A-G Kaduna v. Hssan (1985)

[1985] 2 .
A-G. Kaduna State v Hassan
483

ATTORNEY-GENERAL OF KADUNA STATE

V.

MALLAM UMARU HASSAN

SUPREME COURT OF NIGERIA

SC. 149/1984

GEORGE SODEINDE SOWEMIMO, C.J.N. (Presided)

AYO GABRIEL IRIKEFE, J.S.C. (Read the Lead Judgment)

MOHAMMED BELLO, J.S.C,

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.

MUHAMMADU LAWAL UWAIS, J.S.C.

BOONYAMIN OLADIRAN KAZEEM, J.S.C.

CHUKWUDI AKUNNE OPUTA, J.S.C.

FRIDAY, 12TH JULY, 1985

CIVIL ACTIONS – Locus Standi – Interest of a father in the death of his son – Principles governing such interest under Customary Law.

CONSTITUTIONAL LAW – Sections 6(6)(b) and 213(5) of the 1979 Constitution – Locus Standi – Solicitor-General entering a nolle prosequi in respect of persons accused of culpable homicide of a person Father of that person killed challenging the competence of the Solicitor-General to enter such nolle prosequi – Whether such father has locus standi to maintain such action.

CONSTITUTIONAL LAW – Section 191 of the 1979 Constitution – Nolle Prosequi-Competence of the Solicitor-General to enter a nolle prosequi in the absence of the Attorney-General.

CONSTITUTIONAL LAW – Section 191 of the 1979 Constitution – Powers of the Attorney-General – Competence of the Solicitor-General to exercise such powers.

DECLARATORY JUDGMENTS – Declaratory judgment sought – No consequential orders asked for – Propriety.

INTERPRETATION OF STATUTES -1979 Constitution – Principles guiding the interpretation of its provisions.

PRACTICE AND PROCEDURE – Judicial Review – Trial Court entertaining nolle prosequi and quashing charges – Another Court of co-ordinate jurisdiction granting declaration that the entry of the nolle prosequi was unconstitutional – Whether proper.

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Issues:

1.
Whether the Solicitor-General can validly exercise the powers of the Attorney-General under Section 191 of the 1979 Constitution and in particular the power to discontinue criminal proceedings where there is no incumbent Attorney-General and where there has been no delegation of such powers of the Attorney-General to the Solicitor-General.

2.
Whether a father has sufficient locus standi to bring an action to question the competence of a Solicitor-General to discontinue the criminal proceedings instituted against those charged with the killing of his son.

3.
Is a High Court Judge competent to entertain an action for declaration that the entry of a nolle prosequi by a Solicitor-General was unconstitutional when in fact that nolle prosequi had actually been entertained and acted upon by another High Court Judge of co-ordinate jurisdiction?

Facts:

There was an outbreak of communal violence at Jikamshi Village, Kaduna State. During the disturbances, one Abdul Rashid Umaru was killed. As a result of his death, certain villagers were arrested and charged with the culpable homicide (not punishable with death) of the said Abdul Rashid Umaru. During the preliminary inquiry, the Respondent Abdul Umaru’s father gave evidence. After these villagers were arraigned before Aroyewun J. in the Kaduna State, the learned Solicitor-General of Kaduna State, Mr. J. B. Maigida purporting to act under Sections 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 Attorney-General for Kaduna State and there was no delegation of the powers of the Attorney-General to the Solicitor-General. Thereupon, Aroyewun J. struck out the charges and discharged the accused persons. The Respondent, initiated civil proceedings questioning the competence of the Solicitor-General to enter the 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 that 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 Solicitor-General was unconstitutional and void. On appeal to the Court of Appeal, the Court of Appeal by majority NASIR, P., WALI, MAIDAMA, JJ.C.A. dismissed the appeal, COKER and KARIBI-WHYTE, JJ.C.A. (as they then were) dissented. On further appeal to the Supreme Court.

Held: (Unanimously dismissing the appeal)

1.
Under Section 213(5) of the 1979 Constitution a father whose son has been killed cannot qualify as a ‘person aggrieved’ to have any interest in the criminal prosecution of persons suspected to be the killers of his son.

2.
Under Section 6(6)(b) of the 1979 Constitution however, such

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father has sufficient interest in the outcome of the criminal prosecution to enable him institute civil proceedings in respect of the propriety of the conduct of the criminal proceedings.

3.
The basis of his interest is both statutory and under Customary Law:

(a)
If the culpable homicide fails under the Fatal Accidents Law, Cap. 43 N.N., then such father has a vested right of action for damages under Sections 3 and 4 of the Fatal Accidents Law.

(b)
If the culpable homicide does not fall within the Fatal Accidents Law, then such father can ask for compensation under Customary Law: JOHN V. ZARIA N.A. (1959) N.R.N.L.R. 43 approved (per Bello, J.S.C.).

(c)
Under Igbo Customary Law, this compensation can take the form of a grant in perpetuity of land or fish pond to the family of the deceased or it may be. in the form of forced marriage of the females of the accused’s family to the family of the deceased.

(d)
This right to compensation for the killing of a person is preserved by Section 78 of the Penal Code.

4.
Section 33(12) of the 1979 Constitution has not abrogated the right of a father to ask for compensation for the unlawful killing of his son.

5.
The LOCUS of such father also lies in parental and filial relationship between him and his alleged murdered son; the right of the father to seek after, defend and inquire into his son’s affairs and interests and prosecute proceedings thereto; this parental and filial relationship is recognised by the Criminal Code particularly Sections 283, 284, 285 and 286. Per ANIAGOLU, J.S.C.

6.
Any person affected by the exercise of the powers of the Attorney- General under Sections 160 or 191 of the 1979 Constitution or the purported exercise of such powers by any other person e.g. the Solicitor-General can bring a civil action to question the propriety of the exercise of such powers: STATE V. ILORI (1983) 1聽S.C.N.L.R. 94 followed and applied.

7.
For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed: ADESANYA V. PRESIDENT (1981) 2 N.C.L.R. 358 followed.

8.
Whether a person’s civil rights and obligations have been affected depends on the particular facts of a case.

9.
Locus standi is the term used to denote a right of appearance in a court of justice or before a legislative body on a given question.

10.
The Courts should not give an unduly restrictive interpretation to the expression “locus standi”.

11.
The fact that a person may not succeed in an action does not have anything to do with whether or not he has standing to bring that action.

12.
There are two classes of rights (a) primary rights and (b) secondary rights.

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(a)
Primary rights are those which can be created without reference to rights already existing.

(b)
Secondary rights are those rights which exist in order to protect the infringement or loss of primary rights.

13.
Where a person brings an action to declare an act unconstitutional the issue of his locus standi to bring such action is of secondary importance.

14.
There are two tests used in determining the locus standi of a person:

(a)
The action must be justiciable.

(b)
There must be a dispute between the parties.

15.
Where a judge of a High Court entertains a nolle prosequi and quashes an indictment before him, another High Court of co-ordinate jurisdiction still has jurisdiction to determine the constitutionality of the nolle prosequi and that does not mean that he is sitting on appeal over the earlier decision given where the nolle prosequi was entertained.

16.
A court may make binding declaration or right whether or not any consequential relief is or could be claimed.

17.
The provisions of the 1979 Constitution are unique and are intended to deal with the peculiar circumstances of Nigeria. An incursion into the Constitutions of other nations, cannot therefore be of much assistance.

18.
In the interpretation of the provisions of the 1979 Constitution, one must not adopt a dogmatic attitude but must be liberal and must look closely at the provisions themselves in order to discover their object.

19.
Where the question arises whether the Constitution has used an expression in the wider or in the narrower sense, the court should lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. NAFIU RABIU v. STATE (1980) 9/11 SC. 130 followed.

20.
Under Section 191 of the 1979 Constitution, the exercise of the powers of the Attorney-General is personal to him and cannot be exercised by any other functionary unless those powers have been delegated to him by the Attorney-General. Before such delegation can take place, there must be an incumbent Attorney-General in office who can be the donor of the powers.

21.
That the powers of the Attorney-General under section 191 are personal to him is borne out by the inclusion of the phrase “acting under and in accordance with the general or special instructions of the Attorney -General” which is missing in the 1963 Constitution.

22.
The offices of the Director of Public Prosecutions and Solicitor- General are existing offices by virtue of section 275 of the 1979 Constitution.

23.
The Solicitor-General therefore has no power to exercise the powers of the Attorney-General under section 191 of the 1979 Con-

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24.
The Solicitor-General therefore has no power to discontinue Criminal Proceedings on behalf of the State. Any such discontinuance by the Solicitor-General is unconstitutional, ultra vires, null and void.

25.
The fact that the Solicitor-General cannot discontinue proceedings does not affect the power of the Director of Public Prosecutions, the Police and State Counsel to discontinue criminal proceedings.

Nigerian Cases Referred to in the Judgment:

Adesanya v. President of Federal Republic of Nigeria (1981) 2 NCLR. 358

A.-G. Bendel State v. A.-G. Federation (1981) 10 SC. 1

Banana v. Bornu N.A. (1961) NNLR. 79

Gamioba v. Esezi (1961) All NLR. 584

John v. Zaria N. A. (1959) NR.MLR. 43

Nwosu v. Chima (1966) NMLR. 155

Olawoyin v. A.-G., Northern Nigeria (1961) 1 All NLR. 269

Oyewale v. Okoli (1974) NMLR. 40

Rabiu v. State (1980) 8/11 SC. 130

R. v. Onyeamaizu (1958) NRNLR. 93

Sambo v. Bashia (1969) NMLR. 87

SkenConsult (Nig.) Ltd. v. Ukey (1981) 1 SC. 6

State v. Ilori (1983) 2 SC. 155.

Foreign Cases Referred to in the Judgment:

Bank of England v. Vigliano Bros. (1891) AC. 1070

Gouriet v. Union of Post Office Workers (1977) 3 All E.L.R. 70

Guaranty Trust Co. of New York v. Haning (1915) 2 KB. 536

Macfox v. U.A.C. (1962) AC. 152

Nova Scotia Board of Cencors v. McNeil (1976) 2 SCR. 265

R. v. Greater London Council Ex parte Blackburn (1976) 1WLR. 550

Seifah v. Forfie (1958) AC. 59

Smith v. Selwyn (1914) 3 KB. 98

Thorson v. A.-G. of Canada No. 2 (1975) 1 SCR. 138

Wiseman v. Wiseman (1953-56) Probate Division 79.

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1960-Sections 21(10); 97(1), (2) (a-c), (3), (5), (6)

Constitution of the Federal Republic of Nigeria, 1963 – Sections 88; 88(l)(a)(b)(3)(4); 104(l)(2)(a-c), (3), (5), (6)

Constitution of the Federal Republic of Nigeria, 1979 – Sections 6(6)(b); 33(12); 136(1); 138; 174(1); 176(1),(2); 191; 191(1),(3),(4); 191(l)(cj; 191(2)(c); 213(5); 275.

Constitution (Suspension and Modification) Decree No. 55, 1966. Children and Young Persons Law Cap. 21 (Laws of Northern Nigeria 1963) Sections 8; 10; 27(2)(b); 30(1).

Criminal Code Act – Sections 283 and 288

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Criminal Procedure Code Cap 30 Northern Nigeria – Sections 130, 130(1); 131; 159; 191(3)(c); 235 and 393.

Criminal Procedure Code Law (Amendment) Edict 1968 (North Central State) – Section 3(d).

Fatal Accidents Law Cap 43 Laws of Northern Nigeria 1963 – Sections 2;3; 4; 7(l)(b).

High Court Laws Cap. 49 Laws of Northern Nigeria – Section 105 Penal Code Cap. 89 Laws of Northern Nigeria 1963 – Sections 60(a); 67; 78; 222(1) and 399.

Foreign Statute Referred to in the Judgment:

Criminal Law Act 1967 (England)

Foreign Rule Referred to in the Judgment:

English Rules of Supreme Court 1979 Order 15 Rule 16

Books Referred to in the Judgment:

Malik, Iman-Al-Muwatta, Page 408, Paragraph 434 Ruxton F.H.

Maliki Law (First Reprint) 1978, Page 379.

Appeal:

This was an appeal against the decision of the Court of Appeal, Kaduna Division, (Nasir, P.C.A.; Coker, J.C.A, (minority); Wali, J.C.A.; Maidama, J.C.A. and Karibi-Whyte, J.C.A. (majority) upholding the decision of Kaduna High Court (Chigbue, J.). The Supreme Court dismissed the appeal and affirmed the decisions of the Court of Appeal and High Court.

History of the Case:

Supreme Court:

Appeal No.: SC. 149/1984

Date of Judgment: 12th July, 1985

Names of Justices in the Appeal: Sowemimo, C.J.N. (Presided), Irikefe, J.S.C. (Read the lead Judgment), Bello, J.S.C.,

Aniagolu, J.S.C., Uwais, J.S.C., Kazeem, J.S.C., Oputa, J.S.C.

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Kaduna

Names of Justices that sat in the1 judgment: Nasir, P.C.A. (majority), (Read the lead judgment), Coker, J.C.A., (minority), Wali, J.C.A. (majority), Maidama, J.C.A, (majority), Karibi-Whyte, J.C.A. (minority)

Date of judgment: 17th day of February, 1983

Appeal No: FCA/K/104m/82

High Court:

Name of the High Court: High Court, Kaduna, Kaduna State Name of Judge: Hon. Justice J.O. Chigbue

Date of Decision: 30th day of August, 1982

Suit No: KDH/130/82

[1985] 2 .
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Counsel:

Mrs. H.M. Donli, Attorney-General, Kaduna State (with her Mrs. Abdulkadr, D.P.P. and T Maidoni, Senior State Counsel)- For the Appellant.

P.O. Akunyili – For the Respondent.

IRIKEFE, J.S.C. (Delivering the lead judgment): Following upon an outbreak of communal violence at JIKAMSHI VILLAGE, in the KANKIA LOCAL GOVERNMENT AREA OF KADUNA STATE, one ABDUL RASHID UMARU lost his life, and ‘arising there from, certain villagers were arrested and charged with the culpable homicide not punishable by death of the said ABDUL RASHID UMARU. After a preliminary hearing at the Magistrate’s Court, some of those arrested were committed for trial at the High Court. After arraignment at the High Court and the recording of pleas, the Solicitor-General of Kaduna State, MR. J.B. MAIGIDA who was leading the prosecution on behalf of the State, entered a nolle prosequi in respect of the charges, stating that he did so, in reliance upon Section 130(1) C.P.C. and Section 191(2)(c) of the Constitution of Nigeria, 1979. Thereupon, the learned trial Judge, AROYEWUN, J.’ struck out the charges, resulting in the discharge of the accused persons.

The respondent to this appeal Mallam Umaru Hassan, the father of the deceased ABDUL RASHID UMARU, being aggrieved by the action of the Solicitor-General, initiated the instant proceedings by means of an originating summons seeking a declaration on the incompetence of the Solicitor- General to terminate the criminal proceedings as he had done.

For ease of understanding, I shall set out in full the affidavit grounding the originating summons as well as the summons itself.

Affidavit in support of originating summons.

I,
Mallam Hassan Umaru (m) Moslem, Farmer, Nigerian citizen

of Jikamskhi Village, Kankia Local Government Area, Kaduna

State make oath and say as follows:-

1.
That I am the plaintiff in the above suit.

2.
That one Abdul Rashid Umaru now deceased is my son.

3.
That the said Abdul Rashid Umaru died on 1/2/81 in suspicious circumstances.

4.
That on 4/2/811 identified the corpse of my said son at the Ahmadu Bello University Hospital Kaduna to the doctor who performed the post-mortem examination.

5.
That following the death of my said son, the police arrested the following persons namely:-

Alhaji Idi Shugaba, Alhaji Dogara Aliyu, Alhaji Garba Abdullahi, Alhaji Balia Keffi and Alhaji Yaro Telia amongst others and charged them before the Chief Magistrate Court, Kaduna for the homicide of my said son.

6.
That on 21/4/81 in Suit No. KMD/13x/81,1 testified as a witness for the prosecution during the Preliminary Inquiry conducted by the court in respect of my said son’s death.

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7.
That at the end of the Preliminary Inquiry, the enquiring magistrate held that a prima facie case in respect of the culpable homicide of my said son has been made out against the following persons namely:- Alhaji Idi Shugaba, Alhaji Dogara Aliyu, Alhaji Garba Abdullahi, Alhaji Balia Keffi and Alhaji Yaro Telia and committed them for trial at the High Court, Kaduna.

8.
That the case came up for hearing before the High Court on 29/3/82 as Suit No.KDH/28c/81.

9.
That when the case came up before the High Court, the Solicitor-General of Kaduna State invoked powers of the Attorney-General of the State under Section 191(2) of the Constitution of the Federal Republic of Nigeria, 1979 and applied to withdraw the charges against the aforesaid accused persons.

10.
That on 30/3/82, the trial Judge struck out the case on the ground that since the Solicitor-General represents the Attorney-General of the State, and as the State, does not intend to continue with the trial that he has no choice other than to strike out the charges against the aforesaid accused, persons and the charges were struck out accordingly. A copy of the proceedings before the court is hereby annexed as appendix “A” to this affidavit.

11.
That I know as a fact, that there is no person occupying the office of the Attorney-General of Kaduna State of Nigeria and to the best of my knowledge, the powers of the Attorney-General of Kaduna State have not been delegated to the Solicitor-General of Kaduna State,

12.
That I swear to the contents of this affidavit conscientiously and sincerely believing the same to be true by virtue of the Oaths Act, 1963″

The annexure to the affidavit reads:-

“In the High Court of Kaduna State of Nigeria

Judicial Division

Holden At Kaduna

KDH/28c/81

29th March, 1982

THE STATE

聽 聽 聽 聽 聽V.

1.
IDI SHUGABA

2.
ALHAJI DOGARA ALIYU

3.
GARBA ABDULLAHI

4.
ALHAJI BALA KEFFI

5.
ALHAJI YARO TELLA

All the 5 accused persons in Court. Mr. MAIGIDA J.B., Solicitor-General for the State. Mr. Pat Aigbogun for all the accused persons.

COURT:- Charge read and explained to each of the accused persons and each asked 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽whether he is guilty or not guilty of

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the offence or offences.

1st accused:- I understand the charges.

I am not guilty of them.

2nd accused:- I understand the charges.

I am not guilty of the 1st charge.

I am not guilty of the 2nd charge.

3rd accused:- I understand the charge.

I am not guilty of the 1st charge.

I am not guilty of the 2nd charge.

4th accused:- I understand the charge.

I am not guilty.

5th accused:- I understand the charge.

I am not my guilty.

Maigida:-聽聽聽聽 I have exhaustively read the P.I and the statement in the case diary made by each accused; From the evidence adduced at the lower court i.e. at the P.I. no reasonable tribunal should have preferred a charge against any of the accused persons. There is no evidence to support the basis on which the trial Magistrate at the lower court based his charges against the accused. There are conflicting evidence before the Ministry of Justice came in and after that no reasonable tribunal should have framed any charge. In view of the contradiction before the court below we have no evidence to offer as this would be a waste of the time of both the court, the accused and everyone connected with the administration of justice. I submit that we are not prosecuting the accused persons and they should be discharged. I apply under Section 130(1) C.P.C. and Section 191(2)(c) of the Constitution.

PAT AIGBOGUN:-

On one hand I have no objection to the application of the Solicitor-General and on the other hand I do not propose to make a cross application to protect the liberty of the accused persons. The provisions of Section 187, 185 and 189 have been met. The prosecution has told the court that evidence with which he is unable to continue to prove the guilt of the accused persons. I urge the court to apply Section 191(3) C.P.C. I urge the court to discharge the accused persons.

(JUSTICE KOLA AROYEWUN)

29/3/82

30TH MARCH, 1982

All the accused persons present

J.B. Maigida, Solicitor-General for the State.

Pat Aigbogun for defence.

Ruling

This is a case of culpable homicide not punishable with death and abetment of the same against some of the accused persons.

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At the hearing of this case the learned Solicitor-General informed me that he does not intend to prosecute any of the accused persons for the alleged offences since he was unable to adduce any sufficient evidence in support of the charges against the accused persons due to contradictions in the evidence adduced at the lower court during the preliminary investigations. He cited Section 130 C.P.C. which to my mind is inapplicable. In any case he went further to say that he is applying under Section 191(1)(4) of the Constitution which provides – “to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. As the learned Solicitor-General represents of course, the Attorney-General of the State and since the State does not intend to continue with the trial I have no choice other than to strike out the charges against all the accused persons. The charges are hereby struck out.

(Sgd.)

JUSTICE KOLA AROYEWUN

30/3/82

The originating summons itself seeks a determination of the following questions :-

“1. 聽Whether the Solicitor-General, Ministry of Justice, Kaduna State can validly exercise the powers conferred on the Attorney- General of Kaduna State by Section 191 of the Constitution of the Federal Republic of Nigeria 1979 when no person has been appointed to the office of the Attorney-General of the State, and when any or all of such powers have not been specifically delegated to him by any persons holding the office of the Attorney- General of Kaduna State of Nigeria?

2.
Whether the Solicitor-General of Kaduna State can in purported exercise of the powers of the Attorney-General under paragraph (c) of sub-section 1 of Section 191 of the Constitution of the Federal Republic of Nigeria 1979 discontinue criminal proceedings against accused persons committed for trial at the High Court after preliminary inquiry by a magistrate when the powers conferred on the Attorney-General of the State by the said section have not been delegated to the Solicitor-General of Kaduna State by any person holding the office of the said Attorney-General of Kaduna State.?

Claims against the defendant

A declaration that any purported exercise of the powers conferred upon the Attorney-General of Kaduna State, by the Solicitor-General of Kaduna State, under the provisions of Section 191 of the Constitution of the Federal Republic of Nigeria, 1979, in the absence of an incumbent to the office of the Attorney-General of Kaduna State is unconstitutional, unlawful, null and void and of no effect whatsoever.”

It is common ground that, at all times relevant to the issues raised in the originating summons, no Attorney-General had been appointed for Kaduna

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State. The position remained the same until the inception of this military administration. The reason for this state of affairs is not, however, an issue in this case.

Two issues fell to be determined by the Kaduna High Court as could be seen from the reserved judgment of CHIGBUE, J., delivered on 30th August, 1982 at the end of submissions in the originating summons application. These were –

(a)
Did the applicant Mallam Umaru Hassan have legal competence to bring the originating summons in order to challenge the action of the Solicitor-General in Suit KDH/28c/81 – in short, did he have locus standi?

(b)
Did the Solicitor-General have competence to terminate the said criminal proceedings without such powers being expressly vested in him by an incumbent Attorney-General?

The learned judge, CHIGBUE, J., ruled that Mallam Hassan had locus standi to initiate the proceedings and went further to rule that the action which the Solicitor-General purportedly took under Section 191 of the Constitution of the Federal Republic of Nigeria, 1979, was “incompetent, unconstitutional, unlawful, null and void and of no effect whatsoever.”

Being dissatisfied with the above decision, the Kaduna State Government went on appeal to the Court of Appeal on a number of grounds. I will refrain from setting these grounds down as the issues raised in them were raised again before us in this final appeal. The decision of the Court of Appeal was split, Nasir, P., Wali and Maidama, JJ.C.A. giving the majority opinion (and thus the judgment of the court) while Coker and Karibi- Whyte, JJ.C.A. gave the minority opinion. The two dissentient opinions were not, however, identical. Coker, J.C.A. (as he then was) took the view that the respondent to this appeal had no locus standi and preferred to rest his decision on this. He, however, as an obiter dictum, concluded that the Solicitor-General had competence to terminate the criminal proceedings. Karibi-Whyte, J.C.A. (as he then was) while holding that the respondent had no locus standi to intiate the proceedings yet came to the conclusion that the appeal by the State nevertheless succeeded on the ground that the Solicitor-General could exercise the powers of an Attorney-General under Section 191 of the Constitution of the Federal Republic of Nigeria 1979, the absence of an incumbent Attorney-General notwithstanding.

We took the view that the legal issues raised in this appeal are so fundamental that an opportunity should be given to all the State Attorneys-General (19 in number) as well as the Attorney-General of the Federation to make known their views as amici curiae. This court is extremely indebted to the Attorneys-General, for their several contributions, which have assisted in no small measure, in putting into proper focus, the issues with which this appeal is concerned.

The grounds argued before us read as follows:-

1.
The Federal Court of Appeal erred in law in holding that the respondent had locus standi to institute the civil suit No. KDH/130/82.

Particulars

(i)
The originating summons does not disclose any real con-

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聽 聽 troversy between the respondent and the appellant.

(ii)
If it can be said that the action instituted by the respondent relates to any particular subject, the subject matter could only be the criminal charge KDH/28c/82 and the respondent had not shown he had any interest in that criminal charge;

2.
The Federal Court of Appeal erred in law in holding that the learned trial judge of the Kaduna High Court had jurisdiction to hear and determine civil suit No. KDH/130/82

Particulars

(i)
The originating summons taken out by the respondent does not disclose any cause of action or actionable dispute between the respondent and the appellant over which the learned trial judge could have exercised jurisdiction.

(ii)
If it can be said that there is such actionable dispute between the respondent and the appellant that dispute can only be found on the criminal charge No. KDH/28c/82 in respect of which there was a competent order of MR. JUSTICE KOLA AROYEWUN and over which the learned trial judge cannot exercise any power of review in the light of the provisions of Sections 284 and 285 of the Criminal Procedure Code.

(iii)
In the absence of any actionable dispute between the respondent and the appellant the respondent could only be inviting the learned trial judge to engage in a mere academic exercise as any declarations made will turn out to be declarations in a vacuum.

3.
The Federal Court of Appeal erred in law in holding that the civil Suit No. KDH/130/82 was not in the nature of an appeal.

Particulars

(i)
The originating summons did not disclose any actionable dispute between the appellant and the respondent.

(ii)
In the absence of any real controversy between the appellant and the respondent the learned trial judge by entertaining suit KDH/130/82 sat as a reviewing authority over a competent decision of a court of co-ordinate jurisdiction.

(iii)
In the absence of a disclosed cause of action the learned trial judge should not have invoked his powers of jurisdiction.

4.
The learned judges of the Federal Court of Appeal erred in law in holding that the Solicitor-General of Kaduna State cannot validly exercise the powers conferred on the Attorney-General of the State under Section 191 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter called the Constitution) in the absence of an incumbent in the office of Attorney-General of the State.

Particulars

(i) As no Attorney-General has ever been appointed for Kaduna State since the inception of the Constitution the

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Solicitor-General of Kaduna State can validly exercise the powers of the Attorney-General of Kaduna State by virtue of Section 191 of the Constitution and the doctrine of State necessity.

The learned Federal Court of Appeal judges erred in fact and law in holding that the doctrine of necessity does not apply in Kaduna State.

Particulars

(i)
Since the coming into force of the Constitution an Attorney General has never been appointed for Kaduna State because the Kaduna State House of Assembly has twice rejected nominations made by the Governor of Kaduna State.

(ii)
In the absence of an Attorney-General for Kaduna State the Solicitor-General and the entire law officers of the State would not have been able to undertake criminal prosecution but for the provision of Section 191 of the Constitution.”

Mrs. Donli, the learned Attorney-General for Kaduna State in making her case before us, as would be expected in an appellant – situation, stressed that she was relying on the dissent by Coker, J.C.A. (as he then was) and Karibi-Whyte, J.C.A. (as he then was). These two opinions, as I had stated earlier on in this judgment, did not necessarily head in the same direction. Be that as it may, it was clear that the learned Attorney-General was making two points, namely:-

(a)
that the respondent had no locus standi to bring the instant proceedings and

(b)
that the Solicitor-General in the absence of an incumbent in the office of Attorney-General can do what the Attorney-General can.

The learned Attorney-General also, in the alternative, urged us 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 at large, unhindered. If indeed such a situation were permitted, then argued the learned Attorney, there would in fact be no government, as all activities of government would grind to a halt. Virtually, the same points were made in the brief filed by the learned Attorney which she also relied upon.

Mr. Akinyili, for the respondent, repeated with greater emphasis the submissions he had made in the two lower courts, to the effect that the respondent had locus standi to come by way of an originating summons for the purpose of construing the provisions of Section 191 of the Constitution of the Federal Republic of Nigeria 1979, in order to show that the Solicitor- General of Kaduna State lacked competence to terminate the criminal proceedings.

The amici-curiae were also equally divided, some expressing support for the views put across on behalf of the respondent, while others supported the appellant.

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Before proceeding with an examination of the two issues raised, I should like to state, in passing, that all the opinions of the Court of Appeal both major and minor are agreed that in exercising jurisdiction over the originating summons, Chigbue, J. was not invoking an appellate jurisdiction over the earlier ruling in the criminal matter given and was not a nullity and as such, could not be set aside by another judge of co-ordinate jurisdiction. See SEIFAH v. FORFIE (1958) AC. 59; MACFOY v. U.A.C. (1962) AC. 152; and SKENCONSULT (NIG.) LTD. AND ANOR. v. UKEY (1981) 1 SC. 6.

On locus standi, that is the right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law, it would be difficult to resist the conclusion that the respondent had locus standi. While I agree that, in terms with the provisions of Section 213(5) of the Constitution of the Federal Republic of Nigeria, 1979, he would not qualify for admission into the category of “aggrieved persons” in a criminal matter, the same cannot be said in relation to his civil rights and obligations as enshrined in the Constitution. Section 213(5) of the Constitution 1979 reads:-

“Any right of appeal to the Supreme Court from decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or, with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter, and if the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”

Section 6(6)(b) of the Constitution 1979 reads:-

“The judicial powers Vested in accordance with the foregoing provisions of this section – shall extend to all matters between any persons or between government or authority and any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person:” –

If, as the record shows, the respondent’s son was killed in circumstances warranting the commencement of a criminal prosecution against those alleged to have been involved in the killing, he (the respondent) would be entitled to hold as an infringement of his civil rights the arbitrary termination of the said criminal prosecution by someone such as the Solicitor-General in this case, who is alleged to be incompetent to do so. He would, in my view, be able to go to court by way of an originating summons seeking a declaration that what the Solicitor-General did in withdrawing the charges was beyond his competence. There was a lot of discussion by this court in the case of SENATOR ADESANYA v. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOR. (1981) 2 NCLR. 358 as to circumstances under which a person litigating a cause would have locus standi. In this connection, I would respectfully adopt the views of my learned brother BELLO, J.S.C. in the said case when he stated as follows:

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“It seems to me that upon the construction of the subsection, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”

See also – OLAWOYIN v. A.G. N.R (1961) ALL NLR. 270; GAMIOBA AND ORS. v. ESEZl AND ORS. (1961) ALL NLR. 586; GOURIET v. UNION OF POST OFFICE WORKERS (1977) 3 ALL E.L.R. 70; R. v. GREATER LONDON COUNCIL, Ex Parte BLACKBURN AND ANOR. (1976) 1WLR. 550.

The appropriateness of the procedure by originating summons has not been seriously contested in this appeal. What took the respondent to court was the interpretation of the constitutional provision raised in these proceedings. It is still trite that “no action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed.” Order 15 R. 16 (English Rules of the Supreme Court -1979). See – GUARANTY TR UST CO. OF NEW YORK v. HAN NAY (1915) 2 KB. 536. Accordingly I rule that grounds 1, 2 and 3 have failed.

The remaining grounds of appeal are concerned with the powers of the State Attorney-General under Section 191 of the Constitution. Section 191(1) provides:-

“The Attorney-General of a State 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 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.”

Section 191(2) provides:-

“The powers conferred upon the Attorney-General under sub-section (1) of this section may be exercised by him in person or through officers of his department. (Italics mine)

Section 191(3) provides:-

“In exercising his powers under this section the Attorney-General shall have regard to the public interest, interests of justice and the need to prevent abuse of legal process.”

Before considering the above provisions in detail, I should like to set out the provisions which deal with the qualifications of the person to be appointed Attorney-General This is to be found in Section 176 of the Constitution. Section 176(1) provides:-

“There shall be an Attorney-General for each State who shall be a

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Commissioner of the Government of that State.”

Section 176(2) provides:-

“A person shall riot be qualified to hold or perform the functions of the office of the Attorney-General of a State unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.”

A short historical and anecdotal excursion at this stage in relation to the office of Attorney-General may not be entirely out of place. With the inception of PAX-BRITTANICA, in this country towards the end of the last century, there was always a Legal Department with the Attorney-General as its head. This Attorney-General was stricto-sensu a civil servant and part of the executive arm of the British Colonial Administration. In the Attorney-General’s Department or Legal Department were serving legal officers designated as CROWN COUNSEL. With the introduction of the 1960 Constitution which brought into being the concept of ministerial or cabinet form of government with the Prime Minister as the head of a Cabinet of Ministers, the Attorney-General continued to be a civil servant, while a new cabinet post of Minister for Justice was created. The Constitution of 1963 made the office of Attorney-General unmistakably political either at the centre or in any of the three regions of Nigeria at that time. The various constitutions provided that the Attorney-General shall be a member either of the House of Parliament or Senate or of a Legislative House of a region.

The constitution of 1960 made provisions for the office of a DIRECTOR OF PUBLIC PROSECUTIONS who was not under the MINISTER OF JUSTICE. This state of affairs subsisted until the coming into force of the 1963 Constitution which placed the Director of Public Prosecutions under the Attorney-General and Minister for Justice. Thus we had under the 1963 Constitution, an Attorney-General who was a politician with the portfolio of Justice and thus the head of that Ministry. Under him was the Solicitor-General and Permanent Secretary of that Ministry and the Director of Public Prosecutions both of whom were civil servants. With the advent of the military administration of 1966, Decree No. 55 of that year effected a restructuring of the status of the Attorney-General as follows:-

“(1) 聽The Head of the National Military Government may, if he thinks fit, appoint a person to be Attorney-General of the Republic.

(la)
The functions of the Attorney-General 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.

(lb)
Whenever and so long as no person holds the office of Attorney-General of the Republic, any function which is conferred by this Constitution or any other law upon the Attorney-General of the Republic shall vest in the Solicitor-General of the Republic and may be performed by him notwithstanding anything in sub-section (4) of this section.”

Identically worded modification were inserted in the Constitutions of the Regions and later of the States. All these provisions operated within the framework of the 1963 Constitution modelled after the Westminister

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Cabinet form of government as amended by the various decrees of the intervening military administrations up to 30th September, 1979. On the coming into force of the Presidential form of civilian administration on 1st October, 1979, a new office of Attorney-General was created for the Federation who was also a minister in the government. Section 138 of the Constitution makes provision for this. Similarly, section 176 makes provisions for the appointment of an Attorney-General for a State, who shall be a Commissioner of the government of that State.

Within the period covered by our own experience in representative government, I shall set out the provisions dealing with the powers vested by the Constitutions in those charged with the prosecution of crime in order to focus attention on some of the similarities in wording.

As I had indicated earlier, the 1960 Constitution clothed the Director of Public Prosecution with something in the nature of autonomous powers. Section 97(1) of the 1960 Constitution reads:-

“There shall be a Director of Public Prosecutions for the Federation, whose office shall be an office, in the public service of the Federation.

Section 97(2) reads:-

“The Director of Public Prosecutions of the Federation shall have power in any case in which he considers it desirable so to do

(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 Parliament;

(b)
to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c)
to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”

Section 97(3) reads:-

“The powers of the Director of Public Prosecutions of the Federation under sub-section (2) of this section may be exercised by him in person or through members of his staff acting under and in accordance with his general or special instructions.”

Section 97(5) reads:-

“The powers conferred upon the Director of Public Prosecutions of the Federation by paragraphs (b) and (c) of subsection (2) of this section shall be vested in him to the exclusion of any other person or authority.”

Paragraphs (b) and (c) refer to the powers to take over a prosecution or to terminate same. These issues are germane to those raised in the case in hand and if the constitutional provision, that is Section 191 of the 1979 Constitution had been similarly clearly worded, the need for construing it might not have arisen.

Section 97(6) reads :-

“In the exercise of, the powers conferred upon him by this section

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the Director of Public Prosecutions of the Federation shall not be subject to the direction or control of any other person or authority.”

The above powers compare with those vested in the ATTORNEY-GENERAL of the Federation by the 1963 Constitution, with this difference, that the Director of Public Prosecutions has now lost his autonomous status by being brought under the control of the ATTORNEY-GENERAL.

Section 104(1) of the 1963 Constitution reads:-

“There shall be a Director of Public Prosecutions for the Federation, whose office shall be an office in the public service of the Federation and, without prejudice to the provisions of this Constitution relating to the Public Service Commission, an office in the Federal Ministry of Justice.”

Section 104(2) reads:-

“The ATTORNEY-GENERAL of the Federation shall have power in any case in which he considers it desirable so to do –

(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 any law in force in Nigeria or any part thereof;

(b)
to take over and continue any such criminal proceedings that may have been instituted by any other person or authority;

(c)
to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”

Section 104(3) reads :-

“The powers of the ATTORNEY-GENERAL of the Federation under subsection (2) of this section may be exercised by the ATTORNEY-GENERAL in person and through the Director of Public Prosecutions of the Federation, acting under and in accordance with the general or special instructions of the ATTORNEY- GENERAL, and through other officers of the- department mentioned in subsection (1) of this section, acting under and in accordance with such instructions.”

Section 104(5) reads:-

“The powers conferred upon the ATTORNEY-GENERAL of the Federation by paragraphs (b) and (c) of subsection (2) of this section shall be vested in him to the exclusion of any other person or authority.”

Section 104(6) reads:-

“In the exercise of the powers conferred upon the ATTORNEY- GENERAL of the Federation by this section, the ATTORNEY- GENERAL shall not be subject to the direction or control of any other person or authority.”

Section 104(6) above re-echoes the position of the ATTORNEY-GEN- ERAL right from the inception of that office under the Common Law up to and inclusive of the recent constitutional provisions. He is said to be a law unto himself and subject to direction and control from none. Implicit in this provision is the need that the ATTORNEY-GENERAL should be seen as

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an even-handed functionary of the executive arm of government. See the decision of this court in – STATE v. ILORl & ORS. (1983) 1 SCNLR. 94. It is plain that the powers vested in the ATTORNEY-GENERAL by paragraphs (b) and (c) of Section 104(2) are exercisable by him personally and not delegable. These are the powers of taking over and terminating prosecutions. What he can delegate to the Director of Public Prosecutions and other officers is the power to institute and undertake criminal proceedings under paragraph (a) of the same section. By 1967 – Act No. 8 (Decree No. 8) of that year made the following significant amendment to the powers of the ATTORNEY-GENERAL under Section 88 of the Constitution of 1963. That new section 88(la) provides as follows:

“The functions of the ATTORNEY-GENERAL of the Federation shall include the exercise, subject to the authority of the Supreme Military Council, of general direction and control over the Federal Ministry of Justice.”

The new section 88(lb) provides as follows:-

“Whenever and so long as no person holds the office of ATTORNEY-GENERAL of the Federation, any function which is conferred by this Constitution or any other law upon the Attorney-General of the Federation shall vest in the Solicitor-General of the Federation and may be performed by him notwithstanding anything in subsection (4) of this section.” For subsection (3) there shall be substituted the following subsection-

(3) If the person holding office as Attorney-General of the Federation is for any reason 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.”

Corresponding amendments were incorporated in the Constitutions 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 this case. The above was the legal and constitutional position until 30th September, 1979. The argument for the appellant would hold true, if I can be persuaded that the framers of the 1979 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 ATTORNEY-GENERAL or the Solicitor-General under the 1963 Constitution as set out hitherto. I think it is trite that in construing a constitutional document there is the need to look at its provisions as a whole and where possible, give such provisions their ordinary and natural meaning. See BANK OF ENGLAND v. VAGLIANO BROS. (1891) AC. 107 at 144 where Lord Herschell put the position thus:-

“I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpreta-

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tion in conformity with this view.”

As I had stated earlier in this judgment, the Attorney-General under the 1963 Constitution was by that constitutional arrangement a member of one or other of the legislative houses created by the said constitution. This was the position until 1966 when several provisions of that Constitution were suspended as the result of the military intervention of that year. The military in government amended the provisions relating to the office of ATTORNEY -GENERAL. This they did by the amendment to Section 88 as I had shown above. The further amendment making it possible for the Solicitor- General to perform the duties of an ATTORNEY-GENERAL which came about in 1967 by Act No. 8 of the year was also done by the military.

Whereas the 1963 Constitutional arrangement was made to reflect the Westminister pattern of government wherein executive power lay in the Prime Minister who was the leader of the party commanding the majority in the legislature, the 1979 Constitution is a prototype of the American Constitution, where executive power was vested in an elected President. Under the 1963 Constitution the President was a ceremonial figure-head with no powers. The executive President under the 1979 Constitution had exclusive access to executive power. His was the prerogative to nominate his ministers and other office holders. Having nominated them, he sent their names to the Senate where that august body would arrange a hearing for the candidate by one of its committees in order to determine his fitness for appointment to that office by being confirmed.

The executive powers exercisable by the ATTORNEY-GENERAL would be such as is assigned to him under Section 136(1) of the 1979 Constitution which reads:-

“The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.”

Section 174(1) deals with the like situation in relation to the States.

The provisions in the 1979 Constitution are thus unique in the sense that they are intended to deal with the peculiar circumstances of Nigeria. A foray into the Constitutions of other nations, useful, though it may be, cannot be of much assistance. It is therefore of paramount importance when construing the Constitution, that one should look closely at the provisions themselves, in order to discover their object. This approach cannot be dogmatic and I seem to be in agreement with the versatile approach advocated by UDOMA, J.S.C. when in RABIU v. THE STATE (1980) 8/11 SC. 130 he had this to say:-

“Where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the content or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”

One significant difference in the wording of Section 104 of the 1963 Constitution and Section 191 of the 1979 Constitution is the omission of the phrase:- “acting under and in accordance with the general or special instrutions

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of the Attorney-General ……………………. ” in the latter provision. The importance聽of the personal role that has to be played by the Attorney-General is underscored by the penultimate provision of Section 191 – that is 191(3) which I am constrained to reproduce again. It reads:-

“In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.”

The exercise of the powers vested in the ATTORNEY-GENERAL under the section cannot bear a mechanical or automaton approach, particularly in a situation where issues of high state policy are involved, which would require to be balanced one way or another, before action is taken. This is the more so, as the ATTORNEY-GENERAL is answerable to no one with regard to any decision taken under the section. See THE STATE v. ILOR1 & ORS. (Supra). I am in no doubt that the powers entrusted to the ATTORNEY-GENERAL by the express provisions of Section 191 of the 1979 Constitution are his to exercise and his alone to donate; in other words, there must be an incumbent in the office to act as donor and an appropriate officer in his department or ministry who can be a donee of the power. If the powers can be exercised without being donated, then the officers in the ATTORNEY-GENERAL’S Department would have access to the powers on the footing of equality with him and the draftsman could easily have inserted “and” instead of “or” between person and through. This would surely be a recipe for chaos and would make nonsense of the ensuing provision under Section 191(3). With all the foregoing in mind, I have no doubt that the learned judge of the Kaduna High Court was right in saying that the Solicitor-General was incompetent to terminate the proceedings in the criminal prosecution.

聽聽聽聽The point made on behalf of the appellant that, unless there is equality聽of access to the powers treated under the section as between the ATTORNEY-GENERAL and the SOLICITOR-GENERAL, at a time when there is no incumbent ATTORNEY-GENERAL, there would be an embargo on crime prosecution and termination, cannot be valid. The office of Solicitor- General and that of Director of Public Prosecutions are existing offices, that is, offices carried over from the old Constitution by virtue of the provisions of Section 275 of the 1979 Constitution. Section 275(2) thereof provides:-

“Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue of this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution.”

It is routine for criminal prosecutions on information to be undertaken at the High Court by the office of the Director of Public Prosecutions. It is equally routine for such prosecutions to be terminated before judgment by the same department. It is also not unusual for the Solicitor-General to represent government in important or complicated civil actions. In the event of an application being made to terminate procedings, it seems to me that the court before which it is made would be justified in asking for the grounds for the application and in ruling on it. This would not be the case if the application

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were made by the ATTORNEY-GENERAL pursuant to Section 191 of the 1979 Constitution. He cannot be asked by the court to ascribe reasons for the application.

Section 105 of the High Court Law (Cap 49 – LAWS OF NORTHERN NIGERIA) makes provision for representation of the State by law officers, Director of Public Prosecutions, State Counsel, the police and others. Indeed most prosecutions in the magistrate courts are conducted by the police who, in very many cases for one reason or other, apply to have some of such cases, withdrawn. There is also power under Section 258(2) of the Criminal Procedure Code (CAP 30 – LAWS OF NORTHERN NIGERIA) for terminating prosecutions. It would therefore, not be true that the inability of the Solicitor-General to terminate proceedings under Section 191 of the 1979 Constitution would create a vacuum in the dispensation of criminal justice. The doctrine of necessity as to which there was discussion by the Attorney-General of Kaduna State and some other STATE ATTORNEYS did not properly arise as an issue in this case.

On the whole l am satisfied that there is no merit in the views urged upon us in this appeal with regard to grounds 4 and 5. Accordingly, this appeal fails and it is hereby dismissed with N300.00 costs in favour of the respondent herein.

IRIKEFE J.S.C. for SHOWEMIMO C.J.N.: All judgements are handed down. The Chief Justice of Nigeria, who is not now in court, had agreed with聽all the conclusions in the judgment at conference.

BELLO, J.S.C.: I have had the advantage of reading the judgment just delivered by my learned brother, Irikefe, J.S.C. I adopt his reasoning and conclusions therein. I hold that the Respondent as the father of his deceased son, who was the victim of culpable homicide, has standing in civil proceedings to challenge the purported exercise of the constitutional power under section 191 of the Constitution by the Solicitor-General in the termination of the criminal prosecution of the persons accused of having committed the culpable homicide of the Respondent’s son. I also hold 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 express 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.

For the purpose of amplification, I would only add few words to the answer on the question that has been vigorously debated, to wit, what civil right or obligation for the Respondent has been or is in danger of being violated or adversely affected by the executive action of the Solicitor-General in terminating the criminal prosecution that entitles the Respondent to be accorded standing to invoke the judicial power of the court under section 6(6)(b) of the Constitution?

In Adesanya v. President of the Federal Republic of Nigeria (1981) 2聽N.C.L.R. 358 this Court exhaustively considered and determined the scope

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and extent of the judicial power of the Court within the ambit of section 6(6)(b) of the Constitution. To reiterate my stance in that case, I said at pages 385 to 386:

“It seems to me that upon the Construction of the subsection, it is only when the civil rights and obligations of the persons, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”

I still maintain the foregoing construction of section 6(6)(b) of the Constitution. It follows therefore that to accord standing to the Respondent in the case on appeal to challenge the purported constitutional action of the Solicitor-General, the Respondent must show that he has sufficient interest within the principle of the subsection. The facts established by the Respondent in the trial court are: that he is a Moslem and father of the deceased: that the accused persons in the criminal case which was terminated by the Solicitor-General were alleged to have committed culpable homicide of his son and that the termination of the criminal case was unconstitutional, null and void. The question that may be asked is: have these facts disclosed standing to allow the Respondent to prosecute his complaint? I think, upon a proper examination of the civil rights of the Respondent in his capacity as the father of his deceased son, the answer to the question is certainly in the affirmative.

Now, if the culpable homicide of the Respondent’s son falls within the scope of the Fatal Accidents Law, Cap. 43 of the Laws of Northern Nigeria 1963, then members of the immediate family of the deceased including the Respondent have a vested right of action for damages under sections 3 and 4 of the Law, which provide:

“3. Notwithstanding any rule of law, practice or procedure heretofore in force to the contrary, whenever the death of a person shall be caused by a wrongful act, neglect or default of another person and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured to maintain an action, and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

4(1) Every such action shall be for the benefit of the members of the immediate family of the person whose death shall have been so caused and shall be brought –

(a)
by and in the name of the executor or administrator of the deceased person;

聽 聽 or

(b)
in the case of a deceased person who was subject to any system of native law and custom immediately before his death, at the option of his immediate family by and in the name of such person or persons as the court may be satisfied is or are entitled or empowered to represent the deceased person or

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his estate, according to such native law and custom.”

Section 2 of the Law defines “immediate family” as meaning;

“2(a) In relation to a deceased person who was not subject to any systems of native law and custom the –

(i)
wife or wives;

(ii)
husband;

(iii)
parent, which shall include father and mother, grand father and grandmother and stepfather and stepmother;

聽 聽 and

(iv)
child, which shall include son and daughter, grandson and granddaughter and stepson and stepdaughter, of such deceased person; and

(b)
in relation to a deceased person who was subject to any system of native law and custom other than Moslem Law, the persons specified in paragraph (a) and, in addition, his brother and sister which shall include stepbrother and stepsister;

(c)
in relation to a deceased person who was subject to the system of native law and custom know as Moslem Law, the persons who are entitled to share in the award of diya prescribed by Moslem Law for involuntary homicide.”

Thus, in the case of a deceased Moslem, any member of his immediate family can sue for damages and the measure in damages to be awarded is the diya prescribed by Moslem Law: see section 7(l)(b) of the Law and Zuwaira Sambo & Ors. v. Alhaji Bashir (1969) N.N.L.R. 87 at 94. Under Moslem Law Diya is treated as part of the estate of the deceased: see Al-Muwatta by Imam Malik p. 408 paragraph 434 and a father is entitled to inherit a portion of the estate of his deceased son: see Maliki Law by F. H. Ruxton, First Reprinted 1978, p. 379.

It is clear from the foregoing that whatever is the personal law of a deceased person, Fatal Accidents Law confers on his father a statutory right of action for damages for the benefit of the immediate family of the deceased including the father on account of culpable homicide of the deceased person evisaged by the provisions of section 3 of the Law. That being the case, if the culpable homicide of the Respondent’s son in this case on appeal falls within the provisions of the said section, then the Respondent has a statutory right of action in tort against the accused persons in the criminal case which was terminated by the Solicitor-General.

Again, under Moslem Law the blood-relatives of a victim of culpable homicide punishable with death including his father have the right of election to seek either (a), the avenging of the murder, or (b), compensation, or (c), the waiver of (a) and (b). In Babalola John v. Zaria N. A. (1959) N.R.N.L.R 43 at page 45 Hurley, SFJ, while dealing with the father’s election for death penalty for the murder of his daughter, stated Moslem Law as follows:’

“The blood-relative’s discretion to choose between retaliation, blood money, and pardon is, Mr. Pickford argues, in the nature of a judicial discretion, and its exercise otherwise than in the accused’s presence and upon full information about all the facts would therefore be contrary to natural justice. We do not think that the blood-

[1985] 2 .
A-G. Kaduna State v Hassan
(Bello, J.S.C.)
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relative’s election involves the exercise of a judicial discretion or need be made judicially. Homicide in Moslem law, as has been often said, partakes more of the nature of a tort than a crime. The object of proceedings for homicide in Moslem Law is to ensure that the blood-relatives of the deceased should obtain satisfaction, rather than that the ruler should exact punishment at the hands of the court. In making his election, the blood-relative says no more than what will satisfy him; he need consult only his own wishes, and there is nothing of a judicial nature in the exercise of his choice.”

In consequence of the constitutional changes brought about by the Constitution of the Federation 1960 and the enactments of the Penal Code Law 1960 and the Criminal Procedure Code Law 1960, criminal law under Moslem Law ceased to operate in the former Northern Nigeria. Nevertheless, the blood-relatives’ right of election under the Moslem Law was partially retained and was given statutory recognition in section 393 of the Criminal Procedure Code in these terms:

“393. A native court having jurisdiction over capital offences shall, before passing a sentence of death, invite the blood-relatives of the deceased person, if they can be found and brought to court, to express their wishes as to whether a death sentence should be carried out and shall record such wishes in the record of the proceedings.”

The significance of the blood-relatives’ right to express their wishes was highlighted in Banana v. Bornu N.A. (1961) N.N.L.R. 79 where a native court passed sentence of death without first complying with section 393 of the Code. The High Court of Northern Nigeria held compliance with the section to be mandatory. It set aside the sentence and remitted the case to the trial court for compliance with the section.

Following the judicial reforms of 1967 to 1968 when the Area Courts, formerly known as Native Courts, ceased to have jurisdiction to try the offences of culpable homicide (for example see section 3(d) of the Criminal Procedure Code Law (Amendment) Edict 1968 of the former North-Central State of Nigeria which abolished the jurisdiction of Area Courts to try homicide offences), section 393 of the Criminal Procedure Code became spent since the section applied to trials in the Native Courts only: see Chapter XXXIII of the Criminal Procedure Code. Accordingly, the requirement of the wishes of the relatives of a deceased person before passing a sentence of death is no longer relevant.

I think, in cases not covered by the Fatal Accidents Law, the repeal of Moslem Criminal Law by the I960 and 1979 Constitutions has not affected the civil right of the blood-relatives of a victim of culpable homicide for compensation under Moslem Law against the offender if the State fails to avenge the offence. Section 2.1(10) of the 1960 Constitution provides:

“10, No person shall be convicted of a criminal offence unless that offence is defined and the penalty there for is prescribed in a written law.

Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act of omission constituting the contempt is

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not defined in a written law and the penalty there for is not so prescribed.”

While section 33(12) of the 1979 Constitution as modified by Decree No. 1 of 1984 reads:

“(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Decree or the Law of a State or an Edict, any subsidiary legislation or instrument under the provisions of a law.”

It is clear the constitutional prohibition has been against “conviction of a criminal offence”, and not civil liability arising from the criminal offence. It appears the civil right of the blood-relatives for compensation remains unabated and may be sought in a civil action.

It follows from the premises that the Respondent in the case on appeal has a legal right of action for compensation for the culpable homicide of his son, whether the offence is punishable with death or not. His right is statutory if the homicide falls within the Fatal Accidents Law and it is under Moslem Law if the homicide is outside the Law. For the avoidance of any doubt, it may be pointed out that the right for compensation, as shown by Babalola John v. Zaria N.A. (supra), is not confined to Moslems only. It is the privilege of all persons irrespective of their religion.

It may be observed that in substantive law the public right of the State to prosecute the offence of culpable homicide under the Penal Code is independent of the Respondent’s civil right to sue for compensation. Nevertheless, the rule of practice as laid down in Smith v. Selwyn (1914)) 3 KB 98 where it was held that an action based upon a felony is not maintainable so long as the defendant has not been prosecuted or a reasonable excuse shown for his not having been prosecuted makes the exercise of the civil right of the Respondent dependant on the public right of the State to prosecute. Although the rule in Smith v. Selwyn (Supra) no longer prevails in England since the enactment of their Criminal Law Act 1967: the White Book, Vol.2, 1979 page 950 paragraph 3357. it still operates within the Northern States. In Nwosu v. Chima (1966) N.N. L.R. 155 at 157 Holden J. stated:

“I rule that the principle laid down in Smith and Wife v. Selwyn is still very much alive and is to be applied whenever there is allegation of an offence not ordinarily bailable as the foundation of the claim in civil proceedings.” But in Oyewale v. Okoli (1974) N.N.L.R. 40 Uwais J., as he was then, held that the rule in Smith v. Selwyn no longer applies. Since the conflicting decisions of the two courts of co-ordinate jurisdiction are persuasive only and not binding, the High Courts of the Northern States are at liberty to follow either until the matter is settled by the Court of Appeal or this Court.

Now, the affidavit of the Respondent shows that the persons accused of having committed culpable homicide of his son have not been prosecuted. The Respondent further deposed that the termination of the criminal case was unconstitutional. If such allegation is correct then, in my opinion, it cannot be said that reasonable excuse has been shown for the non-prosecution

[1985] 2 .
A-G. Kaduna State v Hassan
(Aniagolu, J.S.C.)
509

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of the persons against whom the Respondent has a right of action. The rule in Smith v. Selwyn, if it still applies, has not been complied with. Consequently, the Respondent may not be allowed to maintain his legal right to sue for compensation. That being the case, it is apparent that the civil right of the Respondent has been adversely affected by the action of the Solicitor- General. In the circumstances, the Respondent has made out a case within the principle stated in Adesanya v. President. He has standing to question the constitutionality of the termination of the criminal case by the Solicitor- General.

ANIAGOLU, J.S.C.: I have had a preview of the judgment just read by my learned brother, Irikefe, J.S.C., and I am in agreement with him that this appeal should be, and is hereby, dismissed.

The problem which triggered off these proceedings was the absence of an Attorney-General in the Kaduna State brought about by the vacancy in the incumbency upon failure to appoint an incumbent.

In the meantime, one ABDUL RASHID UMARU was allegedly murdered resulting in the arrest of five persons who were arraigned before an inquiry Magistrate who, upon a preliminary inquiry, held, it was stated, that a prima facie case of culpable homicide had been made out against the five persons. The case, having been committed for trial in the High Court for culpable homicide, was pending in the High Court in the criminal charge No.KDH/28c/81. On 30th March 1982, upon an application to discontinue the case (nolle prosequi) made by the Solicitor-General of Kaduna State, one J.B. Maigida, who purportedly exercised the powers conferred upon the Attorney-General of Kaduna State under section 191 of the Federal Republic of Nigeria, 1979, the accused persons were discharged. Faced with this situation the father of the victim of the alleged murder – the Respondent in this appeal, MALLAM UMARU. HASSAN – took out an originating summons, dated 21st May 1982, in the Kaduna High Court, seeking a determination by Court of the following questions and of a declaration:

“A(1)聽聽聽聽Whether the Solicitor-General, Ministry of Justice,聽Kaduna State can validly exercise the powers conferred on the Attorney-General of Kaduna State by section 191 of the Constitution of the Federal Republic of Nigeria, 1979 when no person has been appointed to the office of the Attorney- General of the State, and when any or all of such powers have not been specifically delegated to him by any person holding the office of the Attorney-General of Kaduna State of Nigeria?

(2)
Whether the Solicitor-General of Kaduna State can in purported exercise of the powers of the Attorney-General under paragraph (c) of the sub-section 1 of Section 191 of the Constitution of the Federal Republic of Nigeria, 1979 discontinue criminal proceedings against accused persons committed for trial at the High Court after preliminary inquiry by a Magistrate when the powers conferred on the Attorney-General of Kaduna State by the said section has

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not been delegated to the Solicitor-General of Kaduna State by any person holding the office of the said Attorney- General of Kaduna State?

B(l)
A declaration that the purported exercise of the powers conferred upon the Attorney-General of Kaduna State, by the Solicitor-General of Kaduna State, under th6 provisions of section 191 of the Constitution of the Federal Republic of Nigeria, 1979 in the absence of an incumbent to the office of the Attorney-General of Kaduna State is unconstitutional, unlawful null and void and of no effect whatsoever.”

I have no doubt that the course taken by the Respondent in applying, by originating summons, for a determination of those questions and declaration, was a permissible course to take (See: THE STATE, v. ILORl And Ors. (1983) 2 S.C. 155 at 197-199;. (1983)1 S.C.N.L.R. 94 at 116, Whether he has a locus standi in the murder case to justify his initiating these proceedings, is another issue.

Where, then lies his locus? The answer obviously is that it lies in the parental and filial relationship between him and his alleged murdered son; that the law must see in that relationship a right in the father to seek after, defend, and inquire into, his son’s affairs and interests and prosecute proceedings in relation thereto.

That this relationship is recognised by our Law is seen, by way of illustration, in some provisions of the Criminal Code Act. Section283 of the Criminal Code Act which defines provocation has included in the term “provocation” a wrongful act or insult of such a nature as to be likely when done.

“In the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal,

parental, filial, or fraternal, relation,聽………………. to deprive him of the聽power of self-control and to induce him to assault the person by whom the act or insult is done or offered.”

The section continues and provides that:

“when such an act or insult is done or offered by one person to another or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid the former is said to give to the latter provocation for assault”.

Section 284 then makes provocation a defence by making the person not criminally liable for the assault committed upon the person who gives him the provocation subject to the limitations set out in that section. While Section 285 makes provision for preventing a repetition of an act or insult giving offence or provocation, Section 286 provides for a defence against unprovoked assault and section 288 gives a right for any other person, acting in good faith, to come to the aid of that person.

With regard to Northern Nigeria, the Criminal Code was also in force throughout Northern Nigeria before the coming into force of the Penal Code Cap.89 Vol. III the Laws of Northern Nigeria 1963 on 30th September 1960 (See for example, the judgments in: BABALOLA JOHN v. JOS1AII ONYEAMAIZU (1958) N.R.N.L.R. 93).

[1985] 2 .
A-G. Kaduna State v Hassan
(Aniagolu, J.S.C.)
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After the coming into force of the Penal Code, there was no exact equivalent of sections283 to 288 of the Criminal Code, in the Penal Code. But the same principle, although in a wider context, remained. Whereas section 283 of the Criminal Code talks of “conjugal, parental, filial, or fraternal relation”, there was no equivalent section in the Penal Code. What the Penal Code has is to be found in’ sections 60 to 67 providing for the ”right of private “defence”. Section 60(a) Of the Penal Code provides that

“Every person has a right, subject to the restrictions hereinafter contained, to defend -(a)

his own body and the body of any other person against any offence affecting human body”, (Italics mine)

While section 222(1) deals with provocation, arid the substituted section 399 (substituted by No. 13 of 1965) provides for insults and abusive language.

All the above are in addition to section 213(5) and section 6(6) of the Constitution referred to, rightly in my view, by my learned brother, Irikefe, J.S.C., in his lead judgment. I am, therefore, in complete agreement with the view expressed in the lead judgment that the Respondent had locus standi to initiate these proceedings.

What this Court said in THE STATE v. ILORI And Others (supra) is sufficient for the statement that the powers of the Attorney-General of a State (and therefore of the Kaduna State in this appeal) are personal to him and are exercisable personally by him. Ideally, I think the makers of the Constitution were wise to make it so, because whereas the Solicitor-General, the Director of Public Prosecutions and all the other officers down the line, in the Ministry of Justice, are by designation, civil servants who are not answerable politically for acts done in the Ministry, the Attorney-General is both the legal as well as the political officer who is answerable politically for acts done in that Ministry rind since the powers exercisable under section 191 of the Constitution, in many cases, may have political over-or-under tone, 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 decisions required under the section. Put in another way, it is he who has to take the rap for the decisions taken; it is only fair that he should be left solely with the juridical power to take the steps resulting in those decisions, so that whatever may be the political effect of the legal steps he has taken, he is fully and personally answerable for it for good or for evil.

FINALLY, the Hon, Attorney-General of Kaduna State, Mrs. Donli (and some other Counsel appearing Amici-Curiae), had put forward the virtual intimidatory suggestion that without it being decided that the Solicitor- General was constitutionally empowered to exercise the power of the Attorney-General under section 191 of the Constitution, the prosecution of criminal cases in the Kaduna State would virtually come to a stand still, with its adverse effect on maintenance of Law and Order in the State, I do not think that that cry of “wolf is justified by the state of the law in that State. Prosecutions are validly carried on in the State by the Police and State Counsel

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under the Criminal Procedure Code of the North and the Penal Code. Both the Police and the 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. A normal hearing of a case would fully be conducted before the Magistrate’s Courts and the Native Courts under the Criminal Procedure Code. Sections 130,131,159,235, and 253 of the Criminal Procedure Code are but examples of sections under that Code which could be called in aid by a prosecuting Police, or a State Counsel or the Attorney-General, in the conduct of their cases before those Courts. The law will certainly not come to a standstill because there is no Attorney- General to exercise the powers conferred under section 191 of the Constitution and, in my view, no necessity or emergency would have arisen (as submitted by Mrs. Donli) to justify the Solicitor-General investing upon himself a jurisdiction, under section 191, which he does not possess.

Accordingly, for the above reasons and for the apt and wider reasons given by Irikefe, J.S.C., in his lead Judgment, I must dismiss, and hereby dismiss, this appeal by the Attorney-General of Kaduna State and in doing so restore the judgment of the High Court Kaduna (per CHIGBUE, J.) and confirm the majority judgment of the Court of Appeal (Nasir, P.C. A.; Wali and Maidama, JJ.C.A.). I abide by the order for costs as prescribed in the lead judgment of Irikefe, J.S.C.

UWAIS, J.S.C.: I have had the advantage of reading in draft the Judgment read by my learned brother, Irikefe, J.S.C., and I entirely agree with the reasons and conclusion therein.

Following our decision in The State v. S. O. llori & Ors., (1983)1 SCNLR 94 at pp. 1ll; 116 and 119, it is settled, that where a nolle prosequi is entered in a criminal case, .by an Attorney-General, under the provisions of either section 160 or 191 of the Constitution of the Federal Republic of Nigeria, 1979; the propriety of exercising the power may be questioned in a civil action which can be brought by a person whose civil rights and or obligations have thereby been affected. It follows a fortiori that the exercise of the same power by a legal officer employed in the Ministry of Justice, as in the present case, can be the subject of similar proceedings.

The difficult question raised in this appeal is: whether the respondent – father, has the capacity or locus standi to challenge the exercise of the power, by a Solicitor-General, to terminate the criminal proceedings instituted against suspects who were accused and charged of killing his son. By section 6(6)(b) of the 1979 Constitution, the exercise by superior courts of their judicial powers extends “to the determination of any question as to the civil rights and obligations” of litigants. Therefore, for a plaintiff to be properly before the superior courts he must be able to show that his civil rights or obligations have been or are in danger of being infringed – see Senator Abraham Adesanya v. President of the Federal Republic & Anor., (1981) 2 NCLR 358.

Now, it has been variously argued, in this case, that the respondent was not a party to the criminal proceedings terminated by the Solicitor-General of Kaduna State; that Kaduna State and not the respondent was the pro-

[1985] 2 .
A-G. Kaduna State v Hassan
(Uwais, J.S.C.)
513

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secutor in the criminal case. Therefore, the respondent, not being a party to the criminal case, could not have been legally aggrieved (as opposed to being morally aggrieved) by the termination of the criminal case, to the extent that he (respondent) could claim that he had any civil right or obligation to protect. In otherwords he had no locus standi to institute the present case.

I have said in Senator Adesanya’s case that the determination by a court of the civil rights and obligations” of a party will always depend on the peculiar circumstances of each case. I still hold that view. Here is a father, whose son has been killed, and the proceedings to bring to justice the suspected assailants of the deceased are terminated, and the assailants set free by the trial court, at the instance of a legal officer with doubtful authority. Should the father fold his arms and do nothing? It is very clear from the opinion expressed by the Solicitor-General that-

“There is no evidence to support the basis on which the trial magistrate at the lower court based his charges against the聽accused ……………… In view of the contradiction before the court below聽we have no evidence to offer as this would be a waste of the time of both the court, the accused and everyone connected with the administration of justice”

the State, as the prosecutor, had lost interest in the case and was not likely to re-institute the proceedings. I think it is not far-fetched to assume that any private prosecution which could have been brought by the respondent against the suspects, would stand the chance of being terminated under the provisions of section 191 sub-section (l)(c) of the 1979 Constitution, since it was the opinion of the Solicitor-General that the case “would be a waste of the time ……………. of everyone connected with the administration of justice.”

The question is: if, in the circumstances of this case, the deceased’s father (i.e. respondent) has no locus standi, as it has been argued, then who has? The deceased is dead, and, if he is the only one that could challenge the termination of the proceedings, because it was his civil right and obligation that had been affected, he cannot be brought to life again to do so. Should the infringement of the Constitution by the Solicitor-General, therefore, be allowed to stand? To my mind the law appreciates the special relationship between persons and their next-of-kin. It is in recognition of this that some of our customary laws and indeed statutory laws confer certain rights and obligations on parents or members of immediate family. See, for instance section 4 of the Fatal Accidents Law, Cap. 43 (The Laws of Northern Nigeria, 1963) and sections 8,10, 27(2)(b) and 30(1) of the Children and Young Persons Law, Cap. 21 (The Laws of Northern Nigeria, 1963). I am therefore of the opinion that the respondent had the right and obligation to institute this case, asking for a declaration that the Solicitor-General had no power under聽S. 191 of the Constitution to terminate the criminal proceedings in question.

There can be no doubt that the powers given to the Attorney-General of a State under section 191 of the Constitution belong to him alone and not in common with the officers of the Ministry of Justice. Such Officers 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. As there was no Attorney-General appointed for Kaduna State at the time material to this case, his powers under section 191 could not

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have been delegated to the Solicitor-General. The appellant has also failed to show that there was no 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.

For the foregoing and the reasons ably stated in the lead judgment of my learned brother, Irikefe, J.S.C., I too will dismiss this appeal with N300.00 costs to the respondents.

KAZEEM, J.S.C.: The present appeal was sequel to a complaint by the respondent whose son was allegedly killed by certain persons who were indicted for the killing, but the charge was later struck out. The circumstances which gave rise to the complaint may be set out briefly thus: Sometime in March 1982, five persons were arraigned for trial before the High Court of Justice in Kaduna for offences of culpable homicide not punishable with death and abetment. The charges which had been framed by the Magistrate after the Preliminary Inquiry came before the High Court for trial; but at the time when there was no incumbent Attorney-General for the State. The pleas of the accused persons were then taken and they all pleaded “Not Guilty” to the charges. The Solicitor-General who appeared for the prosecution thereafter informed the Court that because of the contradiction in the testimonies of the prosecution witnesses during the preliminary Inquiry at the Magistrate Court, he would not offer any evidence against the accused persons. He therefore applied under Section 130(1) of the Criminal Procedure Code and Section 191(2) of the Constitution of the Federal Republic of Nigeria (hereinafter called “the Constitution”), and urged the Court to discharge the accused persons. The learned trial judge after considering that application, ruled that since the State did not intend to continue with the trial, he had no other choice than to strike out the charges against all the accused persons, and he did so.

Consequent upon that striking out, the respondent (as plaintiff) instituted an action in another High Court within the same Judicial Division, and by way of an Originating Summons in the following terms:-

“By this summons the Plaintiff:-

(A) 聽聽聽聽Seeks the determination of the Court of the following questions namely:-

(1)
Whether the Solicitor-General, Ministry of Justice, Kaduna State can validly exercise the powers conferred on the Attorney-General of Kaduna State by section 191 of the constitution of the Federal Republic of Nigeria 1979 when no person has been appointed to the office of the Attorney- General of the state, and when any or all of such powers have not been specifically delegated to him by any persons holding the office of the Attorney-General of Kaduna State of Nigeria.

(2)
Whether the Solicitor-General of Kaduna can in purported exercise of the powers of the Attorney-General under paragraph (c) of subsection 1 of section 191 of the constitution

[1985] 2 .
A-G. Kaduna State v Hassan
(Kazeem, J.S.C.)
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of the Federal Republic of Nigeria 1979 discontinue criminal proceedings against accused persons committed for trial at the High Court after preliminary inquiry by a magistrate when the powers conferred on the Attorney- General of the state by the said section has not been delegated to the Solicitor-General of Kaduna State by any person holding the office of the said Attorney-General of Kaduna State.

Claims against the Defendant:-

(i)
A declaration that any purported exercise of the powers conferred upon the Attorney-General of Kaduna State, under the provisions of section 191 of the Constitution of the Federal Republic of Nigeria, 1979, in the absence of an incumbent to the office of the Attorney-General of Kaduna State is unconstitutional, unlawful, null and void and of no effect whatsoever.”

In support of the Originating Summons, the Respondent filed an affidavit wherein he averred inter alia that the deceased who was the subject of the indictment that was struck out was his son; that he died in suspicious circumstances; that he had testified as a witness for the prosecution during the preliminary Inquiry; that he knew as a fact that no person had been appointed as the Attorney-General for Kaduna State, and that to his knowledge also, the powers of the Attorney-General of the State had not been delegated to the Solicitor-General of the State.`

The matter was tried by Chigbue J, and three issues were canvassed before him:-

(i)
that the court had no jurisdiction generally to entertain the matter because it was founded on a criminal cause over which an earlier order of a court, of the same jurisdiction was made; and in the circumstances the court would not be assuming an appellate jurisdiction on its decision;

(ii)
that the respondent (as plaintiff) had no locus standi to bring the action; and

(iii)
that because there was no incumbent Attorney-General of the State and the powers of the Constitution had not been delegated to the Solicitor-General of the State, the power exercised by the Solicitor-General by terminating the proceedings at the trial court under section 191(l)(c) of the Constitution was invalid, null and void.

After considering the submissions of both parties in, the section, the learned trial judge ruled that he had jurisdiction to entertain the matter; that the Respondent (as Plaintiff) had locus standi to institute the action; and that the powers exercised by the Solicitor-General of the State in terminating the criminal proceedings was unlawful, null and void and of no effect whatsoever!

Against that decision, the appellant appealed to the Court of Appeal in Kaduna where by a majority of three to two, the appeal was dismissed; and the decision of the trial judge was affirmed. The Appellant further appealed to this court against that decision. Five grounds of appeal were filed, and

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because of the constitutional nature of the matter, the court not only sat with a full panel of seven Justices, but also invited all the Attorneys-General in the country to appear as Amici Curiae. Many of them responded to the invitation add filed briefs. They also either appeared personally or sent law officers of鈥�

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