STATE V. !LORI & ORS

• Pages: 69-85

STATE V. ILORI & ORS

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69

UWAIS, J.S.C.:

I had the advantage of reading in draft the judgment read by my

learned brother the Chief Justice of Nigeria. I am of the same opinion. I will

therefore allow the appeal and award costs as contained in the judgment.

Appeal allowed.

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STATE V. ILORI & ORS

10

THE

STATE

V

1.

S.O. ILORI

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

2. F. WODI

3. W. TANNO

SUPREME COURT OF NIGERIA

FATAI-WILLIAMS, C_J.N.

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

IRIKEFE,



J.S.C.

IDIGBE,



J.S.C.

ESO,



J.S.C.

ANIAGOLU,



J.S.C.

NNAMANI,



J.S.C.

25



UWAIS,



J.S.C.

25th February, 1983

APPELLANT

RESPONDENTS

SUIT NO. SC 42/1982

Constitutional Law - Nolle prosequi - Attorney-General's absolute discretion at

common law and under Pre-1979 Constitution to commence, continue and

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

discontinue any criminal proceedings - Interpretation of statutes - Permissive

language "shall have regard to" public interest - Whether a curtailment of

his absolute power?

ISSUES:

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1. Whether the Attorney-General's Powers at Common law and under the pre-1979

Constitution to enter a

nolle prosequi

have been affected by the 1979

Constitution.

2.

What is the Meaning and Scope of the Phrase "shall have regard to public

interest etc, in S.191(3) of the 1979 Constitution?

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3. What are the remedies against the Attorney-General for abuse of Powers?

FACTS:

This case concerns the Attorney-General's absolute discretion at common law

and under the Pre-1979 Constitution to commence, continue and discontinue any

criminal proceedings. A new provision was inserted in the 1979 Constitution that

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the Attorney-General "shall have regard to" public interests. The plaintiff brought

an action in the High Court seeking to show that the Attorney-General was biased

in an action against the plaintiff and that the Attorney-General by virtue of the above

provision was not competent to discontinue the proceedings. The High Court held

that the Attorney-General had the right to discontinue any criminal proceedings in-

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stituted 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 against the Attorney-General of malice. On

appeal to the Supreme Court.

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NIGERIAN SUPREME COURT CASES

[1983] N.S.C.C.

HELD:

1.

That the words "shall have regard to" public interest is not a curtailment of The

Attorney-General's absolute discretion but merely declaratory of those powers.

The Attorney-General is still not subject to any control in so far as the exercise

of his powers under the constitution is concerned and, except for public opinion

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and the reaction of his appointer, he is still, in so far as the exercise of those

power's are concerned, a law unto himself.

2.

The remedy for abuse of powers by the Attorney-General lies in separate

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

review of the same.

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3.

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.

[As to

Nolle Prosequi generally,

see 11 HALSBURY'S LAWS 4th Edition 137

paras. 222-224.]

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CASES REFERRED TO IN JUDGMENT:

1.

Shittu Layiwola & Ors v. The Queen

(1959) 4 F.S.C. 119.

2.

State v. Chukwurah

(1964) N.M.L.R. 64.

3.

R. v. Adedoyin

(1959) 4 F.S.C. 185.

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4.

R. v. Harrison

(1951) 1 K.B. 107.

5.

The Queen v. The Comptroller-General of Patents, Designs and Trade

Marks

(1899) 1 Q.B. 909.

6.

Sey v. The King

(1950) 13 W.A.C.A. 128.

7.

Ex Parte Newton

(1855) 4 F & B 869; 119 E.R. 323.

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8.

Attorney-General v. Westminister City Council

(1924) 2 Ch. 417 at 427.

9.

Rex v. Allen

IX Cox C.C. 120 at 123; 1 B & S 850 at 854.

10.

R.

v. Dunn

(1843) 1 C & K 730 at 733

11.R.

v. Bereford

(1952) 36 Cr. App - R. 1

12.Julius v. Lord Bishop of Oxford

(1880) 5 A.G. (H.L.) 214 at 222.

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13.R. v.

Mitchel

(1848) 3 Cox C.C. 93

14.Poole v.

R.

(1961) A.C. 223; (1960) 3 All E.R. 398 - P.C.

15.Ex

Parte Blackburn

(1956) 3 All E.R. 334 at 337

16.

Gilchrist v. Garther

(1891) 12 N.S.W.L.R. 184

17.State v. Adakole Akor and Ors.

(1981) 2 N.C.L.R. 710

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Fred Egbe

in person.

M. Okunola, Assistant D.P.P. Lagos State

for the Respondent.

ESO, J.S.C.

(Delivering the Judgment of the Court): On the 26th of October 1978,

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an information was filed in the Lagos High Court by the Director of Public

Prosecutions of Lagos State to prosecute Fred Egbe, who is the appellant in the

present appeal to this Court, and who would hereinafter in this judgment be referred

to as the appellant. The information was for the offence of inducing delivery of

money by false pretences and also for stealing. The appellant, by a motion dated

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21st November, 1978, brought an application for an order to quash the indictment

but his application was dismissed by the court. On appeal, the Federal Court of

Appeal, hereinafter referred to as the Court of Appeal, in a lead judgment,

delivered by Uthman Mohammed, J.C.A. to which Coker and Nnaemeka-Agu,

JJ.C.A. concurred, allowed the appeal and quashed the information.

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It was in consequence of this decision of the Court of Appeal that the appellant

wrote a letter to the Attorney-General of Lagos State on 8th May, 1979, wherein he

requested for the prosecution of the respondents for the offences of conspiracy

to bring false accusations against the appellant, contrary to s.125 of the Criminal