S’Court to Determine if State AG Can Nominate Lawyer from His Chambers to Defend Accused

Tobi Soniyi in Abuja

Ogun State has filed an appeal against the judgment of a Court of Appeal which held that the state Attorney General and Commissioner for Justice could not at the same time be the prosecutor and at the same time the defence counsel in a criminal trial.

The Supreme Court in appeal number SC/449/2014, is being asked to determine whether the state AG who prosecuted a criminal trial was right in nominating another lawyer from his ministry to defend an accused he is prosecuting.

If the Supreme Court upturns the judgment of the Appeal Court, it then means that the attorney-general, who is always the prosecutor in a criminal matter against the state can also represent an accused person in the same matter.
The Court of Appeal sitting in Ibadan had upheld the appeal of one Akeem Jimoh who was convicted for armed robbery in 2005 by an Ogun State High Court.

In setting aside Jimoh’s conviction, the Appeal Court held that the state could not be the prosecutor and at the same time the defence counsel in a criminal trial.

The court held that Jimoh did not get fair trial since he was not allowed to get a counsel of his choice before being sentenced.

The court freed the suspect, who was sentenced to death for not being given fair trial.

The court, in ordering Jimoh’s release said he was not given fair trial at the high court.

Justice Monica Dongban-Mensem who delivered the lead judgment upheld the argument of his counsel, Mr. Musibau Adetunbi that it was wrong for the state AG who prosecuted the case to nominate another lawyer who was also in the employment of the Ogun State government to be the defence counsel.

The court held that ‎Jimoh had been in prison custody due to lack of fair hearing and should not be subjected to re-trial as doing so would amount to double jeopardy.

However, ‎the court ordered a fresh trial of another suspect, Mr. Mathew Ibiloye, whose right to fair hearing was also found to have been breached.
Jimoh and Ibiloye were arrested for armed robbery about 10 and 11 years ago and were convicted and sentenced to death.

Shortly after the lower court sentenced them to death, their counsel, Adetunbi, challenged their conviction on appeal.

According to him, the Attorney-General of Ogun State was the prosecutor and the respondent in the case.

Adetunbi had told the court that a department in the state’s ministry of justice, Citizens’ Rights Department should not have been involved in defending the accused during the trial.

To him, the action of the attorney-general of the state in defending the accused persons offended the principle of natural justice.

After parties in matter made their submission, Justice Mensem in her judgment nullified the conviction and sentencing of Jimoh.

The court held: “In this appeal, it is certainly strange to this court and no doubt obnoxious to know that the defending counsel is the same as the prosecuting counsel in that the learned counsel each acted as representatives of the Attorney-General of the Ogun State, Ministry of Justice.

“I find the conviction and sentence of the appellant in the circumstances unsupportable in law being a nullity. The appellant cannot be said to have had a fair trial. Accordingly, the decision of the learned trial court is hereby set aside as null and void. It would constitute a double jeopardy to subject the appellant to another trial.

“The just thing to do therefore is to put an end to the travail of the appellant who has been in prison since his conviction and sentence on 21/06/05. The appellant is discharged and acquitted from prison forthwith.”
Ibiloye was however not that lucky as the court ordered that his trial‎ should begin afresh.

Justice Chidi Uwa, in a separate judgment agreed that the Attorney General of the state was wrong to have acted as the prosecutor and defendant in the case. He therefore set aside the conviction and the sentence passed against Ibiloye.

Justice Uwa said: “In conclusion, I hold that the appeal has merit and is hereby allowed. Suit no. AB/8R/2007 is remitted back to the Chief Judge of Ogun State for trial de novo before another judge of the Ogun State High Court. The trial should be accelerate‎d considering the age of the matter.”
‎While the case was on, Adetunbi had told the attorney-general of the state that it was an injustice against his clients, the act of counsel from a department in the ministry of justice representing his client because the same case was being prosecuted by the same ministry.

‎ Adetunbi had argued, “Our contention is that the ministry of justice of Ogun State is a single ministry under the direct supervision of the learned Attorney-General and Commissioner for Justice, Ogun State.

“The fundamental yet elementary principle of law that justice must not only be done but must be seen visibly to all that justice is indeed done and thus no matter how perfect the proceeding‎ or the skills of the counsel from the citizens’ right department, the outcome of such a proceeding cannot be seen as justice as the ministry of justice under disguise is playing for both teams on either side of the pitch.”