Cost, Compensation, Damages and Restitution Under the Administration of Criminal Justice Act, 2015; A Commentary
By Anderson Ogaga Djegbada
In Nigeria, it is axiomatic that when an accused person is found guilty of a crime, he is convicted and sentenced to a term of imprisonment and/or fined. In the end, one realizes that the main victor is the state, as one more criminal is taken off the street, while she, the state, is further “compensated” with the fine handed down against the accused person. Unfortunately, the victim of the offence, who suffered financial loss, injuries and/or psychological trauma, is only “compensated” with the fact that the accused person has been convicted and punished. The only option left for the victim was either to file a civil suit to claim for damages, or take solace in the cliché, “let the will of God be done”.
However, with the entrance of the Administration of Criminal Justice Act, 2015 (hereinafter referred to as “the Act”), into the criminal law landscape of Nigeria, the aforesaid position has, to a very large extent, been addressed by Part 32 of the Act. In a nutshell, the writer shall attempt a brief exposition on some of the sections there-under.
By the Provision of Section 319(1) of the Act, the court is empowered to award compensation in a criminal matter. The Section is reproduced as follows;
A court may, within the proceedings or while passing judgment, order the defendant or convict to pay a sum of money:
1. As compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant or convict, where substantial compensation is in the opinion of the court recoverable by civil suit;
2. In compensating a bona fide purchaser for value without notice of the defect of the title in any property in respect of which the offence was committed and has been compelled to give it up.
3. In defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence.
It should be noted that, the use of the phrase, “…within the proceedings or while passing judgment…” gives the court the power to order the defendant or convict to pay compensation to “any person” injured by the offence, even before judgment is given. Interestingly, Section 319(a) of the Act does not use the words, “victim”, “complainant”, rather, it uses “any person”. This, to the writer, suggests that, in a situation where it is shown that some other person(s) (besides the actual victim) was injured by the offence, the said person(s) may be entitled to compensation. However, the court must be of the opinion that substantial compensation (in my own words, “damages”) is ordinarily recoverable in a civil suit.
Section 319(1)(b) of the Act also provides a remedy of some sort, for any person who buys a property without notice of the defect in the title of the seller in respect to which the offence is committed and has been compelled to give it up. Thus, the writer is of the opinion that, where a person, in good faith, buys a stolen property for value, without knowledge of the fact that it was stolen, and the person was eventually made to return the property to the bonafide owner, the defendant, upon being charged to court (say, for stealing) may be ordered to pay the value worth of the property to the innocent purchaser.
Furthermore, by Section 319(1)(c) of the Act, the court can order that compensation be paid to a victim of an offence, for expenses incurred on medical treatment. It is however important to note that, unlike Section 319(1)(a) which uses the phrase, “the defendant or convict”, Paragraph (c) under reference uses the word, “convict”. This suggests that, before the court can order compensation to be paid to a victim in defraying expenses incurred on medical treatment, the defendant must have been convicted. It should also be noted that, by the provision of Section 319(3) of the Act, even where no fine was handed down in the judgment, the court can still order the defendant to pay compensation to any person injured by the offence.
Another intriguing provision of Part 32 is Section 320(1)of the Act. It provides to the effect that, the court, in awarding compensation in a subsequent civil matter, will take into consideration the compensation that was paid in a criminal matter, relating to the same matter. This provision seems to suggest that, even after compensation is awarded in favour of a person in a criminal matter, the person to whom compensation has been awarded can still proceed to claim for damages in a civil action over the same subject matter. This is further strengthened by subsection 2 of Section 320 under reference. However, the writer is of the opinion that the wordings of Section 324(2) may pose some uncertainties as to the applicability of Section 320(1). For ease of reference, Section 324(2) is reproduced as follows;
“Where the person receives the compensation or where the convict, having been ordered to pay compensation, suffers imprisonment for non-payment, the receipt of the compensation, or the undergoing of the imprisonment, as the case may be, shall act as a bar to any further action for the same injury”.
(The above underline is supplied for emphasis)
The phrase, “any further action”, as used in the above quoted provision gives room for diverse interpretations. The phrase, “any further action”,may be interpreted to cover “subsequent civil suit”, in which case, once a person is compensated, the person is estopped from filing a civil suit on the same injury. This interpretation runs contrary to the spirit of Section 320(1) of the Act, which envisages a subsequent civil suit. Another interpretation could also be that, once compensation is paid to the person, he is estopped from taking further actions (e.g., subsequent demand for compensation) during the tendency of the criminal proceedings. The writer hopes that, soonest, these provisions will be tested.
Moving to Section 324(3) of the Act, there is a legal burden placed on the court to explain the consequences of the compensation to the person to whom the compensation is to be made, before going ahead to order same. Upon the said explanation, by virtue of Sub section 1, the person has the right to either accept or reject the said compensation.
Under Section 321 of the Act, the court, upon finding the defendant guilty, can make orders as to restitution, in lieu of or in addition to any other punishment. Thus, the court may order the return of the property or its value worth, to the owner. From the combined reading of the subsections of Section 321 of the Act, particularly subsection 1, the writer is of the opinion that the said provision is wide enough to and empowers the court to even order a convict to pay compensation to the family of the deceased in a murder case. For ease of reference, Section 321(a) is reproduced as follows;
A court after conviction may adjourn proceedings to consider and determine sentence appropriate for each convict:
1. In addition to or in lieu of any other penalty authorized by law, order the convict to make restitution or pay compensation to any victim of the crime for which the offender was convicted, or to the victim’s estate;
It must be resounded that, for the court to award such compensation, the court must have first found the defendant guilty of the charge.
On Section 323 of the Act, where it is obvious to the court that there was no ground for the arrest and prosecution of a defendant, the court can order the person to pay reasonable compensation to the defendant. The provision contemplates cases of malicious prosecution. Note however that, by this provision, a duty is placed on the court to record its reasons for the belief. By the provision of Section 326 of the Act, execution can be ordered against the property of a defendant/convict with respect to fines or compensation.
Also, by virtue of the provision of Section 322 of the Act, cost can be awarded against a private prosecutor or a private person, in favour of the defendant, upon acquittal.
It is obvious that Part 32 of the Act (inpari materia with Part 31 of the Administration of Criminal Justice Law, 2016 of Delta State) on Cost, Compensation, Damages and Restitution, is a novel and welcomed innovation. If properly utilized, it will, in no small measure, assuage the injuries of victims of crimes, and may make unnecessary the filing of civil cases to claim damages for same subject matter. Thus, courts are enjoined to be proactive and bold in awarding reasonable damages in deserving cases.
Finally, States that are yet to domesticate the Act, are encouraged to do so, with necessary modifications.
Anderson Ogaga Djegbada, Esq., is a legal practitioner practicing in Warri, Delta State.