By Emem Ekpenyong
A Critical Examination of the Powers of the AG as Conferred by the Constitution
It depends on how it is challenged, and who is challenging it. I have read a rejoinder purportedly authored by one Uzoma Ekeh, wherein he cited Ikomi v State decided in 1986 as the judicial authority which suggests that an AG could be exposed to criminal liability for abusing the powers conferred on him by Section 211 of the Constitution. I do not have access to the exact law report he cited, but I have come across Ikomi v State, a SC’s decision of 1986. I checked the alternate citation and it does not match with the law report referenced by Ekeh (Esq).
Accordingly, I can’t assert with certainty that the case he referenced is the same Ikomi I read. The Ikomi’s case I read had nothing to do with the prosecutorial powers of the AG. It focused on the allegation of murder levelled against a Judge and the proprietary or otherwise of the CJ of that State to consent to the preferment of the information. I want to believe that there is another Ikomi’s case decided in the same 1986 that is not reported in Lawpavillion. If there is such a judicial authority, then the AG of States and law officers should get ready for police harassment. Consequently, it is incumbent on them to fish out the law report, (after all, they have the resources) (1986) 3 NWLR (Pt 28) 340 referenced by Ekeh (Esq), digest it content and and know how to arm themselves.
If such decision does not exist, such findings should be amplified. Ekeh (Esq)’s authority is trending. The police must have read it by now. Hhmm. See una, see police investigations. By the time law officers are arrested or investigated incessantly for carrying out their lawful duties, lawyers will resign in droves from the Ministry or carry out their duties according to the whims of the police. It will not be funny at all. The position of the law I am privy to is that the Attorney General of either a State or the Federation has unfettered discretion to either prosecute or discontinue prosecution of a criminal case against any person. The discretion of the Attorney General can be exercised by him in person or through officers of his department. Once said power or discretion has been properly exercised NO ONE, CAN QUESTION IT, not even the Courts. See HAMMAN V. STATE (2018) LPELR-45392(CA).
In STATE V. VUYOR (2025) LPELR – 80234 (SC), the SC reiterated that the enormous powers donated to the AG, by the Constitution are captured with ‘mellificously eloquent clarity ‘and being provisions from the Grund norm, are superior, supersede and override the provisions of any other law; substantive or procedural on such powers, or/and how the Attorney-General is to exercise same. Accordingly, all other statutes must bow to the subduing authority on the powers of the Attorney-General in respect of public prosecution of all criminal trials, before any Court of law. Flowing from this authority, I am curious. Is there any provision in the Police Act or any law conferring authority on police to investigate the exercise of constitutional powers by the AG? If there is, then such provision must as of necessity, bow to the supremacy of the Constitution. If the police considers the powers of the AG too wide, it can call for the amendment of the relevant sections of the Constitution. Till then, it must remain in bow mode with regards to that issue.
The Court Is Crowned with The Power to Enquire and Be Satisfied That the Purported Act of Nolle Prosequi Is Done by the Authorized Officer, Or Official Authorized by Law to Do So
While the court cannot question or review the exercise of power of the Attorney General of the State to discontinue a case, the Court is crowned with the power to enquire and be satisfied that the purported act of Nolle prosequi is done by the authorized officer or official authorized by law to do so. In ASHIRU V. STATE (2018) LPELR-46677(CA),the purported Nolle prosequi was authored by one Remi Olatubora Esq., the then Attorney General of Ondo State. It was filed on 8/6/2017 when Olatubora Esq. had ceased to be the Attorney General, and accordingly was not clothed with the legal capacity to exercise such powers. Asides being stripped of powers, there were discrepancies between the charge number indicated in the purported Nolle prosequi document and the charge filed. The trial Court ordered that the document should be authenticated. The appellant’s counsel whined to the CA that the trial Court had questioned the power of the Attorney General. The CA disagreed that authentication amounted to questioning.
The AG And Law Officers Can Be Sued In A Civil Action For Abusing Power Of Nolle Prosequi
In STATE V. OGBU & ORS (2015) LPELR-40449(CA), the court acknowledged the enormous powers of the AG, which had generated controversy as there were suspicion by those affected by the exercise of his enormous and unquestionable powers. The court held that such suspicions are understandable, considering that the Attorney General is a political appointee of the President or the Governor of a State, and could be motivated by political or other mundane, and not necessarily legal reasons in forming an opinion and coming to a decision, for truncating a criminal trial by the issuance of a nolle prosequi. However, it maintained that the exercise of the AG’s powers cannot be questioned or even pried into BY ANY PERSON OR THE COURT. The court made reference to the dictum of Justcice Eso, J.S.C. in the State v. S. O. Ilori and 2 Ors (1983) 1 SCNLR 94 at 111. Eso JSC in the aforecited case held inter alia, “The appellant has strenuously harped on the possibility of abuse of his powers by an Attorney- General who is left with his absolute discretion. I have already pointed out earlier, that the sanction lies in the reaction of his appointor and also in public opinion. But more importantly is the fact that a person who has suffered from the unjust exercise of his powers by an unscrupulous Attorney -General is not without remedy; for he can invoke other proceedings against the Attorney-General”.
The CA in STATE V. OGBU & ORS (supra) premising its reasoning on the holding of Eso JSC held that where an AG exercises his powers of entering a nolle prosequi in a criminal case,, the propriety of exercising the power may be questioned in A CIVIL ACTION which can be brought by a person whose civil rights and obligations have been affected. It follows fortiori that the exercise of the same power by a legal officer employed in the Ministry of Justice, can be the subject of similar proceedings. From the holding of the CA, civil action can lie against the AG and law officers, if a victim of crime feels they abused their powers.
Looking critically at the holding of ESO JSC, a victim of crime can sue the AG via either criminal or civil route if he exercised his power of nolle prosequi recklessly. The operative sentence being ‘…invoke other proceedings against the Attorney-General’. But how does a victim institute criminal proceedings against a person who can discontinue the action against himself? What is the essence of the police investigating the AG and law officers? Is it to intimidate them? Or is it to prosecute them if they are found complicit? How do you prosecute the ultimate prosecutor? No be juju be that? All the AG needs to do, is enter a nolle prosequi again, on behalf of himself and the law officers. Civil route is the only option. The AG’s powers to discontinue matters do not extend to civil matters.
This post should be forwarded to the police hierarchy. The police is abusing power as it is. Law officers should enjoy immunity for official assignments. If anyone should sanction them, there are mechanisms within the work place. Police should not attempt to intimidate law officers carrying out official orders.
