Allocutus In Nigerian Criminal Trial: Interest Of Justice Should Always Be The Guiding Principle Notwithstanding The Case Of Francis V Federal Republic Of Nigeria (2021) 5 Nwlr (Pt. 1769) 398 At 412
By: Hameed Ajibola Jimoh Esq.
In Nigerian criminal trial, the plea of ‘allocutus’ or ‘allocution’ (as is also called) is well known as a procedural principle which was part of those common law practices and or principles that Nigeria adopts in its criminal proceedings. In criminal trial, the allocutus is pleaded by the Defendant and or his counsel representing him in the criminal trial after his conviction based on the charge (or charges made against him by the prosecution) by the trial court before his final sentencing. Criminal suit commences with being (especially where there is full trial in a situation where the accused person/Defendant has pleaded not guilty to the charge made against him): mentioned/arraignment/accused person’s plea taking; trial/hearing (which encompasses: Examination-In-Chief; Cross-Examination; and Re-Examination), possibly trial-within-trial (where necessary); written address and Judgment (which encompasses: conviction; allocutus and sentencing).
Recently, there was a Supreme Court’s case in circulation via social media especially among lawyers to the celebration that ‘the Supreme Court of Nigeria (the apex court of Nigeria) forbids lawyers from pleading allocutus’ referring to the case of Francis v Federal Republic of Nigeria (2021) 5 NWLR (pt. 1769) 398 at 412, Per Eko JSC., being quoted to have held as follows: ‘Allocutus as defined in Earl Jowitt: The Dictionary of English Law, is what the convict has to say why the court should not proceed to sentence him. That is, what the convict shows ‘Why the sentence should not be passed’. The convict, not the defence Counsel, pleads his allocutus. In other words, it is for the convict himself to show cause why the prescribed sentence for the offence he was convicted of be not passed or imposed on him’. This paper is of the firm humble view that in deciding whether an accused person or his defence counsel should be allowed to plead allocutus, the trial court and the appellate court should always be guided by ‘interest of justice’ and notwithstanding the decision of the Supreme Court in the Francis’ case (supra), hence, this paper.
An ‘allocution’, or ‘allocutus’, according to Wikipedia online, ‘is a formal statement made to the court by the defendant who has been found guilty prior to being sentenced. It is part of the criminal procedure in some jurisdictions using common law. An allocution allows the defendant to explain why the sentence should be lenient. In plea bargains, an allocution may be required of the defendant. The defendant explicitly admits specifically and in detail the actions and their reasons in exchange for a reduced sentence. In principle, that removes any doubt as to the exact nature of the defendant’s guilt in the matter.
The term “allocution” is used generally only in jurisdictions in the United States, but there are vaguely similar processes in other common law countries. In many other jurisdictions, it is for the defense lawyer to mitigate on their client’s behalf, and the defendant rarely has the opportunity to speak. The right of victims to speak at sentencing is also sometimes referred to as allocution.’.
Under the Administration of Criminal Justice Act, 2015-herein after referred to as ACJA-, though no such word as ‘allocutus’ or ‘allocution’ is used in the Act, that notwithstanding, the provisions of sections 310 and 311 of ACJA are clear to the effect that their provisions are forms of ‘allocutus’ but in this case, ‘allocutus’ in this sense is not used as ‘why the court should not pass sentence on the accused person’ rather, it is used to mean ‘the defendant’s explanation why the sentence should be lenient.’
The procedures for this ‘allocutus’ under the ACJA are as follows ‘310. (1) Where the finding is guilty, the convict shall, where ‘he has not previously called any witness to character, be asked whether he wishes to call any witness and, after the witness, if any, has been heard, he shall be asked whether he desires to make any statement or produce any necessary evidence or information in mitigation of punishment in accordance with section 311 (3) of this Act. (2) After the defendant has made his statement, if any, in mitigation of punishment the prosecution shall, unless such evidence has already been given, produce evidence of any previous conviction of the defendant.
- (1) Where the provisions of section 310 of this Act have been complied with, the court may pass sentence on the convict or adjourn to consider and determine the sentence and shall then announce the sentence in open court.
(2) The court shall, in pronouncing sentence, consider the following factors in addition to sections 239 and 240 of this Act. (a) the objectives of sentencing, including the principles of reformation and deterrence; (b) the interest of the victim, the convict and the community; (c) appropriateness of non-custodial sentence or treatment in lieu of imprisonment; and (d) previous conviction of the convict. (3) A court, after conviction, shall take all necessary aggravating and mitigating evidence or information in respect of each convict that may guide it in deciding the nature and extent of sentence to pass on the convict in each particular case, even though the convicts were charged and tried together’ (Underlining is mine for emphasis).
From the above cited section 311(3) of the ACJA, it is clear that ‘A court, after conviction, shall take all necessary aggravating and mitigating evidence or information in respect of each convict that may guide it in deciding the nature and extent of sentence to pass on the convict in each particular case, even though the convicts were charged and tried together. (Underlining is mine for emphasis). This means that the court is to be guided by the interest of justice in the criminal case in mitigating his sentence on the convict and not just to adopt a on-sided consideration.
In truth, some of the accused persons or convicts standing trial before the court are scared to even address the court if not for their counsel that would speak on their behalf. Some of the Defendants might not also know the limit of what to say and how to express themselves confidently to the Court. There are other facts that if the court listens to, would definitely move the court to consider leniency in favour of the convict and these facts are better conveniently explained to the court by the defendant’s counsel: perhaps, an irresponsible parents; parental negligence; aged parents; young children that would likely be much more affected by the sentence; etc.
So, it is in the best interest in my humble submission, for the court to not only hear from the convict, but to hear from both the convict and his counsel or from the Counsel alone in considering what evidence the court would consider to mitigate the sentence and its harshness on the convict. After all, a court is a court of justice and is established to dispense justice. Also, in my humble view, where the trial court hears both the convict and his counsel at the stage of ‘allocutus’, this (i.e. for the court to hear both the Counsel and the Defendant in allocutus, especially in well deserving cases) does not lead to ‘miscarriage of justice’.
More so, the prosecution is also inquired from by the Court on further useful evidence to be considered by the court before sentencing the accused person. That is why the section permits a trial court to adjourn to pass his sentence after taking the plea of allocutus as stated in section 311(3) of ACJA (supra). Therefore, in deserving instances, a trial court should be properly and consciously guided in considering the need to adjourn to consider all mitigating factors and evidence placed before it before passing its sentence and become functus officio.
Finally, it is my firm humble view and submission that in deciding whether an accused person or his defence counsel should be allowed to plead allocutus, the trial court and the appellate court should always be guided by interest of justice and notwithstanding the decision of the Supreme Court in the Francis’ case (supra), by allowing and or permitting both the convict and his counsel in ‘allocutus’ or the Counsel alone in considering what evidence the court would consider to mitigate the sentence and its harshness on the convict. Also, this does not, with due respect, place his counsel in the position of a ‘witness’ in violation of Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007, rather, it is in accord with section 36(6)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that ‘Every person who is charged with a criminal offence shall be entitled to- (c) defend himself in person or by legal practitioners of his own choice’ and such representation should include up-till Judgment is delivered in the criminal case. The Francis’ case should be a case for what it has already decided and not a case of general application for all time.