There are measures to mitigate convictions
FFollowing the recent Supreme Court decision involving a senior advocate of Nigeria, do you think there is need for the criminal justice administration to provide remedy for convicts who are vindicated at the apex court, having suffered some damages and deprivations of liberty? OR me, it is not that simplistic, but I think there exists a solution. The only thing is that the solution may not be as simplistic as what you can take as a matter of right. I know for instance, if somebody is convicted of an offence and the person files an appeal, by the court of appeal act, it can actually grant the person bail, pending the hearing of his or her appeal. The only problem is that the law is very clear that it is dependent upon the discretion of the court of appeal to determine if it will be proper to grant such application. So, it is to the extent of what the court of appeal considers proper.
When you see such a provision, you will not say that there is no extant remedy in the law. There is. But whether or not an application for bail pending the hearing of an appeal before the court of appeal would be granted is a matter of discretion. Before a person is convicted, the general position is that the person still enjoys the privilege enshrined in the constitution, which is the presumption of innocence. The presumption of innocence is usually in favour of the person. Therefore, when application for bail is made based on facts, the court would grant such application. But where the person has been convicted, the issue of presumption of innocence is no longer available for the person because he or she has actually been convicted. So, the convict has a duty to come by way of an application seeking for bail pending
The Supreme Court recently set aside the conviction of a senior advocate of Nigeria, who had suffered deprivation of liberty as pronounced by a trial cour t on the ground that he ought not to have been convicted on an alien char ge. Emeka Okpoko, Senior Advocate of Nigeria ( SAN) in this interview with JOSEPH ONYEKWERE, explains that there is no clear- cut compensation in law for those wrongly convicted, aside removing the stigma of convict and possibly charging the complainant, who instigated the trial with malicious prosecution.
more grounds would be filed.
The law makes provision for a suspect who strongly believes that he is a victim of malicious prosecution to charge the complainant, but he must have been acquitted to activate this provision. In a circumstance where one is convicted and the Appeal Court also exercises discretion against the applicant who is asking to be freed pending the hearing and determination of his appeal, but the apex court sets aside the decisions of the lower courts, will the person have any remedy in law to assuage for his ordeal aside from the victory he has got?
First, I want to make a clarification that when you use the word application, it is different. In law, application can come by way of a motion. Appeal is a substantial issue. The malicious prosecution issue you raised is entirely a different thing in law. Malicious prosecution comes under a civil action; it is a tortious matter. If a person feels that there was no reason to have been prosecuted, he can file a case of malicious prosecution and claim as much damages as he deems fit. But the fellow is duty bound to prove in the first place that he was maliciously prosecuted. So, this is a civil claim entirely. It is also a valid angle upon which anyone who suffers such ordeal can deploy.
Yes, someone can commence a suit for malicious prosecution and show the court that there was no reason for him to have been prosecuted at all. Of course, if he succeeds, why not? Apart from that, what other remedy? He can press for damages. The Of course! For you to even go to the Court of other remedy is that the person has been Appeal, there must be a notice of appeal acquitted and set free. There is no other filed. There must be a pending appeal. So , remedy apart from the claim for malicious once a notice of appeal is thrown in, which prosecution, if the person had been impriscan be done the same day the con viction is oned for say two years or more before he made, because a good lawyer should be able succeeds. This is where the law, apart from to foresee possible outcomes of his case and the issue of pressing for malicious prosecuprepare ahead it. It can be done the follow - tion, which is civil in nature, there is nothing day, for a lawyer who anticipates the outing anybody can do again, other than to come. He could record the judgment and continue to jubilate that he has been acquitfile a notice of appeal as quick as possible, ted. It has to evoke some sense of satisfaceven if it doesn’t contain all grounds, y ou tion too, because the person could have concan even file another appeal thereafter. Even tinued to suffer incarceration. if you have over two notices of appeal, you Fundamentally, human liberty is one of
use one for the purposes of your appeal or the rights enshrined in chapter four of
you can file additional grounds. So, there are the constitution and deprivation of such
different dimensions upon which y ou can liberty can be traumatising if unjustly
follow it. You can file the notice and add that experienced? the hearing of his or her appeal. If the court of appeal deems it right, they will, but if they don’t consider it, there is nothing anyone can do about it.
That also is applicable to the Supreme Court act. A person can activate that provision, seeking for the Supreme Court to grant him bail, pending the hearing of his appeal at the court of appeal. Supreme court can also grant such bails. For me, I will not say such remedy does not exist. It is there. Whether or not the party will succeed is dependent on the strength of his application. If his or her application is strong and con vincing enough, the court would grant it, but it is not automatic. Does one of the ingredients of filing such application and swaying the decision of the court in your favour include the fact that you have a pending application against your conviction?
Somebody who is facing criminal trial or who is sentenced by a court of competent jurisdiction cannot claim to have been deprived of his liberty. Of course, trials and convictions are part of the exceptions in the constitution to the rights to personal liberty. If a person is serving a sentence declared by a court, he cannot claim to have his liberty deprived of him because a court of law has listened to him and delivers its verdict. It is also acknowledged at the court of appeal and the Supreme Court that once a matter is of criminal nature, they speedily hear it unlike civil matters. The reason the expeditious hearing of election petition matters are always in the news is because it is time bound based on the provisions of the electoral Act and the Constitution. Criminal cases are treated with extreme dispatch by the court, all because of the liberty of the party that is involved. If an appeal on criminal cause is properly before the Court of Appeal, they will hear it immediately and move on. It is the same for the Supreme Court. But if it was to be a civil matter, nobody will listen to you immediately. So, if the person had gone to the court and the court ordered his imprisonment, he cannot claim that his liberty has been deprived.
Does this include when the appellate courts have acquitted the individual?
If the appellate court acquits the individual, that is a different thing. The court of first instance is manned by one person unlike the court of appeal that is manned by a minimum of three and the Supreme Court, a minimum of five. If a court of first instance listened to a case and was satisfied in the evaluation of evidence that the offence was actually committed; that is, that the basic elements of the offence were proven, he is entitled to convict. Of course, the court of appeal, being a superior court can sit, listen to the case and come to the conclusion that the court of the first instance ought not to have convicted the individual.
So, if the superior court discovers that the lower court erred in law, there should be no compensation for the fellow who was convicted by that lower court?
The person can file for malicious prosecution in civil action. That is the reason we have the provision for malicious prosecution.
But the case of malicious prosecution is not ripe for activation at that level?
It can. If at that level the prosecution ends it without going further. So, it all depends if the prosecution is willing or not to forge ahead. If the prosecution decides to stop at the Court of Appeal, the individual can activate the case of malicious prosecution. It can happen even at the high court level. If the prosecution chooses to stop at the high court after its verdict, the individual can activate the case and get remedy.
What you are saying in essence is that there is no reason in your opinion to contemplate amendment to the administration of criminal justice to accommodate outright compensation for victims of miscarriage of justice?
As a lawyer, I am seeing the issue from the legal and jurisprudential angles. Who will compensate who? Is it the state that will do that?
Yes, the state because they are the ones
Before a person is convicted, the general position is that the person still enjoys the privilege enshrined in the constitution, which is the presumption of innocence. The presumption of innocence is usually in favour of the person. Therefore, when application for bail is made based on facts, the court would grant such application. But where the person has been convicted, the issue of presumption of innocence is no longer available for the person because he or she has actually been convicted. So, the convict has a duty to come by way of an application seeking for bail pending the hearing of his or her appeal. If the court of appeal deems it right, they will, but if they don’t consider it, there is nothing anyone can do about it