Custodial Sentences, Restitution and Proceeds of Crime: Where The Justice Lies; Citing The Case of Patrick Ezerike V. The State As A Case Study
PATRICK EZERIKE V. THE STATE (2023) 7 NWLR PT. 1883 AT 207-416.
The Appellant and a co-accused person were arraigned before the High Court on a three count charge of obtaining property by false pretence contrary to section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.
When the charge was read in English language and explained in Igbo language to the appellant, he pleaded not guilty and the case immediately proceeded to trial.
The Respondent called two witnesses. PWI (the victim) narrated how the appellant and his gang took her to Asaba and lured her into believing that there is a chemical which if used could turn papers into Nigerian currency. PW1 also stated that the appellant requested her to bring money so that they could buy chemicals to make more money. The Respondent tendered exhibits, which included the extra judicial statement of the appellant where he confessed to have committed the offence. The Appellant, however, retracted the confession. So the trial court conducted a trial-within-trial at the end of which the trial court admitted the statement in evidence as exhibit.
On the other hand, the appellant testified in his own defence and called one witness in defence.
The trial Court found the appellant guilty as charged and sentenced him to fifteen years imprisonment with respect to count one, ten years imprisonment with respect to count two, and fifteen years imprisonment with respect to count three. The appellant was not given any option of fine. Further, the trial Court ordered both the appellant and his co-accused person to refund the PW1, the sum of N400, 000 which they defrauded her.
Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal, which dismissed the appeal and affirmed the judgment of the trial Court. The Appellant appealed to the Supreme Court where he argued, amongst other grounds, that he counts of the charge were not separately read to him, and that the charge or information was not explained to him.
In determining the appeal, the Supreme Court considered the provisions of section 11 of the Advance Fee Fraud and Other Related Offences Act, 2006 which state as follows:
“11 (1) In addition to any other penalty prescribed under this Act, the High Court shall order a person convicted of an offence under this Act to make restitution to the victim of the false pretence or fraud by directing that person:
a) Where the property involved is money, to pay to the victim an amount equivalent to the loss sustained by the victim.
b) In any other case –
i. To return the property to the victim or to a person designated by him; or
ii. To pay an amount equal to the value of the property, where the return of the property is impossible or impracticable.
(2) An order of restitution may be enforced by the victim or by the prosecutor on behalf of the victim in the same manner as a judgment in a civil action.”
HELD: The Supreme Court dismissed the appeal.
The Supreme Court raised and dismissed the following issues:
1. On Ineffectiveness of custodial sentences as deterrent for financial crimes and need for court to order convict to make restitution to victim of crime – In financial crimes, custodial sentences do not deter criminals, and many criminals will not mind serving custodial sentences if they are given the opportunity to retain proceeds of their criminal act. Therefore, the need to deny a convict both his freedom to perpetrate further crimes together with the proceeds of his criminal activities, cannot be faulted as oppressive or excessive punishment under the law against double jeopardy. In this case, the Appellant was charged with financial offences under the Advance Fee Fraud and other Related Offences Act. Section 11(1)(a) of the Act provides that in addition to any other penalty prescribed under the Act, the High Court shall order a person convicted of an offence under the Act to make restitution to the victim of the false pretence or fraud by directing that person where the property involved is money, to pay to the victim an amount equivalent to the loss sustained by the victim. So, the trial court’s order of restitution directing the appellant to pay N400, 000 to his victim was well founded in statutory law. It is valid and not unconstitutional.
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2. On Ineffectiveness of custodial sentences as deterrent for financial crimes and need for court to order convict to make restitution to victim of crime- The primary motivation for financial crime is unjust enrichment, and perpetrators of such crimes should not have opportunity to enjoy their ill-gotten wealth to the detriment of their victims, just because they are serving or have served a custodial sentence. In this case, after the trial court found the Appellant guilty of financial crimes under the Advance Fee Fraud and other Related Offences Act, 2006, the trial court had jurisdiction to make a consequential order of restitution against the Appellant. So, the trial court did not need to reconstitute itself as a civil court or take further evidence before making the order of restitution against the Appellant.
3. On Sources of power of court to order convict restitution to victim of crime-
Part 32 of the Administration of Criminal Act 2015 makes provisions on restitution to victims of crime similar to the provisions in section 11of the Advance Fee Fraud and Other Related offences Act, 2006.
Under the Administration of Criminal Justice Act 2015, payment of reparation to victims of crime is provided for. Section 454(3) of the Act provides for compensation for loss or injury and of costs. It states that the court may, in addition to an order under subsection (2) of the section, orders the defendant to pay such damages for injury or compensation for any loss suffered by a person by reason of the conduct or omission of the defendant, and to pay such costs of the proceedings as the court thinks reasonable. Furthermore, restitution is also provided for in section 270(1) of the Criminal Procedure Act, Cap. C41, Laws of the Federation of Nigeria, 2004 and section 357(1) of the Criminal Procedure Code, Cap. 30, Laws of Northern Nigeria, 1963. In the circumstance, the trial court was right in imposing the payment of the sum of N400, 000 in addition to terms of imprisonment. And the Court of Appeal rightly affirmed the decision of the trial court.
4. On reason for restitution to victims of crime and whether provisions for restitution constitute double jeopardy against convict –
The reason for restitution to victims of crime is that it is the right of a victim to be reimbursed for losses caused directly by the crime. Restitution is thus not a punishment for the offender; it is regarded in law as monetary debt the offender owes the victim of crime. A restitutionary criminal justice system includes a court or a law which allows both victim and criminal all opportunity to define more effectively what will happen to them after a crime has been committed. Restitution is thus a vital means of redress in unjust enrichment cases.
The provisions for restitution do not constitute double jeopardy against the Appellant.
5. On Duty on recipient of unjust enrichment to make restitution to victim-Section 11(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 deals basically with unjust enrichment. Where an individual is unjustly enriched, the law (usually civil law in equity) imposes an obligation upon the recipient to make restitution of the benefit acquired at the expense of another.
6. On whether restitution to victim of crime is recognized under Nigerian criminal justice system –
Restitution is not alien to Nigeria criminal justice system. The power to make order of restitution is vested in Nigerian courts by various procedural and substantive laws. In this case, the order of restitution made by the trial court pursuant to section 11 of the Advance Fee Fraud and other Related Offences Act, 2006 was in order.
Courtesy: MORUFF O. BALOGUN, ESQ.
VICE CHAIRMAN, IJEBU ODE BRANCH,