Nolle Prosequi

Last week, it was reported that the Government of Ekiti State
had withdrawn from court its murder case against the Chairman of
the All Progressives Congress in Ekiti State, Chief Jide Awe, and
two others. The defendants had been charged in 2013 for the murder
of late Madam Juliana Adewunmi (mother of the current Deputy
Speaker of Ekiti State, Mr. Segun Adewunmi) and Murphy Jeje. There
was speculation in different quarters as to the motive behind the
move by the Ekiti State Governor, Ayodele Fayose, through his
Attorney-General and Commissioner for Justice, Mr. Kolapo
Kolade.

As expected, a few commentators were not oblivious of the
political undertones of such a move by the governor. The court in
response to the state’s application to withdraw the case was a
discharge and acquittal of the defendants.

Whatever, the motive of the state in withdrawing the charges, my
focus is on the procedure sometimes referred to as nolle prosequi,
which means, “we shall no longer prosecute.”A nolle prosequi
application can be made for part or all of the charges against a
defendant. The only persons with the power to enter a nolle in
court are the Attorney General of the Federation or the Attorney
General of a state (as the case may be). It is a non-delegable
power. This means that the attorney-general himself must make the
submission to the court. No other officer in the office of the
attorney-general has the power to make a nolle submission to the
court to withdraw charges against a defendant. Where there is no
substantive person in the seat of the attorney-general, no other
officer, not even the solicitor-general can enter a nolle in a
case. An application for nolle prosequi can be made at any stage of
the trial before judgment.

There are many reasons for which the state can decide to enter a
nolle submission for a case. It could be that a second look at the
evidences shows that there is not enough evidence to successfully
prosecute the case or maybe the emergence of new evidence which
exonerates the defendant. It could also be because of a difficulty
in getting witnesses to cooperate and testify. Other considerations
such as politics, public policy, the interest of justice, and the
promotion of peace, as in the instant case, may also come into
play.

Whatever the reason is, the attorney general is under no
obligation to give those reasons to the court. The court has no
power to refuse the attorney-general’s submission for nolle.
Essentially, in this regard, the attorney-general is a law unto
himself. The only remedy for a questionable submission of nolle is
the public opprobrium that the attorney-general may face for his
actions, or his removal from office by the person who appointed him
(the governor or the president, as the case may be).

The effect of a nolle submission, generally, is the discharge of
the defendant. What this means is that the defendant may be brought
to court again on the same charges. However, the process commences
afresh where the complainant chooses to bring charges again. A new
charge sheet must be filed in court, and so on. And of course, for
as many times as the defendant is charged, the attorney-general has
the power to enter a nolle prosequi. But note, however, that the
effect could also depend on what stage of the trial an application
for is made and the reason for which the application to withdraw is
made. For instance, the trial may have reached a stage where
evidence has been tendered in court and the judge sees that the
evidence in support of the prosecution’s case is not sufficient to
sustain the charge, the judge may then discharge and acquit the
defendant. Where the reason for withdrawing a case is the emergence
of new evidence that exonerates the defendant, then the judge will
discharge and acquit the defendant. There would be no need to bring
charges afresh against a person who it has been established did not
commit the offence.

The police also have the power to withdraw a case against a
defendant from court. However, the police power is not as extensive
as the attorney-general’s power. The police are required to justify
their withdrawal of the charges and the judge has the discretion to
decide whether or not to grant their application. In making their
application to withdraw a charge, the police must state their
reasons for wanting to do so.

The effect of a police withdrawal is also different from the
effect of a nolle prosequi. Whereas generally a nolle only amounts
to a discharge, the effect of a police withdrawal will depend on
the stage of trial at which the application is made. If the
application to withdraw is made before the prosecution closes its
case then the effect is a discharge. However, if the prosecution
has closed its case and the defence has opened its case, then the
effect will usually be a discharge and acquittal, meaning that the
police cannot subsequently charge the defendant with the same
offence because that would offend the rule against double
jeopardy.

Double jeopardy is the legal principle which prevents a person
from being tried twice for the same offence.

As stated above, generally, the effect of a nolle prosequi is to
leave matters as though charges had never been filed, so that if
they so decide subsequently the prosecution can file the same
charges again. In the Ekiti case, after the application by the
attorney general to withdraw the case, the judge went ahead to
discharge and acquit the defendants in the interest of peace. I
have not read enough detail on this particular case to know at what
stage of the trial the application was made, but generally, what I
have stated above describes how criminal cases can be withdrawn
from court and their effect.

Last week, it was reported that the Government of Ekiti State
had withdrawn from court its murder case against the Chairman of
the All Progressives Congress in Ekiti State, Chief Jide Awe, and
two others. The defendants had been charged in 2013 for the murder
of late Madam Juliana Adewunmi (mother of the current Deputy
Speaker of Ekiti State, Mr. Segun Adewunmi) and Murphy Jeje. There
was speculation in different quarters as to the motive behind the
move by the Ekiti State Governor, Ayodele Fayose, through his
Attorney-General and Commissioner for Justice, Mr. Kolapo
Kolade.

As expected, a few commentators were not oblivious of the
political undertones of such a move by the governor. The court in
response to the state’s application to withdraw the case was a
discharge and acquittal of the defendants.

Whatever, the motive of the state in withdrawing the charges, my
focus is on the procedure sometimes referred to as nolle prosequi,
which means, “we shall no longer prosecute.”A nolle prosequi
application can be made for part or all of the charges against a
defendant. The only persons with the power to enter a nolle in
court are the Attorney General of the Federation or the Attorney
General of a state (as the case may be). It is a non-delegable
power. This means that the attorney-general himself must make the
submission to the court. No other officer in the office of the
attorney-general has the power to make a nolle submission to the
court to withdraw charges against a defendant. Where there is no
substantive person in the seat of the attorney-general, no other
officer, not even the solicitor-general can enter a nolle in a
case. An application for nolle prosequi can be made at any stage of
the trial before judgment.

There are many reasons for which the state can decide to enter a
nolle submission for a case. It could be that a second look at the
evidences shows that there is not enough evidence to successfully
prosecute the case or maybe the emergence of new evidence which
exonerates the defendant. It could also be because of a difficulty
in getting witnesses to cooperate and testify. Other considerations
such as politics, public policy, the interest of justice, and the
promotion of peace, as in the instant case, may also come into
play.

Whatever the reason is, the attorney general is under no
obligation to give those reasons to the court. The court has no
power to refuse the attorney-general’s submission for nolle.
Essentially, in this regard, the attorney-general is a law unto
himself. The only remedy for a questionable submission of nolle is
the public opprobrium that the attorney-general may face for his
actions, or his removal from office by the person who appointed him
(the governor or the president, as the case may be).

The effect of a nolle submission, generally, is the discharge of
the defendant. What this means is that the defendant may be brought
to court again on the same charges. However, the process commences
afresh where the complainant chooses to bring charges again. A new
charge sheet must be filed in court, and so on. And of course, for
as many times as the defendant is charged, the attorney-general has
the power to enter a nolle prosequi. But note, however, that the
effect could also depend on what stage of the trial an application
for is made and the reason for which the application to withdraw is
made. For instance, the trial may have reached a stage where
evidence has been tendered in court and the judge sees that the
evidence in support of the prosecution’s case is not sufficient to
sustain the charge, the judge may then discharge and acquit the
defendant. Where the reason for withdrawing a case is the emergence
of new evidence that exonerates the defendant, then the judge will
discharge and acquit the defendant. There would be no need to bring
charges afresh against a person who it has been established did not
commit the offence.

The police also have the power to withdraw a case against a
defendant from court. However, the police power is not as extensive
as the attorney-general’s power. The police are required to justify
their withdrawal of the charges and the judge has the discretion to
decide whether or not to grant their application. In making their
application to withdraw a charge, the police must state their
reasons for wanting to do so.

The effect of a police withdrawal is also different from the
effect of a nolle prosequi. Whereas generally a nolle only amounts
to a discharge, the effect of a police withdrawal will depend on
the stage of trial at which the application is made. If the
application to withdraw is made before the prosecution closes its
case then the effect is a discharge. However, if the prosecution
has closed its case and the defence has opened its case, then the
effect will usually be a discharge and acquittal, meaning that the
police cannot subsequently charge the defendant with the same
offence because that would offend the rule against double
jeopardy.

Double jeopardy is the legal principle which prevents a person
from being tried twice for the same offence.

As stated above, generally, the effect of a nolle prosequi is to
leave matters as though charges had never been filed, so that if
they so decide subsequently the prosecution can file the same
charges again. In the Ekiti case, after the application by the
attorney general to withdraw the case, the judge went ahead to
discharge and acquit the defendants in the interest of peace. I
have not read enough detail on this particular case to know at what
stage of the trial the application was made, but generally, what I
have stated above describes how criminal cases can be withdrawn
from court and their effect.