THE POWERS OF THE ATTORNEY-GENERAL
The office of the attorney-general in Nigeria is constitutionally provided for under sections 174 and 211, both for the office of the AG of the state and that of the federation. The AG is the chief law officer of the state or of the federation as the case may be. There are copious provisions that have been made with regards to the powers of the Attorney-general under the constitution. The attorney general has immense powers in the legal realm because of the provision of the sections that had provided for them in the constitution of the country. An attorney general is usually a legal practitioner with no less than ten years experience at the bar before he can be appointed to the post.
Even though the seat of the AG is provided under the constitution of the country, it actually predates the constitution in the sense that the seat of the attorney-general is a creation of the common law of England and not something that is exclusive to the constitution.
There are the provisions of the constitution that makes provisions for the office of the AG, and these are provided for under sections 174 and 211 of the constitution. It also makes provisions for the qualification of the holders of the office. The power of the attorney-general with regards to the prosecution of public offences in the country. He has the power to institute any proceeding or to take over any proceeding that has been instituted in his name, and to continue or to discontinue the proceeding at the courts at any time before the making of the judgment in regards to the matter. These same wide ranges of powers are also provided for the state attorney-general under section 211 of the constitution. The powers which he has to exercise can be exercised by him in person or by any of the officers working in his ministry, such as the director of public prosecutions, or any other legal practitioner, and in the exercise of these powers that are granted to him, he must have recourse to the interests of justice and the public interest.
The position of the AG has been recognized by the courts of record. For example, in the case of Esokoro vs The Government of Cross River State, it was held, per the words of Tobi JCA as he then was, that the AG is not only the head of the ministry of justice, but also the chief adviser of the government, responsible for the actions and the inactions of the government. His powers are very vast.
In the same vein, the court in State vs Ilori,recognized the supremacy of the AG in the legal department of the government when it observed that the AG has the unfettered powers to decide which case he can prosecute and which ones he can abandon. Even though he is subject to the executive, he has the power to institute or to discontinue any criminal proceedings in any court of law. The AG has the unfettered powers to decide what cases to prosecute and those that will be left alone by him without any prosecution. Even though he is under the control of the government and in some way, to her agencies, he has the powers to choose what matters that he will take to the courts for the purpose of its prosecution and those that will be left well alone by him.
With regards to the powers of the AG, the issue has arisen as to whether the attorney-general of a state in Nigeria can institute proceedings for a federal offence and ditto for the attorney-general of the federation. The rule is that the AG of a state cannot institute any proceedings on behalf of the AG of the federation without the express authorization of the AG who is supposed to be the person to institute the proceedings. . To this effect, it was held by the court in the case of Anyebe vs The State, that the AG of Benue state could not validly prosecute an accused person under the provisions of the Firearms Act except with the express permission of the AG of the federation who was the right person to institute the proceedings in question.
However, it is only the AG that has the power to institute a proceeding in court; there are other persons and bodies that can institute proceedings, though in respect of certain offences, it is only the AG that can institute proceedings. An example is the offence of sedition.
This is the power which is conferred on the AG to halt or to discontinue any criminal proceeding at any time in the course of the proceedings before the decision is reached by the court. This is provided under section 211 (1) of the constitution, and also, similar provisions can also be found in section 73 and 74 of the Criminal procedure Act and section 235 of the Criminal Procedure Code.
This constitutionally granted power is very immense in nature and can only be exercised by an incumbent AG in the seat, and where there’s been no AG appointed by the government, then what it means is that nobody will be able to tender in the Nolle prosequi. This was the decision of the court in the case of Attorney General Kaduna vs Hassan,where it was held then that where there is no acting incumbent AG then the powers of the office cannot be exercised to any other person in his stead.
The AG can delegate to his staff the power to go to the court and enter the nolle so that a particular matter can be laid to rest. However in order to exercise the said power, then there must have been an incumbent AG available to make the order.
Stemming from the above, it is quite obvious to see that the powers which are exercised by the AG, both of the federal and the state, is left unchecked by any authority. Their powers are exercised at their own discretion and nothing else. . .