Is the Plea of Allocutus a Right or a Privilege in Nigerian Criminal Proceedings?

By Isah Bala Garba

By way of introduction, the term allocutus is derived from the classical Latin word allocutio or alloqui, meaning ‘to address or to speak to.’ It is also referred to as allocution, meaning ‘a formal speech.’As such,allocutus or allocution is a formal statement made to the court by the defendant who has been found guilty and is about to be sentenced. This practice originated in England and was recognized by the common law as early as 1682 and Nigeria, being a common law country, also adopted the same. The Supreme Court in the case of Lucky v. State (2016) 13 NWLR (Pt. 1528) held on the meaning of allocutus as follows:‘Allocutus is a plea in mitigation of the punishment richly deserved by an accused person for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly (p. 162, paras. F-G).’ This article examines the legality of allocutus in Nigeria, who makes the plea? When is it made? Must it be granted when made ? Or it can even be overlooked in the entire proceedings?

The legality of allocutus is enshrined in Section 310 of the Administration of Criminal Justice Act (ACJA), 2015, which provides : ‘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 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.’

Subsection (3) of Section 311 referred, state as follows:

‘(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.[ Capitalization is mine for emphasis]

It’s based on the foregoing that courts do give defendants an opportunity, after exhausting all the stages of criminal trials from arraignment, examination-in-chief, cross-examination, re-examination, written addresses, conviction(finding the defendant guilty for the offense charged) before sentencing to make their plea. The prosecuting counsel also has the opportunity to rebut the plea so as not to make the plea a one-way free ticket; otherwise, accused persons might use it to escape full responsibility. That’s why the prosecution is given the opportunity to make a presentation in rebuttal of the convict’s claim, stating with evidence for example that the convict is not a first time offender, aimed at denying him having the mitigation and which after careful consideration, the courts will thereafter sentence the defendant and bring an end to the criminal trial in the courtroom.

 I do not think I sound clear. Let me make myself clearer. If the court pronounced the defendant guilty, before imposing an official sentence, the court normally asks, Do you know of any reason why judgement should not be pronounced upon you? Anyways, consider this example: A young man named Abdul is charged and found guilty of the offence of Grievous bodily harm. While reading judgement, the judge will say, having carefully considered the evidence adduced before this Honourable Court by the prosecuting counsel, it is the firm and unequivocal conviction of this Honourable Court that the defendant is hereby found guilty of the offence charged. After this, the judge will state further: ‘Do you have anything to tell this Honourable Court why you shouldn’t be sentenced to prison?’ Abdul might then say, My Lord, I am very sorry for what I did. This is my first offence; I am an orphan and the breadwinner of the family, with an aged mother alongside five younger ones to take care of. I did this out of desperation but promised never to do it again. Please have mercy and consider a lighter punishment on me. This plea at this stage of trial is what is called: ‘PLEA OF ALLOCUTUS’ and If the court is convinced, the Judge may proceed to state, Having considered the defendant’s plea of allocutus and the circumstances he has presented. While his situation calls for mercy, the law must also be upheld as it is the duty of this Court to balance justice and compassion. As such, the defendant is hereby sentenced to 1 month imprisonment. Let this serve as both a warning and a lesson. I believe you will honor your promise to live a law-abiding life henceforth.

The primary objective of allocutus is to present information that will persuade a Judge to impose a more favourable and lenient sentence than the one defendant ought to be given by law.

Furthermore, there has been debate regarding whether allocutus must only be made by the convict personally or whether it can be made by a lawyer on his behalf.  The Court of Appeal in considering who made allocutus In Odunayo v. State (2014) 12 NWLR (Pt. 1420) 1, held that: ‘An allocutus can be made by the convict in person or through a witness to give evidence of previous good character and good works of the convict. Where evidence of good character is given by way of allocutus, the prosecution is also at liberty to produce evidence of previous conviction(p. 25, para. F).’ In addition the supreme court held in approval of a counsel to enter a plea of allocutus for his client who has been convicted for a criminal offence prior to sentencing in the case of  Lucky v. State (2016) 13 NWLR (Pt. 1528) Pp. 162-163, paras. H-C) However, the Supreme Court made a U-turn 4 years after in the case of Francis v. F.R.N.(2021) 5 NWLR (Pt. 1769) 398 where per Eko JSC lucidly held inter alia that: ‘THE CONVICT AND 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 should not be passed or imposed on him. In the instant case, the allocutus given by the appellant’s counsel was contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007 that prohibits a lawyer as a witness for the client. (Pp. 411, para. F; 412, paras. B-C) [Capitalization is mine for emphasis]

Notwithstanding the above Supreme Court’s pronouncement and which ex facie aligns more with the profession’s ethical behavior, it’s actually not observed in many Nigerian courts because Judges routinely entertain pleas by lawyers on behalf of their convicted clients without issue.

The Supreme Court (In Francis v. FRN), I believe held so to caution and make lawyers to be mindful of their professional boundaries especially during allocutus, considering how the lawyer in that case vehemently tried to overstep the  required ethical boundaries such as seeking to tender evidence all in plead of allocutus  which the trial court refused to accept and still went further to make it a ground of appeal as if it’s a right. 

The ideal is to prepare the defendant for this exercise and let the defendant present the plea personally. The court seeks to hear the voice of the defendant, searching for genuine remorse and sincerity that flow from the heart. At all times, the lawyer should act strictly within authority conferred by the client and if lawyers must do, I  normally witnessed, they start by saying: By the authority conferred on me by the Convict, my Lord, I seek to make the plea on his behalf that he is a first-time offender, he’s the breadwinner of the family etc…but not acting as a witness. However, since lawyers making Allocutus on behalf of the defendant has become normalized and accepted practice in the trial courts, I will suggest if the Supreme Court can depart from its decisions in the case of Francis v. F.R.N., as trial courts clearly prefer lawyers making the Allocutus. For example, I witnessed this a few months ago at the Federal High Court, where the Judge did not object to the lawyer who stood up to make the plea on behalf of his client. Allowing this practice has no adverse effect, and lawyers, as masters of the law representing the defendant from the beginning of the case, should be permitted to make the plea on their behalf. The position taken in the case of Lucky v. State, which allows lawyers to make the plea, should be the law. I sell this to the Learned Justices of the Supreme Court. They have a choice not to buy it. I lack the power to question their choice if they choose not to.

Flowing from the foregoing analysis it’s important to note that the plea of allocutus is not a right but a privilege given at the court’s discretion. It is not a fundamental right recognized under constitutional law. The Supreme Court in Chidi Edwin v. The State (2019) 7 NWLR (Pt. 1672) 553 held: ‘Allocutus is not a right in law, neither is it a defence. It is overstretching the constitutional law of fundamental right by attempting to interpret and classify allocutus as a fundamental right under Nigerian law of fair hearing.(p. 565, para. F)’ Also, the court further states: ‘making of allocutus is not mandatory, and its absence does not invalidate the proceedings or sentence (p. 565, paras. E-F; 572, para. D).

In, where the statute prescribes a mandatory sentence indicated by words like ‘shall’ the court ordinarily has no jurisdiction to reduce the sentence or entertain allocutus. For example, the death penalty under Section 221 of the Penal Code admits no discretion, and any sentence other than death upon conviction is a material irregularity. This was given a judicial blessing by the Apex court of the land in the case of State v. John (2013) 12 NWLR  RHODES-VIVOUR JSC, held as follows: ‘Once a Judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A Judge has no jurisdiction to listen to ALLOCUTUS  and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under section 221 of the Penal Code.(P. 364, paras. E-F)[Capitalization is mine for emphasis]’

However, where the statute uses language such as ‘is liable to,’ or most often non capital offences the court has some discretion to impose a lesser sentence or fine and may consider allocutus in exercising that discretion.  Equally the  Administration of Criminal Justice Law 2015 (the ‘ACJL’), a procedural law enacted to supplement the Law, section 316 specifically allows the Court to substitute an imprisonment term for a fine. The Said provision reads: ‘subject to the other provisions of this Section, where a Court has authority under any written law to impose imprisonment for any offence and has no specific authority to impose a fine for that offence, the Court may, in its discretion, impose a fine in lieu of imprisonment.’

Lastly, Before considering allocutus, the court must weigh factors like whether the convict is a first-time offender, the number and age of dependents, terminal illness, genuine remorse, time spent awaiting trial, and evidence of good character. This exercise ensures that the court’s discretion is judicially and judiciously exercised as outlined in Ubiaru v. F.R.N.(2019) LPELR-48252 (CA) Per ANDENYANGTSO, J.C.A (Pp. 31-32, paras. B-E) The trial court must not exceed prescribed statutory limits and should carefully balance justice and mercy through allocutus.

In conclusion, the plea of allocutus in Nigerian criminal proceedings is a privilege, not a right, extended at the discretion of the court and intended for mitigation of sentence rather than exoneration. The plea must be made by the convicted person personally, as the Supreme Court prohibits lawyers from pleading allocutus for their clients citing it is against the profession’s ethical behavior, though practically allowed. Also where statutes prescribed mandatory sentences, allocutus may be ineffective, but where discretion exists, it can shape a fairer outcome.

__________________________________

Isah Bala Garba is a level 300 student from Faculty of Law, Bayero University, Kano. He can be reached for comments or corrections on: LinkedIn: https://www.linkedin.com/in/isah-bala-garba-301983276  Facebook: https://www.facebook.com/isah.bala.garba

isahbalagarba05@gmail.com or on 08100129131.

Source: loyalnigerialawyer