Abatement of Action in Criminal Matters and the Recent Exception Created by the Supreme Court in RE: ABDULLAHI – Tunde Adejumo

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Under Nigerian law, the constitutional right of appeal against a conviction and sentence is considered a personal right which can only be exercised by the accused person or the prosecution. Same cannot, be exercised by any other person, transferred or inherited. See Section 243(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (pre 1st, 2nd & 3rd alterations).

Therefore, upon the death of an accused person during his trial or appeal, the proceedings terminate. This is summed up in the Latin maxim ‘’action personalis moritur cum persona’’, which means a personal right of action dies with the person.

However, the above-stated position of our law has been modified in the recent decision of the Supreme Court in the case of ABDULLAHI (2018) 14 NWLR (PT. 1639) 272.

BRIEF FACTS OF THE CASE

The General Court Martial (GCM) tried and convicted the Appellant on 5 out of the 6 counts charge. In addition to a sentence of 2 years imprisonment, the GCM ordered the forfeiture of the Appellant’s landed property located in Abuja.

Thereafter the Army Council confirmed the Appellant’s conviction and reduced his terms of imprisonment to 1 year. The Army Council also ordered the Appellant to refund the sum of N33, 500, 000.00 (Thirty Three Million, Five Hundred Thousand Naira) to the Nigerian Armed Forces within 90 days from the date of confirmation of the sentence. The Army Council further directed that the Appellant’s personal property be confiscated to recover the said sum if he failed to pay same within the prescribed period.

Dissatisfied with the decisions of the GCM and the confirmation of same by the Army Council, the Appellant brought an appeal before the Court of Appeal.

In its judgment, the Court of Appeal affirmed the decisions of the GCM as confirmed by the Army Council and ordered the forfeiture of the Appellant’s landed property in Abuja.

Still aggrieved, the Appellant appealed to the Supreme Court. Unfortunately, while his appeal was pending he passed away.

Subsequently, his wife and his son as administrators of his estate brought an application before the Supreme Court craving an order of the Apex Court substituting them for the Appellant. The scope of the application was limited to prosecuting ground 9 of the Notice of Appeal which complained against the order of forfeiture of the Appellant’s landed property in Abuja.

The Respondents objected to the said application. The primary ground of their objection was that the appeal did not survive the deceased; hence the Applicants cannot inherit/substitute into the said criminal appeal. The Respondents’ position was that there was no basis for the said application under Nigerian law.

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ARGUMENTS OF THE APPLICANTS

The Applicants conceded that Nigerian law does not contemplate an application of this nature as our laws do not specify what would happen in the event of the death of an accused person while his appeal is pending.

Notwithstanding the above, the Applicants urged the Supreme Court to grant their application based on the principle of law that provides that ‘’where there is a wrong there must be a remedy’’. This is summed up in the Latin maxim ‘ubi jus ibi remedium’’
The Applicants argued that the order of the Court of Appeal wherein the Court ordered the forfeiture of the Appellant’s landed property in Abuja has inflicted injury on the estate of the deceased Appellant which has adversely affected the Applicants.

The property in issue was valued as at 2005 at N83, 100, 000.00 (Eighty Three Million One Hundred Thousand Naira). The Applicants’ position was that forfeiture of the said property as against the use of same to realise the sum of N33, 500, 000.00 (Thirty Three Million, Five Hundred Thousand Naira) from the deceased to the Respondents, deprived his estate (which they are beneficiary of), the benefit of the value of the property less the said sum of N33, 500, 000.00 (Thirty Three Million, Five Hundred Thousand Naira) only due to the Respondents upon the deceased conviction.

The Applicants further argued that even though there is no express provision for the continuation of a criminal appeal upon the Appellant’s death under our laws, considering the facts and circumstances of the case, the Supreme Court has the power to allow the Applicants continue the appeal within the limited scope identified in the application in other to remedy the injury inflicted on the estate of the deceased Appellant.

In support of its position the Applicants relied on the English authorities in REGINA V. ROWE (1955) 1 GB 573; HODGSON V. LAKEMAN (1943) KB 15 and R V. JEFFERIES (1968) 3 ALL ER 238.

ARGUMENTS OF THE RESPONDENTS

The Respondents argued that before the Court can grant an application of this nature, there must be a competent pending appeal. As under our laws, the appeal abated and became moribund with death of the Appellant, the instant application is not predicated on any competent appeal.

The Respondents further argued in opposition to the application that the constitutional right of appeal under Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (pre 1st, 2nd & 3rd alterations) against a conviction and sentence is a personal right which can only be exercised by the deceased Appellant. Same cannot be exercised by, transferred or inherited by the Applicants regardless of any interest they might have in the subject matter of the appeal.

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In response to the English authorities relied on by the Applicants, the Respondents’ position was that the said decisions are not applicable to the instant application as it was not demonstrated that the English Courts was interpreting provisions of the British constitution which is in pari materia with Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (pre 1st, 2nd & 3rd alterations) which has limited the right of appeal to a specific person.

Finally, the Respondents argued that the principle of law that provides that ‘’where there is a wrong there must be a remedy’’ cannot be used to confer jurisdiction on the Court to grant the instant application where no other specific provision of our laws grants the Court such power. The Respondents urged the Court to refuse the instant application as it has no basis in Nigerian law.

HOLDING OF THE COURT

The Supreme Court acknowledged that under our laws ordinarily the death of an accused person brings an end to his trial or appeal and that there is no case law in Nigeria where an Applicant has been substituted for a deceased Appellant in a criminal appeal.

The question that agitated the Court’s mind was whether or not considering the afore-stated position under Nigerian law and the facts and circumstances of this case; the Applicants whose interest are directly affected by the decision of the Court of Appeal in a criminal appeal have any remedy in law?

In determining the application, the Court was of the view that the fact that there is no case law in Nigeria where an Applicant has been substituted for a deceased Appellant in a criminal appeal is not a good enough reason for the Court to refuse the instant application. The Court relied on the obiter of Lord Denning in PARKER V. PARKER (1954) ALL ER 22, wherein, the great jurist held that if the Courts never do anything because it has never been done before, then the law will stand still, while the rest of the world moves on.

The Apex Court found the English authorities in REGINA V. ROWE (SUPRA); HODGSON V. LAKEMAN (SUPRA) and R V. JEFFERIES (SUPRA) cited by the Applicants highly persuasive. The English Courts’ position in the said decisions was to the effect that ordinarily the death of an accused person brings an end to his trial or appeal, however where a representative of a deceased accused person e.g. the executors or administrators of his estate shows a significant interest in the subject matter of the appeal then the Court can allow the said representative continue with the appeal. In REGINA V. ROWE (SUPRA), Lord Goddard CJ gave an example of a situation which is similar to the facts of the instant application where the Court would allow a representative of the deceased accused person to continue the appeal as follows:

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‘’If a person is sentenced to pay a fine and dies having appealed, or even if he dies after payment of the fine – it might be immediately afterwards – it may be that the Court would allow executors or administrators to appeal merely on the ground that if the conviction were quashed they could recover the fine for the benefit of the estate of the deceased which they are bound to administer. ‘’

The Court took the position that the appeal might have died with the deceased Appellant, but his estate survived him, and being administrators of the deceased Applicant’s estate, the Applicants have an interest in his estate that lives on, and which cannot be left hanging.

The Court took cognizance of the fact that it is the only Court that can review the decision of the Court of Appeal. The Applicants having alleged a wrong against the decision of the Court of Appeal, refusing this application would be tantamount to denying the Applicants an opportunity to seek redress against the alleged wrong done to them by the decision of the Court of Appeal.

Finally, the Court relied on the above-cited English authorities and the principle of law which provides that ‘’where there is a wrong there must be a remedy’’, in holding that considering the fact that judgment of the Court of Appeal affects the Applicants’ interest in the estate of the deceased Appellant, the justice of the case requires that the application be granted and the Applicants be permitted to continue with the appeal in respect of ground 9 of the Notice of Appeal which complained against the order of forfeiture against the property in issue which formed a part of the deceased Appellant’s estate.

CONCLUSION

Based on the decision of the Apex Court in this case it is no longer automatic that upon the death of an accused person during his trial or appeal, the proceedings terminate.

Where there is a pending criminal appeal before the death of the accused person, the appeal can be taken over and continued by other persons. Provided the said persons can show significant interest in the subject matter of the appeal.

Original Post Click Mike Dugeri

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