Arming The State Counsel … Rivers Justice Ministry’s Giant Strides

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The greatest incitement to crime is the hope of escaping punishment – Marcus Tillius Cicero (Pro Millone)

A recent report published by the Federal Ministry of Justice gave very disturbing account of the nation’s prisons, one of which is that Awaiting Trial Inmates (ATI) account for more than 60 percent of the bloated prisons population.

This can mean any of many variables, one of which is that our criminal justice system is faulty or that the process of crime investigation and prosecution requires proper re-examination. It is even more so, when viewed from the now familiar haste in arresting, detaining and charging to court, suspects without proper police investigation, ill-prepared charge sheets and all the necessary evidence needed to separate felons from the civil society. The result has been the tendency among criminal investigators to arrest first, build around suspects, charges of unbailable nature, charge such accused felons, oppose bail, throw them into prison and then begin the search for evidence to justify eventual conviction.

In a recent jail delivery exercise conducted by the Chief Judge of Rivers State, Hon. Justice Iche Ndu, it was discovered that some inmates have remained in prison for periods far longer, than they would ordinarily have spent, if convicted of the charges for which they were originally held.

This scenario puts tremendous responsibility on not just the Police in Nigeria but also the Rivers State Ministry of Justice here at home, if it must reverse the ugly situation, that the Chief Judge found. The first step is to properly equip state counsels, through training and retraining on modern trends and legal requirements necessary to not just defend members of the public, often wrongly charged but also ensure that those they have sufficient reason to believe, deserved criminal trial, indeed face the full weight of the law.

Without such intervention, the easiest way for felons escaping punishment would be for the Police to build weak cases around an accused person and leave a presiding Magistrate or Judge with no other option than to discharge and acquit a criminal, only to wreck more havoc on the law-abiding society.

To address some of these issues and help members of the public lacking the wherewithal to seek Justice, the state Justice Ministry has, in the past few months, been convoking various forms of legal workshops and seminars, intended to technically equip state counsels, on whose shoulders rest this arduous task.

The state’s Solicitor-General and Permanent Secretary Ministry of Justice, Dame (Barr.) Mina Benebo pictured the scenario most apply when she said that the Criminal Act, operating in the Southern part of Nigeria, as distinct from the criminal procedure code operating in the Northern states of Nigeria, will fail unless those depended upon to prosecute offenders and defend the innocent are properly empowered to discharge their responsibilities.

Instructively some criminal cases fail because, according to her, either the offence is not clearly ascertained and spelt out to the understanding of the accused, or it is ambiguous, or simply that the issues were not properly investigated or at other times that the wrong offences are built around such accused persons.

The result of such ambiguity or even omission of a word used in the statute, is the likelihood of such a case being quashed and letting a potential felon off the hook.  This is clearly pointed out by Mbanefo EJC (as he then was) in Anu V I.G.P.

As regards ground (a) it was argued that the charge as laid, not having disclosed an offence was not only bad, but was no charge at all and consequently that the trial and conviction of the applicant was a nullity.  For this proposition, appellant’s counsel relied on Inspector-General of Police v. Okora 14 W.A.C.A. 170.  In that case the West African Court of Appeal held that where an accused was arraigned for a non-existent offence the trial must be regarded as void “abinitio”.  In Okora’s case an essential element of the offence was omitted from the charge.  The West African Court of Appeal took the view that omission “was such as could not be cured by an amendment because it would not be possible to comply with the provisions of Sections 164 and 165 of the criminal procedure code which laid down the procedure to be followed in cases where the court permits or directs an amendment to the original charge”.

The West African Court of Appeal was saying in Okora’s case that since the defect had passed the stage where it could not be cured by amendment, the trial was a void “ab initio,” and consequently a nullity.

It was in full knowledge of these imperative, having been fully equipped through training and retraining that the state Ministry of Justice successfully built a water-tight case in prosecuting two recent landmark cases and eventually secured conviction.  The cases are PHC/1987/2007, The State Vs Victor Fabiyi, Corporal Wafal and the second, PHC/1023CR/2008, The State Vs Sampson Michael, Ogechi Umah and Ibiyekaribo Dappa, all male Nigerians.

In the first case, the Port Harcourt High Court 10 presided over by Hon. Justice Boma G. Diepriye on April 26, this year sentenced two persons, Victor Fabiyi and Corporal Wafal Aminu to death for the murder of Nnamdi Ajikere, a final year Geology student of University of Port Harcourt.

Fabiyi, a taxi driver had an argument with the deceased, Nnamdi, his younger brother Ugochukwu Ajikere and two other female companions over the taxi fare.  Thereafter, the taxi driver proceeded to make a false report at a police check point alleging that the deceased and his companions were armed robbers and cultists

The taxi driver also alleged that he was threatened with a gun and that his phone and money were stolen from him by the deceased and his companions, all, allegations he knew were false.

CPL Wafal Aminu was dispatched with other police officers who gave the deceased and his companions a hot chase in the taxi of Victor Fabiyi, before over-taking them close to the Le Meridian Hotel, GRA, Port Harcourt.  Finding nothing incriminating on the youngmen and women, after a thorough search, the Police Corporal shot and killed the said Nnamdi Ajikere on that fateful day of September 17, 2006.

This example brings to fore the incessant and unwarranted killing of civilians by men of the Police Force.  But without the confidence vote by members of the public which the now rebranded state Justice Ministry today enjoys, it would have been unthinkable to have all the prosecution witnesses in court during sessions and so steadfast they also refused to compromise their stand during court hearing.

The State Counsel on the matter, and Director of Public Prosecution, Otonyetarie I. Okoye commended the witnesses for their steadfastness in helping the state get justice for the just. Of course, that judgment was well received by all in court that fateful April 26, 2010 and it is hoped that it will serve as a deterrent to other trigger-happy policemen.

In the second case, which is the State Vs. Sampson Michael and two others, the three accused persons on May 16, 2007 kidnapped one Omoro Oyo at Educare International School, 173 Woji Road, GRA, Port Harcourt and demanded a ransom of N150 million out of which they were paid over N3.4 million.

It was discovered in course of investigation that the kidnap was plotted by the first accused person, Sampson Michael who at the time was a domestic driver to Mr Akpovi – father of the victim.  Sampson had contacted the other accused persons and on the day in question, was taking the three-year old child to school when the kidnappers suddenly appeared from no where.

The kidnappers were later arrested and were thereafter, prosecuted at the High Court in Port Harcourt presided over by Honourable Justice G.O. Omereji.  In the end, after the convincing legal arguments and water-tight case prepared by State Counsel, C.B. Ekeh, all three accused persons were convicted on all four counts.

The first accused got six years on the first count as against five each to the second and third; on the second count, the first accused got eight years jail term as against seven years each for the second and third accused persons, on count three, all the three accused persons got three years each while on the fourth count, the first accused got 10 years while the two others got eight years each.

However, since the jail terms are to run concurrently, the first accused is to serve 10 years in jail while his two other cohorts will serve eight years each.

This, thus became the first kidnap conviction in Rivers State and along with other state efforts has helped to check the then incessant cases of kidnap.

Those favourable outcome would not have been possible if, as Dame Benebo rightly said, state counsels were not properly equipped and constantly reminded of their duty to the state and the citizenry, hence the frequent compulsory in-house-workshops and seminars.

In a paper presented at one such compulsory in-house legal training for all law officers, April 9, this year, the Director, Office of the Public Defender, Barrister (Mrs.) Ester O. Joe highlighted problem areas in the drafting of charges by state counsels and prosecutors.

Titled, The Rules Guiding The Drafting of Charges And Information In Criminal Cases In Nigeria; Mrs. Joe in that paper extensively spelt out the manner of information which a charge sheet must contain, and listed the following.

i)          A description of the offence charged in such information or where more than one offence is so charged, shall be set out in the information in a separate paragraph called a count.

ii)         A count of an information shall commence with a statement of the offence charged, called the statement of offence;

iii)        The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by law, shall contain a reference to that written law;

iv)        After the statement of offence, particulars of that offence shall be set out in ordinary language provided that where any written law limits the particulars of an offence which are required to be given in an information nothing in this paragraph shall require any more particulars to be given than those so required.

v)         Where an information contains more than one count, the units shall be numbered consecutively.

For purposes of clarity, Mrs. Joe explained that ‘charge’ and ‘information’ virtually signifies the same thing.  Also, ‘charge’ and ‘count’ can also be interchangeably utilised to mean the distinctive offence for which an accused has been charged.

The nexus between a charge, a count and an information, she said was considered by the West African Court of Appeal, Per Verity, CJ in Rex V. Ijoma, where the distinguished jurist laid bare all the needed facts.

Mrs. Joe described charge sheet as “the whole document containing the charge or charges leveled against the accused person.”  While ‘count’ on the other hand, is a component part of the charge sheet.

But what seemed to the most needed armour for the state counsels was the aspect of the rules guiding the act of drafting charges and information, one of the key pillars of criminal or any other form of prosecution. While a good draft makes a good start to a good case a bad draft makes the exact opposite.

This loophole Mrs. Joe sought to avoid when she said, “In drafting charges, there are rules that must be adhered to.  That is, there are certain legal specificity to which the charge or information must conform to, failing which the charge or information may be invalid depending on the circumstance and nature.  The rules are those against Ambiguity, Duplicity, Mis-joinder of offenders and against the Mis-joinder of offences”, which she painstakingly addressed in detail.

But the work of the State Ministry of Justice is not only about criminal prosecution, it also includes enlightenment of the public on various topical issues of legal or constitutional nature and even offer legal advice to needy members of the public.

These, without doubt underscored the importance of an earlier workshop on the importance of Will-making, with a plan to undertake an extensive campaign tour of all public institutions and the local government areas.

The State Solicitor-General, Dame Barr Mina Benebo said that such a campaign became imperative in view of the need to help fight the phobia  for will-making among Nigerians, especially Rivers people who often, erroneously though, associate Will-Making to pre-knowledge of, and  basic preparations for death imminent.

The planned campaign will however, not be limited to will-making alone but will include all other services rendered by the State Ministry of Information, one of which is that of seeking and receiving legal advice to needy citizens in any form of conflict of legal nature or in the case of a criminal trial.

This thinking informed the training of the would-be foot-soldiers of the enlightenment tour on an aspect about which members of the public hitherto knew very little about legal advise, as service to both the courts and the public.

The Head, Directorate for the Citizen’s Rights, Mrs. Florence A. Fiberesima in her lecture Writing Of Legal Advice presented at the same compulsory in-house legal training, April 9, 2010 in Port Harcourt also extensively dwelt on the subject and concluded with the timeless words of Fola Arthur-Worrey Esq. in the book: The Prosecutor In Public Prosecution, Page 36, where the author states:

I do not presume to state here that once a legal advice is well written and bona fide, it would never be questioned.  To so argue would be to give lie to the notorious facts that the parties to a criminal case are very often highly emotional and blind to reason. But the critical issue of defensibility, to wit; that when such questions are raised, a well considered and thought-out legal opinion is much easier to defend and support than one which needs further education before the latent issues which were inadvertently or carelessly omitted can be highlighted. By this time, negative impressions would have been formed which are always very difficult to dispel. A legal advice from the Director General of Public Prosecution (DPP’s) office bears with it the stamp of finality with regard to the matter in review. It is therefore similar to a judgment and its construction should be approached from this perspective. Counsel must try to anticipate whether such a legal advice, if it were subjected to appeal would be upheld, it ratio deadendi must be manifest on its face.

These indeed, form the nucleus of the silent re-branding initiated by the duo of Rivers State Commissioner for Justice and Attorney-General Hon. Ken Chikere and his Permanent Secretary and State Solicitor-General, Dame Mina Benebo, reforms that now give Rivers people some measure of hope and also helps to build a stronger faith and confidence of the public in the Justice Ministry.

Commendable as the success story of the ministry appears, it must be restated that an even more commendable effort would be to help the police prosecutor ensure that no innocent citizen loses his freedom even for a day because of lapses on the part of prosecutors or avoidable delays in the course of administering justice.

To decongest the prisons and ensure that awaiting trial inmates do not over-populate our prisons, state counsels should continue to be equipped to record many more of the commendable convictions won in the very recent past. This is what a proactive Justice Ministry should do and always.