The Attorney General of the Federation (AGF) is undoubtedly the number one legal officer of the Federation. The office of the AGF is established pursuant to Section 174 of the 1999 Constitution as altered. The AGF is the Legal officer of the Federal Government and part of his constitutional duty is to represent the legal interest of the Federal Government. This, he executes either through himself or by any legal officer in his department. The AGF simultaneously occupies the office of the Minister of Justice, this makes him a member of the Executive Arm of Government. Nigeria adopts a Constitutional Democracy and thus, adheres strictly to the Principles of Separation of Powers, Rule of Law and checks and balances. This can be gleaned from the express provisions of sections 4,5 and 6 of the Constitution (supra). Though arguable, the Constitution does not Expressly provide for the office of the AGF rather, it provides for his functions – See section 174 of the 1999 Constitution. It has been held in a plethora of judicial authorities, that the office of the AGF is different from the person occupying it – See the case of *AG FEDERATION V. ANPP & Ors. (2003) LPELR-SC.142/2003,* where the Supreme Court held that, “…the office of the Attorney-General of the Federation is different and distinct from the person occupying it. And so while the office continues in perpetuity, unless abrogated by the Constitution, the holder of the office could leave the office at the expiration of his tenure or removed as the case may be. Physical death can also result in the person not occupying the office any longer. This is merely saying the obvious. In *Carlen (Nig.) Limited v. University of Jos (1994) 1 NWLR (Pt. 323) 631*, the Supreme Court defined a corporation as a body of persons (in the case of a corporation aggregate) or an office (in the case of a corporation sole) which is recognized by law as having a personality which is distinct from the separate personality of the members of the body or the personality of the individual holder for the time being of the office in question. The court also held that any person natural or artificial may sue and be sued in court. This decision, by analogy, also makes it clear the distinction between the office of the Attorney-General and the incumbent of the office. While the office of the Attorney-General is stable and constant, being a creation of the Constitution, the incumbent could be transient and varied, in the sense that it is not permanent.” Per TOBI, J.S.C (Pp. 25-26, paras. E-D)
The Powers of the AGF are Constitutionally spelt out and the powers to delete the provisions of an extant law is obviously not a part of it, as it will translate to the Executive usurping the powers of the Legislature. The Legislative arm of Government is saddled with the powers to make and enact laws and repeal same. The role Judicial arm of Government is to expressly interpret or adjudicate the law and declare any law or provision of any law that is inconsistent with or contravenes any provision of the Constitution as null and void. The Powers of the AGF as spelt out in section 174(1) is merely limited to prosecutorial powers and not powers to delete any provision of an extant law. In the case of *TUKUR V GOVERNOR OF GONGOLA STATE (1984) 2 NWLR (PART 117) 580,* on the nature and scope of the prosecutorial powers of the AGF, the court held that, ‘The prosecutorial powers of the Attorney General of the Federation are not exclusive. Any other person or authority can also prosecute criminal cases, subject to the overriding power of the Attorney General to take over or continue the prosecution from any such authority or person. The Attorney General can also discontinue criminal proceedings by way of nolle prosequi”In the recently decided case decided by Justice E.N. Anyandike of the Federal High Court sitting at Umahia on 18/3/2022, the AGF sought to delete the provisions of section 84(12) of the Electoral Act (As amended), assuming without conceding that powers of the AGF is extended to deleting the provisions of a Statute, wouldn’t that be construed as an express usurpation of the Constitutional powers of the Legislative arm of Government?It is settled law that the AGF has no powers to delete the provisions of a statue as he did not enact same. Therefore suffice it to say that the AGF has no Constitutional powers to delete the provision or any provisions of the Electoral Act (amended) as same is the exclusive power of the Legislature under section 4 of the Constitution
Samuel Oluwatobiloba Afolabi hails from Ibadan, Oyo state. He is a Legal Practitioner currently based in Jos, Plateau State, Nigeria.
He attended the University of Abuja where he bagged his LL.B degree in 2019 with a 2/1 upper division and later proceeded to the Nigerian Law school, Bagauda Campus, Kano State Nigeria where he bagged his B.L. in 2021 with a 2/1 upper division. He was called to the Nigerian bar in the same year.
As one of the best students of his sets, Sammylaw, as he is fondly called is a voracious reader and has insatiable appetite for litigation and Alternative Dispute Resolution.
His other areas of interest in the legal field is research, Intellectual Property law, Oil and Gas, Data Protection Law as well as Commercial law.
You may contact him on:
Tel: 08137377522
Email: samuelafolabi140@gmail.com
