When one may Appeal against Conviction despite Pardon By State

Pardon connotes official decision of government not to punish somebody for a crime; it means to officially allow somebody who has been found guilty of a crime to leave prison and/or to avoid punishment; see FRN v. Dingyadi (2018) LPELR-46061(CA) and Adeola Vs State (2017) LPELR 42327(CA).
It is normally granted by president or governor, as the case may be, under sections 175 or 212 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is generally an act of grace. Therefore it needs not be legally and or morally justified; it is purely a political contrivance. See FRN v. Alkali & Anor (2018) LPELR-45237(CA) Against the backdrop of the foregoing, is there need to appeal against conviction when state has already granted pardon?

Pardon has a limited scope. Much as it wipes out consequence of conviction, it does not entitle one to be given back properties that were confiscated as a result of conviction.
In such a circumstance, if a convict who was pardoned wants to get his properties back, his option is to appeal against his conviction.

See the case of Okongwu v State (1986) 5 NWLR (Pt. 44) 741 at 750. where this position was enunciated by Akpata J. C. A (as he then was) as follows:
“It must be noted that what has been confiscated from a person as a result of his conviction for the offence committed by him will not necessarily be returned to him by reason of the pardon. For instance, if a person is found guilty of embezzlement of public funds and certain immovable and or movable properties allegedly acquired by him with the ill-gotten gains are confiscated by the Government, such properties will not be returned to him because of the pardon.”

The court did not stop there, Akpata J.C.A said the beneficiary of pardon can appeal against conviction as a matter of right. In his words:
“It will be wrong therefore to deny such a person the opportunity of proving his innocence by way of an appeal, so that if he succeeds not only his innocence that will be restored, the properties seized will also be returned to him. Pardon unlike an acquittal is not total. In effect a person who has been convicted and granted a pardon is still at liberty to appeal against such a conviction.”

What happened in this case was that the Appellant therein, who was the Solicitor-General of Anambra State, was summarily convicted for contempt of Court and sentenced to 21 days imprisonment on 11th February, 1983. On the same day, the Governor of Anambra State, Chief Jim I. Nwobodo, issued an instrument of pardon granting a free pardon to the Appellant.

As a result of this instrument, the Appellant was released from custody on the same day. The Appellant however subsequently filed an appeal to the Court of Appeal against his conviction and sentence. During the proceedings, the Court suo motu raised an issue touching on the competence of the appeal, having regard to the fact that the Appellant had already been granted a free pardon, and took the addresses of Counsel. Consequently, the Court held that the appeal was competent. According to the Court of Appeal, the mere fact that he had been pardoned did not preclude him from appealing to seek setting aside of his conviction.

Reiterating the effect of pardon and the right to appeal in the circumstance, Akpata J.C.A said:
“That the appellant in this case was convicted is true, regardless of the pardon. It is an antithesis of truth to indulge in the fiction that pardon wipes out the offence of conviction. What pardon does is, in my view, to wipe away the stigma of the conviction and not the conviction itself. It contains no notion that the person to whom the pardon is extended never had in fact committed the offence. It is a matter of forgiveness. If, indeed, the fiction of pardon blotting out the offence or conviction is valid, this fiction should not prevent the appellant from having his conviction ‘blotted out’ in reality by a competent court.”

As elementary as pardon may appear, its application has been rendered complicated by our courts. One is at lost as to exactly why the Court of Appeal said a pardoned person will not be entitled to restoration of his forfeited properties. Is forfeiture of property not a consequence of conviction? The court seemed to have read into the constitution what is not intended by its framers.

Our constitution is modeled after the US constitution and that’s not the position there. In Osborn v. United States, 91 U.S. 474 (1875), court ordered the return of confiscated property belonging to petitioner who had received a full pardon for aiding the Confederacy.

However, in Knote v. United States, 95 U.S. 149 (1877), due to peculiarity of the case, court rejected pardoned petitioner’s claim for restoration of confiscated property because the funds had already been paid into the U.S. Treasury, and concluded that pardon power does not reach money in the U.S. Treasury unless authorized by Congress. But the Court reiterated that a pardon “releases the offender from all disabilities imposed by the offence, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights.”
In Boyd v. United States, 142 U.S. 450 (1892), due to presidential pardon, competency of a person convicted of a felony as a witness was restored, since “the disability to testify” was a consequence of the conviction under the principles of common law.
Coming back to Nigeria, Court of Appeal in the same Okongwu v State (supra) agreed with the decision in Re-Royal Commission on Thomas Case (1980) 1 NZLR 602, a Commonwealth case, that a beneficiary of pardon can sue for defamation in respect of the same case for which he is pardoned. The court said: “The effect of a pardon under the Great Seal is to clear the person from all infamy, and from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence for which he was convicted.”
Despite the above position it took on defamation which is a suggestion that a pardoned person is now clean and issue of the offence for which pardon was granted should not be raised portraying him as a criminal, Court of Appeal went ahead to say that properties forfeited as a result of conviction cannot be restored.

Interestingly, in Falae vs Obasanjo (1999) 4 NWLR (Pt 599) 476, Court of Appeal stated that: “A pardon…obliterates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence. The effect of a pardon is to make an offender a new man novus homo), to acquit him of all corporate penalties and forfeitures annexed to the offence pardoned.”

This position in Falae’s case is succinct and sound. The effect of pardon is ”to acquit him of all corporate penalties and forfeitures annexed to the offence pardoned.” Thus, the court was right when it held that Obasanjo was competent to contest for the office of the President by reason of the pardon granted to him.

Though, to the best of this writer’s knowledge, the law is yet to be tested, it is hoped that when issue arises as to restoration of forfeited property, court will rule in favour of a pardoned person. It is more logical that way because it makes no sense granting someone pardon but denying him his property which was subject of his conviction.

Be that as it may, the law as it stands today is that a property forfeited as a result of conviction will not be restored by reason of pardon. The beneficiary of pardon must pursue an appeal for his conviction to be set aside if he wishes to have his properties back

O. G. Chukkol, ACIArb (UK), is a final year student, Faculty of Law, ABU, Zaria and may be reached via 08032470318 or [email protected]

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