A.P. Anyebe V. The State (1986)

LawGlobal-Hub Lead Judgment Report

RIKEFE, C.J.N.

This appeal raises issues as to whether a State Attorney-General can prosecute a patently Federal Offence without express delegation from the Federal Attorney-General.

Mr. Horn, the Honourable Attorney-General and Commissioner for Justice, Benue State, states that he is not now opposing the appeal on the constitutional issue raised. This, in my view, would knock the bottom out of the entire case.

The charges brought against the appellant arose under a Federal law and consequently it would not have been competent to prosecute him unless and until his prosecution had been expressly authorised by the Federal Attorney General or, which is saying the same thing, powers to prosecute had been expressly delegated to the State Attorney-General. Mr. Horn confirmed that this was not the case.

It seems to me that what was done in this case flies in the teeth of our decision in Attorney-General Kaduna State vs. Hassan which is reported in Nigerian Weekly Law Reports-1985 (2 N.W.L.R. Part 8 at page 483).

Accordingly there was no legal basis for the prosecution of the appellant. In the result, I hereby declare all the proceedings against him through the two lower courts as null and void. This means in effect that he had never been prosecuted for an infraction of any known Federal Laws. The fine imposed on him by the Court of Appeal on the basis that there had been a valid prosecution leading to a lawful conviction is to be refunded to the appellant forth-with.

OBASEKI, J.S.C.: The main constitutional point raised in this appeal is whether the appellant can be prosecuted for a Federal offence. He had been prosecuted for the offence of possession of a double barrel short gun (a personal firearms) without a valid licence duly granted contrary to section 4 of the Firearms Act and punishable under section 28 of the same Act as amended by the Firearms (Amendment) Decree No.31 of 1966, a Federal offence.

The 1979 Constitution section 160(1)(e) expressly gave the Attorney-General of the Federation power to prosecute in respect of any offence created by or under any Act of the National Assembly or Decree of the Federal Military Government. He is also empowered to delegate this power. He can exercise the power personally or through officers of his department.

The learned Attorney General of Benue State has conceded that he was not delegated by the Attorney General of the Federation and that he also is not an officer of the department of the Attorney General of the Federation. It therefore appears to me that the Attorney-General of Benue State was usurping the powers of the Attorney-General of the Federation by initiating prosecution of the Appellant for an offence under the Firearms Act. He had no competence whatsoever in the matter.

It is appropriate to observe that section 191(1)(a) of the 1979 Constitution expressly limited the power of the State Attorney-General in respect of instituting and undertaking criminal proceedings against any person before any Court of Law in Nigeria other than a court martial to any offence created by or under any law of the House of Assembly i.e. he can only prosecute for a State Offence.

In Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (p.483), this Court held that the Solicitor General of a State needs a delegation of the State Attorney-General to prosecute i.e. exercise the powers of the State Attorney-General to prosecute. A fortiori the powers of the Attorney-General of the Federation to prosecute can only be exercised by those in his department who are expressly delegated to exercise them.

The Attorney-General of Benue State having exercised the powers he had not got to prosecute the appellant for a Federal Offence, the proceedings before the High Court and the Court of Appeal in respect of that offence stated above, is a nullity. The appeal therefore succeeds. The judgment of the High Court and the Court of Appeal are hereby set aside and the conviction and sentence of appellant quashed. The charge is struck out and the appellant is hereby discharged. Fine imposed if paid to be refunded.

NNAMANI, J.S.C.: The only constitutional issue arising from this appeal is whether the Attorney-General of Benue State could institute proceedings in this criminal matter which by common ground related to a matter in the exclusive legislative list – firearms. It was therefore a federal offence.

Under Section 160(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 as amended, it is only the Attorney-General of the Federation who can institute and undertake proceedings against any person in relation to such offences. By Subsection 2 of Section 160, the Attorney-General of the Federation can delegate his powers under Subsection 1 to officers of his department. The Attorney-General of Benue State is not an officer of his department. If he has to prosecute in what is obviously a federal offence it has to be by express delegation. There was none here.