GANI ASHIRU v. THE STATE
(2018)LCN/12244(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/228CA/2017
RATIO
COURT AND PROCEDURE: WHO IS AN ATTORNEY-GENERAL
“Who is the Attorney-General referred to? The simple answer is that the power is said to have been exercised when such act of Notice of Discontinuance or termination or letter is received by the Court, wherein the matter is pending and brought to Judge’s attention. Secondly, the Attorney-General must be the serving Attorney-General or officers under him, to act afresh or adopt directly what had been filed. It is the present to act by ratification, if he chooses to so do. Nonetheless, the Court would have to be satisfied that the purported act is indeed regularly done in such a manner that it cannot say the act is none other than the act of the authorized officer or official of the State; in this situation, that the act is that of the Attorney-General and in respect of particular proceedings or charge.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A
COURT AND PROCEDURE: THE DOCUMENT OF NOLLE PROSEQUI
“Therefore, the Document of ‘Nolle prosequi’ as in the Document before the Court cannot be a new Issue raised. It may be looked at and a view by the Court, taken. See Abiodun V. FRN (2018) 11 NWLR (Pt. 1629) 86 at 102 – 103. The Court is to ensure that the Nolle satisfies the condition. In any case the parties were at one or in accord as to who the relevant occupier of the office of the Attorney-General was as at the time of the purported entry, of the Nolle, not made by him.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A
COURT AND PROCEDURE: POWER OF THE ATTORNEY GENERAL
“The attorney General has the power to institute and undertake any proceedings against any person before any Court of law other than a Court martial, in respect of any offence created by or under any law of the State house of assemble. See Section 211 (1) of the 1999 Constitution (as amended). This power cannot be reviewed or questioned by Court. However, the Court is crowned with the power to enquire and be satisfied that the purported act of Nolle is regularly done by the authorized officer or official authorized by law to do so.” PER RIDWAN MAIWADA ABDULLAHI J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
GANI ASHIRU Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Justice of Ondo State of Nigeria, sitting at the Akure Division in Suit No. 161C/2013 delivered on 30th May, 2017 wherein the learned Judge refused to act on the letter of Nolle entered in a criminal trial of the Appellant without authentication of the said order, first been made.
The Ruling is at pages 142 to 144 while the Notice of Appeal is at pages 145 ? 148 of the Records of Appeal.
The Appellant was arraigned on an information containing two counts of allowing himself to be installed as Obaja of Ijaja in Arigidi Akoko and conducting himself in a manner likely to cause a breach of the peace.
The prosecution called four witnesses and tendered some exhibits. At the close of the prosecution’s case, the Defence made a no case submission which was upheld in part and in respect of Count one only. After several adjournments, the Learned Attorney of Ondo State Aderemi Olatubora, Esq. by letter indicated his intention not to continue the prosecution and urged the Court to discharge the Defendant as prosecution had been discontinued against him.
The learned trial Judge refused to allow the discontinuance without authentication of the letter which has the date of 16th February, 2017 but without a date and stamp of the date of receipt by the Court other than the information by prosecuting Counsel that the original copy of the letter was in the Court’s file and that the letter had been written before the expiration of the erstwhile Attorney-General Olatubora, Esq. and while he was an incumbent Attorney-General.
The duo of Counsel for the prosecution and defence said so but the Court found the information unsatisfactory as a previous letter from the Attorney-General had borne a different charge Number from the present charge and in respect of the extant Notice or Nolle, there was no indicia of stamp and date of receipt in the Court.
In the Appellant’s Brief of Argument, two Issues were distilled for determination, thus;
1. Whether from the circumstances of this case the learned trial Judge was right not to have discontinued the case by striking the case out base (sic) on the letter of Nolle prosequi by the Honourable Attorney General of Ondo State (Grounds 1, 2, and 3).
2. Whether the learned Judge was right in not referring the case for the opinion of the Court of Appeal in view of the constitutional importance of it. (Ground 4).
The Respondent pursuant to the leave of this Court for extension of time to file the Respondent?s Brief of Argument, filed a Respondent’s Brief of 17/10/18 which was deemed filed on 22/10/18. In it, the Respondent formulated a lone Issue thus:
‘Whether base (sic) on the circumstances of this case, the trial Court was right not to have acted on the letter dated 16th February, 2017 issued by the Attorney-General Ondo State to discontinue the criminal charge instituted against the Appellant’.
The Appellant’s Issue 1 and the Respondent’s Issue are the same and upon that Issue, this appeal can be determined most fairly and with finality, considering the facts and circumstances of the Ruling, as rendered.
Arguing its Issue One adopted by this Court, the Appellant’s Learned Counsel opened with a vehement detour of a challenge to the trial Court’s conduct of the proceedings. It is the Counsel’s vehement position that the Ruling of the trial Court does not reflect the question posed by the Court to the parties/Counsel to address her on. The Learned Counsel then veered off to contend that the learned trial Judge ought to have made a reference to this Court as sought by the Appellant. Reliance was placed on A.D. V. Fayose (No. 1) (2004) 22 WRN 34 in contending that the Court found no guidance on the Issue and thus ought to have made a reference to this Court.
Counsel contended that there was a recondite point of law for reference because, the Court had invited Counsel to address her on whether a letter of Nolle Admittedly issued by an Attorney-General sought to be used/relied on after he ceased to be in office was not a recondite point for reference.
Reliance was also placed on Gambiola & Ors V. Eseli II 2 SCN LR 237. That this Court could treat the matter as an appeal if reference had been made, thus saving time and costs. The Learned Counsel then says the matter having come on Appeal, it may be so resolved. He relied on Abraham Adesanya V. President of the Federal Republic of Nigeria & Anor (1981) also in (2002) 44 WRN 80 and Orianwo V. Okene (2002) 11 SCM 177.
Counsel also contended that the non-indication of a date of receipt of the Nolle prosequi on the face of it was raised by the Judge suo motu without affording the parties the opportunity to react to it. Reference was made to Ajuwon V. Akanni (1993) 9 NWLR (Pt. 316) 182, Salubi V. Nwariaku (1997) 3 NWLR (Pt. 505) 442 and Olorunfemi V. Asho (1999) 1 NWLR (Pt. 585) 1 @ 9.
Arguing on point subsequently, the Learned Counsel for the Appellant contended that the gist of the appeal and meaning therefore, that the milk of his argument is whether a Nolle prosequi issued while an Attorney-General is in office is rendered void or untenable at the time the Court is to act on it, if during that time the Attorney-General has left office. The power of the Attorney-General to institute, take over and discontinue criminal proceedings in respect of any offence created by the law enacted by a State House of Assembly was recognized by the Learned Counsel.
Counsel was however, sarcastic when he contended that there was a vacuum between the time when one Tayo Jegede (SAN) ceased to be the Attorney-General and when Remi Olatubora, Esq. became an Attorney-General and that the trial Court would have terminated the case in line with the posture of calling for Address on a process in Court already.
That the trial Judge should have also taken judicial Notice of the date of cessation of tenure of Eyitayo Jegede (SAN) as Attorney-General since the Court did take Notice of the cessation of Tenure of Remi Olatubora, Esq. That asking for clarification on the date the letter was brought to Court when the matter came up on 11th March, 2017 when Remi Olatubora, Esq. was no longer the Attorney-General amounted to an indictment of the integrity and honesty of the State, Counsel and the Court Official who received the letter. That Counsel?s words from the Bar ought have been believed on the presumption that it was the truth. That there was no Address on the question of the state of the Nolle presequi nor was it raised or addressed upon. That basing its decision on same amounted to a denial of fair hearing; that the decision be quashed. Eke V. Ogbonda (2007) 6 WRN 1; Umaru V. The State (2009) 3 SCM 202 @ 210; Kromini V. Queen 14 WACA 360; Adisa V. A.G. (Western Nigeria) (1966) NMLR 144; Adeoye V. State (1999) 6 NWLR (Pt. 605) 74; Victino Fixed Odds V. Ojo (2010) 3 SCNJ 112 @ 126 (F).
That the trial Judge had descended into the arena of the conflict; Relies on Suberu V. The State (2010) 3 SCNJ (Pt. 2) 491 @ 504 relying on Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514; Ojo Osagie V. Adonri (1994) 6 NWLR (pt. 349) 131.
Learned Counsel contended that the whole trial was a nullity or void hearing and denied a vested right of the Appellant. Longe V. First Bank (2010) 3 SCNJ (Pt. 1) 295 @ 310.
That the learned trial Judge was wrong not to have struck out the information and terminated the proceedings as it was not the business of either party as to how or as to the time the letter of Nolle got into the file. That if there was any fault at all, it was the fault of the Registry of the Court; that the sins of the Court officials, if any, could not be visited on the litigants. F.B.N. Plc V. MMCDC Ltd (2005) 36 WRN 96 @ 126.
That there was nothing on record to show that the learned trial Judge made any inquiry as to the time the letter of 16th February got to the case file from either the parties or Court Registry. That in criminal trials, every doubt should be resolved in favour of the defendant. That the date on the letter should be taken as the date of the Nolle and be acted upon in the absence of any other thing.
That the office of the Attorney-General is an institution and a continuous one, whether with an occupant or not; A.G Federation V. ANPP (2003) 18 NWLR; (without the page indicated);Union Bank of Nig. Ltd V. Jibueze (2003) FWLR (Pt. 516) 1898.
That once S. 221 (3) of the Constitution is complied with, the trial Court cannot inquire further into it; Note that Section 221 (3) of the Constitution relates to Political Parties and Elections and not Section 211 which governs public prosecutions, the subject of this appeal.
Having referred to The State V. Adekole Aku & Ors (1981) 2 NCLR, 710; State V. Ilori (1983) 1 SCNLR 94, it was submitted that the unquestionable exercise of the Attorney-General?s power in entering a Nolle has been tampered with by the Ruling of the trial Judge.
That the two issues be resolved in favour of the Appellant to; wit that he was not given fair hearing in the trial that saw the Judge descending into the arena and that a non compliance with the Attorney-General’s power was wrong.
That the appeal be allowed, ruling of the trial Court set aside together with the order and the criminal information be struck out upon the letter of the learned Attorney-General dated 16th February, 2017, entering the Nolle prosequi.
For the Respondent, the Brief of Argument filed 17/10/18 and deemed filed on 22/10/18 was adopted and it was argued that the office of the Attorney-General is functional whether occupied by somebody or not. Attorney-General Federation V ANPP (2003) 18 NWLR (Pt. 851) 182 ? 187 par G.E.
The Learned Respondent’s Counsel contended that the Section 211 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is in pari material with the provisions of Section 96 (1) of the Administration of Criminal Justice Law of Ondo State, 2015 which permits the Attorney-General of Ondo State to either orally in Court or in writing discontinue a criminal case in Court and ask that the Defendant be discharged in respect of the charge or information.
Learned Counsel reminded that the exercise of that power shall have regard to public interest, the interest of justice and the need to prevent the abuse of legal process; Section 211 (3) of the Constitution, Federal Republic of Nigeria relied upon. The Learned Counsel reiterated that the exercise of the power of ‘Nolle’ within official capacity, even if on ignoble reasons cannot be questioned by any person, except the Governor of the State.
Governor of Oyo State V. Hon. Justice Iyabo Yerima & Anor (2014) LPELR 24131.
It was however argued that the exercise of the Attorney-General?s power of Nolle was not questioned, rather that the Court wanted the authentication that the Attorney-General’s Nolle or letter did infact get into the Court’s file before the cessation of tenure of the relevant Attorney-General who issued the Nolle.
On the breach of fair hearing contention, the Respondent answers that it was unfounded as the Appellant cannot be the spokesman of the Attorney-General.
On the question of reference to this Court not ordered and thus complained about by the Appellant, the Respondent answers that there was no question of a character warranting a reference as held by the trial Court.
We have been urged to dismiss the appeal as lacking in merit and to affirm the decision of the trial Court.
RESOLUTION OF THE APPEAL
This appeal, is one within a narrow compass, although irrelevant tributaries have been created as velvets that cause flood/logged land prolonging the free flow on course of fresh water on its natural way to the sea; thus delaying the sail of the ship to its destination as it gets hooked a while in anchorage, until the arrival of the remnant of the dissipated waters.
The power of the Attorney-General to discontinue any case instituted by him or any person or authority in the State High Court or any other Court for an offence created by a law of the State House of Assembly is as clearly stated in Section 211 (1) of the Constitution of the Federal Republic of Nigeria (1999) thus:-
211 (1) The Attorney-General of a State shall have power
(a) to institute and undertake criminal proceedings against prosecutions any person before any Court of law in Nigeria other than a Court-martial in respect of any offence created by or under any law of the House of Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person: and
(c) to discontinue at any stage before judgment 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 a State 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 a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
The Appellant contends that the trial Judge had questioned the exercise of that power; that the Court was therefore wrong to have asked for authentication before it could use it. The question to answer is, has the Court discountenanced that power or/Document of Nolle. Wrongfully and prejudicially?
To answer the above, it is only reasonable to further ask and answer the question ‘ when is the Attorney-General said to have exercised his power of entering a Nolle prosequi or termination or discontinuance of a criminal case’
Who is the Attorney-General referred to? The simple answer is that the power is said to have been exercised when such act of Notice of Discontinuance or termination or letter is received by the Court, wherein the matter is pending and brought to Judge’s attention.
Secondly, the Attorney-General must be the serving Attorney-General or officers under him, to act afresh or adopt directly what had been filed. It is the present to act by ratification, if he chooses to so do. Nonetheless, the Court would have to be satisfied that the purported act is indeed regularly done in such a manner that it cannot say the act is none other than the act of the authorized officer or official of the State; in this situation, that the act is that of the Attorney-General and in respect of particular proceedings or charge.
The vexed Nolle was no doubt authored by Remi Adetubora, Esq. the Attorney-General of Ondo State at a stage of the pendency of the subject of criminal prosecution in issue. It had not been entered by its filing in Court as a process on the date thereof.
It was however filed on 08 – June 2017 when the parties are all agreed that the said Olatubora was no longer in office as the Honourable Attorney-General of Ondo State. This Court takes Judicial Notice of the content of its file, as it may, on the authority of the case of E.D. Tsokwa Motors V. UBA (2008) LRCN and find as endorsed on the letter of Nolle on page 134 of the record of this Appeal that it was on the 8th of June, 2017 upon the payment of a fee of N50.00 per Revenue Receipt No. CRO 245590.
The entry of the Notice in the Court of the Nolle was therefore made by or on the authority of Remi Olatubora, Esq. the author of the process. What is more, the learned prosecuting State Counsel had not told the Court that it was exercising the power of the extant Attorney-General upon delegation or on oral application on the date when the matter came up which he nonetheless did possess the power to so do.
It should be reiterated that whilst it is true that the office of the Attorney-General is statutory and ‘Continues’ to use the language of the Appellant’s Counsel, we must not lose sight of the fact that once there is no incumbent Attorney- General in office, any act purported to be that of an erstwhile Attorney-General, shall for that irregularity not only be suspicious, but one smacking of illegality, personation or even fraud. It is for the avoidance of such situations and possible repercussions that the law allows and recognizes the entry of Nolle or exercise and the performance of the powers/duties or functions of an Attorney-General by an officer in his Department.
If the prosecuting Counsel had merely in the circumstance by the consent or Authority of the solicitor General or Director of Public Prosecutions so authorized to do, so informed the Court of the decision to discontinue the criminal charge, that may have sufficed; Another option was for the prosecuting Counsel desiring to discontinue the prosecution and terminate the charge and information to have so filed a Nolle on the Authority of the new or incumbent Attorney-General. Where there was no occupant of that office as yet, as appears to have been the situation in this case, the solicitor General or DPP could do. See Hassan V. Governor of Kaduna State.
Not having done so, the learned trial Judge was not in error to have insisted, as he did, that the date of receipt of the letter of discontinuance needed to be authenticated before a decision could be safely arrived at. The exercise of the powers of Discontinuance of the charge, was in this case not only inchoate, but not proved. A Court is bound by its record.
Indeed the content of a written document cannot be varied or altered by oral evidence except there is fraud, misrepresentation etc. Proved facts, circumstances, persons mentioned in document may be proved. See Section 132 and Section 133 (4) of the Evidence Act. The Document of Nolle speaks for itself as coming to the Court on 8-6-17 that is when it was entered but without the author being seized or still clothed with the legal capacity to so issue same. Even for the sake of argument i.e. in arguendo, it is contended that a document or official act is presumed to have been regularly issued and the act regularly done and that the person held and had the powers he purported to exercise, I dare say that the trial Court, as conceded by the respective Learned Counsel for the parties, did not question the power of the Attorney-General to discontinue proceedings pursuant to Section 211 of the 1999 Constitution; rather, the presumption of regularity has been shattered in respect of the Document in this matter called the ‘Nolle’ such that the power had not been shown to have been exercised at all or even if attempted to be exercised, it has not be filed at the time and by the appropriate official relevant.
This means that purported exercise was not done in avoidance of abuse of office and the Judicial process and the law. For the aforesaid, the learned trial Judge had the plentitude of judicial authority, endowed by Section 6 (6) of the Constitution and its inherent powers as a Court of law to disallow the potential abuse of the judicial process and to ensure that justice prevailed. For that reason, calling for authentification of the Nolle from the prosecuting Counsel was in order.
I wonder, wherein the Appellant sourced or imagined his locus standi to, in the first place, appeal against a Ruling delivered against the prosecution, for it is they that had their purported Nolle prosequi discountenanced and an order made against them.
In Senator Abraham Adesanya V. The President, Federal Republic of Nigeria (1981) 2 NCLR 358. It was held that the question of locus standi towers in granting the enforcement of any action in Court but the enlargement of the principle of locus standi as inunciated in Gani Fawehinmi V. Akilu (1987) 4 WLR 797 does not extend to the Appellant herein who had instituted no action but seeks to appeal against an order made against the State Prosecuting i.e. Attorney-General, on his purported exercise of power of Nolle prosequi; was it the Appellant herein that purported to enter the Nolle and is aggrieved by the condition imposed? Then the question looms! The Learned Counsel for the Respondent, in his submissions had asked the same question. He was right, in so asking.
Why can the Attorney-General not be asked to authenticate? Is it not the same as saying that the New Attorney-General may enter a Nolle, afresh in his name?
The Appellant’s Counsel had argued severally that the trial Court racked up new issues suo motu relating to the date of the receipt or filing of the Nolle prosequi; without calling on parties to address the Court on same. It was also contended that the date of the cessation of tenure of the relevant Attorney-General, Remi Olatubora was raised suo motu without an address on same by Counsel; that all of these constituted a breach of the right of fair hearing of the Appellant; that a case stated ought to have been made. It is sufficient to state that a Court is entitled to look into its record and from it make use of any document if considers relevant in determining Issues before it in order to arrive at a just decision.
Therefore, the Document of ‘Nolle prosequi’ as in the Document before the Court cannot be a new Issue raised. It may be looked at and a view by the Court, taken. See Abiodun V. FRN (2018) 11 NWLR (Pt. 1629) 86 at 102 – 103. The Court is to ensure that the Nolle satisfies the condition. In any case the parties were at one or in accord as to who the relevant occupier of the office of the Attorney-General was as at the time of the purported entry, of the Nolle, not made by him.
In any case, there is no appeal against the finding of fact relating to who was not the Attorney-General at the time material. And the fact that the then Attorney-General ceased or vacated on 23/2/17. Arguments in challenge cannot be raised in vacuo now; This is further weakened by the fact that the Court may take judicial Notice of the names, designations e.t.c. of all officers of the Court and their deputies and their subordinate officers and assistants and officers acting in execution of its process and of all legal practitioners and other persons authorized by law to appear or act before it. Section 74 (1) (i) of the Evidence Act LFN (2004) as amended. That being the situation, the trial Court exercising its powers of taking Judicial Notice of who the Attorney-General, as the Chief law officer of Ondo State and an officer of the Court was/was not, could rightly proceed to interprete the relevant statute governing the officer?s powers in the light of the circumstances and take a decision thereon.
That will not be raising an issue suo motu without reference to the parties. Indeed, it was an exception to the Rule at play here being (i) the interpretation of the provisions of a law or statute, (ii) the accepted facts by parties the relevant Attorney-General was and (iii) the interpretative duty of the Judge being invoked.
“If I may ask, what harm has been done to this Appellant in this situation wherein he is not the Attorney-General and who has not had his act(s) (not official act as herein purported) been discountenanced? What can he say of the Respondent’s Counsel, who is not opposed to the stand of the trial Court and yet is the Attorney-General’s Agent in the litigation on Appeal,”
In Okeowo & Ors V. Migliore & Ors (1979) NSCC 210 at 263 – 264 Obaseki, JSC in his contribution stated thus:- “The Court must do substantial justice. I ask myself what substantial harm is done to anyone by the Court ordering a meeting of the company instead of that of the Directors especially when all the members are the Directors and the company is not opposed to the action taken.”
I can see no arm. Each case, as Lord Watson said in Bray V. Ford (1896) AC 44 at P. 50 must depend upon its own circumstances. And having regard to the peculiar circumstances of this case, I have no hesitation in agreeing fully with the statement of the Federal Court of Appeal when they said-
“Even if technically this might be described as relief not asked for, we think that the special circumstances of this case and in view of the powers of the Court, suo nmotu, to order that a meeting of the company be called under S. 123 of the Companies Decree 1968, the complaint under this head cannot be sustained.”
I agree with and adopt the reasoning aforesaid as applicable to this appeal. I must point out that if on the 16th February when the proceedings came up, there had not been any problems about the relevant identity of the suit covered by the Nolle of that same date of 16th February, 2017, there may have been no problem about the validity, thereof as to the vires of the Attorney-General to issue. However from pages 135 – 136 of the Record, it is clear that an error in the charge number indicated in the Nolle was admitted by the prosecutor and noted by the Court. It was sought to be amended orally but the request was rejected by the Court on 16/2/17.
An adjournment sought for the address by Counsel as by the Court ordered did not lead to the withdrawal of the said Document nor a fresh one filed; and hence the order for authentication was made. I have seen that the Document of Nolle bears charge No. 161C/2013 whilst the charge as filed is AK/16C/2013.
The learned trial Chief Judge of Ondo State, was entitled in law and suo motu to be satisfied, even by merely perusing the Document of Nolle filed and which is sought to be relied upon as the Authority to discontinue the criminal prosecution in respect of the charge before him, to confirm the sameness of the subject matter.
Secondly, that it was filed before her by the authorized public official i.e. Attorney-General who had powers to so do at the material time relevant; and therefore was not (i) an abuse of the process of the Court or (ii) in disregard of the interest of justice and indeed (iii) in the public interest.
Whilst the fact of the exercise of the Nolle power cannot be questioned by anybody other than the appointor Governor of the State, the Authority, the status of the user of the power and qualifications and inhibitions for its exercise are matters within the uncanalysed power of the trial Judge to scrutinize and direct as appropriate being the guardian angel of the constitution. This it must do. The Athens conference of June, 1955 states that ‘Judges should be guided by the Rule of law, protect and enforce it without fear or favour and resist any encroachments by governments or political parties on their independence as Judges’.
A Counsel, as Defendant/Appellant, urging the Court to mellow or wittle the Rule of law in favour of a non deserving Respondent ‘the STATE’ Will that not be promoting favour for the State? Or is it in fear of the State ? an unconstitutional departure from the tenents of the exercise of judicial powers. Will a Judge be expected, for an instance to act on a Nolle Prosequi issued by Bola Ajibola (SAN), erstwhile Minister of Justice in a pending suit in a Federal Court today even if the suit was pending/filed during his time and without clarification, if date of filing was not indicated or indicated as post his tenure? Or the charge number conflicts with that relating to the case?
Can the presumption of the effective date of filing of a document being the date it was taken or written in the absence of any evidence to the contrary, even be used in favour of an Author or writer who had no locus to so act at the time the document was intended to take effect? I do not think so. It cannot confer retroactive authority on the ‘retrospective’ official – if that connotation may be permitted, with respect.
Complying with the ‘Authentification’ – What is lost by the Nolle as ordered? Will that not lead to an early disposal of the case? If I must add, the law is that if a decision is right, the fact that a wrong reason is ascribed for the decision would not be a ground to set aside the decision. In this wise, although the office of the Attorney-General is a subsisting entity, even if its occupier leaves office, as decided in A.G. Federation V. ANPP (2003) 18 NWLR nonetheless it is the persons therein or officers therein authorized that exercise the functions and which must be certain and in accordance to law.
It must also be pointed out that the Appellant had sought to shift the blame of this Constitutional infraction onto the bailiffs or clerks of Court as officials who received and file processes. He has also sought to curiously place it on the shoulders of the trial Court to constitute itself into an investigator to inquire into when the document was filed. The Court is not an investigator. See Duruminiya V. The Comissioner of Police (1961) NWLR 70.
The fact of having ordered and taken Addresses on a document, was sufficient for the Court to make any order or Express views in respect of the said document even when no specific issues relating to it were itemized by the Court for the Address.
The opportunity of a hearing had been offered on same. Unfair hearing or descending into the theatre of the combating litigants cannot be the portion of blame if at all to be ascribed to the learned Judge, in my view.
However, on the overall consideration of the appeal, I do think that a reference to the Nolle entered on 16/02/2017 by the Attorney-General on the date he was in office and which is subsequently brought to the attention of the Court even at a later date should be acted upon by the Court in the peculiar circumstances. The inquiries and endevour to be satisfied initially was without prejudice to the power of the Attorney General to terminate a charge.
Consequential effect thereof should be given in the circumstances of the posture of the prosecuting Counsel who is implicitly in support of the Appeal and that the Appellant be discharged, as that would have been the order of the trial Court ultimately.
Pursuant to Part IV. Order 22 Court of Appeal Act 2004, I allow the appeal, therefore, and discharge the Appellant, as this, being the consequential order that would be made in the circumstance by the trial Court.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I am in agreement with the judgment delivered by my learned brother: Mohammed A. Danjuma, J.C.A. My lord has comprehensively dealt with all the issues in this appeal and I am in support of the reasoning. I shall make some few remarks.
Canvassing the position of the appellant learned counsel contention that the learned trial judge had questioned the exercise of power of the Attorney General of the State to discontinue the case.
The attorney General has the power to institute and undertake any proceedings against any person before any Court of law other than a Court martial, in respect of any offence created by or under any law of the State house of assemble. See Section 211 (1) of the 1999 Constitution (as amended).
This power cannot be reviewed or questioned by Court. However, the Court is crowned with the power to enquire and be satisfied that the purported act of Nolle is regularly done by the authorized officer or official authorized by law to do so. In the instant case, the purported Nolle was authored by Remi Olatubora Esq. the then Attorney General of Ondo State but was filed on 8/6/2017 when Olatubora Esq. ceased to be in office as the Attorney General.
Therefore he is not cloth with the legal capacity to do so, as at 8/6/2017. That aside, the charge number as indicated in the purported Nolle document bears charge No. 161C/2013, whilst the charge filed bears AK/16C/2013. This anomalies was admitted by the prosecution and noted by the Court below when the proceedings came up. The learned trial Court held that the document be authenticated. This is what the appellant’s counsel contended that the lower Court had questioned the power of the Attorney General. I do not think so. It is my respective and firm view that the findings of the learned trial judge that the document be authenticated in the circumstances of this case, does not mean that the Court had questioned the exercise of the power of the Nolle by the Attorney General and I so hold.
In the light of this few comments and for the fuller and contained in the lead judgment of my learned brother Mohammed A. Danjuma, JCA. I however agree that the circumstances of the posture of the prosecution/respondent may justify that the appeal be allowed.
I so order in the circumstance under Section 15 of the Court of Appeal Act.
PATRICIA AJUMA MAHMOUD, J.C.A.: This appeal was brought against the refusal of the learned trial Judge to act on a nolle presqui brought before the Court without authentication of the said letter. The power to enter a nolle prosequi cannot be exercised by the solicitor general or any officer of his department in the absence of an incumbent Attorney General. See the case of A. G. KADUNA STATE V. HASSAN (1985) 2 NWLR, PT. 8, 483.
In the case of BUBE OKORODUDU V. FRN (2015) LPELR 26029 decided by this Court, it was held that once the power to invoke the nolle prosequi is exercised, it can no longer be subject to question by any person or even the Court. There is no dispute that the letter of nolle was found in the Court’s file first at the time the then incumbent Attorney General was still in office. The trial Court had issues with this letter on the grounds that the suit number on the letter of nolle was different from that of the appellant. This nolle was written on the 16th of February, 2017 which was also the date the prosecuting counsel drew the attention of the Court to the existence of the nolle.
After the detection of the discrepancy in the charge number in the said letter being different from the charge number before the trial Court, the matter was adjourned to the 27th February, 2017. By this date the prosecuting counsel drew the attention of the Court to a fresh letter also dated I16th February with the correct suit number and issued by the same Attorney-general. The Court at page 144 of the printed records found as follows:-
“I am not quering the exercise of the discretion of the Attorney-general. It is important for the Court to be sure that the letter issued by the Attorney general. At this point in time there is no way the authenticity of the letter be verified and I am not sure of when it came into the case file. I cannot therefore act on the letter to terminate the case except it is authenticated” (Underlining mine).
In my humble view this amounts to questioning the nolle. This letter was brought by an officer of the Attorney-general who on the previous adjournment of 16/02/2017 had sought an adjournment to make correction on the charge number which was different. The matter was adjourned to the 27/02/2017 for further hearing. On this resumed date the attention of the Court was drawn to another letter issued by the same Attorney general dated 16/02/2017 reflecting the correct charge number and on which date the said Attorney general was still in office. I find that rather than embark on the investigation it did the trial Court ought to have resolved the presumption of regularity in favour of the document pursuant to Section 168(1) of the Evidence Act institute a civil suit against the Attorney general alleging that he entered that nolle prosequi mala fides.
For these reasons and the fuller reasons given in the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA I allow this appeal. I adopt the consequential orders made by him therein.
Appearances:
Gani Ashiru, Esq.For Appellant(s)
H. M. Falowo, Esq. (Assistant Chief Legal Officer, Ondo State Ministry of Justice)For Respondent(s)
