PressReader - The Guardian (Nigeria): 2019-07-16 - Nnamdi Obiaraeri

⚖️ The trending news that some lawyers have elected to offer free legal services to defend alleged “palliative looters”, if and whenever they are arraigned in court, have become the subject of intense debate and misunderstanding.

This intervention is to clarify that the proposed gesture of lawyers, being to offer legal services, to these class of persons, whether for a fee or free of charge, is both a constitutional responsibility and a professional obligation.

This must not, as seems to be case in some quarters, be misconstrued to mean that lawyers are in support of those who have “looted palliatives” or are encouraging those planning to destroy other public or personal properties or to suggest that there is an already made or existing permissible legal defence for such wanton actions.

Lawyers will continue to be seen as controversial members of the society as long as their professional role of defending the rights and interests of citizens and members of the public remain grossly misunderstood.

The misunderstanding of the activist role of the lawyer in society is one of the things that made it fashionable in the olden days for some people to agitate and say “KILL ALL LAWYERS”.

Well, a society without lawyers is a society without laws and a lawless society can only be nasty, brutish and short as we just witnessed a bit of it in the wave of riots and destructions that trailed the otherwise recent peaceful #ENDSARS protests.

The presence of a defence lawyer in any criminal case is among other things to ensure that proper investigation procedures are adopted and obeyed and that fair hearing and fair trial according to law is achieved.

In Nigeria, lawyers are specifically enjoined by the Rules of Professional Conduct made for Legal Practitioners to vigorously defend the rights of all citizens including rendering pro bono services to the downtrodden.

Therefore, when lawyers offer to defend suspected “palliative looters” in court, they are merely accentuating or drawing attention to two key things out of the myriads of constitutionally guaranteed rights to all persons charged with the commission of a crime in a court of law namely:

✔️(a) the right to presumption of innocence under section 36(5) of the 1999 Constitution as amended.

This raises the rebuttable✔️ presumption of innocence in favour of every defendant and all alleged “palliative looters” enjoy this protection until found guilty by a court of competent jurisdiction.

✔️(b) the right to legal representation under section 36(6)(c) of the 1999 Constitution as amended which avails all defendants charged with a crime whether or not they are alleged “palliative looters”.

Our constitutional order remains that every accused person (now called defendant under the new nomenclature or taxonomy of adjectival and procedural laws) is entitled to defend himself in person or by any lawyer of his or her own choice.

In the light of the foregoing, the following must be noted concerning this subject matter under consideration-

  1. The lawyers’ offer of free legal services to potential defendants, as controversial as it may sound to the layman, is not anything new or extraordinary.

Specifically, offering free legal services to suspected “palliative looters” is not a big deal and it is not unpatriotic either.

  1. Lawyers electing to do so have not said that they will free the defendants of the charges at all cost as they are not the Judges or trial Magistrates who have power of adjudication.

The lawyers are merely serving advance notice and strongly too that irreducible minimum standard procedures expected in criminal investigations and trials must be met and compiled with.

  1. At all material times, the type of charge and evidence presented against a named defendant will determine the nature of defence he, the defendant, is legally expected to enter before determining his or her culpability.
  2. It is settled law that he who alleges must prove and the allegation of commission of a crime must be proved beyond reasonable doubt by the prosecution.

It is not for the defendant to prove his innocence and this is not waived in the alleged palliative looting cases.

  1. Therefore, the onus of proving the guilt of an alleged “palliative looter” rests with the prosecution except where the defendant has made a voluntary confessional statement upon which the court can rely on to convict without more.
  2. Whether or not the defendants were caught in the act or with the looted items or whether or not they will be eventually convicted do not affect, abridge or tamper with their constitutional rights to be presumed innocent, investiigated properly without oppression, granted bail in deserving circumstances at the discretion of the court and be represented by counsel of their choice(s) in circumstances already fully justified above.
  3. What defences are not open to alleged “palliative looters” given the collateral circumstances of this case that are already commonly available in the public domain?

It will be interesting to see what manner of defence(s) those charged with “looting palliatives” stored in government facilities or carting away government properties will put up (alibi, purchaser for value without notice of encumbrance, finder of an ownerless thing and so on) but the defence of “bonafide claim of right” will not avail such established looters as those looted items clearly belong to Government (a legal personality) or its authorised agent or facilitator.

  1. It is beyond argument that the looted items are not ownerless things under the law. The burden of proving that they are ownerless therefore rests squarely ✔️on he who asserts otherwise, being the man who looted them, if that is his proposed defence.

8 (a). It remains good law that an ownerless thing cannot be stolen but a bag of rice or carton of Indomie customised with the owners identity or marks or insignia is enough warning that the items are not ownerless commodities.

8 (b). A person found in possession of such customized bag(s) of rice or carton(s) of Indomie has the burden to prove how he came to be in possession of them.

8 (c) The legal window of defence open to a finder of an ownerless thing may avail if the defendant leads credible evidence to show that he did not loot the items himself, but that he found them where they were abandoned, picked them up and have not done anything to the item(s) to assert adverse ownership.

8 (c). At all material times, it is for the court to accord or refuse to accord probative value to this line of evidence by either believing or disbelieving it.

The court is also entitled to weigh this evidence against the offence with which the defendant is charged such as receiving stolen property and the presumption of law relating to doctrine of recent possession (where stolen property is found in possession of a person immediately after a theft).

The consequence is disastrous if the court does not believe it.

  1. Despite break down of law and order during the riots, the criminal laws have not changed to warrant or authorise looting of government property or dispossessing private persons of their property by force.

No such defence will avail except in the jungle.

What is loosely called looting by a mob is legally speaking strictly seen as stealing or theft.

  1. The law does not permit that “a hungry person” can steal or break into the property of another to steal to feed himself.

10 (a). Right to ownership of moveable property is constitutionally guaranteed under section 44 of the 1999 Constitution as amended and as such no one shall be forcefully deprived of his property except with his prior consent, authority or approval.

  1. Hunger is not a defence to a charge of stealing although the court may, in its absolute discretion, take that peculiar challenge into account during sentencing or flowing from plea of allocutus (mitigation of sentence).
  2. However, the punishment to be imposed on a person who looted a bag of rice or a carton of noodles (for example) may not and should not be the same with that of a person who removed plasma televisions, curtan blinds, plates, tilet seats, electrical fixtures and fittings, roofing sheets, office chairs, medical equipment, refrigerators, cars, mattresses, computers or tractors or arms/guns and ammunitions or uniforms of security agencies or actually burnt down public buildings including court halls on that same occasion.
  3. Those who killed or maimed, ate the bodies of those they killed or maimed, (whether they be security officers or civilians) or burnt public or private properties during this period remain strictly liable under the law to be arraigned separately for their various heinous offences and do not fall into the loose classification of “palliative looters” being discussed herein.

14 The claim in some quarters that the stored “palliatives” belong to “Nigerian people” and as such were taken by angry masses in the circumstances under purview is again ignorant and untenable in law.

As tersely stated by one sound legal mind, no self respecting lawyer will put a client in a witness box and lead this defendant/client to say that the palliatives stored in a Government warehouse belongs to him and that he took part or all of them because they belong to him.

That will be the shortest route to jai for the unfortunate defendant and perhaps the easiest way for his lawyer to lose his professional licence.

Lawyers are fixed with knowledge of the law!

Conclusively, it was not right that the palliatives were hoarded in the midst of ravaging hunger and poverty in the land.

Those who hoarded the palliatives are wicked, callous and unpatriotic to say the least and in established cases of diverting them must be brought to book to deter future occurrence.

However, it was also not lawful or legal that the stored palliative items belonging to Government or even private persons should be looted in a riotous manner. Law and order is the essence of society.

Two wrongs do not make a right.

Those alleged “palliative looters” who have been arrested must be arraigned without compromising their constitutional rights or violating their fundamental freedoms and in sync with the fast track mechanisms and adjectival safeguards entrenched in the Administration of Criminal Justice Law.

During sentencing, the courts must take judicial notice of what led to the avoidable protests and eventual violent riots, the present mournful mood of the nation and the need not to congest the correctional facilities (if they were not razed down during the riots) and tamper justice with mercy in appropriate cases

It is good that Nigerian lawyers are on ground to ensure that the needful is done and that justice is served according to law.

This is why that ancient chant “KILL ALL THE LAWYERS” was quickly and wisely discarded long ago because lawyers are, properly speaking, social engineers and necessary evils.

Let peace return to our troubled country and let Nigerian lawyers not relent in their avowed mandate of “promoting the rule of law”, being the motto of the NBA!

A new normal is possible!

Prof obiaraeri, N.O.

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