Stricto sensu, the Attorney-General of the Federation, and those of the States play a crucial role in the administration of the criminal justice system in Nigeria. Amongst the awesome prerogatives wielded by these chief law officers is the power to terminate criminal proceedings in any court before judgment. Contextually, this overwhelming power alludes to a derivative Latin term, which is popularly referred to as Nolle prosequi.
In recent years, however, there have been clamours that this very sensitive constitutional power is prone to misuse, and can potentially bring disorderliness to the society, as well as amounting to the opposite object of the creation of the power – injustice. At the brink of this threshold, this piece takes an excursion into the scope of this power, while importantly broaching and resolving the question of whether this power of Nolle prosequi is indeed a device for manipulation of justice or a tool for the preservation of justice.
Nolle prosequi is a concept which dates back to the 1600s. It is a Latin phrase meaning “will no longer prosecute”.[i] In effect, it is made as a declaration by a prosecutor to the judge either before or during the trial that the case against the accused is being dropped.[ii] Originally in the old common law polities, Nolle prosequi was used by prosecutors when the charges against the accused could not be proved; when the innocence of the accused was apparent; when there is a fatal blow to the case of the prosecution; or when the prosecutors are convinced that accused was innocent.[iii] It later came to be used in England from the 15th century as a device used by the Attorney-General to dismiss criminal prosecutions and the court would accordingly terminate same without inquiry.[iv]
In the Nigerian setting, the power to enter a Nolle prosequi is exclusively vested in the Attorney-General of the Federation and the Attorney-Generals of the states.[v] Ordinarily, these Chief Law officers are constitutionally invested with enormous powers, inferring from a respective and community reading of Sections 174 and 211 of the 1999 Constitution of the Federal Republic of Nigeria, as altered (hereinafter referred to as the Constitution). The provisions of these sections respectively vest in the Attorney-General of the Federation and that of a state the powers to institute, undertake, continue and discontinue criminal proceedings against any person before any court of law in Nigeria (other than a court-martial) before judgment is delivered in respect of such cases. By implication, Attorney-Generals are domino litis as regards prosecution of criminal matters in Nigeria.
Sections 174(c) and 211 (c) of the Constitution resonate with the power of the Attorney-Generals to enter a Nolle prosequi by explicitly allowing them to refuse to press charges or withdraw same in respect of any instituted criminal proceeding. Although the general notion is that Nolle prosequi generally operates as a discharge, it is worthy of mention that the application of this power will either operate as a discharge or acquittal of the accused depending on the stage of the proceeding. If an entry of nolle prosequi is made before an accused enters his defence, such entry will serve as a discharge and acquittal of the accused. Where nolle prosequi is entered after the accused has entered his defence, such entry will operate as a discharge only, the implication of which is that the accused can be charged for the same offense again.[vi]
It must also be emphasized that in the exercise of this power, the Attorney-General need not give any reason or justification, as rightly upheld in State v. Ilori[vii] and State v. Adakole Akor & Ors[viii].
The power to enter nolle prosequi is not subject to the review by any court, as rightly held in Akilu & Anor v. Chief Gani Fawehinmi[ix]. The court is expected to endorse the withdrawal without reservation or inquiry.[x] Conversely, the exercise of the power does not operate as a bar to subsequent proceedings against the accused even on account of the same facts. Alternatively, as provided in Sections 174(2) and 211(2) of the Constitution, this power may either be exercised by the Attorney-General himself or by any officer in his department. The power may also be exercised through a private prosecutor. What must be observed, however, for the indirect exercise of this power to be valid is that the person (other than the Attorney-General) must have been delegated such power by the Attorney-General through a legal instrument in writing.[xi]
As overwhelming as this power seems notwithstanding, Sections 174(3) and 211(3) of the Constitution append that the Attorney-Generals, in the exercise of their constitutional powers (Nolle prosequi inclusive) shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process. The question at this crescendo is to what extent has this power been cardinal or on the other hand, malevolent to the administration of justice in Nigeria.
A device for Manipulation of Justice or a Tool for Preservation of Justice?
Having taken a cursory look at the power to enter Nolle prosequi, it can be certainly construed the scope of this power is ostensibly limitless. Flowing from the above discourse, a Nolle prosequi, depending on the stage at which it was entered, temporarily or permanently relieves a person of criminal liability. The rationale for the invention of this power seems to be for the exoneration of a person facing a criminal charge when it becomes apparent that there is a fatal flaw in the prosecution’s claim or that the innocence of the accused person is glaring.[xii] Nolle prosequi is then entered to protect the accused from improper prosecution that may result in unnecessary delay.[xiii] These are viable justifications for the exercise of power. Nonetheless, the author of this piece humbly posits that this power is too wide and absolute, and on the long run, may apprehend danger to the administration of criminal justice.
Based on the fact that the office of the Attorney-General is a political one by virtue of its membership of the executive council, there is a very present potency that the holder of the office may become unruly or unscrupulous in the exercise of this constitutional power. Contrary to the golden intention of the grundnorm, the Attorney-General may wield such power to exonerate the members of his political party who are standing in criminal trials. Consequently, where an Attorney-General claims to have purportedly acted “in the interest of justice”[xiv], given that the exercise of this power cannot be subject to judicial review, questioning, or scrutiny, miscarriage of justice is therefore bound to be occasioned.
An Attorney-General, being an appointee of the Chief executive, will most probably be subservient to the wills of his appointer. In trying circumstances, he may wield this power for the promotion of the interest of his appointer at the expense of the preservation of justice. This verily defeats the substance of the investiture of the power to enter Nolle prosequi.
More striking is that there is neither limit as to the number of persons in which Nolle prosequi may be entered nor is there an end to the number of times which Nolle prosequi may be re-entered against the same accused, except where he has been acquitted. As such, there is room for excesses. As famously pronounced by Lord Acton, “Power tends to corrupt, and absolute power corrupts absolutely”.[xv]
Manifestly, Nolle prosequi portends great peril to the effective administration of criminal justice and the maintenance of law and order in Nigeria as lots of criminals who have committed heinous crimes and are supposed to languish in prison or sentenced to death are let loose and made to gallivant complacently in the society due to their influence or their connection to the people in the realm of governmental affairs. This prima facie is an aberration of the spirit of the law.
Remedy for the injured
In the current judicial dispensation, it now appears that there is a form of regulation to the exercise of this power. An injured person who has suffered perceived injustice from the flagrant exercise of this power now has a remedy. In A.G. Kaduna State v. Hassan[xvi], the court held that a person who has suffered from the exercise of the constitutional powers of the Attorney-General may institute an action in civil proceedings against the Attorney-General to seek compensation or declaration of his right. However, this still does not equate to substantive justice. While it seems that an abuse of this power by the Attorney-General may be met with adverse public criticism or in rare occasions, sanctions from his appointor, these are not effectual checks to the exercise of this enormous power of the Attorney-General.
The author of this piece posits in strong terms that the afore-examined constitutional provisions are in need of exigent and wholesale reforms. It is also recommended that the court should be authorized to review the exercise of the power of the Attorney-General to enter Nolle Prosequi where necessary. In some other quarters, it is suggested that the office of the Attorney General be separated from the office of the Minister of Justice. This is to expunge any form of political influence in the dispensation of his functions and to safeguard the agelong doctrine of separation of power, as well as guarantee autonomy in the judicial system. It is humbly recommended that the exercise of the power of the Attorney General to enter Nolle prosequi should be subject to the advice of an advisory council.[xvii] The council should comprise members of the legal profession of impeccable character and members of the public of high moral standing. The council would be saddled with the responsibility of advising the Attorney General whenever a discontinuance of criminal proceedings is to be effected. More importantly, the Attorney-General, in the exercise of his powers and functions, should bear in mind the ultimate objective of the maintenance of law and order and the seamless dispensation of justice.
[i] Cornell Law Scholl, ‘Nolle Prosequi’ (Cornell Law School, undated) https://www.law.cornell.edu/wex/nolle_prosequi accessed 29th November 2021.
[ii] West’s Encyclopedia of American Law (The Gale Group, Inc. edition, 2008).
[iii] Abraham S. Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea (Louisiana State University Press, 1981) 104.
[iv] See Goddard v. Smith, 87 Eng. Rep 1007, 91 Eng. Rep. 632 (K.B. 1704).
[v] See The State v. Ilori  1 SCNLR 94.
[vi] See generally Section 108(1) and (2) of the Administration of Criminal Justice Act (ACJA), 2015; See also Section 73(1) of the Administration of Criminal Justice Law, Lagos State, 2007; Section 97(1) of the Administration of Criminal Justice Law, Ondo State.
[viii] (1982) 2 NCLR 410.
[ix] (1989) 3 NWLR (Pt. 112) 685.
[x] See Section 108(3) of ACJA.
[xi] See Director of Public Prosecutions v. Idowu (1981) 2 NCR 355 at 360.
[xii] David O. Adenagan, ‘Nolle Prosequi and the Attorney-General: A Clear Demand for Regulations’ (2020) Vol. 5(2) Afe Babalola University Law Review.
[xiv] See Section 174(3) of the Constitution.
[xv] John Emerich and Mandell Creighton, Letter to Archbishop Mandell Creighton (London: Macmillan, 1907) 87.
[xvi] (1985) LCN/2250.
[xvii] David, (n11).