When Pleading Guilty to a Charge Means Not Guilty: The Curious Case of Evans

On 10 June 2017, Nigerians woke to the news that the Police had apprehended an alleged kidnap kingpin Chukwudumeme Onwuamadike, better known as Evans. Evans, 36, and a native of Umudim Village, Nnewi North Local Government Area of Anambra State, had been the top name on the watch list of the Nigerian Police for a while, with a ₦30,000,000.00 (Thirty Million Naira) bounty placed on his head. He is suspected to have been responsible for a series of high-profile kidnappings in the country and reputed to be one Nigeria’s wealthiest alleged criminals, once described as “most wanted,” “vicious” and “highly notorious.” His capture by the Police Intelligence Response Team, right inside his bedroom in his palatial home in the Magodo area of Lagos was, therefore, a source of ecstasy to a wide generality of Nigerians.

The news of his arrest was soon followed by a successive series of drama – the police, within a very short space of time, unwittingly turning Evans into a media celebrity. He granted a series of interviews to major media outlets while photos of his luxury properties and booties, ostensibly the proceeds of a long career in crime, received wide publication. Evans’ wife and his family felt the compulsion of the media circus to make emotional appeals for him to be forgiven and released. Some Nigerians bought into the movement, launching a #FreeEvans hashtag on social media. And then Evans disappeared from prison, if the account of a national daily (not Daily Times) is to be believed, or he simply went incommunicado. In that time, Evans managed to instruct a legal practitioner to commence a fundamental rights enforcement action against the Inspector General of Police. All the necessary elements were therefore set for the trial of the century or the Nigerian equivalent of an O. J. Simpson or Oscar Pistorius style trial, with neutrals earnestly looking forward to one.

And then came Wednesday 30 August 2017, when Evans and his cohorts: Uche Amadi, Ogechi Uchechukwu, Okwuchukwu Nwachukwu, Chilaka Ifeanyi and Victor Aduba were arraigned before a Lagos State High Court sitting in Ikeja, presided over by Honourable Justice Hakeem Oshodi on a two-count charge of conspiracy to commit the offence of kidnapping and kidnapping presumably under Sections 411 and 271(3) of the Criminal Law Cap C17 Laws of Lagos State 2015. Contrary to the expectations of most observers, Evans, Amadi and Nwachukwu reportedly pleaded guilty to the charges while Uchechukwu, Ifeanyi and Aduba pleaded not guilty.

Consequently, Mr Adeniji Kazeem, the Lagos State Attorney General and Commissioner for Justice who led the prosecution team reportedly applied for trial dates for the ones that pleaded not guilty and requested the court to adjourn for sentencing for those that pleaded guilty. On his part, counsel for the defendants, Olukoya Ogungbeje, while not objecting to the application by the Honourable Attorney General, however, informed the court that he and his team had not been given the opportunity to “confer” with their clients. Soon after, Mr Ogungbeje was reported to have said that the defendants were coerced into entering the plea of guilty and so intend, at the next date to change their plea from guilty to not guilty. In other words, the trial of the century is back on.

The aim of this commentary is to interrogate some of the positions taken by the parties in the above case and to specifically answer certain questions including the implications of Evans and co pleading guilty? Whether the Attorney General was right to apply for the sentencing of the defendants by reason of their plea? Whether counsel to Evans can indeed successfully contend that his plea be changed to not guilty? Before then, however, it is necessary to offer a brief explanation of some relevant legal principles which run through the jurisprudence of most common law countries, of which Nigeria is one, including the basis for which these questions will be answered.

It is a settled position of law in Nigeria that a person cannot be convicted of a crime unless the offence is defined and the punishment thereof is stipulated by a written law. This is a right enshrined under Section 36(12) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended. In other words, to succeed in the case against Evans and his co-defendants, the offences charged [that is, conspiracy to commit the offence of kidnapping and the offence of kidnapping] must have been created by a written statute passed by the appropriate legislative authority (e.g. the Lagos State House of Assembly) and which must set out sufficient ingredients including the penalty, to make the offence distinctive.

There is yet another principle is that which reads in its original Latin form: actus non fasit reum, nisi men sit rea which literally translates as a person cannot be found guilty of a crime, except his mind also be guilty. This is the most important but also probably the most misunderstood principle in criminal law. It is this principle that ensures that despite the presence of eye witnesses to the death of a person occasioned by another, a court may nevertheless find such person not guilty of murder on account of defences such as insanity, intoxication, provocation, self-defence, among others.

Another fundamental pillar on which our criminal justice system is built is that the burden of proving that any person is guilty of an offence lies on the party who asserts that an offence has been committed i.e. the prosecution or the State, and the standard of this proof is beyond reasonable doubt. Therefore, if at the end of a case, any doubt remains in the mind of the Judge as to the guilt of the defendant, such doubt must be resolved in favour of the defendant who must then be discharged and acquitted.

Also worthy of note is that a person cannot be charged under a repealed enactment. Courts have variously held that where a subsequent legislation revokes an earlier legislation, courts will no longer rely on the revoked legislation because it no longer has the force of law from the date of the revocation and becomes moribund or dead. Thus, where a law is repealed, either in whole or in part, a person alleged to have committed an offence after the new law comes into force must be charged under the new law otherwise any conviction under the whole law will be quashed on appeal.

As if the above-stated principles are not exhaustive enough, upon being arraigned, the Nigerian criminal justice system provides for a broad spectrum of options to a defendant. He may challenge the jurisdiction of the court to try him or the competence of the charge; he may refuse to plead to the charge or even stand mute; he may also simply plead guilty or not guilty to one or more or all the charge(s) against him. Where a defendant pleads guilty to a charge, the court is then required to satisfy itself first that the defendant understands the nature of the offence wherewith he is being charged, and also that by the plea of guilt, he intends to admit the truth of the essentials of the offence charged. To ensure that this is the case, after a defendant has pleaded guilty to a charge, Section 213(2) of the Administration of Criminal Justice Law of Lagos State (ACJL), 2011 mandates the court to invite the prosecution to state the facts of the case and thereafter inquire from the defendant whether his earlier plea of guilty is to the facts as stated by the prosecution. It is only after the court is satisfied that the defendant intends to admit the truth of the essentials of the offence that the court may then proceed to convict the defendant and pass sentence on him, in the absence of sufficient reason to the contrary. All of these requirements are mandatory and a breach of any of the procedures before conviction and/or sentencing will result in an appellate court overturning the verdict. Where, however, it appears to the court that the plea of guilty was not voluntary, the court will not countenance same.

One more piece to complete the puzzle, none of the above applies to a situation where a defendant is charged with a capital offence i.e. an offence punishable with a penalty of death. By 213(3) of the Administration of Criminal Justice Law, where a defendant pleads guilty to a capital offence, the court shall not record such a plea but must record a plea of not guilty and proceed with the trial as though the defendant pleaded not guilty.

While I have admittedly been unable to assess the charge sheet in the Evans trial, most accounts state that the defendants were charged under the Criminal Law of Lagos State 2015. This development raises more questions than answers.

By 271(3) of the Criminal Law, the offence of kidnapping is punishable with imprisonment for a term of 21 years. However, the Lagos State House of Assembly on 5 January 2017, passed a Kidnapping Bill 2016 which was thereafter signed into law by the State Governor on 1 February 2017. Under the Kidnapping Law, the offence of kidnapping is punishable with life imprisonment, and where the victim died in the custody of the defendant, the offence is punishable with death. It is therefore plausible to contend that the Kidnapping Law of Lagos State 2017 has repealed, either expressly or by necessary implication, Section 271 of the Criminal Law Cap C17 Laws of Lagos State 2015 which hitherto provided for the offence of kidnapping within the geographic boundaries of Lagos.

From the accounts of what transpired in court on 30 August 2017, after Evans and some of the other defendants pleaded guilty to the charges, the Attorney General while stating the facts of the case in compliance with Section 231(1) (ii) ACJL 2011, informed the court that the alleged offences took place between 14 February and 12 April 2017. This further raises the question whether or not Evans and co ought to have been charged under the Criminal Law 2015 or the Kidnapping Law of 2017 having regard to the earlier elucidated principle of charging a person under a repealed law.

Taking it a step further, if the defendants in question were charged in respect of a victim who later died in custody [which does not appear to be the case here] then the punishment will be the death penalty and it, therefore, becomes immaterial whether they pleaded guilty or not as the court will be bound by law to enter a plea of not guilty for them. In such a case, the prosecution will also be wrong to request a date for sentencing and it will be superfluous on the part of the defence counsel to threaten to apply to the court to change the plea of the defendants to not guilty. Once again, these are only possible conjectures of what may or may not transpire in this case. But one thing is certain, whether the defendants plead guilty or not guilty, all we want is our trial of the century.

Orji is part of the Dispute Resolution Team of one Nigeria’s foremost Law Firms and writes from Lagos, Nigeria. He can be reached at orjiagwuuka@nigerianbar.ng