shall be a Commissioner of the Government of that State.’

Section 176(2) provides:-

‘A person shall not be qualified to hold or perform the functions of the office of the Attorney-General of a State unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.’

A short historical and anecdotal excursion at this stage in relation to the office of Attorney-General may not be entirely out of place. With the inception of PAX-BRATANICA, in this country towards the end of the last century, there was always a Legal Department with the Attorney-General as its head. This Attorney-General was stricto-sensu a civil servant and pari of the executive arm of the British Colonial Administration. In the Attorney-General’s Department or Legal Department were serving legal officers designated as CROWN COUNSEL. With the introduction of the 1960 Constitution which brought into being the concept of ministerial or cabinet form of government with the Prime Minister as the head of a Cabinet of Ministers, the Attorney-General continued to be a civil servant, while a new cabinet post of Minister for Justice was created. The Constitution of 1963 made the office of Attorney-General unmistakably political either at the centre or in any of the three regions of Nigeria at that time. The various constitutions provided that the Attorney-General shall be a member either of the House of Parliament or Senate or of a Legislative House of a region.

The constitution of 1960 made provisions for the office of a DIRECTOR OF PUBLIC PROSECUTIONS who was not under the MINISTER OF JUSTICE. This state of affairs subsisted until the coming into force of the 1963 Constitution which placed the Director of Public Prosecutions under the Attorney-General and Minister for Justice. Thus we had under the 1963 Constitution, an Attorney-General who was a politician with the portfolio of Justice and thus the head of that Ministry. Under him was the Solicitor-General and Permanent Secretary of that Ministry and the Director of Public Prosecutions both of whom were civil servants. With the advent of the military administration of 1966, Decree No. 55 of that year effected a restructuring of the status of the Attorney-General as follows:-

‘(1) The Head of the National Military Government may, if he thinks fit, appoint a person to be Attorney-General of the Republic.

(1a) The functions of the Attorney-General of the Republic shall include the exercise, subject to the authority of the Executive Council, of general direction and control over the National Ministry of Justice,

(1b) Whenever and so long as no person holds the office of Attorney-General of the Republic, any function which is conferred by this Constitution or any other law upon the Attorney-General of the Republic shall vest in the Solicitor-General of the Republic and may be performed by him notwithstanding anything in sub-section (4) of this section.’

Identically worded modification were inserted in the Constitutions of the Regions and later of the States. All these provisions operated within the framework of the 1963 Constitution modelled after the West minister Cabinet form of government as amended by the various decrees of the intervening military administrations up to 30th September, 1979. On the coming into force of the Presidential form of civilian administration on 1st October, 1979, a new office of Attorney-General was created for the Federation who was also a minister in the government. Section 138 of the Constitution makes provision for this. Similarly section 176 makes provisions for the appointment of an Attorney-General for a State, who shall be a Commissioner of the government of that State.

Within the period covered by our own experience in representative government, I shall set out the provisions dealing with the powers vested by the Constitutions in those charged with the prosecution of crime in order to focus attention on some of the similarities in wording.

As I had indicated earlier, the 1960 Constitution clothed the Director of Public Prosecution with something in the nature of autonomous powers. Section 97(1) of the 1960 Constitution reads:-

‘There shall be a Director of Public Prosecution for the Federation, whose office shall be an office in the public service of the Federation.

Section 97(2) reads:-

‘The Director of Public Prosecutions of the Federation shall have power in any case in which he considers it desirable so to do

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any Act of Parliament;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.’

Section 97(3) reads:-

‘The powers of the Director of Public Prosecutions of the Federation under sub’97section (2) of this section may be exercised by him in person or through members of his staff acting under and in accordance with his general or special instructions.’

Section 97(5) reads:-

‘The powers conferred upon the Director of Public Prosecutions of the Federation by paragraphs (b) and (c) of subsection (2) of this section shall be vested in him to the exclusion of any other person or authority.’

Paragraphs (b) and (c) refer to the powers to take over a prosecution or to terminate same. These issues are germane to those raised in the case in hand and if the constitutional provision, that is Section 191 of the 1979 Constitution had been similarly clearly worded, the need for construing it might not have arisen.

Section 97(6) reads:-

‘In the exercise of the powers conferred upon him by this section the Director of Public Prosecutions of the Federation shall not be subject to the direction or control of any other person or authority.’

The above powers compare with those vested in the ATTORNEY-GENERAL of the Federation by the 1963 Constitution, with this difference, that the Director of Public Prosecutions has now lost his autonomous status by being brought under the control of the ATTORNEY-GENERAL. Section 104 (1) of the 1963 Constitution reads:-

‘There shall be a Director of Public Prosecutions for the Federation, whose office shall be an office in the public service of the Federation and, without prejudice to the provisions of this Constitution relating to the Public Service Commission, an office in the Federal Ministry of Justice.’

Section 104(2) reads:-

“The ATTORNEY-GENERAL of the Federation shall have power in any case in which he considers it desirable so to do “(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by any law in force in Nigeria or any part thereof;

(b) to take over and continue any such criminal Proceedings that may have been instituted by any other person or authority;

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”

Section 104(3) reads:-

‘The powers of the ATTORNEY-GENERAL of the Federation under subsection (2) of this section may be exercised by the ATTORNEY-GENERAL in person and through the Director of Public Prosecutions of the Federation, acting under and in accordance with the general or special instructions of the ATTORNEY-GENERAL, and through other officers of the department mentioned in subsection (1) of this section, acting under and in accordance with such instructions.’

Section 104(5) reads:-

‘The powers conferred upon the ATTORNEY-GENERAL of the Federation by paragraphs (b) and (c) of subsection (2) of this section shall be vested in him to the exclusion of any other person or authority.’

Section 104(6) reads:-

‘In the exercise of the powers conferred upon the ATTORNEY-GENERAL of the Federation by this section, the ATTORNEY GENERAL shall not be subject to the direction or control of any other person or authority.’

Section 104(6) above re-echoes the position of the ATTORNEY-GENERAL right from the inception of that office under the Common Law up to and inclusive of the recent constitutional provisions. He is said to be a law unto himself and subject to direction and control from none. Implicit in this provision is the need that the ATTORNEY-GENERAL should be seen as an even-handed functionary of the executive arm of government. See the decision of this court in STATE v. ILORI & ORS. (1983) 1 SCNLR. 94. It is plain that the powers vested in the ATTORNEY-GENERAL by paragraphs (b) and (c) of Section 104(2) are exercisable by him personally and not delegable. These are the powers of taking over and terminating prosecutions. What he can delegate to the Director of Public Prosecutions and other officers is the power to institute and undertake criminal proceedings under paragraph (a) of the same section. By 1967- Act No.8 (Decree No.8) of that year made the following significant amendment to the powers of the ATTORNEY-GENERAL under Section 88 of the Constitution of 1963. That new section 88(1a) provides as follows:

‘The functions of the ATTORNEY-GENERAL of the Federation shall include the exercise, subject to the authority of the Supreme Military Council, of general direction and control over the Federal Ministry of Justice.’

The new section 88(1b) provides as follows:-

‘Whenever and so long as no person holds the office of ATTORNEY-GENERAL of the Federation, any function which is conferred by this Constitution or any other law upon the Attorney-General of the Federation shall vest in the Solicitor-General of the Federation and may be performed by him notwithstanding anything in subsection (4) of this section.’ For subsection (3) there shall be substituted the following subsection –

(3) If the person holding office as Attorney-General of the Federation is for any reason unable to perform the functions conferred upon him by this Constitution or any other law, those functions may be performed by such other person as may be designated in that behalf by the Supreme Military Council.’

Corresponding amendments were incorporated in the Constitutions of the States and thus in a situation where there was no incumbent Attorney-General in a State, a Solicitor-General would have been competent to terminate criminal proceedings as had happened in this case. The above was the legal and constitutional position until 30th September, 1979. The argument for the appellant would hold true, if I can be persuaded that the framers of the 1979 Constitution intended that, in enacting Section 191 of the said Constitution, they were thereby laying the foundation for a continuation of the powers vested in the ATTORNEY-GENERAL or the Solicitor-General under the 1963 Constitution as set out hitherto.

I think it is trite that in construing a constitutional document there is the need to look at its provisions as a whole and where possible, give such provisions their ordinary and natural meaning. See BANK OF ENGLAND v. VAGLIANO BROS. (1891) AC. 107 at 144where Lord Herschell put the position thus:-

‘I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.’

As I had stated earlier in this judgment, the Attorney-General under the 1963 Constitution was by that constitutional arrangement a member of one or other of the legislative houses created by the said constitution. This was the position until 1966 when several provisions of that Constitution were suspended as the result of the military intervention of that year. The military in government amended the provisions relating to the office of ATTORNEY-GENERAL. This they did by the amendment to Section 88 as I had shown above. The further amendment making it possible for the Solicitor-General to perform the duties of an ATTORNEY-GENERAL which came about in 1967 by Act No.8 of the year was also done by the military.

Whereas the 1963 Constitutional arrangement was made to reflect the Westminister pattern of government wherein executive power lay in the Prime Minister who was the leader of the party commanding the majority in the legislature, the 1979 Constitution is a prototype of the American Constitution, where executive power was vested in an elected President. Under the 1963 Constitution the President was a ceremonial figure-head with no powers. The executive President under the 1979 Constitution had exclusive access to executive power. His was the prerogative to nominate his ministers and other office holders. Having nominated them, he sent their names to the Senate where that august body would arrange a hearing for the candidate by one of its committees in order to determine his fitness for appointment to that office by being confirmed.

The executive powers exercisable by the ATTORNEY-GENERAL would be such as is assigned to him under Section 136(1) of the 1979 Constitution which reads:-

‘The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.’

Section 174(1) deals with the like situation in relation to the States.

The provisions in the 1979 Constitution are thus unique in the sense that they are intended to deal with the peculiar circumstances of Nigeria. A foray into the Constitutions of other nations, useful, though it may be, cannot be of much assistance. It is therefore of paramount importance when construing the Constitution, that one should look closely at the provisions themselves, in order to discover their object. This approach cannot be dogmatic and I seem to be in agreement with the versatile approach advocated by UDOMA, J.S.C. when in RABIU v. THE STATE (1980) 8/11 SC. 130 he had this to say:-

‘Where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the content or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.’

One significant difference in the wording of Section 104 of the 1963 Constitution and Section 191 of the 1979 Constitution is the omission of the phrase:-

‘acting under and in accordance with the general or special instructions of the Attorney-General’ in the latter provision. The importance of the personal role that has to be played by the Attorney-General is underscored by the penultimate provision of Section 191 – that is 191(3) which I am constrained to reproduce again. It reads:-

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

The exercise of the powers vested in the ATTORNEY-GENERAL under the section cannot bear a mechanical or automatic approach, particularly in a situation where issues of high state policy are involved, which would require to be balanced one way or another, before action is taken. This is the more so, as the ATTORNEY-GENERAL is answerable to no one with regard to any decision taken under the section. See THE STATE v. ILORI & ORS. (Supra). I am in no doubt that the powers entrusted to the ATTORNEY-GENERAL by the express provisions of Section 191 of the 1979 Constitution must be an incumbent in the office to act as donor and an appropriate officer in his department or ministry who can be a donee of the power. If the powers can be exercised without being donated, then the officers in the ATTORNEY-GENERAL’S Department would have access to the powers on the footing of equality with him and the draftsman could easily have inserted ‘and’ instead of ‘or’ between person and through. This would surely be a recipe for chaos and would make nonsense of the ensuing provision under Section 191(3). With all the foregoing in mind, I have no doubt that the learned judge of the Kaduna High Court was right in saying that the Solicitor-General was incompetent to terminate the proceedings in the criminal prosecution.

The point made on behalf of the appellant that, unless there is equality of access to the powers treated under the section as between the ATTORNEY-GENERAL and the SOLICITOR-GENERAL, at a time when there IF is no incumbent ATTORNEY-GENERAL, there would be an embargo on crime prosecution and termination, cannot be valid. The office of Solicitor-General and that of Director of Public Prosecutions are existing offices, that is, offices carried over from the old Constitution by virtue of the provisions of Section 275 of the 1979 Constitution. Section 275(2) thereof provides:-

‘Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue of this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution.’

It is routine for criminal prosecutions on information to be undertaken at the High Court by the office of the Director of Public Prosecutions. It is equally routine for such prosecutions to be terminated before judgment by the same department. It is also not unusual for the Solicitor-General to represent government in important or complicated civil actions. In the event of an application being made to terminate proceedings, it seems to me that the court before which it is made would be justified in asking for the grounds for the application and in ruling on it. This would not be the case if the application were made by the ATTORNEY-GENERAL pursuant to Section 191 of the 1979 Constitution. He cannot be asked by the court to ascribe reasons for the application.

Section 105 of the High Court Law (Cap 49 – LAWS OF NORTHERN NIGERIA) makes provision for representation of the State by law officers, Director of Public Prosecutions, State Counsel, the police and others. Indeed most prosecutions in the magistrate courts are conducted by the police who, in very many cases for one reason or other, apply to have some of such cases withdrawn. There is also power under Section 258(2) of the Criminal Procedure Code (CAP 30 – LAWS OF NORTHERN NIGERIA) for terminating prosecutions. It would therefore, not be true that the inability of the Solicitor-General to terminate proceedings under Section 191 of the 1979 Constitution would create a vacuum in the dispensation of criminal justice. The doctrine of necessity as to which there was discussion by the Attorney-General of Kaduna State and some other STATE ATIORNEYS did not properly arise as an issue in this case.

On the whole I am satisfied that there is no merit in the views urged upon us in this appeal with regard to grounds 4 and 5. Accordingly, this appeal fails and it is hereby dismissed with N300.00 costs in favour of the respondent herein.

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Other Citation: (1985) LCN/2250(SC)