The Exercise of the Powers of Attorney-General during the Vacancy of the Position

The exercise of the power of all functions exercisable by the Attorney-General of the Federation or of the State is not dependent on having an incumbent occupier of the office. The presumption of the law is always that, any of the officers in the department of the Attorney General can exercise such powers unless there is a strong rebuttal to that effect.  — the contributor

It is trite that the power of the Attorney-General of the federation and the state are well enunciated under sections 174 and 211 of the Constitution of the Federal Republic Nigeria, 1999 (as amended), respectively. One of such powers given to the holder of the office includes the power to charge, take over and discontinue an action (a criminal proceedings) anytime before judgement is given. This being one of the powers given to the occupier of the office, there has, however, been a question of the exercise of the Attorney-General powers in absence of an incumbent Attorney-General. In other words, to what extent does the law recognise the validity of a charge made against a person during the non-existence of the  occupier of the office of Attorney-General?  This question is not whether this power can be exercised by any other person apart from the Attorney-General or whether this power can be delegated; but, such that if it can be exercised by any other person as at the time when there is no occupier of the office.

In answering the above poser, it is very imperative to call in aid, a recent decision of the Supreme Court on the question and by virtue of which a concise review of the case on the question above would be made. As such, in this week nugget, focus would be made on the decision of the apex Court in  DR. BUKOLA SARAKI V. FEDERAL REPUBLIC OF NIGERIA LPELR-SC.852/2015.

By way of background, the particular fact leading to the instant legal poser was that Appellant, a two-term Governor of Kwara State, filed, as required by law, four asset declaration forms and submitted same to the Code of Conduct Bureau while he was occupying the office of the Governor. During investigation on the veracity of the submitted asset declaration forms, it was allegedly found that appellant corruptly acquired many properties while in office as Governor of Kwara State but failed to declare some of them in the said forms and that, equally, anticipatory declaration of assets upon his assumption of office as Governor of Kwara State which he acquired later was made, among others. On ground of his alleged violations of the Code of Conduct for Public Officers, the Code of Conduct Bureau initiated a criminal proceeding against appellant before the Code of Conduct Tribunal, sitting at Abuja. In his Defense before the Tribunal, a challenge was made by the Appellant hinging on the competence of the charge against him. The Appellant (as the Defendant) contended before the Tribunal that non-existence of an occupier of the office of the Attorney-General of the Federation before and at the time charge against him was filed before the tribunal renders the charge incompetent. However, the Tribunal discountenanced the objection and thus an appeal was lodged before the Court of Appeal. The Appellant, receiving same fate as at the Tribunal, the Appellant further lodge an appeal before the Supreme Court upon which the Supreme Court made the contention of parties to rest. Very importantly, the charge against the Appellant was filed by one M. S. Hassan Esq, a Law Officer in the department of the Attorney-General of the Federation,  of Justice, as at the time when there was a sitting Solicitor General in the Federal Ministry of Justice.

Before delving deeper into the area of discourse, it is necessary, for clarity, to summarily appraise the powers of Attorney-General vis-à-vis the powers of Solicitor-General. The creation, functions, duties and powers of Attorney-General of the federation and of the State are well encapsulated and defined in sections 174 and 211 of the Constitution thus:

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

a)    to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National 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 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.

From the above provisions, it is clear that the Attorney-General is the principal Law Officer of the Federation or of the State, as the case may be and, by virtue of the section of the Constitution cited above, he has the power to personally or delegate any of his officers or even private practitioners (by issuing “fiat” to such person duly delegated or authorized by him) to: (a) institute/undertake criminal proceedings (b) take over and continue any criminal proceedings or (c) discontinue an ongoing criminal proceedings, at any stage, before judgement is delivered. On the other hand, summarily, Solicitor-General is also an appointee next in rank to the office of Attorney-General serving under the office of the Attorney-General of the state or of the Federation as the case may be.

Going straight to the resolution of the Court as regards the subject matter, the Court considered the community reading of relevant provisions of the law vis-à-vis the provision of the Constitution.The Court considered Section 24(2) of the Code of Conduct Bureau and Tribunal Act which provides thus:

(2) Prosecutions for all offences referred to in this Act shall be instituted in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such officers in the Federal Ministry of Justice as the Attorney-General of the Federation may authorize so to do.

Here it seems the contention of the Appellant hinged on the phrase: “as the Attorney-General of the Federation may authorize so to do” in advancing his argument. The Court further rely on the provision of Sections 2 and 4 of the Law Officers Act, Cap L.8, LFN 2004 which provides as follows:-

2. The Officer of the Attorney-General, Solicitor General and State Counsel are hereby created.

3. xxxxxxxxxxxxxxxx

4. The Solicitor General of the Federation in the absence of the Attorney-General of the Federation may perform any of the duties and shall have the same powers as are imposed by law on the Attorney-General of the Federation.

Discountenancing the argument that the institution of criminal proceedings before the Tribunal is guided by section 24(2) of the Code of Conduct Bureau and Tribunal Act, a specific law distinguished from the general provision of the constitutional provisions in that regard, the Court held that the section cannot stand the test of superiority between the Constitution and an Act of the National Assembly. The Court on this point held:

Sub-Section (2) of Section 174 of the 1999 Constitution quoted above is quite clear and unambiguous. It has provided that even in the absence of a sitting Attorney-General of the Federation, Officers of his Department such as the Deputy Director from the Federal Ministry of Justice who signed and filed the 13 counts charge against the Appellant, can initiate the proceedings of prosecution before the Code of Conduct Tribunal against the Appellant, notwithstanding the specific provisions of Section 24(2) of the Code of Conduct Act, 2004, relied upon by the Appellant. This is because the Law is trite that the provisions of the Constitution override any other provisions in any Act of the National Assembly.

The Court further noted that the provision of Sections 2 & 4 of Law Officers Act is superfluous of the provisions of Sections 174(2) & 211(2) of the Constitution (as s amended). This, the Court further held that:

The Solicitor-General of the Federation while performing the duties and exercising the powers of the Attorney-General of the Federation, in the absence of the latter, can also do so through any law officer in the Federal Ministry of Justice. The law is that there is a presumption that 'any officer in any department of the Attorney-General's office is empowered to initiate criminal proceeding unless it is proved otherwise.

Completely making the contention to rest, the Court per Walter Sanuel Nkanu Onnoghen, J.S.C.  (as be then was) Iterated thus:

It is very clear that the power of initiating criminal proceedings by any officer of the department of the Attorney-General of the Federation is not dependent on the office of the said Attorney-General of the Federation having an incumbent.

By and large, the court’s reasoning was that the office of the Attorney General and it's functions exist even when there is no incumbent Attorney General; and so, an officer from his office can carry out such functions in his absentia.

 

 

Author:

Manzumah Nana Aishah — Member, Directorate of Research and Litigation.

Contributor:

Qosim A. Muhibudeen, SABUK — Director of Research and Litigation