When Criminal Appeal can be Inherited by Estate of a Deceased Appellant
The Appellant was a Brigadier-General in the Nigerian Army, who was tried on a six count Charge and convicted on five counts, by a General Court
Martial. He was dismissed from the Army, sentenced to two years imprisonment on each count (to run consecutively), and ordered to forfeit his landed property situated at Durumi District Phase 1, Abuja. The Army Council, as the Confirming Authority of the judgement of the General Court Martial, confirmed the case as follows: (a) the officer was found guilty on five of the six counts Charge; (b) the officer was sentenced to one year imprisonment on each of the counts, sentences are to run concurrently; (c) the officer to refund the sum of N33,500,000.00 (Thirty-three million, five hundred thousand Naira only) within ninety days from the date of the letter to the Nigerian Armed Forces by the Confirming Authority, failing which his personal property would be confiscated to recover the said amount. The Appellant unsuccessfully appealed the conviction and sentence to the Court of Appeal; further to which he appealed to the Supreme Court. In the Notice of Appeal, the Appellant challenged the Order of the lower Court which affected his property situated at Plot 741 Cadastral Zone B2 Durumi District in Abuja.
While the appeal was pending at the Supreme Court, the Appellant died on 22/10/2014. The property confiscated by the Respondents to recover the sum of N33,500,000.00 ordered to be refunded by the Appellant, was valued at N83,100,000.00 as at 20th January, 2005. Thus, upon the death of the Appellant, the Applicants as Administrators of his estate, filed this novel application at the Supreme Court, praying inter alia, that their names be substituted with that of the deceased Appellant, for the purpose of continuing and prosecution of Ground of Appeal No. 9 only, relating to the property of the Appellant which was purportedly forfeited by the Respondents.
Issue for Determination In view of the settled position of law, that criminal proceedings (trial or appeal) lapses upon the death of an accused person, whether the Applicants as Administrators of the deceased Appellant’s estate, can lawfully inherit the Appellant’s criminal appeal to the Supreme Court, and whether the Applicants have legal and cognisable right or interest in the property known as Plot 741, Cadastral Zone B2, Durumi District in Abuja.
Arguments The Applicants admitted the general principle of law, that upon the death of an accused person, during the trial or on appeal, the proceedings terminate thereby. Their Counsel however, drew a distinction between this general position of the law, and the peculiar circumstances of this appeal necessitating the filing of the application for substitution. He submitted that, in addition to challenging the Order of the lower court affirming his conviction, the appeal also challenged the propriety of the Order made in respect of the property of the deceased Appellant. He stated that, while the Appellant was ordered to refund the sum of N33,500,000.00 to the Respondents failing which his property would be confiscated to recover the sum, the Respondents actually confiscated the property which was valued at N83,100,000.00 as at January, 2005. This valuation, formed part of the record of court, and the widow and surviving children of the deceased Appellant, were adversely affected by the Order made, which necessitated the taking over of the entire property, to realise the sum ordered to be refunded to the Nigerian Army. Counsel posited that, the Applicants and other children of the deceased, have a legal interest in the difference between the actual value of the property taken over by the Respondents, and the sum ordered to be refunded upon the conviction of the Appellant. He argued further that, there is an obvious wrong which cries so loud for remedy, which only the Supreme Court can provide – BELLO v A-G OYO STATE (1986) 5 NWLR (Pt. 45) 828. In support of their assertion of existence of legal interest to support their application for substitution, the Applicants relied on the following foreign authorities – REGINA v ROWE (1955) 1 GB 573; HODGSON v LAKEMAN (1943) KB 15 and R v JEFFERIES (1968) 3 All ER 238. Counsel admitted that, there is no specific provision or rules of court, which allow the Applicants to continue with an appeal, upon the death of the Appellant, as in this case. Also, given the provisions of Section 233(5) of the 1999 Constitution (as amended) (1999 CFRN), proceedings in criminal appeals will be at the instance of the accused person or the Attorney- General of a State or the Federation; he posited however, that there is a clear injury which calls for an intervention of the court.
The Respondents insisted on the principle of law, that upon the death of the Appellant, the appeal became moribund and liable to be struck out. Counsel reasoned that, the right of appeal available to the Appellant, was constitutional and personal to him; it was neither transferable, nor inheritable. He argued that, the Application as it stood, sought to either convert the criminal appeal to a civil appeal, or turn the Supreme Court to a court of first instance, to determine the allegations of trespass/withholding funds due and transferable to the Applicants. Responding to the submission of Counsel for the Applicants, who relied on foreign authorities where criminal appeals were continued with after the death of the Appellant, Counsel for the Respondents argued that, the Applicants did not demonstrate that the foreign Courts were interpreting provisions of their own Constitution, which were impari materia with Section 233(5) of the 1999 CFRN which limits the right of appeal to specific classes of persons. Counsel argued that, the appeal had no extricable or severable civil aspect, as the deceased in his life time had lost the property owing to his lethargy in complying with the time frame of his sentence, which he did not appeal. It was argued further that, the Supreme Court does not have original jurisdiction to entertain complaints against execution of the judgement of the Nigerian Army, as right of appeal to the Supreme Court is circumscribed by Statutes/the 1999 CFRN, which donates its jurisdiction.
Court’s Judgement and Rationale After considering the arguments put forward by parties, the court stated that in criminal trials, the role of the Plaintiff is taken over by the State, which cannot die. If the accused person or the Defendant dies, that brings the case to an end. There is no statutory provision in Nigeria or any rule of court, that makes room for substitution of a deceased Appellant, for the sole purpose of continuing with a criminal appeal, which died with him. The Applicants however, relied on some foreign decisions in support of their application. Foreign decisions are of persuasive authority, which is useful in the expansion of the frontiers of our jurisprudence – ARAKA v EGBUE (2003) 17 NWLR (Pt. 848) 1 at 20. Where there is no established precedent in this jurisdiction, the court may examine the decisions of other similar jurisdictions, for guidance. Though the foreign decisions are not binding on the Nigerian Courts, there is nothing in our laws, which prohibits the Nigerian Courts from relying on foreign decisions. Nigeria derived its legal system from England, and most of the English cases cited by the Applicants are highly persuasive, considering the admonishment of Lord Denning in PARKER v PARKER (1954) 15 All ER 22, that if we never do anything that has not been done before, the law will stand still, while the rest of the world moves on.
The stance of the Supreme Court, as held in numerous judicial decisions, is that whenever there is a wrong, there is a remedy – Ubi jus ibi remedium – BELLO v A-G OYO STATE (supra). The injury inflicted on the estate of the deceased Appellant by the Respondents, which was sustained by the Order of the Court of Appeal, is an obvious wrong, which cries so loud for a remedy only the Supreme Court can provide. The deceased Appellant died after filing the appeal against the decision of the Court of Appeal, at the Supreme Court. Without a doubt, the appeal died with the Appellant, but his estate survived him, and being Administrators of his estate, the Applicants have an interest in his estate that lives on. This issue cannot be left hanging, as the Court of Appeal is functus officio, and the Applicants cannot go to a lower Court to complain about the wrong done to the estate. The Applicants having shown that they have a recognisable interest in the estate, over which the Court of Appeal made an Order of forfeiture contrary to the Order of Confiscation made by the Confirming Authority, it is the duty of the Supreme Court, which ranks higher than the Court of Appeal, to provide a remedy, by allowing the Applicants air their grievances, while the Court decides on the merit.
Application Granted as Prayed.
Representation Y.C. Maikyau, SAN with T.R. Agbanyi, Abdulrahaman Belgore, H.A. Matunyi, and Ibrahim Bagudu for the Appellant
Kalu Onuoha with Mandy Nworie for the Respondents.
Reported by Optimum Law Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))