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There are measures to mitigate convictions during pendency of appeals, says Okpoko

By Joseph Onyekwere
18 January 2022   |   4:15 am
For 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.

Emeka Okpoko

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 court on the ground that he ought not to have been convicted on an alien charge. 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.

Following 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?
For 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 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 convincing 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?
Of course! For you to even go to the Court of Appeal, there must be a notice of appeal filed. There must be a pending appeal. So, once a notice of appeal is thrown in, which can be done the same day the conviction is made, because a good lawyer should be able to foresee possible outcomes of his case and prepare ahead it. It can be done the following day, for a lawyer who anticipates the outcome. He could record the judgment and file a notice of appeal as quick as possible, even if it doesn’t contain all grounds, you can even file another appeal thereafter. Even if you have over two notices of appeal, you use one for the purposes of your appeal or you can file additional grounds. So, there are different dimensions upon which you can follow it. You can file the notice and add that 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 other remedy is that the person has been acquitted and set free. There is no other remedy apart from the claim for malicious prosecution, if the person had been imprisoned for say two years or more before he succeeds. This is where the law, apart from the issue of pressing for malicious prosecution, which is civil in nature, there is nothing anybody can do again, other than to continue to jubilate that he has been acquitted. It has to evoke some sense of satisfaction too, because the person could have continued to suffer incarceration.

Fundamentally, human liberty is one of the rights enshrined in chapter four of the constitution and deprivation of such liberty can be traumatising if unjustly experienced?
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 that prosecute criminal matters.

The state prosecutes based on complaints filed by members of the public like you and I. So, in cases of such nature, the state doesn’t just pick people and prosecute. There is always a cause for state intervention. So, it is individuals or groups that usually instigate the state to prosecute such fellows, by lodging complaints and claiming that an offence has been committed. And the state, if satisfied that it does appear that a prima facie evidence exists that a crime has been committed, kick-starts the process. And this is based on the facts and circumstances presented before it. So, if the individual succeeds against the state at the apex court, you need to ask if such success was based on merit or on technicalities. Honestly, I find it difficult to see what compensation to recommend for the state to give to an acquitted convict. I think that the proper thing is for the instigator or the person who wrote the petition that triggered the prosecution to suffer the brunt. And for the person to suffer it, the reason for setting aside the conviction must be thoroughly examined. If it is purely on grounds of technicality, if it is as a result of the failure of lawyers to do their work very well, if it is as a result of non-admission of evidence or improper presentation of case by the prosecution, how will the burden be borne by the person who wrote the petition?

In pursuing the case of malicious prosecution, who are you going to charge to court?
You will go after the complainant and not the state. The person who cooked up stories and made false presentation before the prosecuting authority consequent upon which a criminal case was initiated against such person. Even in fundamental rights enforcement cases, you usually join the fellow who instigated your arrest. So, the person on whose strength of complaint, the state relied upon to prosecute lies the liability.
Are there provisions in the law for the state itself to go after the complainant for wasting the time and resources of the state in prosecuting the unsuccessful case, if it turns out that it was actually a malicious act?

Giving false information to the police, the basis upon which a person is arrested is an offence itself. So, if the state receives false information, arrest, prosecute and the fellow is acquitted on account of malice, the law provides that the person who instigated the prosecution can face criminal action for giving false information to the police. But you should know that even if the state decides to think in that direction, it cannot be the state and the complainant at the same time. Somebody must have written a petition against the individual, which means that whoever suffers such torture, mental agony and deprivation of liberty based on the facts of the case is going to be the initiator of such a petition. Otherwise, the state cannot on its own, decide to pick on you. The state doesn’t give evidence; somebody must do that because the duty of the state is to prosecute. At the end of the day, it still boils down to the fact that whoever suffers such prosecution will adopt the procedure to go after the initiator of the prosecution.

You may ask, is that a compensation for the person? It may not really be. It is just the moral or psychological satisfaction and not compensation because what the person would gain at the end of the day is the prosecution and possible sentence of the initiator. So, it serves as a punitive measure only to the offender and no compensation to the falsely accused. Although, some people may get satisfaction that their traducer has been punished. Viewing it from that prism, it might be another way of saying that they gained satisfaction.

How do you react to the invasion of the residence of the Supreme Court justice, Mary Odili?
That has always been the thing most of us are clamouring against. The invasion is wrong, bad and ignoble. It is not right that security agencies should just launch an attack on such high judicial officer. To that extent, it is wrong. It can be seen as a way of witch-hunting and intimidating them, perhaps to succumb to certain things desirous of the executive. We are also entitled to assume that there must be a reason for that attack. They orchestrated the attack to achieve a purpose. It is extremely bad that they are doing what they are doing. The law is very clear on how to prosecute a judicial officer. In Nganjiwa’s case, the court established the position that if you want a judicial officer to face trial, you must unmask him. A judicial officer is like a masquerade. You have to first allow the body that has the competent authority to unmask the masquerade. Once they are through with it, then you come after the person because he or she has become normal. But as long as the person is still dressed in masquerade regalia, anybody cannot go and unmask him or her.

Following the warrant issued by a magistrate to search Justice Odili’s home, the CJN also suggested that chief judges of respective states must approve search warrants to forestall such recurrence going forward. Some stakeholders have criticised the directive, saying it arrogates powers to CJs, what is your position on it?
I share the same view. The more you empower CJs and create more volumes for them, the more problems you create. More problems in the sense that some of the CJs may not even be available to sign these warrants and search warrants would end up not being used at all. So, it is not as simplistic as envisaged. A judge should be able to sign a warrant. Why must it be left and restricted to CJs of states? Anybody who is qualified to be a judge should be qualified to issue a warrant. It takes a lot to become a judge; it is not all comers affair. Anyone who has attained that height should be given the benefit of examining such applications and form an opinion on whether to issue the warrant or not. For me, such directive would create more burden and I do not see any law that allows that, unless he (CJN) wants to use practice direction to achieve that, but it would pose more problems in the system to concentrate all that in the hands of one man. The CJs already have a lot of burdens, jobs and distractions from legal, administrative and political perspectives. At the end of the day, it will create more problems than it came to address. So, I will not subscribe to that idea.

Marking the beginning of the 2021/2022 legal year recently, the CJN stated that the Supreme Court heard 681 motions or applications in 2020, representing 60.5 per cent of all the cases heard by the court. The CJN canvassed that some appeals terminate at the Appeal Court to give the court time to hear substantial cases. What are your thoughts?
When you talk about the Supreme Court, it is one court in the whole nation. That is the end of our judicial hierarchy. Appeals come from every part of this country and end at the same Supreme Court. So, naturally, the workload is not only tremendous, but also very enormous. I do not think there is anything wrong for the CJN using the practice direction to address some of these challenges. He can develop a practice direction limiting certain cases to the Court of Appeal and we will have no choice than to comply. There are honestly certain appeals that are not necessarily supposed to come before the Supreme Court. Some people waste the time of the court by filing frivolous applications that have no strength or merit. Well, I don’t blame them since one of the criteria for seeking the rank of senior advocate is that you must have Supreme Court cases. So, those who want to attain the rank will naturally want to move all applications up to the apex court.

This quest to push cases up to the apex court to satisfy one of the conditions for the award of SAN reinforces the argument that the nitty-gritty of adjudication happens at the trial court, that the criteria should be reviewed to accommodate more of high court decisions?
Why I am not going to be quick to agree is that the higher you go, you see that it gets more sophisticated. At the high court, all manner of things come up, which are not even related to the major focus. But when you begin to go on appeals, you will begin to appreciate issues from a very narrow prism and it takes a man who is very grounded in the law to decipher. The truth is that the more you are able to push cases up on appeal, the more you advance in practice too. You will begin to see things from more critical perspective, learn more about how issues of law are handled and addressed. I won’t buy that idea.