COSTS, COMPENSATION, DAMAGES AND RESTITUTION UNDER THE ACJA 2015 Enosa Omoghibo Esq. Chairman’s Special Unit ICPC HQs, Abuja.

INTRODUCTION THE JURISPUDENCE OF COST IN CRIMINAL JUSTICE ADMINISTRATION The demands of justice cannot be fully met if the victim of crime is not compensated even though the offender is convicted and jailed. Restorative justice serves best the needs of society, the victims of crime and the vulnerable persons. It reinforces deterrence as one of the goals of any criminal legislation.

COSTS, COMPENSATION AND DAMAGES UNDER THE CPA Provided for under Part 2, Sections 255 – 260 of the CPA. The provisions contained in the above sections of the CPA were geared towards costs incurred by the Prosecutor; cost in favour of the accused for vexatious charge. Further provides that these costs can be recovered as fines and imprisonment can result in the event of refusal to pay them and such award is appealable.

COSTS, COMPENSATION AND DAMAGES UNDER THE CPC Provided for under Part 9, Sections 365 – 367; 371 of the CPC. The provisions contained in the above sections of the CPC are more ‘Victims’ of crime friendly than the CPA. Provisions were made towards: costs incurred by the Prosecutor, Compensation to the Victim in part or in whole, Compensation to an innocent purchaser for value of any property he has to give up as a result of the crime, Compensation to an accused person tried on a vexatious charge. Further provides that these costs can be recovered as fines and imprisonment can result in the event of refusal to pay them and such award is appealable.

COSTS, COMPENSATION AND DAMAGES UNDER THE ACJL [L AGOS ] Provided for under Part 20, Sections 285 – 289 of the ACJL [Lagos], The provisions contained in the above sections are similar to those of the CPC. Provisions were made towards: costs awarded against a private Prosecutor, Compensation to an accused person tried on a vexatious charge, costs can be recovered as fines and imprisonment can result in the event of refusal to pay Further sections 290 & 291 provides for restitution and disposal of property allegedly connected with the commission of a crime.

COSTS, COMPENSATION, DAMAGES AND RESTITUTION UNDER THE ACJA - Under the ACJA 2015, elaborate provisions were made for costs, compensation damages and restitution. - These provisions are contained in Part 32, Sections 319 – 328 of the Act. - As we consider the specific provisions, we invite you note the innovations and shortfalls introduced by this Act.

SPECIFIC PROVISIONS [1] - Section 319 (1) Provides thus: “A court may, within the proceedings or while passing judgment, order the defendant or convict to pay a sum of money: (a) 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; (b) 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; and (c) in defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence.”

SPECIFIC PROVISIONS [2] - As a follow-up, Section 319 (3) adds thus: “Order for cost or compensation may be made under this section irrespective of the fact that no fine has been imposed on the defendant in the judgment.” QUIZ “In slide 7, what is the import of the under- linings?”

SPECIFIC PROVISIONS [3] Section 320 (1) of the ACJ Act provides: “At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into consideration any sum paid or recovered as compensation under this section.” Section 320 (2) further provides: “The pendency of criminal proceedings shall not be a bar to a civil action in respect of the same subject matter.”

SPECIFIC PROVISIONS [4] o The power of the court to order restitution as the justice of the case demands is provided for in section 321 of the Act. o Specifically, section 321 provides thus: o “A court after conviction may adjourn proceedings to consider and determine sentence appropriate for each convict: (a) 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; or (b) Order for the restitution or compensation for the loss or destruction of the victim’s property and in so doing the court may direct the convict:

SPECIFIC PROVISIONS [4] CON’TD (i) to return the property to the owner or to a person designated by the owner, (ii) where the return of the property is impossible or impracticable, to pay an amount equal to the value of the property, or (iii) where the property to be returned is inadequate or insufficient, to pay an amount equal to the property calculated on the basis of what is fair and just.”

SPECIFIC PROVISIONS [5] Section 322 of the ACJA empowers the court to award cost against a private prosecutor in the event that the defendant is acquitted after trial. It is worthy of note here that who falls within the definition of a private prosecutor is clearly spelt out in sub section (2). Section 323 (1), (2) & (3) appears to compliment section 322 in that here the courts are empowered to award cost or compensation in favour of the defendant if the it appears to the court that the charge upon which trial was commenced is false, vexatious or frivolous. QUERY Is there a problem here for the Prosecutor? What will be a possible defense of the Complainant?

SPECIFIC PROVISIONS [5] CON’TD HINTS [I]: In section 322 (1) & (2), the word “Private Prosecutor” is used. Who a private Prosecutor is as applicable under this section was also defined. In section 323 the word “Person” is used. The inference here is that the “person who causes the arrest, or the arrest and charge of a defendant” would be the complainant (Petitioner) as in the Commission’s case and not the Prosecutor. HINTS [II]: In this regard, the CPC, CPA, ACJL [Lagos] appears to be more robust than the ACJA. See and compare section 371 (2) (a) of the CPC; section 255 (3) of the CPA; and section 285 (2) of the ACJL [Lagos] Section 323 (3) of the ACJA provides the right of appeal though.

SPECIFIC PROVISIONS [6] In Section 324 (1), (2) & (3) of the ACJA, provides that compensation may be refused. If it has been paid though or the person against whom it was awarded has served a prison term for failure to pay, the fact of paying or the prison term will act as a bar to any further action for the same injury. This must be explained to the person in favour of whom compensation is awarded. Section 325 provides that any compensation awarded under this Act or any other Act relating to any criminal proceeding, may be enforced as if it were a fine.

SPECIFIC PROVISIONS [7] Section 326 makes novel provisions and is worthy of note. (1)“Where a convict is ordered to pay a fine, or a defendant is ordered to pay compensation to another person under section 319 of this Act, or a person is subject to recovery of penalty for forfeiture of a bond under this Act, the Court passing the sentence or making the order may, notwithstanding that, in default of the payment of the fine or compensation or penalty, the convict or defendant may be imprisoned, issue a warrant for the levy of the amount by any means permitted by law, including: (a) The seizure and sale of any movable property belonging to the defendant or convict; (b) The attachment of any debt due to the defendant or convict; and (c) Subject to the provisions of the Land Use Act, the attachment and sale of any immovable property of the convict situated within the jurisdiction of the court.”

SPECIFIC PROVISIONS [8] Section 327 of the ACJA empowers courts to exercise various powers in relation to fines and compensations. They include: (a)Allow time for payment of the fine; (b)Direct that the fine be paid by installments; (c)Postpone the issue of a warrant under section 326 of this Act; (d)Without postponing the issue of a warrant under section 326 of this Act, postpone the sale of any property seized under the warrant; and (e)Postpone the execution of the sentence of imprisonment in default of payment of the fine. o The exercise of these powers though must be based on the provision of security from the defendant or convict.

SPECIFIC PROVISIONS [9] Section 328 provides: (1)Where in a charge of an offence relating to property and the court is of the opinion that the evidence is insufficient to support the charge, but that it establishes wrongful conversion or detention of the property, the court may order that such property be restored and may also award reasonable damages to the person entitled to the property. (2)The damages awarded under this section, shall be recovered in like manner, as prescribed in section 325 of this Act.

CASE STUDY Mr. Tim is a level 6 official in a Federal Government Agency. He has built a fortune round the illegal business of job racketeering. In October, 2015, he was arrested pursuant to a report made to the Commission by 10 young graduates. They showed evidence of having deposited N500, each into his UBA account N in return for jobs which he never gave. These deposits were reflected on his bank account statement for the given period though the amount standing to his account is just above N35, at the time of investigation. Further investigations ordered by the Hon. Chairman under section 44 of the Act reveals that Mr. Tim bought a large parcel of land at Kuje in September, He also owns a 2014 toyota sienna bus car and a 2014 toyota venza. The file has been assigned to you and you have prepared charges against Mr. Tim with ten counts under section 10 of the ICPC Act. During the proceedings, what orders of restitution or compensation would you ask for and under what section of the ACJA would you anchor your application?

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