SUPREME COURT FORBIDS LAWYERS FROM PLEADING ALLOCUTUS

Francis v. Federal Republic of Nigeria [2021] 5 NWLR (Pt. 1769) 398 at 412, per Eko, JSC:

“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.

Notes:

Apart from using the plea of allocutus to seek that sentence should not be passed, the essence of the plea also goes to appeal to the emotions of the court (even though the court is said to have none) to possibly declare a lighter sentence, subject to statutory provisions and within the legally allowed boundaries of exercise of discretion in sentencing.

What the Supreme Court appears to be saying by the above pronouncement is that the plea of allocutus is strictly reserved for the person already found guilty of the offence charged and duly convicted. In other words, while the role of the defence counsel as a hired advocate is appreciated, counsel’s advocacy ends the moment there is a conviction. While as counsel, he is hired to plead the cause of his client (the defendant), he is not permitted to plead for leniency in sentencing by way of allocutus. At the stage of allocutus, a convicted person who feels he has something to say to the court in persuasion should do so by himself or herself. The court might appear to be more interested in listening to the voice of the convict, rather than the voice of counsel.

Although the position of the Supreme Court on allocutus accords with the tradition in criminal prosecution, it however appears to go against what has become the norm, especially in Nigeria today. Oftentimes, Judges entertain allocutus by lawyers on behalf of their convicted clients. The practice has never really posed any problems. Thus, what was the problem in the above case that led to the position taken by the Supreme Court?

The problem

In Francis v. FRN, the Appellant (Nweke Chibueze Francis) was convicted on 7 December 2009 by the Federal High Court, Lagos for dealing in cocaine. The Appellant’s Counsel sought an adjournment to enable her tender some materials in court in support of a plea for leniency (allocutus). The prosecuting counsel did not object to the application. But the Court refused the application and thereafter invited the Appellant to present his allocutus before sentence would be passed. Counsel stood up and rendered the following plea (at page 411 of the report):

The convict is the first offender who has not wasted the time of this Court in going through the whole trial of the charge. He is the bread winner of the family, with an aged mother in the village to take care of. He has been in detention since 14/5/2009 without any financial assistance from anybody. He is a young man of 25 years old. If given a further opportunity (he) would be useful to the society at large and to himself. The essence of sentencing has been decided in plethora of authorities is not to punish an offender but to rehabilitate and reform the offender, especially when the offender has pleaded guilty. The convict has no previous record known to me. Based on this, I humbly urge the Court to be lenient while pronouncing sentence. I urge the Court to temper justice with mercy.

The learned trial Judge, Abang J., was unmoved. His Lordship sentenced the Appellant to imprisonment for life, being the maximum sentence prescribed by Section 11(b) of the National Drug Law Enforcement Agency Act.

The Appellant appealed to the Court of Appeal on the grounds that the trial Court was wrong to have refused the application for adjournment sought to enable Counsel present materials for allocutus. Also, it was argued that the life imprisonment passed was excessive. The appeal was dismissed. A further appeal to the Supreme Court was struck out for being incompetent. This was on 22 May 2020. The apex Court also considered the merits of the appeal and found no merit in it.

Still on allocutus, the Supreme Court further observed (at page 411 of the report) that the allocutus by Counsel to the Appellant is an act contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC) which prohibites a lawyer from acting as a witness for the client. Thus, the Court considered most aspects of the plea by Counsel (quoted above) as amounting to a witness’ testimony. 

The big lesson and way out

The big lesson is that, going by the position of the Supreme Court, lawyers must be mindful during the stage of allocutus. The ideal thing to do is to prepare the defendant for such exercise. The Court would appreciate listening to the voice of the defendant upon conviction, searching for compelling points that could sway the mind of the Court. The Court would love to see genuine remorse and sincerity that flows from the heart.

After the presentation, Counsel may further amplify what the convict had said to the Court, using persuasive skill that proves him or her a true and worthy advocate. Advocacy skill sometimes appears inborn, but could also be learnt. Proper use of words is key. In preparing the client for allocutus and in amplifying the plea of his client, Counsel needs to be creative, avoiding the usual lines often used by others but without necessarily advancing falsehood. Counsel should ensure that the distinctive points peculiar to his client are presented. 

Conclusion

The Courts are urged never to shut Counsel from addressing the Court at the stage of allocutus, notwithstanding the position of the Supreme Court. This is especially where the ears of the Court yearns for more information before sentence could be passed. It is respectfully submitted that doing this does not amount to an affront on the authority of the Supreme Court. Amplifying what the convict had said is the distinguishing factor. Some persons may have speech impediment manifesting in different forms. Thus, trial courts should be mindful while following the Supreme Court’s guide. 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

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