Requirements of the Law as regards the Exercise of the Powers of a Governor to grant Pardon

Executive Pardon

Pardon is a Federal or State Government’s decision to allow a person to be forgiven or absolved of guilt for a crime or other legal offence, as if the act never occurred.

Amnesty is not a pardon. A pardon implies forgiveness, and amnesty indicates a reason to overlook or forget the offences, often political ones.

Amnesty is deft move by the Government to end an offence, with the legal implication that those charged or convicted have the charge or conviction erased. An example is the amnesty given to Niger Delta Militants initiated by the late President Shehu Musa Yar’adua.

In FEDERAL REPUBLIC OF NIGERIA vs. DINGYADI(2018)LPELR-46061(CA), the issue of the powers of a Governor to grant pardon arose for determination by the Court of Appeal.

The Ruling

“The 1999 Constitution had conferred on the Governor of a State the power of Prerogative of Mercy. See Section 212 of the 1999 Constitution which provides as follows:
“The Governor may grant any person concerned with or convicted of any offence created by any law of a state a pardon, either free or subject to lawful conditions.”
The Governor by virtue of the provisions above has the powers to pardon any person who has been found guilty of a crime to leave prison and or avoid punishment.
The Black’s Law Dictionary, 8th Edition describes pardon thus:
“The act or an instance of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the Chief Executive of a Government. The President has the sole power to issue pardons for Federal
offences and State Governors have the power to issue pardons for state crimes. It is also called or termed Executive Pardon.”
It has thus, come to be associated with somewhat personal concession by a Head of State to the perpetrator of an offence, in mitigation or remission of the full punishment that he has merited.
In all these, one can generally decipher that the word pardon presupposes that it can only be used when somebody has been found guilty by a Court of competent jurisdiction. You can only pardon for a wrong. There can be no pardon in
The Executive Governor of Sokoto State – Rt. Hon. Aminu Waziri Tambuwal, CFR (Mutawallen Sokoto) had signed an instrument under his hand – a pardon, of which the Respondent herein is one of the six (6) beneficiaries. These six (6)
persons including the Respondent in this appeal were indicted by a Commission of Inquiry headed by Alhaji Muhammad Aminu Ahmed. Also, the subsequent government White Paper on the report of the inquiry.
The Governor in his wisdom granted all 6 (six) beneficiaries pardon from the indictment of the panel and of any other criminal offence they might be accused of.
Again a Commission of Inquiry is not a Court. For one to be pardoned for a crime, he must have been tried in a Court of law and found guilty. For ease of reference, I will recap the Governors pardon hereunder:
In the exercise of the powers vested in me under Section 212 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and all other powers enabling me in that behalf I, Aminu Waziri Tumbuwal, Governor of Sokoto State,
do hereby grant an unconditional pardon to the persons listed in the schedule to this legal notice.

  1. ALHAJI UMARU KWABO The indictment by the Report of Alhaji Muhammad Aminu Ahmad, Commission of Inquiry and the Government White Paper dated 28th October, 2009 and six (6) Of them are hereby granted unconditional State
    pardon for the offences they are concerned with arising from the ‘report and white paper and any criminal offence’ they might have been accused of against the laws of Sokoto State.
    Having reproduced the instrument of the Governor of Sokoto granting the Respondent pardon, I will now discuss in detail the import of this instrument on our judicial system.
    This pardon Exhibit Pardon 1 falls under the head of Prerogative of Mercy. This indeed cannot be set in motion unless there is a trial in a Court of law and there is a sentence convicting the accused persons which the Prerogative of Mercy will act as a panacea by mitigating or waiving the punishment.
    Where there has not been a trial and therefore no conviction, the Prerogative of Mercy cannot be invoked.
    The only remedy open to an accused standing trial is a withdrawal of the charge against him by the state Attorney-General. Such a withdrawal of the case against the accused by the Attorney-General is known as a Nolle Prosequi.
    The State Attorney-General and the Federal Attorney-General have the powers to discontinue at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by them, or any other authority or person, by
    entering a nolle prosequi. This power cannot even be exercised by any officer, if there is no substantive Attorney-General. A.G. KADUNA STATE V. HASSAN (1985) 2 NWLR (PT. 8, PG. 483).
    This power can only be exercised by the Attorney General or he delegates another officer in his department to do so. However, the power has to be delegated in writing and not orally. STATE V. CHUKWURAH (1964) NMLR PG. 64.
    It is expected that the Attorney-General must exercise this power of Nolle Prosequi with regard to public interest, the interests of justice and the need to prevent abuse of legal process. THE STATE V. S. O. ILORI (1983) 1 SCNLR PG. 94.
    A Nolle Prosequi entered by the Attorney General in person or on his behalf terminates the criminal proceedings. Therefore, A Nolle Prosequi operates as a mere discharge and not as an acquittal. THE STATE V. S. O. ILORI (SUPRA).
    The only mode which a criminal prosecution initiated against an accused person can be stopped is through filing of a Nolle Prosequi by the Attorney General and not by an executive pardon like in this case.
    Coming back to the case of the Governor’s pardon in this matter;
    “the Prerogative of Mercy (pardon) in this appeal cannot be set in motion unless there is a sentence of a Court of competent jurisdiction on a convicted person(s) which the pardon has to act as a panacea by mitigating or waiving the punishment.”
    It has been held in a plethora of cases that where there has not been any prosecution and completion which is the sentencing of Court, the principle of Prerogative of Mercy cannot be invoked and whatsoever the President or the Governor of the State does before the prosecution and sentence of the convict will not fall within the ambit of Prerogative of Mercy.
    A person is entitled to a Prerogative of Mercy i.e. pardon where the convict had exhausted all his Right of appeal. See SOLOMON ADEKUNLE V. A.G. OF OGUN STATE (2014) LPELR 22569 where the Court held as follows:
    “It appears to me from the general tenor or gamut of the Appellant’s claim that, the Appellant seeks to set aside or at least reduce the sentence passed on him and which sentence has been affirmed by the Supreme Court. Such an action cannot be under the Fundamental Rights (Enforcement Procedure) Rules (supra). As rightly pointed out by the learned trial Judge, the only available option left for the Appellant was to apply to the Executive Governor of Ogun State to exercise his prerogative of mercy under Section 212 of the 1999 Constitution to either grant him full state pardon either conditionally or unconditionally; or to commute such death sentence to a term of imprisonment. However as things
    stand now, his conviction and sentence having been affirmed by the Supreme Court, no other Court in Nigeria has the vires or jurisdiction to interfere under any guise whatsoever. That sentence stands forever, subject only to Section 212 of the 1999 Constitution.”
    It is also advised that although the powers bestowed on the President and the Governor of a State are enormous but there is a caution. That such powers must be exercised judiciously and in accordance with the due process of the law.
    The Supreme Court in the case of SOLOLA V. STATE (2005) 11 NWLR (PT. 937) PG. 460 held that:
    “A person convicted of murder and sentenced to death by a High Court and whose appeal is dismissed by the Court of Appeal is deemed to have lodged a further appeal to the Supreme Court and until that appeal is finally determined,
    the Head of State or Governor of a state cannot, pursuant to Section 175 and 212 of the 1999 Constitution as the case maybe, exercise his powers of Prerogative of Mercy in favour of that person.
    Again in the case of OBIDIKE V. THE STATE (2001) 17 NWLR (PT. 743) PG. 601 the Court on deciding on the propriety of granting pardon to a convict of capital offence while appeal against conviction is pending held:
    “that it is not proper that a convicted prisoner should be granted presidential pardon while his case is pending on appeal. Presidential pardon could come after appeal has been heard and determined. On the exercise of Prerogative of Mercy on a recommendation by the Attorney General of Federation suffice to say that where the Prerogative of Mercy is exercised while the convict’s case is pending at whatsoever stage, such mercy is nothing short of the back of a duck fowl; it cannot hold water.”
    The Appellant’s counsel had argued that for the Governor to exercise this power of pardon, the condition precedent like in all cases must be met. See Section 212 (2) of the 1999 Constitution which provides as follows:
    “The power of the Governor under Subsection (1) of this Section shall be exercised by him after consultation with such Advisory Council of the State on Prerogative of Mercy as may be established by the law of the State.”
    The condition precedent in this case of pardon is that the Governor shall exercise this Right after consultation with the Advisory Council, Uwais, JSC (as he then was) described the meaning of a ‘condition precedent’. Condition precedent
    has been defined by Osborn’s Concise Law Dictionary, 7th Edition as follows:
    “Condition – a provision which makes the existence of a Right dependent on the happening of an event; the Right is then conditional as opposed to absolute Right. A true condition is where the event on which the existence of the Right depends is future or uncertain. A condition precedent is one which delays the vesting of a Right until the happening of an event.” See AFOLAGBE V. AWUNI (1997) LPELR 593; NIGER CARE DEVELOPMENT CO. LTD. V. ADAMAWA STATE
    WATER BOARD & ORS. (2008) LPELR 1997; A.G. KWARA STATE V. ADEYEMO (2016) LPELR 41147.
    In the present case, it was not obvious to all and sundry that the Governor sought advice from the Advisory Committee before granting the pardon. This advice is mandatory and it’s the one thing that gives the Governor the Right to exercise such a power of pardon to the Respondent.
    I believe that the word shall used in the subsections implies that the advice is mandatory and should be sought before making the pronouncement of the pardon.
    The learned counsel to the Respondent had argued that the Governor does not require a public hearing nor to expressly state that he had done so. I believe that if the advice is mandatory it is pertinent that the Governor should state it
    expressly in the pardon. It is a condition precedent that gives the necessary bite to the pardon. It is not a situation one should gloss over in the circumstances of this case. The Governor’s pardon is tantamount to having the top executive of the State forgiving you for a crime to which you either plead guilty of or which you were convicted. Pardons are sometimes seen as a mechanism for thwarting the law. A pardon as it were is a source of controversy. In extreme cases,
    some pardons may be seen as acts of corruption by officials in the form of granting effective immunity as political favours. I am not unmindful of the Prerogative of Mercy in other climes other than Nigeria. In some countries, a pardon is a
    government decision to allow a person to be absolved of guilt for an alleged criminal or other legal offence as if the act never occurred. The pardon may be granted before or after conviction for crimes depending on the laws of the jurisdiction.
    This does not appear to be the case in Nigeria. The Supreme Court in SOLOLA V. STATE (SUPRA); OBIDIKE V. STATE (SUPRA), the Apex Court has held:
    “That there is no question of pardon until the final appeal is concluded. This means there is no pardon until it is certain that the accused is finally convicted of the crime.”
    I therefore say that pardon 1 by the Executive Governor of Sokoto State is overreaching. The pardon 1 should come at the end of final appeal in the Supreme Court. Like in our jurisdiction, a person is adjudged not guilty until the Court
    pronounces so.
    I therefore hold that the Exhibit pardon 1 is of no moment in the case of this Respondent, He has not been found guilty by a competent Court and as such this pardon 1 does not hold any water.” Per NDUKWE-ANYANWU, JCA. (Pp. 16-27,
    Paras. A-E).

ISSUE: POWER(S) OF A STATE GOVERNOR: Whether the Governor of a State can exercise his power of pardon where there had been no conviction

“The Respondent alongside others were standing trial before the High Court Sokoto for a one hundred and forty four count amended charge for the offences including conspiracy, breach of trust, receiving stolen property punishable under the Penal Code Law applicable in Sokoto State of Nigeria. As the trial commences, the Appellant’s counsel was on the eighth witness, when the Respondent’s counsel filed a motion on notice praying the Court for an order discharging the Respondent from the charges as the Governor of Sokoto State has granted the Respondent unconditional pardon; pursuant to Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria (1999) as amended.
Appellant’s counsel filed a counter affidavit in opposition to the application, while the Respondent filed a further affidavit. The lower Court delivered a ruling on 29/06/2017 and discharged the Respondent. Section 212 (1) of the 1999
Constitution as amended provides:-
“The Governor may;-
a) Grant any person concerned with or convicted of any offence created by any law of a State a pardon, either free or subject to lawful conditions.”
The fundamental question before this Court is what is the meaning of the phrase “concern with or convicted of any offence” in Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999; whether it includes the
Respondent who has not been convicted of any offence but was standing trial for an allegation of commission of an offence under the Penal Code Law of Sokoto State. There must be guilt for the exercise of pardon to be activated, taking into consideration the presumption of innocence in Section 36 of the 1999 Constitution.
It therefore follows that the power of a Governor to grant pardon, is only exercisable after the person to be pardoned has been convicted and/or has exhausted his right of Appeal against his conviction. See C.O.P. V. ALI (2003) FWLR (Part
157) 1164 at 1180 (CA).” Per BAYERO, JCA. (Pp. 55-56, Paras. B-E).

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