Review of the Decision in Attorney-General of Kaduna State V Mallam Umaru Hassan on
the Powers of the Attorney-General in the Light of ‘Corporation Sole Concept
Ikenga
K.E.ORAEGBUNAM,  Boniface
By
E. EWULUM,** Ifeanyi AGWUNCHA,***
1. Introduction
The Attorney-General whether at the Federal or State level is one of the key officers of
Government. The Constitution of the Federal Republic of Nigeria 1999 (as amended)
provides1 for Ministers of the Federal Government, and for Commissioners at the state level2.
The roles of the Ministers and the Commissioners are also stipulated under the Constitution3.
The President and the Governor appoint the Federal and State Attorney-General respectively.
However, unlike in the case of other ministers/commissioners, the relevant appointer has to
adhere to the mandatory provisions of Sections 150 and 195 of the Constitution, respectively.
These identical provisions are to the effect that the person to hold or perform the functions
attached to the office must be qualified to practice as a legal practitioner in Nigeria, being so
qualified for not less than ten years. Notable is that it is only the office of Attorney-General
whether of the Federal or State, among other ministers and commissioners, that enjoys a
derogation from the absolute discretions of the President and the Governor, respectively.
Thus, for one to be qualified for appointments, one must at least be a legal practitioner of not
less than ten years standing.
Historically, the origins of the office of Attorney-General can be traced back to England in
the thirteenth century and the early beginnings of the legal profession. The sovereign was
unable to appear in person in his own courts to plead in any case affecting his interests. 4 It
was therefore necessary for an attorney to plead the sovereign's case. 5It was the responsibility
of the King's Attorney to maintain the interests of the sovereign before the royal courts. The
first written record of a professional attorney appearing on behalf of the sovereign is of
Lawrence del Brok in 1243. Notably, the political duties currently attached to the office of
Attorney-General were not present in this early period of the office's history. However, "...as
the functions of sovereignty became more complex and extensive and acquired a more public
character, it was natural that the functions of the King's Attorney should become wider".6
The term was originally used to refer to any person who holds a general power of attorney to
represent a principal in all matters. In the common law tradition, anyone who represents the
state, especially in criminal prosecutions, is such an attorney. Although a government may
designate some official as the permanent attorney general, anyone who comes to represent the
state in the same way may, in the past, be referred to as such, even if only for a particular
case. Today, however, in most jurisdictions the term is largely reserved as a title of the

PhD (Law), PhD (Phil.), PhD (Rel. & Soc.), MEd, B.Th., BL, Senior Lecturer and Ag Head, Department of
International Law & Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria. E-mail:
[email protected]. Phone Number: +2348034711211;
** PhD (Law), LLM, LLB, BL, Lecturer, Department of Public and Private Law, Faculty of Law, Nnamdi
Azikiwe University, Awka. [email protected], +234-703-813-7153; and
*** LLB, BL, LLM Candidate, Faculty of Law, Nnamdi Azikiwe University, Awka, +2348069100018.
1
Constitution of the Federal Republic of Nigeria1999 (as amended)
2
Section 147 of the 1999 Constitution as amended provides for Ministers of Government, Section 192 of the
same Constitution provides for Commissioners who are replicas of the Ministers at the state level,
3
Sections 148 and 193 respectively of the same 1999 Constitution as amended.
4
L.J. King, "The Attorney-General, Politics and the Judiciary" (2000) 29 UWAL Rev 155
5
Ibid. See also H. Shawcross, The Rt. Hon. Sir, "The Office of the Attorney General" (1954) VII: 4
Parliamentary Affairs 381
6
Shawcross, 381
59
permanently appointed attorney general of the state, sovereign or other member of the royal
family.7
In 1461, the first record of the title of "Attorney-General" appeared when the King's
Attorney, John Herbert, was described as the "Attorney-General of England" in the patent of
his appointment.8 In the same year, Herbert was summoned, along with the judges, to the
House of Lords to advise on legal matters.9 The writ of attendance issued to the AttorneyGeneral and to the Justices of the King's Bench and Common Pleas stated that they were to
attend the House of Lords and commanded simply that they were summoned to give advice.10
The Attorney-General's position in the House of Lords as an adviser and attendant may be
seen as a reflection of the original conception of the office as that of legal adviser to the
Crown and servant of the sovereign.11
In most common law jurisdictions, the attorney general is the main legal advisor to the
government, and in some jurisdictions he may also have executive responsibility for law
enforcement, prosecutions or general superintendence over legal affairs generally. In practice,
the extent to which the attorney-general personally provides legal advice to the government
varies between jurisdictions, and even between individual office-holders within the same
jurisdiction, often depending on the level and nature of the office-holder's prior legal
experience.12
Civil law jurisdictions have similar officers, who may be variously called procurators,
advocates general, public attorneys, and other titles. Many of these offices also use "attorney
general" or "attorney-general" as the English translation of the title, although because of
different historical provenance the nature of such offices is usually different from that of
attorneys-general in common law jurisdictions.13
In UK, the Attorney General has a unique role to play. He can be a Cabinet Minister
representing the interests and perspectives of the Ministry at Cabinet, while simultaneously
representing the interests and perspectives of Cabinet and consequently the Government to
the Ministry and the Ministry's communities of interest. The Attorney General is the chief
law officer of the Executive Council. The responsibilities stemming from this role are unlike
those of any other Cabinet member. The role has been referred to as "judicial-like" and as the
"guardian of the public interest". The Attorney General has unique responsibilities to the
Crown, the courts, the Legislature and the executive branch of government. While there are
different emphases and nuances attached to these there is a general theme throughout all the
various aspects of the Attorney General's responsibilities that the office has a constitutional
and traditional responsibility beyond that of a political minister.14
By the beginning of the sixteenth century, it was the Attorney-General who was generally
consulted by the government regarding points of law and who had the conduct of important
State trials.15 The responsibilities of the Attorney-General had steadily expanded to involve
"...the representation of the sovereign in his courts for the protection of his rights and
interests wherever that was necessary and the discharge of the sovereign's responsibilities for
the prosecution of crime".16The Attorney-General also began to assume a significant position
7
Ibid.
Edwards, The Law Officers of the Crown, (London : Sweet & Maxwell, 1964), 27
9
King, "The Attorney-General, Politics and the Judiciary" (2000) 29 UWAL Rev 156
10
Edwards, The Law Officers of the Crown, 33
11
Ibid, 32.
12
Wikipedia, the free encyclopedia, Attorney General <https://en.wikipedia.org/wiki/Attorney_general>
accessed 18 June 2016.
13
Ibid.
14
Ibid.
15
W. Holdsworth, A History of English Law, Vol. VI (London : Sweet and Maxwell, 1937), 462
16
King, 156
8
60
in the House of Lords and by the sixteenth century was the "...the principal go-between the
two Houses of Parliament, carrying bills and messages from the Lords to the Commons and
drafting or amending parliamentary measures".17
This increasing involvement in the work of Parliament was the most noteworthy aspect of the
Attorney-General's expanding role.18 Although originally called upon by the House of Lords
for legal advice, the Attorney-General ultimately took a place in Parliament in the House of
Commons.19 Towards the end of the sixteenth century the House of Commons began to
assume an important position in the State; it became desirable for the Attorney-General to be
available to explain to the House of Commons the legal implications of the government
measures that came before it.20 However, the Attorney-General was attached to the House of
Lords. The question of whether the Attorney-General could become a member of the House
of Commons was a reflection of the constitutional struggles at that time. This issue caused a
controversy in 1614 when the House of Commons objected to Sir Francis Bacon remaining in
the House of Commons after his appointment as Attorney-General. The issue was only
resolved when the House of Commons determined that: "Mr Attorney-General Bacon remain
in the House for this Parliament, but never any Attorney-General to serve in the Lower House
in future".21 This incident provides one of the earliest illustrations of the inherent conflict in
the office of Attorney-General between politics and law. It appears that this ruling of the
House of Commons was adhered to for some time. For instance in 1620 and 1640 new writs
for election were issued when members of the House of Commons were appointed to the
office of Attorney-General. 22 By the early 1900s the energies of the Attorney-General were
focused exclusively on government business in the courts and Parliament. 23 Thus, the role of
the Attorney-General in the UK developed from being the legal representative of the
sovereign to being an important figure in government, Chief Crown Prosecutor and Member
of Parliament with substantial political responsibilities.24 Since 1814, the Attorney-General of
England has also been recognised as the head of the English Bar.25
In Ontario, Canada, the Attorney General is the Law Officer of the Executive Council; shall
see that the administration of public affairs is in accordance with the law; and shall
superintend all matters connected with the administration of justice in Ontario. He shall
perform the duties and have the powers that belong to the Attorney General and Solicitor
General of England by law and usage, so far as those powers and duties are applicable to
Ontario, and also shall perform the duties and powers that, until the Constitution Act, 1867
came into effect, belonged to the offices of the Attorney General and Solicitor General in the
provinces of Canada and Upper Canada and which, under the provisions of that Act, are
within the scope of the powers of the Legislature. The Attorney General shall advise the
Government upon all matters of law connected with legislative enactments and upon all
matters of law referred to him or her by the Government; and shall also advise the
Government upon all matters of a legislative nature and superintend all Government
measures of a legislative nature. He shall advise the heads of ministries and agencies of
Government upon all matters of law connected with such ministries and agencies; and shall
conduct and regulate all litigation for and against the Crown or any ministry or agency of
government in respect of any subject within the authority or jurisdiction of the Legislature.
17
Edwards, The Law Officers of the Crown, 34
King, 156
19
Edwards, The Law Officers of the Crown, 32
20
Holdsworth, 464
21
Cited in Edwards, The Law Officers of the Crown, 37
22
Ibid.
23
Edwards, The Law Officers of the Crown, 66
24
King, 156
25
Edwards, The Law Officers of the Crown, 3
18
61
More still, the Attorney General shall superintend all matters connected with judicial offices;
and shall perform such other functions as are assigned to him or her by the Legislature or by
the Lieutenant Governor in Council.’26
The office of Attorney-General was transplanted to the Nigeria colonies with the reception of
English law. With the inception of colonial rule in Nigeria, there was established a Legal
Department with the Attorney-General as its head. This Attorney-General was strict sensu a
civil servant and part of the effective arm of the British Colonial Administration. The
Attorney-General’s department had Legal Officers designated as Colonial Counsel. The first
Attorneys-General in the Nigeria colonies were drawn from the English Bar.27 They were
appointed by the UK Government as ex officio members of the government and played a
substantial role in colonial politics.28 The Nigerian Attorney-General has always played an
important role in the Executive and has often been a key member of Cabinet. The 1960
Constitution of Nigeria brought into existence the cabinet form of government with the Prime
Minister as the head of a cabinet of Ministers. In this era, the Attorney-General continued to
be a civil servant, while a new cabinet post of Minister for Justice was created. The
Republican Constitution of 1963 made the office of the Attorney-General political both at the
centre and the three regions of Nigeria at that time. The various Constitutions that followed
provided that the Attorney-General shall be a member either of the House of Parliament or
Senate or Legislative house of a region.
An interesting feature of the 1960 Constitution is the provision for the office of a Director of
Public Prosecutions who was not under the Minister of Justice. The 1963 Constitution
reversed this trend and placed the Director of Public Prosecutions under the AttorneyGeneral. Thus, under the 1963 Constitution29, we had an Attorney-General who was a
politician with the portfolio of Justice Minister and head of that Ministry. Under him were the
Solicitor-General and Permanent Secretary of that Ministry and the Director of Public
Prosecutions both of whom were civil servants. Decree No. 55 of 1966 effected changes to
the status of the Attorney-General. The Decree provides that the functions of the AttorneyGeneral of the Republic shall include the exercise, subject to the authority of the Executive
Council, of general direction and control over the National Ministry of Justice.
More so, when nobody holds the office of the Attorney-General of the Republic, any function
conferred by this Constitution or any other law upon the Attorney-General shall be vested in
the Solicitor-General. Identical worded modifications were inserted in the Constitutions of
the Regions. All these provisions operated within the framework of the 1963 Constitution
modeled after the Westminster cabinet form of government as amended by the various
decrees of the intervening military administrations up to 30th September, 1979. With the birth
of the Presidential form of civilian administration on 1st October, 1979, the offices of the
Attorney-General of the Federal and the State were created30. The 1979 Constitution with
respect to the powers of the Attorney-General is on all fours with the 1999 Constitution.31
This essay is provoked by the decision of the Supreme Court of Nigeria in Attorney General
of Kaduna State v Mallam Umaru Hassan32 where in an unanimous decision it was held
amongst others that the powers of the Attorney-General is personal to him and in his absence
26
See section 5 of the Ministry of the Attorney General Act.
Edwards, The Attorney General, Politics and the Public Interest, (London : Sweet & Maxwell, 1984), 367
28
Ibid.
29
See section 88 (1) of the 1963 Constitution of the Federal Republic of Nigeria. Here, the Attorney-General is
to be a member of the House of Representatives if he already is not a Senator (Section 88 (2)).
30
Section 138 and 176 of the 1979 Constitution provided for the Attorney General of the Federation and that of
the State respectively.
31
Brief history of the powers of the Attorney General culled from the decision of the Court in Attorney General
of Kaduna State v Hassan (1985) 2 NWLR (Pt 8), 483 at 498-501
32
Ibid
27
62
cannot be exercised by any law officer in the Ministry of Justice. This decision and host of
other cases touching on the nature of powers of the Attorney-General, coupled with the
ongoing case against Senator Bukola Saraki,33whose trial commenced prior to an
appointment of an Attorney-General of the Federation, inspired this discourse. The
authorities would be examined amongst others to see if the ratio in Attorney General of
Kaduna State v Hassan will still prevail in this present day, and to see whether there are
reasons from case law and statutes that would lead to an understanding of the powers of the
Attorney-General from a corporation sole perspective.34That is the thrust of this article.
2. Review of the Ratio in Attorney-General of Kaduna State v Mallam Umaru Hassan
The Supreme Court on the 12th day of July, 1985 delivered judgment in the case of AttorneyGeneral of Kaduna State v Mallam Umaru Hassan, a case where the Supreme Court had
course to make salient pronouncement on the powers of the Attorney-General as stated in
Sections 174 & 211 of the 1999 constitution, which is verbatim with the then section 191 of
the 1979 Constitution under consideration in this case. The facts arose from an outbreak of
communal violence at Jikamshi village, Kaduna State. During the disturbances, one Abdul
Rashid Umaru was killed, and as a result of his death, certain villagers were arrested and
charged with culpable homicide (not punishable with death) of the said Abdul Rashid Umaru.
During the preliminary inquiry, the respondent, Abdul Rashid Umaru’s father, gave evidence
after these villagers were arraigned before Aroyewun, J. of the Kaduna State High Court.
The learned Solicitor-General of Kaduna State, Mr. J.B. Maigida purporting to act under
section 191(2) (c) of the 1979 Constitution and 130 (1) of the Criminal Procedure Code,
entered a nolle prosequi in respect of the charges. At the time this nolle prosequi was entered,
there was no substantive Attorney-General for Kaduna State and there was no delegation of
the powers of the Attorney-General to the Solicitor-General. Aroyewun, J. struck out the
charges and discharged the accused persons.
Consequently, the respondent initiated civil proceedings questioning the competence of the
Solicitor-General to enter nolle prosequi before Chigbue J. An objection was taken to the
locus standi of the respondent to institute the civil proceedings. There was also the question
of the jurisdiction of Chigbue J, to entertain the action because the Appellant felt that it
would mean that Chigbue J. was sitting on appeal over the decision of Aroyewun J. Chigbue
J. overruled these objections and held that the entry of the nolle prosequi by the SolicitorGeneral was unconstitutional. On appeal to the Court of Appeal, the Court of Appeal by
majority comprising Nasir, Wali, Maidama, JJCA dismissed the appeal, while Coker and
Karibi-Whyte, JJCA (as they then were) dissented. Hence, there was further appeal to the
Supreme Court.
At the Supreme Court, the appellant represented by the Attorney-General for Kaduna, Mrs.
Donli in making her case among others on the powers of the Attorney-General placed
reliance on the dissent of Coker J.C.A and Karibi-Whyte J.C.A. With respect to the powers
of the Attorney-General, the Attorney-General submitted that the Solicitor-General in the
absence of an incumbent in the office of the Attorney-General can do what the AttorneyGeneral has powers to do. The Attorney-General in the alternative, urged the Supreme Court
to apply the doctrine of necessity to the Kaduna situation, as in her submission, law and order
would completely break down, if due to non-availability of an Attorney-General, the State
was forced to place an embargo on criminal prosecutions and criminals were allowed to roam
Nigeria’s Senate President Dr. Bukola Saraki is facing a 13-count charge before the Code of Conduct Tribunal.
One of the arguments proposed by his counsel is that the charges are invalid since the filing was done in the
absence of a substantive Attorney-General. In that case, Saraki v Federal Republic of Nigeria (2016) 3 NWLR
(Pt 1500) Pg 531, the Supreme Court held among other things that the charges filed in the absence of the
Attorney General of the Federation were valid.
34
Supra
33
63
at large, unhindered. In her humble view, such a situation if permitted would grind the
government to a halt.
For the respondent, it was argued, inter alia, that the Solicitor General of Kaduna State lacked
competence to terminate the criminal proceedings. Worthy of note is that the amici curiae
invited by the Supreme Court, were equally divided; some aligned with the appellant, while
others stood with the respondent. The Supreme Court answered unanimously that there must
be an Attorney-General before any officer regardless of the rank can exercise his powers. The
Supreme Court held that there must be an incumbent Attorney-General who will delegate the
powers to officers under him. Thus, the powers in the eyes of the Supreme Court were seen
as a personal prerogative as opposed to that of a corporation sole. This study shall now
highlight the views of the justice of the apex court in this suit.
Justice Ayo Gabriel Irikefe delivered the leading judgment to which the rest of the panel
members concurred. On this issue of whether the powers of the Attorney-General can be
exercised by an officer of his department in his absence, the justice analyzed the history of
the office of the Attorney-General and the state of the Nigerian laws from 1960 to 1979
Constitutions as it concerns the powers of the Attorney-General35. Most importantly, he noted
that by 1967, Act No 8 (Decree No. 8) of that year made a significant amendment to the
powers of the Attorney-General under Section 88 of the 1963 Constitution. The gist of that
amendment is that in the absence of the Attorney-General of Federation, any function
conferred on him by the Constitution or any other law shall vest in the Solicitor-General of
the Federation. Also where the person holding office as Attorney-General of the Federation
for any reason is unable to perform the functions conferred upon him by this Constitution or
any other law, those functions may be performed by such other person as may be designated
in that behalf by the Supreme Military Council. His Lordship subsequently noted that
corresponding amendments were incorporated in the Constitution of the States and thus in a
situation where there was no incumbent Attorney-General in a State, a Solicitor-General
would have been competent to terminate criminal proceedings as had happened in the case.
He further held that he would have agreed with the appellants if he can be persuaded that the
framers of the Constitution intended that in enacting section 191 of the said Constitution, they
were thereby laying the foundation for a continuation of the powers vested in the AttorneyGeneral or the Solicitor-General under the 1963 Constitution as amended by Act/Decree (No.
8) of 1967 which provided succinctly amongst others that in the absence of the AttorneyGeneral of the Federation, the Solicitor-General of the Federation fills the void. He thus
dismissed the appeal.
Justice Mohammed Bello, concurring with the leading judgment delivered by Justice Irikefe
stated succinctly that the powers conferred on the Attorney-General by the provisions of
section 191 of the Constitution can only be exercised by the Attorney-General in person or by
any officer in his department to whom the Attorney-General has expressly delegated the
powers. In the absence of delegation to him by the Attorney-General, the Solicitor-General
or any other officer in the department has no constitutional right to exercise the powers under
the said section. Justice Anthony Aniagolu also concurred with the leading judgment. He
stated that what the Supreme Court held in State v Ilori36 is sufficient for the statement that
the powers of the Attorney-General are personal to him and are exercisable personally by
him. His Lordship posited that ideally the Attorney-General is the legal as well as the
political officer, who is answerable politically for acts done in that ministry and since the
powers exercisable under section 191 of the 1979 Constitution is in pari materia with
sections 174 and 211 of the 1999 Constitution (as amended) have political over or under tone,
35
36
(1985) 2 NWLR (Pt 8) 483
Supra
64
even though those powers have to be exercised with due regard ‘to the public interest, the
interests of justice and the need to prevent abuse of legal process’, it is only right that the
person who has to bear the brunt and responsibility of the political ‘fall-outs’ of any decision
taken under that section, should solely be responsible for taking the legal decision required
under the section. Thus, it would not have been in accordance with parity of reasoning to
enable the Solicitor-General, the Director of Public Prosecutions, all cadres of State Counsel,
exercise that, since they are civil servants and are not answerable for acts done in the
ministry.
More so, His Lordship refused to toe the line of argument canvassed by the appellant’s
counsel to the effect that if in the absence of the Attorney-General, the Solicitor-General is
not allowed to act, prosecution would suffer a dead end, with the adverse effect on
maintenance of law and order in the state. He opined that prosecutions are validly carried on
in the state by the police and state counsel under the Criminal Procedure Code of the North
and Penal Code. Both the police and state counsel have the power of withdrawal of cases
under the Criminal Procedure Code without reference to the Attorney-General’s powers
under section 191 of the Constitution. His Lordship caps it up by listing sections 120, 131,
159, 235 and 253 of the Criminal Procedure Code as examples of sections under that Code
which could be called in aid by a prosecuting police or a state counsel or the AttorneyGeneral in the conduct of their cases before those courts. He finally submitted that the law
will not grind to a halt and by extension no necessity or emergency would arise to justify the
Solicitor-General investing himself with a jurisdiction he does not possess.
Justice Muhammadu Lawal Uwais in line with the leading judgment held that the officers of
the Ministry of Justice can only exercise the powers when they are specifically delegated to
them by the Attorney-General. The delegation usually takes the form of a notice in the
official gazette. Thus, where there is no Attorney-General appointed for Kaduna State at the
time material to this case, his powers could not have been delegated to the Solicitor-General.
Uwais, JSC. reasoned that the appellant also failed to show that there was a provision of the
Constitution or indeed any law which conferred upon the Solicitor General the authority to
exercise the powers of the Attorney-General when the incumbent of that office had not been
appointed.
Justice Oladiran Kazeem made no much analysis unlike his learned brothers. He merely
agreed with the leading judgment on this score. Justice Chukwudifu Akunne Oputa analyzed
the divergent decisions of the Court of Appeal on this score and later reaffirmed the verdict of
the majority view to the effect that in the absence of an incumbent Attorney-General, there
can be no delegation of the Attorney-General’s powers. Oputa JSC consequently held that the
Solicitor General lacked the vires to enter the nolle as he did. Although Justice George
Sodeinde Sowemimo, the Chief Justice of Nigeria (as he then was), who was presiding was
not in court when the verdict in this case was handed down, his view that concurred with the
leading judgement was read.
3. Jurisprudence of the Powers of the Attorney-General
Having examined the highlights of the decision in Attorney-General Kaduna State v Mallan
Umaru Hassan,37 the next posers in line with the object of this study will be (a) Whether the
reasoning in AG Kaduna State v Hassan subsists till this present day? (b) Whether there are
pointers, no matter how remote, from case law and statutes to engender a rethink of the
Attorney-General’s powers from a corporation sole perspective, as opposed to personal
prerogative, made out in Attorney-General Kaduna State v Mallam Umaru Musa Hassan?
37
Supra
65
As said ab initio, the office of the Attorney-General of the Federation and that of State is a
creation of the Constitution38. The said Constitution in sections 174 and 211 provides for the
powers of the Attorney-General of the Federation and State respectively. Both sections are
identical save for the fact that one governs the Attorney-General of the Federation and the
other governs that of the State. The Powers of the Attorney-General to prosecute for offences
are determined by whether the offence in question is a State offence or a Federal offence. A
State offence is an offence designated as such by the House of Assembly of a State. The
National Assembly provides by legislation federal offences. Where the Attorney-General of a
State, for instance, prosecutes an offender for federal offence without a fiat from the
Attorney-General of the Federation, the trial would be a nullity ditto for the verdict as the
prosecutor lacks the vires to lay the charges. Similar result will be the case where the
Attorney-General of the Federation prosecutes an offender for a state offence, without the
consent and fiat of the State Attorney-General.39
The power to institute criminal proceeding against any person under the 1999 Constitution
lies on the Attorney-General. He has the latitude to exercise such powers himself or through
any officer of his department. Sections 174 and 211 of the Constitution do not require that the
officers can only exercise the powers to institute criminal proceedings if the AttorneyGeneral expressly donated his power to them. The provisions of the sections presume that an
officer in any department of the Attorney-General’s department is empowered to institute
criminal proceedings unless it is proved otherwise40. The powers of the Attorney-General to
institute criminal proceedings are not personal to the office. It is worthy to note that such
proceedings instituted by any other person can be taken over, continued and equally liable to
be discontinued by the Attorney-General.41 The Supreme Court stated in this case that to
appear in all superior courts of record in Nigeria to prosecute any case, civil or criminal, the
person is presumed to be a legal practitioner as provided in the Legal Practitioners Act. So
the words ‘any person’ presumes as ‘represented by a legal practitioner’ and for ‘any other
authority’ presupposes that authority could be represented by a legally qualified person either
in that authority or engaged for the purpose by that authority. 42 Most importantly, other laws
recognize the right to prosecute by the authority in question. This fact underscores the point
that the powers of the Attorney-General are not personal to the office.43
The Attorney-General has unfettered powers to discontinue any case either instituted by
himself or by any other person. At any stage of any criminal proceeding before judgment, the
Attorney-General may enter a nolle prosequi, either by stating in court or filing appropriate
38
Supra
See the cases of Anyebe v State (1986) 1 NWLR (Pt 14) at 39;Emelogu v State(1988) 2 NWLR (Pt 78) at 524.
40
Federal Republic of Nigeria v Adewunmi (2007) 10 NWLR Pt 1042 at 399. In this case the Apex Court at
pages 418, paras H-A ; 419 Paras E-G held that this case is not in conflict with the decision in Attorney General
of Kaduna State v Hassan (Supra) where the main controversy was that there was no incumbent Attorney
General who could have donated the power to discontinue criminal prosecution. The Court in this case was
drawing a distinction between this case and AG Kaduna’s case. See also Azuh v UBA PLC (2007) I NWLR (Pt
1419) at58, Attah v COP (2003) 17 NWLR (Pt 849) at 250,
41
See Federal Republic of Nigeria vOsahon (2006) 5 NWLR (Pt 973) at 361, Attorney General of Anambra v
Uba (2005) 15 NWLR (Pt 947) at 461
42
Ibid at Pg 405 paras A-D
43
Section 23 of the Police Act vests in the police the power to prosecute for criminal offences in all courts in
Nigeria. Agencies like the EFCC etc. have powers to prosecute too. Their establishment Laws attest to that fact.
See Section 6 of the Economic and Financial Crimes Commission Establishment Act, LFN, 2004. See also
Akingbola v Chairman Economic and Financial Crimes Commission (2012) 9 NWLR (Pt 1306) at 475,
Ajakaiye v Federal Republic of Nigeria (2010) 11 NWLR (Pt 1206) at 526, Nyame v Federal Republic of
Nigeria (2010) 7 NWLR (Pt 1193) at 344, Ehindero v Federal Republic of Nigeria (2014) 10 NWLR (Pt 1415)
at 281, Kalu v Federal Republic of Nigeria (2014) 1 NWLR (Pt 1389) at 479, Comptroller, Nigerian Prison
Service v Adekanye (No 1)(2002) 15 NWLR (Pt 790) at 318.
39
66
process to inform the court that the state intends that the proceedings abate. Once this is
brought to the notice of the presiding judge, the accused shall be discharged immediately, as
soon as the nolle prosequi was filed or entered.44
The power of the Attorney-General to discontinue appears to be the most controversial of his
powers. The power to discontinue otherwise known as the power to enter nolle prosequi has
been subject of immense litigation. In State v Ilori45, the Attorney-General entered a nolle
prosequi to terminate the charges. The facts were that 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 1979 Constitution was not competent
to discontinue the proceedings. 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 Court of Appeal held that the trial court should have taken evidence
and examined allegations against the Attorney-General of malice. On appeal to the Supreme
Court, it was held that the words ‘shall have regard to’ public interest inserted by the 1979
Constitution, is not a curtailment of the Attorney-General’s absolute discretion but merely
declaratory of those powers. It was also held that the Attorney-General is not subject to any
control in so far as the exercise of his powers under the Constitution is concerned, and except
for public opinion and the reaction of his appointor, he is still in so far as the exercise of those
powers are concerned, a law unto himself. The apex court held that 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.(page reference) The apex court
concluded that section 191(3) of the 1979 Constitution, on all fours with section 174 (3) and
211(3) of 1999 Constitution, has in no way altered the pre-1979 Constitutional power of the
Attorney-General to enter a nolle prosequi.46 Most importantly as Eso JSC observed, a person
who has suffered from the unfair exercise of the powers by an unscrupulous AttorneyGeneral is not without remedy; he can invoke other proceedings against the AttorneyGeneral.47 This case shows that aside these proceedings, the next remedy would be his
removal by his appointor following public outcry.
An incumbent Attorney-General can exercise the powers of nolle prosequi vested in him
personally or through officers of his department. It seems, however, that the donee of that
power cannot enter an oral nolle prosequi. It is our humble view that this distinction as to the
mode of entering a nolle prosequi between the Attorney-General and the donee of the power
is not borne by the letters of the law, but rather by case law48.
Another grey area in the powers of the Attorney-General is the need to prevent abuse of legal
process. Abuse of legal process as a term is not subject to precise legal definition49. The
question remains what constitutes an abuse of legal process by an Attorney-General. In
Amaefule v State50, the accused persons were arraigned before the Magistrate Court by the
44
Audu v Attorney General of the Federation(2013) 8NWLR (Pt 1355) at 175, Onuh v Commissionerr ofPolice
(1994) 1NWLR (Pt 323) at 671
45
(1983) 1 SCNLR 94;See also Amaefule v State(1988) 2 NWLR (Pt 75) at 156
46
(1983) 1 SCNLR 94
47
Ibid.
48
The various procedural laws on nolle prosequi and withdrawal from prosecution do not adopt such
dichotomy. See Sections 73-75 of the CPA, LFN 2004, Sections 161-163, of the Administration of Criminal
Justice Law, 2010 Anambra State, Sections 101-108 of the ACJA, 2015. The distinction is borne out by the case
of State v Chukwurah(1964) NMLR 64. It is our view that this case law is no longer the correct position of the
law.
49
In Agwasim v Ojichie (2004) 10 NWLR (Pt. 882) 613, some guides to define same was laid down but it is
doubtful if that case represents the final authority on the issue as in our humble view what is abuse of court
process will depend on the peculiar facts of each case which in turn will determine whether an abuse has taken
place.
50
(1983) 1SCNLR 142
67
police on charges of conspiracy, stealing, forgery and destruction of evidence. Whilst the
proceeding in the Magistrate’s Court was adjourned and pending, the Attorney-General filed
information in the High Court against the accused persons on the same facts for the same
offences, without terminating the proceedings pending at the Magistrates’ court. The accused
persons brought a motion to quash the information on the ground that the action of the
Attorney-General was an abuse of legal process, since the proceedings in the Magistrate
Court had not been terminated before the information was filed in the High Court. Counsel’s
contention was rejected and the information not quashed. The Court of Appeal affirmed the
decision of the High Court. The Supreme Court, on appeal, in a majority decision, held that
the State Attorney-General has power under Section 191(1) of the 1979 Constitution to
institute criminal proceedings against any person in any court of law. It held further that
although he ought to have terminated the proceedings in the Magistrates’ Court, failure to do
so did not amount to an abuse of legal process. The apex court held that the Attorney-General
was not motivated by malice or extraneous consideration in filing the information in the High
Court against the appellants. The appeal was dismissed.
In Edet v The State51, whilst a charge of manslaughter was pending in the Magistrates’ court
against the accused, a fresh information of murder based on the same facts as the charge of
manslaughter was preferred against him in the High Court and the accused was convicted. On
appeal against the conviction, it was contended inter alia that the information, trial and
conviction for the offence of murder was a nullity because the criminal charge for
manslaughter in the Magistrates’ court was not withdrawn before the filing of the information
for murder. The Supreme Court deprecated the practice of having two charges of same facts
pending simultaneously against the accused in different courts. It held that the action of the
prosecution amounted to an abuse of the process of court because the earlier charge of
manslaughter had not been withdrawn before the subsequent information was filed. It
concluded however that such improper conduct by the Attorney-General did not render the
proceedings in the High Court a nullity because of the wide powers enjoyed by the AttorneyGeneral to discontinue or terminate any criminal trial before judgment. It is evident from the
above decisions that there is no consensus of opinion among judges of the Supreme Court as
to whether two subsisting criminal actions in respect of the same facts constitute an abuse of
the process of the court. Whilst some judges are of the view that the scenarios in the cases
constitute abuse, others are of the opinion that they do not.52
The Powers of the Attorney-General as stated ab initio can be exercised by him in person or
delegated to officers in his department. It is worthy to note that aside the officers of his
department, the Attorney-General can delegate powers to prosecute criminal cases to
individuals/authorities other than officers of his department. When such powers are
delegated, the donee has the latitude to sign charges and appear on behalf of the AttorneyGeneral.53 The court has no power to inquire into the authority of counsel who appears on
behalf of the Attorney-General who is the donor of the powers to prosecute. More so, where
the case has been instituted, the Attorney-General can brief a private legal practitioner to
appear either alone or with a staff of the office of the Attorney-General. In a similar vein,
51
(1988) 12 SCNJ (Pt1) 79
Ibid.
53
Federal Republic of Nigeria v Adewunmi (Supra); Amadi v Federal Republic of Nigeria (2008) 18 NWLR (Pt
1119) 259, Comptroller , Nigerian Prison Service v Adekanye (Supra), Ajakaiye v Federal Republic of Nigeria
(2010) 1 NWLR(Pt 1206) 500
52
68
where a private prosecutor satisfies the requirement of the law, he is entitled to be obliged
with a fiat which sees him step into the shoes of the Attorney-General54.
It is worthy to note that after the decision in Attorney-General Kaduna State v Mallam
Umaru Hassan55, the Court of Appeal in State v Obasi,56 faced with a similar scenario
decided otherwise. In this case, the three respondents were charged with murder in the High
Court of Enugu State holden at Abakaliki (now Ebonyi State). At the end of the prosecution,
the defence counsel made a no-case submission. Towards the end of his submission, the
defence/respondents’ counsel raised an objection to the competence of the information on the
ground that at the time the information was filed there was no Attorney-General in Enugu
State. He contended that under the 1979 Constitution of the Federation, it is the AttorneyGeneral that is empowered to institute and undertake criminal proceedings and that such
powers are personal to the Attorney-General and it is he alone that could delegate the powers.
He therefore, urged the trial court to strike out the information and discharge the accused
persons. The appellant argued that the information was competent even though it was filed
when there was no Attorney-General in the State. The trial court ruled that information filed
in the absence of a State Attorney-General is incompetent and invalid and that the case of the
prosecution was a nullity.
On appeal, the Court of Appeal held amongst others that by virtue of Section 191(2) of the
1979 Constitution similar to Sections 174 and 211 of 1999 Constitution, the powers conferred
on the Attorney-General by Section 191(1) of the 1979 Constitution, similar to Sections 174
(1) and 211 (1) of the 1999 Constitution, can be exercised by him in person or through
officers of his department. Therefore, it is of no consequence whether at the time of
preferring information there was somebody holding the office of Attorney-General to do the
delegation or not. Most importantly, the Court of Appeal unanimously held that if the
legislature had intended the Attorney-General to do everything himself as the respondent
tended to argue, there would have been no need creating a Ministry of Justice with a whole
lot of officials from the Solicitor-General to the State Counsel to assist the Attorney-General.
The most important thing in the Court’s view was that the post of an Attorney-General is a
constitutionally created post, which makes it irrelevant to whether there was an incumbent in
office or not.
With regard to the case of Attorney-General Kaduna State v Mallam Umaru Hassan, the
Court of Appeal distinguished and held that the case is for the proposition that a SolicitorGeneral has no power to discontinue criminal proceedings on behalf of the state and not that a
Director of Public Prosecution or his Deputy cannot institute criminal proceedings on behalf
of the state. It is the researchers’ humble view and with great deference that as salutary as the
Court of Appeal’s reasoning is, the case of Attorney-General of Kaduna State v Umaru Musa
Hassan admitted no such dichotomy. The case is for the proposition that in the absence of an
incumbent Attorney-General, the officers in the Ministry of Justice lack the vires to exercise
the Attorney-General’s powers, though in that case, what was in issue was discontinuance,
but the decision extends to all the powers. Succinctly put, the case of Attorney-General
Kaduna State v Mallam Umaru Hassan views the powers of the Attorney-General as a
personal prerogative while the case of State v Obasi views the powers from a corporation sole
notion.
54
Federal Republic of Nigeria v Adewunmi (Supra); Amadi v Federal Republic of Nigeria (2008) 18 NWLR (Pt
1119) 259, Comptroller , Nigerian Prison Service v Adekanye (Supra), Ajakaiye v Federal Republic of Nigeria
(2010) 1 NWLR(Pt 1206) 500
55
Supra
56
(1998) 9 NWLR (Pt 567) 686
69
4. The Office of Attorney-General as a Corporation Sole
Black’s Law Dictionary defined corporation sole as ‘a series of successive persons holding an
office’, ‘a continuous legal personality that is attributed to successive holders of certain
monarchical or ecclesiastical positions’.57 This ‘continuous personality’ is viewed, by legal
fiction, as having the qualities of a corporation.58 It must be noted that an essential mark of a
corporation sole is that of unbroken continuity. The above dictionary cited an instance of a
corporation sole with a diocesan bishop and a rector of a parish wherein even during a
vacancy of the see?, the acts of the office holder such as acquisition and holding of land can
be exercised by the next in rank or the appointed person,59 for the benefit of the eventual
successors who would also be bound by the conveyances and contracts.60
Similarly, according to BusinessDictionary.com, corporation sole is a public office created
usually by an Act of parliament or ecclesiastical office, usually the owner of church land that
has a separate and continuing legal existence, and only one member (the sole officeholder).
Contract made with a corporation-sole continues from one officeholder to his or her
successor or, if made during a vacancy in office, to the appointee. 61 Thus, a corporation sole
is a legal entity consisting of a single ("sole") incorporated office, occupied by a single
("sole") natural person. A corporation sole is one of two types of corporation, the other being
a corporation aggregate. This allows corporations especially religious corporations or
Commonwealth governments to pass without interval in time from one office holder to the
next successor-in-office, giving the positions legal continuity with subsequent office holders
having identical powers and possessions to their predecessors.62 In the same vein, the Online
Dictionary describes a corporation sole as consisting of a single person, who is made a body
corporate and politic, in order to give him some legal capacities, and especially that of
succession, which as a natural person he cannot have. Kings, bishops, deans, parsons, and
vicars, are in England sole corporations. A fee will not pass to a corporation sole without the
word "successors" in the grant.63 It appears that the need to view these offices in terms of
corporation sole arises as a result of the permanent need for the legal personality for the
benefit of the relevant organization.
The need to see the Attorney-General’s power from the lens of corporate sole perspective
stems from the fact that it is doubtful and questionable if really the powers of the AttorneyGeneral are utterly personal to him. It must be borne in mind that there is no clause in the
1999 Constitution or the 1979 Constitution when Hassan’s case was decided that provided in
black and white that in the absence of the incumbent Attorney-General, the officers in the
Ministry of Justice lack the vires to act. The legal position which subsists till this present day
is borne out of case law and a scenario created by the courts. In the leading judgment in
Hassan’s case, Ayo Gabriel Irikefe, JSC (as he then was) analyzed several provisions of the
Constitution and the amendments made leading to the 1979 Constitution64. In similar vein,
the 1963 Constitution vested the powers conferred on the Director of Public prosecutions on
the Attorney-General.65
B. A Garner (ed), Black’s Law Dictionary (7th Edition), St. Paul, Minnesota, 1999, p. 342
Ibid.
59
Ibid.
60
Ibid.
61
BUSINESSDICTIONARY.COM, ‘Corporation Sole’,
<http://www.businessdictionary.com/definition/corporation-sole.html#ixzz4BgIdcHbf> accessed 18 June 2016.
62
Wikipaedia, The free encyclopedia, ‘Corporation Sole’ <https://en.wikipedia.org/wiki/Corporation_sole>
accessed 18 June 2016.
63
<http://onlinedictionary.datasegment.com/word/corporation+sole> accessed 18 June 2016.
64
See Sections 97 (5) and (6) of the 1960 Constitution
65
See Sections 104 (5) and (6)
57
58
70
In Hassan’s case, section 97(6) and 104(6) of the 1960 and 1963 Constitutions respectively
were construed as re-echoing the position of the Attorney-General right from the inception of
that office under the common law up to and inclusive of the recent constitutional provisions
to be a law unto himself and subject to direction and control from none. Implicit in these
provisions is the need that the Attorney-General should be seen as an even-handed
functionary of the executive arm of government. It is the researchers’ humble view that these
clauses as seen in 97 (6) and 104 (6) of the 1960 and 1963 Constitutions are not contained in
the 1979 Constitution. It is the opinion of this study that the interpretation given to those
sections of 1960 and 1963 Constitutions should not extend to 1979 Constitution66.
More so, a community reading of the Criminal Procedure Act 67, Administration of Criminal
Justice Act 2015, and Administration of Criminal Justice Law 2010 of Anambra State, would
show that a prosecutor either personally or on the direction or the instruction of the AttorneyGeneral has the power to withdraw a charge either generally or in respect of one of the
offences with which the defendant is charged. This is technically called nolle prosequi which
the Black’s Law Dictionary68 defines as a legal notice that a law suit or prosecution has been
abandoned. The Dictionary in defining the meaning of withdrawal of charges had it to mean
the removal of charges by the one bringing them such as a prosecutor. The Dictionary defined
it as meaning same thing as nolle Prosequi. These researchers are of the humble view that
since a prosecutor can withdraw charges, which is equivalent to a nolle prosequi, it should
not be interpreted and read into the Constitution that the Attorney-General has the sole right
to exercise that power, ditto for the rest of the powers, especially as the procedural laws are
complementary to the Constitution. As stated before, there is nothing in the Constitution that
suggests otherwise, thereby raising eyebrows on why the Attorney-General’s power should
be seen as a personal prerogative. The need to jettison these narrow confines of the AttorneyGeneral’s power is that maintenance of same would pitch it against other laws that
complement the Constitution like the procedural laws stated hitherto. It cannot be argued that
the afore-stated procedural laws are inconsistent with the Constitution. One views them are
complementary.
The Constitution and the procedural laws such as Criminal Procedural Act and
Administration of Criminal Justice Act are laws made by the National Assembly which they
have the competence to legislate on, ditto for the Constitution. Thus the effect of covering the
field as held in Osun State Independent Electoral Commission (O.S.I.E.C.) v Action
Congress69 will not apply. Doctrine of covering the field, as espoused in that case, applies
where there is a Federal legislation on a subject wherein a federating state cannot enact
legislation on the same subject, which is in conflict or inconsistent with the provisions of the
federal legislation, the former being subject to the later. In this case, Section 10 of the Osun
State Electoral Law 2002 provided for 21 days for publicizing notice of an election, whereas
the Electoral Act made by the National Assembly provides for 150 days for same notice on
the strength of section 4(5) of the 1999 Constitution (as amended). The Osun State Electoral
Law was thereby declared void.
Eyebrows could be raised on the provisions of the Administration of Criminal Justice Law
2010, Anambra State, which has similar provisions to the Federal Procedural Laws stated
above; to the effect that the doctrine of covering the field should water down its effect.
Plausible as that argument is, gleaned from several vistas, we humbly submit on the
contrary.70 Thus, there need not be inconsistency as in O.S.I.E.C.case (supra) for the principle
66
Pgs 499-501 Attorney General of Kaduna v Hassan
Cap C41 Laws of the Federation of Nigeria 2004.
68
B A. Garner (ed), Black’s Law Dictionary, ( 9thed) St Paul’s Minn, 2004 (page or word defined)
69
(2010) 19 NWLR (Pt 1226) 273@ 342-343
70
Attorney General Abia State v Attorney.General of the Federation (2002) 6 NWLR (Pt 763) 264@391
67
71
to apply but just for the National Assembly to pass a law then, it prevails over that passed by
the state House of Assembly. However, on a further consideration, this line of thought is
faulty, as there exist Federal and State offences which the National Assembly and House of
Assembly can create via legislation and by parity of reasoning, they are seized in respect of
each of those offences to provide for the procedural laws to govern the trial 71. Therefore, the
State Procedural Laws and the Federal Procedural laws do not detract from themselves, (they
are similar in content) and both are not offensive to the Constitution, as there is nothing in the
Constitution that portrays those laws as being hostile to or inconsistent with it for any reason
whatsoever.
The 1979 Constitution and 1999 Constitution (as amended) at Sections 191 and 174/211
respectively on the powers of the Attorney-General provided that the power can be exercised
by him personally or through the officers of his department. There is no provision similar to
Sections 97(8) and 104 (6) of the 1960 and 1963 Constitutions. Hence, if the office of the
Attorney-General created by the Constitution is seen as a corporate sole for all purposes72,
then it would suffice that in the absence of an incumbent Attorney-General, since the powers
is exercisable either by the Attorney-General in person or through his officers, then a law
officer in the Ministry can step into the shoes and wield such powers. 73 In a similar vein, the
wordings of Sections 191 of 1979 Constitution, 174 and 211 of 1999 Constitution (as
amended) do not accommodate the narrow confines of the Supreme Court’s decision in
Attorney General of Kaduna State v MallamUmaru Hassan. Thus, the presence of the clause
to the effect that the Attorney-General can perform the functions through the officers of his
department, makes it excusable for any law officer to so do even in his absence. In Yakassai v
Nigeria Air Force74, the law in issue was the Armed Forces Decree of 1993 (as amended),
which provides in section 131 (2) that a General Court Martial can be covened by (a) The
President or (b) Chief of Defence Staff or (c) Service Chiefs or (d) A General Officer
Commanding or corresponding command or (e) A Brigade Commander or Corresponding
Command. It was held amongst others that it is only those mentioned officers that can
convene same and no other. It is interesting to observe that the word ‘or’ separates those
individuals, just like it did in sections 174(2) and 211(2) of the 1999 Constitution (as
amended): ‘… by him in person or through officers of his department’.
The Doctrine of necessity is another poignant reason to depart from the narrow confines of
the decision in Attorney General of Kaduna State v Hassan. Amazingly, the Supreme Court
took cognizance of the fact that nominees for the Attorney-General of Kaduna State were
rejected by the House of Assembly of the State. The apex court refused to toe the line of
reasoning of the appellant as stated in this articlee. It will not be in accordance with good
reasoning to render dormant a Ministry of Justice just because there is no incumbent
Attorney-General. The doctrine of necessity as stated in the cases of Lakanmi & Anor v
Attorney General (West) & Ors75, Madzimbamuto v Lardner-Burke76, Attorney-General for
71
Anyebe v State supra. There are instances in which the Federal and State Government can legislate to achieve
a common goal. See Kalu v Federal Republic of Nigeria (2014) 1 NWLR (Pt 1389) 479
72
Attorney General of the Federation v All Nigeria Peoples Party (2003) 18 NWLR (Pt 851), This is to the
effect that the office of the AG is a corporate sole and can function regardless of whether there is an incumbent
occupying the seat or not. The Supreme Court in this case recognized that as an office, it continues in perpetuity
and any suit by or against it will be absorbed by the office which never dies unless it is abrogated. The office of
the AG filed a notice of appeal in this case when there was no incumbent AG.
73
The reasoning appears to have swayed the mind of the Court of Appeal in State v Obasi to make them hold
the way they did in that case.
74
(2002) 15 NWLR(Pt 790)294, Onyeukwu v State (2000) 12 NWLR(Pt 681) 256
75
1970 NSCC
76
1969 1 AC 645
72
Republic v Mustafa Ibrahim of Kyrenia77 is to the effect that the principle of necessity or
implied mandate is for the preservation of law, order and the citizens. The Supreme Court’s
contention in this case that there are procedural laws that guarantee prosecution and
withdrawal is, respectfully submitted, wrong in the light of the analysis done above on the
complementary nature of the Constitution and the procedural laws on crime. It is strongly
suggested too that the doctrine of necessity should vary this ratio in Attorney General of
Kaduna State v Mallam Umaru Hassan.
More so, the state of the law has since improved. The law has made provision for what
happens when there is no incumbent Attorney-General. The Law Officers Act78 in Section 4
provides that in the absence of the Attorney-General the function rests on the shoulder of the
Solicitor-General. The law just like the procedural laws on crime examined hitherto is
complementary to the Constitution. The argument in that regard suffices here. Muhamadu
Lawal Uwais JSC (as he then was) in Attorney General of Kaduna State v Hassan79 stated
that the case of the appellant failed because of the inability to show that any law conferred
upon the Solicitor-General the authority to exercise the powers of the Attorney-General when
the incumbent of that office had not been appointed. It is trite law that a concurring judgment
forms part of the leading judgment and complements it.80 By this token the concurring verdict
of Mohammed Uwais JSC (as he then was) complements the leading verdict. By parity of
reasoning, Section 4 of the Law Officers Act fills the void and provides for what should
happen when there is no incumbent Attorney-General.
Furthermore, there is no vacuum in government81. The Attorney-General’s power is usually
delegated via a legal notice. Thus, whether there is an incumbent Attorney-General or not, if
there is a legal notice issued by a previous Attorney-General before the removal or after his
tenure, if he stayed on till the lapse of the tenure of the Executive that appointed him, the acts
of the Attorney-General and by extension the appointing executive in line with the corporate
sole nature of same, being creation of statutes, is always subsisting. Thus, an appeal filed by
an incumbent Attorney-General in his official capacity binds the successor. The rationale that
underscores this is that offices are a going concern; thus it is the office that is paramount and
not the individual. Hence, a delegation done to permanent staff of the Ministry of Justice who
are officers of the Attorney-General’s department by an incumbent Attorney-General
continues save when revoked by the successor. It seems that the corporate sole nature of
statutory created offices supports this. This obviates the decision in Attorney General of
Kaduna State v Mallam Umaru Hassan as ab initio there is no vacancy in the eyes of the law.
5. Conclusion
This paper has studied the powers of the Attorney-General under the 1999 Nigerian
Constitution. It has also reviewed the relevant provisions of the previous constitutions, albeit
comparatively. The history of the office of the Attorney-General especially under common
law adversarial culture has equally been examined in the light of the subject-matter. This
discussion focused on the Supreme Court decision on the case of Attorney-General of
Kaduna State v Mallam Umaru Hassan in which it was held that powers of Attorney-General
are unreservedly coterminous with his/her physical person such that the all-important roles
thereof cannot be exercised by anyone once there is no incumbent. In a jurisprudential
consideration of the implications of the current legal framework, the authors of this essay are
of the view that there is a need to glean the Attorney-General’s powers from a corporate sole
77
1964 3 Supreme Court of Cyprus
Cap L8 Laws of the Federation of Nigeria 2004.
79
Supra
80
Oloruntoba-Oju v Abdul Raheem (2009) 13 NWLR (Pt 1157) 83, Nwana v Federal Capital Development
Authority (2004) 13 NWLR (Pt 889) 128
81
Balonwu v Gov. Anambra State (2008) 16 NWLR(Pt 1113) 236 @ 273-274
78
73
perspective wherein much more emphasis is placed on the office rather than on physical
persons. This will be such that the legal acts of the Attorney-General can easily be carried out
by relevant law officers in the Ministry of Justice even at sede vacante situations for the good
and safety of the state. Although this consideration was recently given a judicial stamp in the
Supreme Court decision in Saraki v Federal Republic of Nigeria82, it is strongly suggested that it be
adorned with sufficient express constitutional provision.
82
(2016) 3 NWLR (Pt 1500) Pg 531.
74