TERMINATION OF CRIMINAL CASES BY NOLLE PROSEQUI.

Professor Ernest Ojukwu, SAN &

Ugochukwu Njoku, esq,

1.1. INTRODUCTION

Nolle Prosecui is said to be the most controversial of all the Attorney-General’s powers.

Nolle Prosequi is a latin word that literally means. Its origin is from common law and the

idea of this power is to bring sanity to public prosecution. This power is reposed on the

Attorney-General of the Federation and Attorneys-General of the various states of

Nigeria. There has always been accusations and counter accusations on the use of this

power and other prosecutorial powers of the Attorney-General, since he is a professional

and a politician.

The recent drive by the recently elected Federal Government to prosecute corruption

cases and to probe the conduct of persons in the previous administration have raised

accusation and counter accusation on abuse of prosecutorial powers. This accusation of

abuse made the Senate to insist on the appearance of the Attorney-General of the

Federation before it to explain some of the cases it termed ‘witch hunt’. This accusations

of abuse has also led the legislators to start tinkering with the idea that the office of the

Attorney-General should be separated from the office of the Minister of Justice. Others

have also suggested that we should adopt the American system of electing a public

prosecutor who will be in charge of all prosecutions and who will not be subject to the

control of the politicians in government. It is argued that the Attorney-General should

1
By Professor Ernest Ojukwu, SAN Partner, Ojukwu Faotu & Yusuf (OFY-Lawyers);
and Ugochukwu Njoku, esq, Counsel, Ojukwu Faotu & Yusuf (OFY-Lawyers).
©All Rights Reserved.

Page 1 of 18
have used his power of Nolle Prosequi to stop prosecutions that abuse our criminal justice

system.

This paper therefore examines the termination of criminal cases by the power of Nolle

Prosequi. This is done by :

a. Explaining the office of the Attorney-General;

b. Giving an insight into the origin of the office of the Attorney-General and his

powers;

c. Explaining Nolle Prosequi and the effect of its use;

d. Distinguishing Nolle Prosequi from the power of withdrawal by other prosecutor;

and

e. Explaining the problems associated with the use of Nolle Prosequi,

This work will therefore aid legislators in better law reform and help prosecutors to

understand the best way to use the power.

1.2. THE ATTORNEY-GENERAL

The Constitution of the Federal Republic of Nigeria (CFRN) in section 150(1) and section

195(1) creates the office of the Attorney- General. The section provides thus:

150. (1) there shall be an Attorney-General of the Federation who shall be the
Chief Law Officer of the Federation and a Minister of the Government of the
Federation.
(2) A person shall not be qualified to hold or perform the functions of the office of
the Attorney-General of the Federation unless he is qualified to practise as a legal
practitioner in Nigeria and has been so qualified for not less than ten years.2

2
Section 195 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN)for the States of the
federation.

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The Attorney-General in the State as the Chief Law Officer of the State is limited in his

powers to matters to which the State House of Assembly is competent to make laws3 on

or laws made by the National Assembly that are intended to be operational in the States4.

The Attorney-General of the Federation on the other hand is limited in his powers to

matters to which the National Assembly is competent to make laws on for the Federation.5

Section 174 and section 211 of the Constitution gives the Attorney-General of the

Federation and the Attorney-General of the States respectively the power to institute, take

over, or discontinue any criminal proceedings against any person, in any court in Nigeria

except in a Court Martial. Consequently, since the Attorney-General derives this power

from the Constitution, the power of the Attorney-General is superior to whatever

prosecuting powers given to any other agency or person(s).6

Some writers have stated that the Attorney-General cannot exercise any of his powers in

a Court Martial7, but this is not very apparent from a look at section 174 and 211 of the

Constitution. From a critical study of these sections, the Attorney-General is only limited

in his powers concerning commencement of criminal proceedings in a Court-Martial8. I

therefore will make bold to say, that the attorney-General can take over proceedings in a

Court-Martial, and he can discontinue proceedings in a Court-Martial. I say this because

the limitation in section 174(1)(a),with regards to Court-Martials, is not in section

174(1)(b)&(c) .There is however no known judicial authority that has decided this point

3
Matters in Part 2, Second schedule to the 1999 Constitution of the Federal Republic of Nigeria.
4
Emelogu vs State(1988)2NWLR(pt. 87) 524
5
Federal Offences(286 CFRN) see Anyaebe vs State(1986)1SC 87, Emelogu vs State(1988)2NWLR(pt.
87) 524
6
EZEA vs STATE (2014) LPELR-23565(CA)
7
Bob Osamor, CRIMINAL PROCEDURE LAWS AND LITIGATION PRACTICES, Dee sage
prints(2012) Pg. 153
8
174(1)(a) of the CFRN

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1.2.1. THE COMMON LAW POSITION ON THE OFFICE OF THE ATTORNEY-

GENERAL

Legal writers and commentators trace the origin of the office of Attorney-General to the

thirteenth century when, as King's Attorney, he was responsible for maintaining the

interests of the King in the royal courts. The Attorney-General therefore had the

prerogative power to control public prosecution in the king’s interest.9

As Lord Chief Justice Wilmot put it in R vs Wilkes 10

By our constitution, the King is entrusted with the prosecution of all crimes
which disturb the peace and order of society ... As indictments and
informations, granted by the King's Bench, are the King's suits, and under
his control; informations, filed by his Attorney-General, are most
emphatically his suits, because they are immediate emanations of his will
and pleasure.

The nature of the royal prerogative

Before the advent of parliament and the evolving principles of English Constitutional

Law effectively reduced the power of the crown, the king had a function to govern

England and all other oversea territory under his reign and he did so by personal

prerogative. The evolving principle of Constitutional Law removed most of the Kings

powers and left some residue powers for the crown.

Dicey11 defines royal prerogative as “The residue of discretionary power left at any

moment in the hands of the Crown, whether such power be in fact exercised by the King

himself or his Ministers.” In other words, as he put it, “…every act which the executive

9
Osita Mba, Prosecutorial Powers Of The Attorney- General: The Supreme Court Erred In The State vs
Ilori, Nigeria village square, 29 March 2010
10
(1768) Wilm 322, 326:
11
Introduction to the Study of the Law of the Constitution (10th edn Macmillan, London 1959) 425)

Page 4 of 18
government can lawfully do without the authority of an Act of Parliament is done by

virtue of this prerogative.”

This fundamental doctrine of English law was explained thus: “ In the exertion … of those

prerogatives, which the law has given him, the King is irresistible and absolute, according

to the forms of the Constitution.”12Consequently, the Attorney-General enjoyed a position

of omnipotence in the exercise of the King's prerogative prosecutorial powers.

Subsequently, successive Attorneys-General won various legal battles, to establish firmly

the principle that the Attorney-General’s powers were not subject to judicial review.

Notable amongst these cases are R vs ALLEN13R vs COMPTROLLER-GENERAL OF

PATENTS14 and GOURIET vs UNION OF POST OFFICE WORKERS 15

In GOURIET vs UNION OF POST OFFICE WORKERS16, a decision of the House of

Lords, Viscount Dilhorne confirmed this principle thus:

The Attorney-General has many powers and duties. He may stop any
prosecution on indictment by entering a nolle prosequi. He merely has to
sign a piece of paper saying that he does not wish the prosecution to
continue. He need not give any reasons. He can direct the institution of a
prosecution and direct the Director of Public Prosecutions to take over
the conduct of any criminal proceedings and he may tell him to offer no
evidence. In the exercise of these powers, he is not subject to direction by
his ministerial colleagues or to control and supervision by the courts.

It must be noted, that a look at COUNCIL OF CIVIL SERVICE UNIONS vs MINISTER

FOR THE CIVIL SERVICE17and MOHIT vs DIRECTOR OF PUBLIC PROSECUTION

(DPP) OF MAURITIUS18indicates, that the English courts have departed from this long

12
Blackstone, Commentaries on the Laws of England (16th edn Butterworths, London 1825) vol 1, 250)
13
(1862) 1 B & S 850;
14
[1899] 1 QB 909
15
[1978] AC 435.
16
Ibid at p 487
17
[1985] AC 374
18
[2006] UKPC 20

Page 5 of 18
held principle. In MOHIT vs (DPP) OF MAURITIUS, The Privy Council emphatically

rejected the contention that the DPP19 is a law unto himself, and refused to ‘disturb’ what

it described as “the ordinary assumption that a public officer exercising statutory

functions is amenable to judicial review.” Lord Bingham, who delivered the judgment,

indicated20 that Viscount Dilhorne's dictum in GOURIET could now be "reviewed or

modified in the light of the later decision of the House of Lords in the GCHQ case”.

According to Lord Bingham21: “Where the Attorney- General's power derives from a

statutory source, as in giving his consent to prosecutions requiring such consent, since the

source of the discretionary power rests in statute law there are no inherent constitutional

objections to the jurisdiction of the courts being invoked."

1.2.2. NOLLE PROSEQUI

Of the several powers given to the Attorney-General, writers, and legal commentators

agree that the power to discontinue prosecution is the most controversial, not because of

the wordings in the Constitution, but because of the interpretation given by the courts to

such wordings.22

According to black’s law dictionary23,

Nolle prosequi 24is 1. A legal notice that a lawsuit or prosecution has been
abandoned. 2. A docket entry showing that the plaintiff or the prosecution
has abandoned the action. — Often shortened to nolle.

19
Who has similar prosecutorial powers like the Attorney- General in Nigeria
20
Ibid at page 14
21
ibid
22
Agaba J. A. 2011 PRACTICAL APPROACH TO CRIMINAL LITIGATION IN NIGERIA and
Tobechukw & Chukwuma RETHINKING THE POWER OF NOLLE PROSEQUI IN NIGERIA: THE
CASE OF STATE vs ILORI Global Journal Politics and Law ResearchVol.2,No.1, pp.1-11,
March2014Published by European Centre for Research Training and Development UK(www.ea-
journals.org)1
23
Garner B. A, 8TH EDITION,
24
Latin “not to wish to prosecute”

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 “ Nolle prosequi is a formal entry on the record by the prosecuting officer
by which he declares that he will not prosecute the case further, either as
to some of the counts of the indictment, or as to part of a divisible count,
or as to some of the persons accused, or altogether. It is a judicial
determination in favour of accused and against his conviction, but it is not
an acquittal, nor is it equivalent to a pardon.” 22A C.J.S. Criminal Law §
419, at 1 (1989).

In some jurisdiction, the withdrawal of a civil suit by the Plaintiff before judgement is

also known as nolle prosequi. The practice, like the order of discharge in our jurisdiction,

retains the right of the plaintiff to re-litigate the matter25.

In addition, in certain jurisdictions, nolle prosequi can be given as an order of Court to

the Prosecution. For example, when the Accused dies during pendency of the matter, the

court may give an order of nolle prosequi mandating the prosecution to discontinue

prosecution after the death of the Accused person have been proved. 26

1.2.3. NOLLE PROSEQUI IN NIGERIA

Section 174 of the Constitution provides thus:

174. (1) The Attorney-General of the Federation shall have power -

(c) to discontinue at any stage before judgement is delivered any such
criminal proceedings instituted or undertaken by him or any other
authority or person.
(2) The powers conferred upon the Attorney-General of the Federation
under subsection (1) of this section may be exercised by him in person or
through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of
the Federation shall have regard to the public interest, the interest of
justice and the need to prevent abuse of legal process. 27

25
http://legal-dictionary.thefreedictionary.com/Nolle+prosequi
26
Balochistan Times of June 18, 2011 reported that ‘Lewis Kaplan - the District Court Judge who had
been presiding over the bin Laden case in court, issued an order called nolle prosequi, which means do
not prosecute in Latin’
27
Section 211 of the CFRN for the power of Attorney- General of the State.

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The Attorney-General in Nigeria has the power therefore to discontinue any criminal

prosecution in Nigeria28. The Attorney-General derives this power from the

constitution.29

On the manner of exercise of such power, the Attorney-General can exercise this function

personally, or he can delegate the authority to an officer in his department.30 Section 107

of the Administration of Criminal Justice Act, operational in the Federation, Section 73(1)

of the Criminal Procedural Act, operational in the Southern States in Nigeria, and section

253(2) of the Criminal Procedure Code operational in Northern States in Nigeria,

provides that the Attorney-General can enter a nolle prosequi by ‘stating in court’ or

‘informing the court in writing’ that the State intends to discontinue prosecution. The

courts in STATE vs CHUKWURA31 have therefore interpreted these sections to mean that

an Attorney-General can enter a nolle prosequi either by:

a) Appearing before the court and orally telling the court of his intention to

discontinue prosecution.

b) A written authority under his hand to discontinue the proceedings through an

officer in his department. The officer described here must be a State counsel of

any grade. It does not include administrative or support staff.32

In STATE vs CHUKWURA, the court rejected an oral application by a State Counsel to

discontinue a criminal proceeding by nolle prosequi.

28
State vs S.O. Ilori & Ors(1983) 14 N.S.C.C., subject to the jurisdictional powers stated earlier Anyaebe
vs State(supra)
29
Not necessarily Common Law
30
Obasi vs State(1998) 9NWLR(pt. 567) 686
31
(1964)NMLR 64
32
Section 3 Law Officers Act Cap L8 LFN 2004, Awobutu vs State(1976) 1 All NLR 237

Page 8 of 18
However, section 71 of the Administration of Criminal Justice Law of Lagos State, does

not specify that an officer in the Attorney-General’s office must come with a written

authority. This has led authors like Agaba33 to opine that an officer in the Attorney-

General’s department can enter a nolle prosequi orally in Lagos State.

In addition, even though all other powers of the Attorney-General can be exercised with

a blanket authority to law officers in the Attorney-General’s department, the power to

enter a nolle prosequi can only be entered upon the direct instruction of the Attorney-

General34. What this implies is that if at a particular time, there is no incumbent Attorney-

General, it is impossible to enter a nolle prosequi. This is the deciscion of the Supreme

Court in ATTORNEY-GENERAL OF KADUNA STATE vs HASSAN35.

In this case, without an incumbent Attorney-General, the Solicitor-General of the State

exercised the State Attorney-General’s powers under section 191 (1) (c) of the 1979

Constitution and discontinued a trial in the High Court. The Supreme Court held that the

Solicitor General acted without competence since at the material time when he assumed

the power, there was no incumbent Attorney-General in the State who could have

delegated the power to him.

The Supreme Court has further explained this position in FEDERAL REPUBLIC OF

NIGERIA vs SENATOR OLAWOLE JULIUS ADEWUNMI36 where it stated that it

reached the decision in ATTORNEY-GENERAL KADUNNA vs HASSAN because there

was no incumbent Attorney-General. Therefore, if there is an incumbent Attorney-

33
Op. cit.
34
Obasi vs State Op. Cit
35
(1985) 2NWLR(pt. 8) 483
36
(2007) LPELR-1273(SC)

Page 9 of 18
General, the court will not go to inquire whether the Attorney-General delegated such

power or not.

1.2.4. EFFECT OF A NOLLE PROSEQUI

By its nature under the common law, nolle prosequi merely suspends proceedings at the

pleasure of the Attorney-General. The state can therefore arrest the Accused for

prosecution on the same offence immediately after his release. This is because entry of a

nolle prosequi merely discharges the Accused and does not acquit him. Therefore, it

cannot be a good ground for the plea of double jeopardy.

Section 73(1) of the CPA37 confirms this common law position, as it provides that the

Accused “…shall be at once discharged in respect of the charge or information for which

the nolle prosequi is entered.’’ Section 73(3) of CPA further confirms this position. It

provides thus:

Where a nolle prosequi has been entered in accordance with the provisions
of this section, the discharge of an accused person shall not operate as a
bar to any subsequent proceedings against him on account of the same
facts38

IN CLARKE vs ATTORNEY- GENERAL OF LAGOS STATE, 39the accused persons were

charged for the offence of conspiracy to steal, among other offences. In the course of the

proceeding, after some witnesses had testified, the Attorney-General of Lagos State

entered a nolle prosequi and the case was discharged. The Accuseds were then rearrested

and brought before the court for the same offence. They contended that having been

discharged earlier, they could not be prosecuted for the same offence again. The court

37
See Also Section 107(4)Administration of Criminal Justice Act
38
See similar provisions in section 74(4) CPA, sec 253(3) CPC and section 71(3) ACJL. Also see Clarke
vs Attorney-General Lagos State(1986) 1QLRN 119
39
Op. Cit

Page 10 of 18
ruled that the effect of a nolle prosequi is a mere discharge and that it does not stop further

prosecution for the same offence.

Aniagolu JSC and Eso JSC emphasized the position of the law in STATE vs ILORI. Eso

JSC said:

Indeed if after a nolle prosequi has been entered, and the court has acted
upon it, a fresh or further proceedings on the same indictment are
commenced, there is nothing to stop the Attorney- General from entering
yet another nolle prosequi. This he can do as many times as the
proceedings rear their head.”

Drawing strength and support from the lead judgment of Eso JSC, Aniagolu JSC said:

“The Attorney- General may, therefore enter a nolle prosequi for as many
times as the occasion demands. It is appreciated that a nolle prosequi is
only a temporary proceedings which has the effect only of a stay and not
of a quashing of the indictment, which technically may later be presented
without a fresh indictment”

1.3. JUDICIAL ATTITUDE TO THE ATTORNEY-GENERAL’S POWER

OVER PUBLIC PROSECUTION: RESTRICTION ON THE USE OF NOLLE

PROSECUI UNDER NIGERIAN CONSTITUTION

Section 174(3) states thus:

In exercising his powers under this section, the Attorney-General of the

Federation shall have regard to the public interest, the interest of justice

and the need to prevent abuse of legal process.”40

Judicial attitude seemed for a long time to be decidedly supportive of the notion that the

power exercisable by the Attorney-General over public prosecution in Nigeria is one of

40
Section 211 of the CFRN for the power of Attorney- General of the State.

Page 11 of 18
absolute discretion41. Indeed, the Supreme Court held that the power is beyond judicial

control. This view thrived regardless of the seeming strictures in the Constitutional

provision requiring that the Attorney-General “shall have regard to the public interest,

the interest of justice and the need to prevent abuse of legal process” before he exercises

his power over public prosecution.

The locus classicus, which illustrates this judicial attitude, is the case of STATE vs. ILORI

& ORS42. In that case, Fred Egbe instituted a private criminal proceeding in the High

Court against the then Director of Public Prosecution and the Police Officers that

prosecuted him in an earlier criminal proceeding. The Attorney-General thereupon

entered a nolle prosequi to discontinue the proceedings. The trial Judge upheld the nolle

prosequi even though Fred Egbe contended that the Attorney-General of Lagos State was

biased and that the Attorney-General was by virtue of the provision of Section 191 (3) of

the 1979 Constitution not competent to discontinue the current criminal proceedings

against officers in the Attorney-General’s office. The High Court held that the Attorney-

General had the right to discontinue any criminal proceedings instituted by him or any

other person at any stage before judgment. The Appellant appealed to the Court of

Appeal, which held that the trial court should have taken evidence and examined

allegations of malice against the Attorney-General.

On a further appeal to the Supreme Court, the Court held that the words “shall have
43
regard to public interest” are not a curtailment of the Attorney-General’s absolute

41
EDOBA B. OMOREGIE, ESQ.(2004) POWER OF THE ATTORNEY GENERAL OVER PUBLIC
PROSECUTION UNDER THE NIGERIAN CONSTITUTION NEED FOR JUDICIAL RESTATEMENT.
University of Benin Faculty of Law Lecture Series No 4
42
Op. Cit
43
in section 191 (3), 1979 CFRN

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discretion, but merely declaratory of those powers. Furthermore, the court held that the

Attorney-General is still not subject to any control as far as the exercise of his powers

under the Constitution is concerned; and except for public opinion and the reaction of his

appointer, he is still, in so far as the exercise of those powers are concerned, a law unto

himself.

Atanda Fatai-Williams. (CJN Rtd) in agreeing with the lead judgment of Kayode

Eso JSC, stated thus:

A number of factors, known to the Attorney-General, must, of necessity,

come to his mind when he decides whether to prosecute or not. It may not

be in the public interest to disclose any of these.

The Court then held that the remedy for abuse of power by the Attorney-General lies in

separate proceedings against him by the person adversely affected and not in judicial

review of the same. Finally, the Court held that Section 191(3) of the 1979 Constitution

has in no way altered the pre- 1979 Constitutional power of the Attorney-General to enter

a nolle prosequi, which is also in line with common law practices in respect to nolle

prosequi.

1.3.1. WITHDRAWAL FROM PROSECUTION PURSUANT TO SECTION

75(1)(B) CPA AND 73(1) ACJL

Care must be taken to differentiate between the power a prosecutor has to withdraw from

prosecution pursuant to the above-mentioned sections and the power of nolle prosequi

that rests in the Attorney-General.

Page 13 of 18
A withdrawal from prosecution must be with the permission of the Attorney-General or

the consent of the Court. It can lead to a discharge or an acquittal depending on when the

prosecutor enters the withdrawal.

According to section 75(1)(b) CPA, if the application to withdraw by the prosecutor is

brought before the Accused is called upon to enter upon his defence, then the effect of

the withdrawal will be a mere discharge. However, if the application to withdraw from

prosecution is brought after the Accused person has been called upon to enter upon his

defence, the the effect of the nolle prosequi will be a full acquittal.

For withdrawal by prosecutor also, even if the prosecutor makes the application before

the Accused is called upon to enter in his defence, the court may still order for the acquittal

of the Accused if it thinks such order is proper, but the court must give good reasons for

such decision.

Note however, that this only applies to courts where CPA is operational (Southern State

courts and the FHC) and in Lagos State, it does not apply in States where CPC is

operational (Northern States courts).

1.4. PROBLEMS ASSOCIATED WITH NOLLE PROSEQUI

Many activists have condemned the wide powers/discretion given to the Attorney-

General by the interpretation of Section 174 of the Constitution in STATE vs. ILORI44.

These antagonists of the nolle prosequi powers cite the several incidents where the

Attorney-General seemed to have abused this power. For instance, on 17 November 2014,

44
Osita Mba.ibid; A.O ENABULELE, LL.M BL. DEPT OF JURIS & INT’L LAW.DELIMITING THE
SCOPE OF THE POWERS OF THE ATTORNEY-GENERAL TO RE–CHARGE AN ACCUSED
PERSON AFTER A NOLLE PROSEQUI HAD BEENENTERED*

Page 14 of 18
the Attorney-General of the Federation was reported to have entered a nolle prosequi in

a case the Economic and Financial Crimes Commission (EFCC) was handling without

prior discussion with the prosecution to know anything about the matter or to determine

the case of the prosecution45. Also, Osita Mba46have stated that Mr Aondoakaa's

discontinuation of the criminal proceedings against Orji Uzor Kalu and Jimoh Lawal and

his refusal to prosecute the suspects in the Siemens, Willbros and Halliburton corruption

scandals, among other examples, were evidences of the abuse that Attorneys-General

have exhibited with their powers.

However, in all, the criticisms against the use of the powers of the Attorney-General have

always been with the ‘person’ that occupies the office and not really with the office. There

are many sound reasons why the Attorney-General should have the amount of discretion

that he wields especially concerning the principle in nolle prosequi. For instance, a

situation where persons abuse the power of private prosecution to institute frivolous or

scandalous prosecution will not be good for the polity and it will require the instrument

of nolle prosequi to stop that form of frivolous prosecution. In STATE vs ILORI, an

Accused decided to prosecute the prosecutor that prosecuted him. If such prosecutions

continue without termination, it will definitely pose an undue burden on prosecution of

criminal cases in Nigeria.47

In addition, the belief in some quarters that the power of nolle prosequi has been ‘enjoyed’

by the Accused alone holds no water. The instrument of nolle prosequi has been used in

45
http://www.premiumtimesng.com/news/top-news/171176-Attorney--General-efcc-clash-withdrawal-
fraud-case.html
46
Op. Cit
47
Even though some people will argue that this will make prosecutors more careful, but it will
undoubtedly distract prosecutors and will obviously discourage prosecution of cases.

Page 15 of 18
certain instances to make sure justice was served on Accused Persons. In certain

instances, the prosecution enters a nolle prosequi when their case is going bad and they

have an opportunity to present their case again48. It can also be used when something has

happened in the matter that will be very detrimental to the right of the Accused in the

trial. Nolle prosequi therefore gives the court a chance to have a second look at the case

to make sure criminals do not go free and in some instances to make sure innocent people

are not punished.

As to the question of whether an Attorney-General should be made to give reasons while

entering a nolle prosequi, the answer can be seen in the dictum of Fatai Williams (CJN

Rtd) in STATE v ILORI

It may not be in the public interest to disclose any of these

1.5. CONCLUSION

The judgment in Ilori remains the law. This is because a judgment of court, no matter the

fundamental vice that may afflicts it, remains legally binding and valid until set aside by

due process of law49

Fortunately, the Supreme Court has the power to depart from and overrule its previous

decisions where, inter alia, it is shown that the decision is erroneous in law; or was given

48
Clarke vs State Op. Cit
49
A-G of Anambra State vs A-G of the Federation & Ors [2005] 9 NWLR (Pt 931) 574, 606 (Supreme
Court) Katsina-Alu JSC; A-G of Ondo State vs A-G of the Federation (2002) NWLR (Pt.111) 2167.

Page 16 of 18
per incuriam; or it is shown that the previous decision is contrary to public policy or is

occasioning miscarriage of justice or perpetuating injustice.50

This means that the situation is not a hopeless one.

But before such a period when the Supreme Court will have the opportunity of reviewing

the present situation and deciding whether to abandon the decision in ILORI’s case or

stand by it, Attorneys-General must understand that the power they wield is meant for the

good of the society and not for bad. He must always consider the words of Lord Justice

Smith in the English case of R v. Comptroller-General of Patents51 when he said

a man in his position will never prostitute those functions which he has to

perform

The Governor/President who appoints Attorneys-General must also realize that the

decision on who to appoint the Attorney-General is not a mere political decision. The

person appointed must be an outstanding statesman. The Appointer must consider the

words of Chief Justice Fatayi-Williams when he counselled in Ilori (at page 112) that:

It is of paramount importance that when an Attorney-General is being

appointed, the appointor should, at all times, bear in mind the integrity,

ability, experience, and maturity required of the person holding this high

and important office. He should be a person who, in the discharge of his

duties, will always "have regard to the public interest, the interest of

justice, and the need to prevent any abuse of legal process.”

50
A-G of the Federation vs Guardian Newspapers Ltd [1999] 9 NWLR (Pt 618) 187, 266 (Iguh JSC).
51
(1899) 1 Q.B. 909,

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