ABSTRACT
The Golden thread that passes through the fabric of the Criminal Justice System states succinctly that it is better for Ten (10) Guilty persons to go free than for One (1) Innocent person to be convicted for an offence he knows nothing about. It defeats the objective of Criminal Justice.
The Criminal law mechanism is a product of continuous evolution and development theoretically and practically over decades and centuries in the quest to protect public peace and security, punish offences and offenders and at the same time deter other possible delinquents from falling into criminality.
This article aims to address the rights of parties inherent within the workings of criminal justice system especially with regards to Convictions, Appeals and Post-Conviction Bails in an attempt to emphasize the right of a person to personal liberty, fair hearing and personal dignity amongst others.
It is worthy of note that these rights emanate from the almighty Constitution and takes precedence over any other laws, legislations, conventions, rules or procedures made, written, enacted or promulgated within the legal system of the Federal Republic of Nigeria.
This position is clearly reinforced in Section 1(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereinafter referred to as 1999 CFRN).
1It is in this vein that this writer has painstakingly decided to put pen to paper and consider holistically the rights of persons convicted of a criminal act by a trial court to appeal the decision of that court and whilst pursuing the appeal to seek to be excused from suffering the punishment of a decision that might have been delivered in error and could eventually be upturned by the appellate court.
These issues and the legal procedures inherent therein constitute the soul of this discussion.
Let’s proceed elaborately.
INTRODUCTION
The Criminal Justice system is like a mythical eraser. It attempts to correct mistakes which the State has expressly prohibited subjects/citizens from making. It never rubs off perfectly but it pretty much does enough. Sometimes too, the corrector also mistakenly erases the right things in the quest to rub off a mistake. It doesn’t matter if his intention is to rub off a mistake. Where he fails and rubs off something other than a mistake, it has made a most undesirable mistake itself, an
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[1 Section 1(1) This Constitution is Supreme and its provision is binding on all persons and institutions
within the Federal Republic of Nigeria.Section 1(3) if there be any law which is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of its inconsistency be null and void.]
error which it must swiftly correct by reproducing the correct words which it just mistakenly erased. This realization that there is no perfect person, system or institution is responsible for the introduction of the Appeal system into our Criminal Justice system to add vet and further validate our Criminal jurisprudence.
The State has a duty to no one else but the people. It is a sacred duty. An onerous one. It must not fail in it. It must not hurt it. It must not renege from performing it, because its very existential value depends on the performance of that duty. This is the Big Picture, the spirit of the law. The State or the Government has been said notoriously to exist ipso facto for the good of the governed.
This is the cornerstone of representative government otherwise known as Democracy defined by the 16thPresident of the United State as the Government of the People, For the People and By the People.
2GENERAL APPRIASAL OF CASE STUDYIn 2007, His Excellency Senator Orji Uzor Kalu and two others3 was charged to court by the Economic and Financial Crimes Commission for a 34 Count Charge of alleged fraud and other financial crimes allegedly committed during his tenure between 2001 to 2005 while he was Governor of Abia State till 2007. The prosecution of the charge went on for a while upon the Defendant pleading NOT GUILTY to all the charges against him.
Thereafter, the Prosecution amended its charge and took his plea again which he again pleaded NOT GUILTY to the amended 39 Count Charge. He thereupon applied for bail which was granted upon satisfaction of certain conditions by the Court. The said conditions were satisfied and he was released on bail.
The Prosecution opened its case and presented its arguments, and in 2018, the EFCC closed its case after calling 19 witnesses. Thus, the case of the Prosecution was on for Eleven (11) clear yearsfrom 2007 till 2018.
The Defendants filed a no case submission, stressing that the Prosecution was yet to make out a triable case against them. The Court disagreed with the Defendants’ no case submission and ruled that the Defendants have a case to answer and as such should proceed to open their defences. Whilst all these were ongoing, the Defendant took ill and had to proceed on a six (6) week medical trip to his Doctors in Germany upon application to the court to attend to his ill-health.
According to reports, the fact of his ailing health yet remains till date and has been well managed by adherence to his Doctors’ instructions.
The political atmosphere of the Country was becoming charged up again as the Country prepares for another General elections. This is more than a decade since the case against the Defendants was filed at the Federal High Court and the prosecution only recently closed its case in 2018, at a time when the Defendant, an astute politician was up and about campaigning for the Position of Member of the Senate representing Abia North Senatorial District. While he campaigned, the case
[2 President Abraham Lincoln in his definition of Democracy at The Gettysburg Address during the American Civil War at the dedication of the Soldiers’ National Cemetery in Gettysburg on November 19, 1863.3 Federal Republic of Nigeria V. OUK & 2 Ors. (that is, Slok Niger].
continued and the Court which has given the prosecution 11 long years, almost a lifetime, to prosecute its case did not deem it fit to give the Defendants substantial time as well in the view of the prevailing circumstances in the political sphere but rather in a space of a year fixed a date for its judgment and delivered a verdict of conviction against the Defendants. It is the opinion of this writer respectfully that fair hearing is a two-way street, to the Prosecution and to the Defendants. It is evident that the prosecution have been heard fairly and unfairly, but in like measure, the Defendant has not been given fair time and audience to defend the charge, 39 count charge in all.This writer cannot confirm whether the attendance and attention of the Defendant was secured throughout the criminal proceedings whilst he was campaigning at the same time.
It is ultimately however the duty of the Prosecution to secure the attendance of the Defendant in court throughout the proceedings for the following reasons:A. To ensure that the Defendant sees and witnesses the proceedings and sees the case and evidence brought against him in order to know how to respondB. To ensure that the Defendant is equally given a robust and healthy opportunity to present its own case and defend the case against himC.
To ascertain that the Defendant understands the enormity and gravity of each charge against him and equally sees the prosecution proof each charge
D. To give the Defendant the opportunity to either exercise his right to Silent (Right against Self-incrimination) or the option to make a case for himselfE. To give the Judge an Opportunity to observe the Defendant throughout the course of the proceedings and monitor his reactions to every evidence brought against him which are sometimes stance helpful for judges in given its judgment or in determine whether or not reasonable doubt remains unextinguished.All the above are based on the Latin maxim “audi alterem patem” which, simply put, means “hear the other side”. How can the other side be heard if he is not even on hand to hear and be heard? A position that has been crystallized in Chapter 4 the 1999 CFRN (As amended)4, the Police Act the Criminal Procedure Act, the Federal High Court Rules amongst others.
THE APPRAISAL AND CRITIQUE
As a matter of fundamental rights, the Defendant is presumed innocent at law.
The Defendant is also afforded the right to ensure he doesn’t incriminate himself in any way. He is a free man until the court pronounces otherwise. He only has the duty as a citizen to make himself available as much as possible for the prosecution of the case whenever he is aware of the proceedings of the court. It is however entirely and ultimately the duty of the Prosecution to ensure that he is always readily available (whether admitted to bail or not) in court for his case as his absence would offend the rules of fair hearing, equity and good conscience. A person cannot be prosecuted in his absence. It is a legal impossibility. This Writer respectfully refers you to the case of DINGI MOHAMMED
[4 Chapter 4, Sections 36 (Right to Fair Hearing) and 37 (Right to Liberty) of the 1999 Constitution of the Federal Republic of Nigeria (As amended) 2011]
V. STATE5
presided over by Hon. Justice IBRAHIM TANKO MOHAMMED where the Court held as follows:
“Trial in absentia is a procedure unknown to Nigeria procedural law. It is obviously a negation of fair trial. A trial of the accused person in his absence is a sham………It is a fundamental principle of fair hearing that an accused person standing trial for a criminal offence has to be present in court throughout the period of his trial and a violation of it renders the trial a nullity.”
A careful look at the above case of Federal Republic of Nigeria V. Orji Uzor Kalu & 2 Ors. shows that there are some indices for worry. The case took a whopping 12 years to conclude from 2007 till 2019. There have been directives, rules and laws guiding the duration of criminal proceedings in the higher courts of records. This remains one of the major objectives of the Administration of Criminal Justice Act, Laws of the Federation of Nigeria 2015.
6 Even in Nigeria where Court proceedings linger naturally for an abysmally long period of time, a duration of 12 years for a Criminal Proceeding leaves much to be desired. It equally subjects the decision reached by any court in such a case to suspicion, however cleverly written or well-articulated the judgment might appear to be. It is a perennial truth that a Judge, being a human being is not infallible and cannot completely retain memories of facts and arguments on a case brought 12 years ago when it is time to give Judgment 12 years later.
Some material evidence and substantial contentions may be lost or slip off the court’s mind in the course of the passing years.Suffice it to add that a Judge can only make pronouncements based on the evidence brought before him one way or the other. See the case of ONYIBOR ANEKWE & ANOR v. MRS. MARIA NWEKE [2014] LPELR -22697 (SC) Per Hon. Justice CLARA BATA OGUNBIYI, J.S.C.: where he stated unequivocally that:
“Now in evaluating any piece of evidence placed before it by parties, a court of law is bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other.”
7The Court is not a forensic laboratory tasked with the duty of vetting or verifying any evidence brought before it, the veracity of same, the source of it, the duration of time and dating system and so on. It cannot go beyond what is brought before it. In fact, some litigants have used this 5 Dingi Mohammed v. State (2018) 5 NWLR (Pt. 1613) P.5406 Under section 110(7), the Administration of Criminal Justice Monitoring Committee, shall have power to consider all returns made to the Chief Judge under subsections (4) and (5) of this section for the purpose of ensuring expeditious disposal of cases, and the National Human Rights Commission set up under the National Human Rights Commission Act shall have access to the returns on request to the Chief Judge.
Article on The Administration of Criminal Justice Act (ACJA) 2015: An Overview in relation to criminal cases adjudication in the Federal High Court By Professor Yemi Akinseye-George, SAN,FCIArb., Legal Practitioner and Consultant. Found at: http://www.censolegs.org/publications/4.pdf
7 ONYIBOR ANEKWE & ANOR v. MRS. MARIA NWEKE [2014] LPELR -22697 (SC). See also Osafile & Anor. v. Odi & Anor. (1990) 2 NWLR (Pt.137). 2, (1990) 1 Alll N.L.R 431. 3, (1990) 5 S.C (Pt II) 1
opportunity to translate develop a system of archaic error verification in some jurisdictions in Nigeria to the effect that once a document is certified or sworn on oath, it is assumed to be true. A poor assumption. The existence of malice in any matter could spurn any of the parties to become creative in proving or disproving their case.
Oath swearing, to many today has become nothing but a rubber-stamp on fabrications presenting them as truth; the pendulum swings both ways. Indeed, there is no matter more malicious than a politically charged case involving topmost political players and offices holders such as the above case study. This variable expectedly should have equally dwelled in the mind of the court to spurn it to more carefully consider all issues.Giving due consideration to the duration of this matter and other issues that may have cumulated in the course of the prosecution of this proceedings, it goes without saying that it is reasonable to doubt the conduct of the case of the prosecution and equally reasonable to be suspicious of the way and manner with which those evidence are presented before the Court. It is trite law that where such reasonable doubts are evident, the court must ensure that these doubts are cleared before it enters judgment. In a situation where such doubts cannot be cleared, the case of the prosecution has not been proved beyond reasonable doubt and as such a conviction cannot be secured. The Court is left with no further option where the prosecution cannot prove its case than to discharge and acquit the Defendant as his presumption of Innocence has not been vitiated nor diminished. This is the law.
See the case of KAYODE IDOWU v. THE State and the relevant sections of the Evidence Act9 attesting to this position.However, in the event that the court in its wisdom chooses to convict the Defendant having recourse to all the evidence before it, both in real-time, in past times or decades and in documentary attachments as well as oral depositions, the Defendant, being a person and as such an embodiment of rights has the right to appeal the Judgment of the trial Court to the Court of Appeal and subsequently to the Supreme Court.
The Blacks Law Dictionary defined Appeal as the complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.10An Appeal is literarily what the word portends; a plea to a higher court to re-consider the Judgment of the lower court, consider the errors made and correct them in favour of the appellant.Technically, an appellate system is of greater significance than just being a plea. The University of Chicago Press Journal of Legal Studies in its on Appeal Process as a Means of Error Correction expounded that the appeals process–whereby a litigant disappointed with the decision of a first-order tribunal can seek reconsideration before a higher tribunal–is a widely observed feature of adjudication. What rationale can be offered for incorporation of an appeals process in a system of adjudication? The justification analyzed here concerns error correction: the appeals 8
[Idowu v. State (1998) 11 NWLR (Pt.574) 354; (1998) 9-10 S.C 19 Section 187 (2) of the Evidence Act 201110 Blacks Law Dictionary, 9th Edition]
process allows society to harness information that litigants have about erroneous decisions and thereby to reduce the incidence of mistake at low cost11. An Appeal at law is a means of protecting and preserving the Justice System, giving the Judicial institution a second look at its own decision to assure itself that its decision is in tandem with law and equity or vice versa. It is a quality appraisal method to ensure that the Judges of the lower court, mostly younger are not losing sight of the fundamental duty of the bench, which is administering impartial justice, fairness and equity in all matters in accordance with the letters and spirit of the 1999 CFRN (As amended). A duty all Judges are solemnly sworn to uphold in the 1999 CFRN (As amended).12When a matter is on appeal, the burden of proof is on the person bringing the appeal, that is, the Appellant. In a Criminal Appeal System, where the Defendant is appealing against a conviction at the lower court, the duty is on that Defendant cum Appellant to show that it has a case against the Prosecution at appeal.
The Prosecutor cum Respondent only has a case to respond to if and when the Appellant has made its case. One major issue with appeals is the absence of the presumption of innocence. By reason of the conviction of the Trial Court, the constitutional presumption of innocence is extinguished and the Appellant holds a higher duty to prove his innocence. Appeals afford more judges to look on the case at the same time. A minimum of three (3) judges at a time and maximum of Seven (7) Judges depending on the matter being appealed. It is however noteworthy that where a judgment includes incarceration of the Defendant and forfeiture of its properties under any guise, filing a Notice of Appeal with the grounds carefully laid out should ordinarily be followed by a Motion for Stay of Execution as well as an Application for Bail Pending Appeal also known as Post-Conviction BAIL.BAIL PENDING APPEAL (BPA)Bail Pending Appeal also known in some jurisdiction as Post-Conviction Bail is a fail-safe system used by the judiciary to avoid an utter failure of its primary responsibility in the Criminal justice system, which is to punish OFFENDERS and vindicate the INNOCENT. This goes in consonance with the Golden Thread that runs through the Criminal Justice system as elaborately laid down by Lord Sankey in the House of Lords in the case of Woolmington V. DPP13 when the 11 University of Chicago Press Journal, Vol. 24: The Appeals Process as a Means of Error Correction. Authored by Steven Shavell, The Journal of Legal Studies: Vol. 24, No. 2 (Jun., 1995), pp. 379-426
[Published by: The University of Chicago Press for The University of Chicago Law School Found at: https://www.jstor.org/stable/72461512 See the Judicature in Chapter 7 of the 1999 Constitution of the Federal Republic of Nigeria (As amended) and the 7TH Schedule on the Judicial Oath for Judges all enshrined in the 1999 Constitution of the Federal Republic of Nigeria (As amended)13 Woolmington v DPP [1935] A.C 462, [1935] UKHL 1: Delivering the judgment for a unanimous Court, Viscount Sankey made his famous “Golden thread” speech:”Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to… the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by]
issue was brought to the house of lords as to whether this statement that the Defendant must prove his innocence was correct. Lord Sankey made his ‘Golden thread’ speech which said that it must be the duty of the prosecution to prove that the prisoner is guilty. This doctrine of presumption is a golden thread that runs through the criminal justice system though jurisprudentially, presumption of innocence is said to terminate upon initial conviction. The right arrogate here by Lord Sankey is to a prisoner already convicted of murder, upon appeal. It is no matter that the question was itself a ground of that appeal.This is the reason appeals are most delicately adjudicated upon in criminal law.
There yet exist some fragments of that golden thread that gives the Appellant the effrontery to call to question the decision of a Judge against him. To ensure that where one party believes he is still innocent and is being wrongfully convicted, that party has the opportunity to be heard clearly on his reasons for such belief, having laid out the particulars of same to avoid an irreparable damage caused by the wrongful conviction and imprisonment of the innocent. In the words of Lord Sankey, no matter what the charge or where the trial, where the Prosecution has failed to eliminate reasonable doubt in its case against the Defendant, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
This thus flows along the same stream of mental consciousness that a system put in place for the avoidance of a likely or possible wrongful conviction also has made available a safety place for such Appellant to ensure they do not begin to suffer the punishment of the offence which verdict of commission is being challenged and contended against. Punishment is a major index in the criminal justice system. It is the ingredient of Retribution. It is thus misplaced if the offender has not done anything wrong. It would amount to punishing the innocent for no reason but for being innocent thereby making Innocence a crime, though not in letters but in action. It defeats everything the Criminal Justice stands for.Quite unfortunately though, courts in Nigeria have displayed extreme reluctance in granting applications for bail pending appeal on a general note. This is not a very encouraging trend in the light of the essence of the BPA to the administration of criminal justice. It is commonplace that a lot of times where the court refuses to grant bail pending appeal, the court of appeal goes does not always dismiss the appeal. In some cases the court allows the appeal for good reasons and quashes the conviction. That appellant having spent years in Prison, serving time for an offence upon being declared acquitted by the Court of Appeal or the Supreme Court has been freshly wronged by such wrongful imprisonment without redress.
These questions then come to mind;1. How do we go about pacifying the innocent for those number of years in custody serving time for an offence he did not commit?2. How do we rationalize incarcerating a man in a correction facility where he has not committed any error worth correcting?the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal.
[No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”]
3. What are the remedies for the flagrant breach of the fundamental rights of that person wrongfully imprisoned by the court to Personal Liberty, Human Dignity and ultimately to Life (proper life without derogation)?4. Is the Court then not failing in its duty to safeguard the INNOCENT and punish only the OFFENDERS?In fairness to the Nigerian Courts, there have been cases where the court granted Bail Pending Appeal despite public outcry against same. It is however the case that such cases are an extreme rarity. The courts have countless times given diverse reasons for refusing an application for bail pending appeal. Mostly, those reasons are very vital and aid the development of our criminal jurisprudence. However, the Court in balancing the scale of reason ought to show some more spirit and intention to preserve itself by granting such bails readily where it is clearly expedient.
POSSIBLE APPEALS AND OTHER PROJECTIONS ON THE CASE STUDY; FEDERAL REPUBLIC OF NIGERIA V. SENATOR ORJI UZOR KALU & 2 ORS.
Well the decision of the court in this case has made that court functus officio. It has nothing further to do with the matter until the case goes to appeal. This also means the matter is no longer sub-judice, so commentators can safely comment without erring on any letter of the law or rules of court, hence this writer’s liberty to express his OPINIONS in this article as succinctly as possible.Judgments are only enforceable against parties to the case, that is, the Judgment Debtors or Defendants.The first necessary issue to point out here is the fact that the Judgment of the court can only be executed against the parties to it, that is the Judgment debtors. You cannot take any person or entity who is not party to the judgment no matter how akin to the parties that person may seem and attempt to execute judgment against such person.
That execution must fail. In the instant case, it is a given that Slok Nigerian Limited, the 2nd Defendant, is in the estimation of the prosecution a separate legal entity on its own being a limited liability company and as such was sued as that person. This writer will say nothing more on this. What is important to note here is that any other company no matter how closely connected to Slok Nigeria Limited whether by nomenclature or by operations but not joined by the prosecution as a necessary party or proper party or nominal party or any type of party is not a party and cannot be treated as such. It has no business with the case or the judgment and any effort to level execution against such other entity is ultra vires, an affront and will ultimately expose any court granting such order to ridicule. This is elementary law. A judgment cannot be enforced against a person that is not party to it. In the light of this argument, it is evident that the acts of the officers of the EFCC amongst others who recently stormed the office of the Sun Newspapers to seal it off is an act of Executive Lawlessness, high-handednessand unknown to Law. The Sun Newspapers is a Legal Entity and was never a party to the case or the judgment. The Judgment cannot be enforced against it. That is simply an act of malice and ill-will.
The Sun Newspapers deserves a day in court for its injured pride and its breached rights if it chooses to sue. Steps must however be taken to stop this erratic behavior of the EFCC before it is allowed to fester and become endemic in them.Whether the Defendant chooses to Appeal, its rights to a Stay of Execution and Bail Pending Appeal is sacrosanct: The right to appeal in some instances is recognised by the Constitution of the Federal Republic of Nigeria as of right.14The procedure for applying for bail pending appeal under the Nigerian Criminal Justice System is by motion. It is a prayer orally, but mostly through an affidavit stating clearly the grounds of the appeal for bail, to the Appellate Court. The combined statutory authority of the Appellate court and the seemingly unfettered judicial discretion given to it in the determination of what constitutes ‘exceptional circumstances’ to merit its discretion in favour of the convict, leaves the Appellant/Applicant with a herculean task indeed. The review of recent Court of Appeal and Supreme Court holdings in this work did show that these courts are not bound to follow previous decisions, (precedents) but their own interpretation of the case at hand. In unmistakable terms, Ayoola, JSC, in Abacha v. State15, stated succinctly that ‘in matters of discretion previous decisions can only offer broad guidelines.’ as each exercise of discretion depends on the facts of each case. Given the finding that Nigerian laws on bail can be found in diverse and conflicting legal instruments, a case has been made for a comprehensive bail code ‘which will extract and merge the best of current provisions and incorporate new ideas and trends.’
This will certainly make the bail pending appeal process in our criminal justice system, more transparent, certain and predictable.16Though the law is trite that a Defendant who has been convicted is no longer presumed to be innocent, the careful question to ask here is whether when such Defendant chooses to appeal and labours to now prove his innocence, he should not be afforded all rights in this effort? This Writer, just like every other commentator seeks to examine these issues and the resultant effects on our democracy in no small measure. These concerns are not just for the privileged but for everyone who finds himself in position to safeguard his name and clear any wrongful conviction against 14 Section 241 of the 1999 Constitution of the Federal Republic of Nigeria Chapter C23 Laws of the Federation of Nigeria (as amended). An appeal against the final decision – civil or criminal – of the Federal High Court or a High Court sitting at first instance; where the ground of appeal involves questions of law alone, in any civil or criminal proceedings; the appeal borders on the interpretation or application of the Constitution; appeal against a decision on the breach – actual or threatened – of any of the provisions of Chapter IV of the Constitution; appeals against the death sentence imposed by a High Court; appeals against decision on the liberty of an infant; appeal against appointment or refusal to appoint a receiver; and so on; do not require the leave of either the lower court or the appellate court before lodgments.
[15 Abacha v. State(2002) 5 NWLR (PART 761) PG 638, (2002) LPELR-15(SC)16 Adeyemi, Babatunde Ajani, Post Conviction Bail in Nigerian Jurisprudence (August 24, 2016). Available at SSRN: https://ssrn.com/abstract=2853221 or http://dx.doi.org/10.2139/ssrn.2853221] him, rich or poor, privileged or underprivileged, indigent or self-sufficient, young or old, vulnerable or powerful, small or big. All parties should find a safe place in the court, the last hope of a common ma, and woman.It is worthy of note that in other jurisdictions of the world, courts are becoming more disposed to granting post-conviction bail or BPA to parties in the interest of Justice. The New Victorian Writer and member of the Victorian Bar, Richard Edney, explained the changing tides on the issue of bail pending appeal in the country from the strict requirement of ‘exceptional circumstances’ to some more accommodating and relaxed standards in reforms carried out by the Victorian Apex Court stated as follows: “BAIL PENDING APPEAL IN SERIOUS CRIMINAL CASE: For an accused person found guilty after trial, or who has pleaded guilty before a trial Judge, and sentenced to a term of immediate imprisonment, and who has lodged an appeal against conviction or sentence, the prospects of being granted bail pending appeal are limited and will be granted only if the applicant establishes ‘exceptional circumstances’. This is conformity with the principle that a jury verdict is ordinarily considered to be final in the absence of error and that the presumption of innocence that accused enjoyed prior to the finding of guilt has been extinguished as a result of that finding.In the recent decision of In the Matter of an Application for Bail by Jack Zoudi2 (hereafter ‘Zoudi’) a specially convened five-member bench of the Victorian Supreme Court changed significantly the law that had previously governed the question of bailpending appeal in serious criminal cases. This change of law is significant and potentially allows for a greater range of circumstances where an applicant who has been sentenced to a term of imprisonment may be released on bail pending appeal.”17In the American jurisdictions, the existence of reasonable doubt is material to the hearing of an appeal, granting of a stay and subsequently granting of bail pending appeal. In an Harvard Law Review Association publication authored by renowned scholar, Nathan A. Smyth, it was posited that in estimating the causes and effects of these delays it should be recollected that in New York a man convicted of crime may apply to any justice of the Supreme Court in the state, or to the trial judge, for what is known as a Certificate of Reasonable Doubt. The effect of this process is to stay the execution of sentence and in most instances to liberate the convict on bail pending appeal. In other words, if a single judge can be found anywhere in the state who can be persuaded that
[17 3 Original L. Rev. 99 (2007) Bail Pending Appeal in Serious Criminal Cases: The New Victorian Law:https://heinonline.org/HOL/LandingPage?handle=hein.journals/ognlr3&div=13&id=&page=Original Law Rev Vol 3 No 3.]
there is a reasonable doubt as to whether the conviction will stand on appeal, the defendant can get out on bail while awaiting action by the higher court.18It is a fact that the first Defendant in this case is not only a former Governor of Abia State, he is also a sitting member of the Senate and in fact a Principal Member of the Red Chambers, the Chief Whip of the Senate and also acknowledged by all and sundry as a Dear Heart to the people, a Philanthropist and a Foremost Crusader for the lot of the underprivileged and Trading Women through a plethora of projects and empowerment initiatives put together by his OUK FOUNDATION. Some of these efforts have also been witnessed first-hand by this writer in recent times which gives credence to these laudable activities. But in the Court of law, good works may take you a distance, it will not take you far enough. Howbeit, as long as reasonable doubt remains, a conviction is groundless and cannot be secured. The question then is;I. Does the Defendant believe the prosecution has not proven its case against the weight of evidence?II. Does the Defendant maintain that the Conviction was wrongful because he had been able to show reasonable doubt which the Prosecution could not dispel?III. Does the Defendant have credible grounds of appeal which he believes will upturn his conviction upon due consideration by the Appellate Court?The questions go on and on. The progression of the case in the space of 12 years being a criminal matter in itself gives room for unhealthy suspicion as to how the court could recollect and evaluate and decide on every fact in issue in reaching its judgment. It is a case that necessarily should be appealed in order to give it proper and more robust adjudication by the appellate court.Thus, where the Defendants choose to appeal this Conviction, it is a necessary step to file a motion for stay of execution of the Judgment because if the execution of the Judgment is not stayed, the Judgment may be executed and extinguished which renders the appeal useless and of no moment.
The second and most important application is for the application for Bail Pending Appeal for the natural persons appealing, in the instant case, the 1st and 3rd Defendants.It is thus expedient and desirable that where such applications are made in cases like this, the court should not be disinclined to grant such bails as the Defendants are not murderers, neither are they Kidnappers, nor Armed Robbers nor Agents of Terror nor Insurrectionist nor belonging to any class of persons whose release into society may escalate into havoc and put innocent citizens at risk. Rather, they are contributors to the formation of our healthy democracy and the services of their people in their various capacities. It is thus the humble position of this writer that in the event of such application forthwith, in the same strides with the Victorian Supreme Court’s efforts to make the appeal more accessible, it is desirable to grant them and allow them prepare for their 18 The Harvard Law Review Association is collaborating with JSTOR: The Limitation of the Right of Appeal in Criminal Cases.
Author: Nathan A. Smyth. Source: Harvard Law Review, Vol. 17, No. 5 (Mar., 1904), pp. 317-330 Published by:
[The Harvard Law Review Association. Stable URL: https://www.jstor.org/stable/1322987 Accessed: 12-12-2019 15:03 UTC]
appeal. This is especially the case where one of the parties, the first Defendant, already has an history of a medical need which he periodically goes to Germany for to be attended to by his personal Doctors. It is only fair that he be granted bail to avail him opportunity to go to his Doctors from time to time for the preservation of his life, without mincing words, the condition of the 1stDefendant already qualifies upon provision of additional particulars as “exceptional circumstances and on the strength of this, the court is further expected to take the necessary steps to preserve his life, a constitutional duty of the court, till all the appeals are heard and determined.
CONCLUSION
“FIAT JUSTITIA RUAT CAELUM” Let Justice be done though the heavens fall.
OLUFEMI Franklin OlufemiManaging PartnerOFR-O Legalwww.ofrolegal.com
