In The Supreme Court of Nigeria
On Friday, the 15th day of December, 2017
Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PML (NIGERIA) LIMITED – Appellant
FEDERAL REPUBLIC OF NIGERIA- Respondent
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): This Appeal deals with the issue of plea bargain and double jeopardy, and involves charge No. FHC/EN/6C/2008 filed at the Enugu Division of the Federal High Court in 2008 and Charge No. FHC/B/11C/2011 filed at the Benin Division of the same Federal High Court in 2011.The Appellant did not feature in the original Charge filed at the Federal High Court, Enugu [FHC Enugu]; it came into the picture as the 7th Accused Person in the Amended Charge No. FHC/EN/6C/2008 – Federal Republic of Nigeria V. Lucky Nosakhare Igbinedion & 6 Ors (hereinafter referred to as Enugu Charge). No pleas had been taken when Prosecution Counsel informed the Court on 17/12/2008 that-
The Accused Persons approached us for settlement and we are about to conclude the terms and also to amend the Charge accordingly. We need a date to report back. We have agreed on tomorrow 18/12/2008.
The Respondent filed the Amended Charge by the said 18/12/2008, but it only listed Lucky Nosakhare Igbinedion and Kiva Corporation, who were 1st and 3rd Accused Persons in the first Amended Charge, as Accused Persons; the Appellant and 4 others were not mentioned. Lucky Nosakhare Igbinedion and Kiva Corporation pleaded guilty to offences relating to each of them and were convicted and sentenced.
However, on 31/1/2011. the Respondent filed another Charge No. FHC/B/11C/2011 – FRN V. Lucky Nosakhare Igbinedion & 6 Ors [Benin Charge] at the Federal High Court Benin Division [FHC Benin]. The Appellant and the other Accused Persons filed a Joint Application at the FHC Benin, wherein they prayed for the following Orders
1. A declaration that this Hon. Court lacks jurisdiction and competence to arraign the Accused Persons/Applicants and to trial (sic), hear and determine the offences contained in these proceedings.
2. An Order setting aside Charge No. FHC/B/11C/2011 – FRN V. Lucky Nosakhare Igbinedion & Ors in the proceedings on the grounds of double jeopardy and condonation arising from Charge No. FHC/EN/6C/2008- FRN V. Lucky Nosakhare Igbinedion & Ors in respect of which Judgment was entered on 18/12/2008 by Hon. Justice A. Abdu-Kafarati sitting at the Federal High Court, Enugu Judicial Division and in respect of which an appeal was filed by the Respondent herein in Appeal No. CA/E/207M/2010 – FRN v. Lucky Nosakhare Igbinedion.
3. An Order of Perpetual Injunction against Federal Republic of Nigeria FRN or any of her agencies, including but not limited to Honorable Attorney-General of the Federation (HAGF), the Economic and Financial Crimes Commission [EFCC]; Independent Corrupt Practices Commission [ICPC] and Inspector General of Police from instituting and or maintaining any criminal proceedings or charge relating to any of the charges contained either in its original or amended form in Charge No FHC/EN/6C/2008 – or any other offences having the same ingredients as the offences contained either in its original or amended form in Charge No FHC/EN/6C/2008 – FRN V Lucky Nosakhore Igbinedion & Ors.
4. An Order of Perpetual Injunction against the FRN or any of her agencies, including but not limited to the HAGF:the EFCC; the ICPC; and the IGP from arresting and or detaining the Accused Persons/Applicants in respect of any matter contained in Charge No. FHC/EN/6C/2008 – FRN V.Â Lucky Nosokhare Igbinedion & Ors either in its original or amended Charge except upon the Orders of a Court superior to this Hon. Court.
5. An Order staying the arraignment of the Applicants/Accused Persons in these proceedings – – – pending the determination of this Application.
The GROUNDS upon which the said Application was brought are as follows-
(i) The Applicants participated – – in Charge NO. FHC/EN/5C/2008 which originated on 22/7/2008 between FRN as complainant and (1) Lucky Nosakhare Igbinedion (2) KIVA Corporation (3) GAVA Corporation (4) Ekpen & Sons Company and (5) Romrig Nig. Ltd. as Accused Persons.
(ii) The said Charge No. FHC/EN/6C/2008 was subsequently amended vide Amended Charge dated 13/10/2008 to read FRN V. (i) Lucky Nosakhare Igbinedion (2) Michael Igbinedion (3) KIVA Corporation Ltd. (4) GAVA Corporation Ltd. (5) Romrig Nig. Ltd. (6) PML Securities Co. Ltd. and (7) PML Nigeria Limited (the Appellant herein).
(iii) The Charge No. FHC/EN/6C/2008 culminated in a plea bargain in the Amended Charge dated 17/12/2008 and filed on 18/12/2008 leaving the Parties thereto as FRN V. (1) Lucky Nosokhare Igbinedion and (2) KIVA Corporation Limited in keeping faith with the said plea bargain.
(iv)The ingredients of the offences in these proceedings i.e. Charge No, FHC/B/11c/2011 (1) Lucky Nosakhare Igbinedion (2) Patrick Eboigbodin (3) Michael Igbinedion (4) GAVA Corporation Ltd. (5) Romrig Nig Ltd. (6) PML Securities Co. Ltd. (7) PML Nigeria Limited [the Appellant] are the same with that in Charge No. FHC/EN/6C/2008 in respect of which the Hon. Justice A. Abdu Kafarati of the Enugu Judicial Division of this Hon. Court delivered the Judgment on 18/12/2008 following a plea
(v) The Respondent curiously lodged an appeal against the said Judgment – to the Court of Appeal in Appeal No. CA/E/207m/2010 – FRN V. Lucky Nosakhare Igbinedion which (is) pending before Enugu Division of the Court of Appeal and in respect of which the appeal has been entered-.
(vi) The present Charge No. FHC/B/11C/2011 is caught by the doctrine of double jeopardy and condonation.
(vii) The present Charge – – is incurably bad and it is a violent abuse of [Court] process by reason of which the Court is deprived of its jurisdiction and competence to arraign, trial (sic), hear and determine same.
The Applicants filed the following processes at the FHC Benin –
– 7-paragraph Affidavit. which has paragraph 3 (i) to (xxiv);
– 7-paragraph Affidavit of Urgency with 8 Exhibits attached;
– 5-paragraph Further Affidavit in support of the Application and
– A 5-paragraph further Affidavit in Reply to Further Counter-Affidavit.
In opposing the Application, the Respondent filed a 38-paragraph Counter-Affidavit and a 9-paragraph Further Counter-Affidavit wherein it was averred that “the 2nd – 7th Accused Persons were never tried, convicted or acquitted for any offence in Charge No. FHC/EN/6C/2008 and there was no agreement at any material time that they would not be prosecuted for any money allegedly laundered through or by them” -paragraph 7 (b) of Further Counter-Affidavit.
In his Ruling delivered on 31/5/2011 the learned trial Judge Hobon, J, granted the Application as prayed by 1st Accused Person, Lucky Igbinedion, and discharged him from the said proceedings. However, as regards the other Accused Persons he held as follows-
None of the 2nd-7th Accused Persons has shown or adduced evidence to show that he went through or under any trial and was convicted or acquitted or pardoned. No evidence of any plea bargain agreement with the persecution or commission to drop or condone the charges, which they are now called upon to answer for the second time. In fact nothing is disclosed in their favour on any of the Grounds the Application is founded. In the absence of any evidence, the doctrine of double jeopardy and abuse of Court process is not available and open to any of the 2nd-7th Accused Persons/Applicants— It appears upon the totality of this case, the Grounds upon which the Application is founded and all points raised, each is traversed, and considered and none is established by the 2nd-7th Accused persons/Applicants, including a plea for pardon, under Section 36(10) of the Constitution. Consequently, their Application must fail in entirety (sic) and be so dismissed. It is hereby dismissed entirely for lack of merit, frivolity and wanting in bona fide. Each of them is called upon to enter his plea.
Dissatisfied with the Ruling, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing eight Grounds of Appeal. In dismissing his Appeal, the Court of Appeal concluded as follows-
Learned lead counsel predicated the entitlement of the Appellant to all or any of the defences and plea the Appellant is said to be entitled to (and all of which the lower Court found the Appellant not to be entitled to) on the plea bargain between the Prosecution and the Appellant in the FHC Enugu Charge. Needless to say and having found that there was never a plea bargain agreement between the Appellant and the Prosecution in any respect in the FHC Enugu Charge, it follows that the Appellant ipso facto cannot be entitled to all or any of the defences of condonation, plea of autrefois convict, doctrine of double jeopardy and abuse of Court process, which were predicated on a non-existent plea bargain between the Prosecution and the Appellant— In the final analysis, the instant appeal, is unmeritorious and is hereby dismissed.
Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing eleven Grounds of Appeal, and he formulated five Issues for Determination in his Brief of Argument, as follows –
(1) Whether the Court of Appeal was right when it held that the plea bargain agreement/arrangement entered into in Enugu with EFCC (Respondent) does not inure to the benefit of the Appellant herein.
(2) Whether the Court of Appeal was right when it held that a crime cannot be condoned by the State.
(3) Whether the Court of Appeal was right when it held that the plea of double jeopardy was not available to the Appellant.
(4) Whether the Court of Appeal was right when it held that the Charge preferred against the Accused Person leading up to this Appeal did not constitute an abuse of Court process.
(5) Whether the Court of Appeal did not misdirect itself and occasion a serious miscarriage of justice when it summarised the evidence incorrectly in favour of the Respondent by erroneously holding that the Appellants lead counsel herein continued to appear as counsel for the 4th Accused Person to the original Charge dated 22/1/2009 – Ekpen and Sons Company, when in fact, the name of the said 4th Accused Person had been struck out by the trial Court on 23/7/2008.
The Respondent, however, submitted in its Brief that this Appeal can be effectively determined by two Issues for Determination; that is
1. Whether the Court of Appeal was not right in affirming the decision of the trial High Court that there was no plea bargain agreement between the Appellant and the Respondent in respect of the Charge before the Federal High Court Enugu; and
2. Whether the Court of Appeal was not right in affirming the decision of the trial High Court that the Appellant is not entitled to any of the defences of condonation, plea of autrefois convict, doctrine of double jeopardy and abuse of Court process.
I agree with the Respondent and will adopt its two Issues in dealing with this Appeal. In my view, the Appellant’s Issues 1-4 amounts to mere splitting of hairs, and its Issue 5 is totally unconnected because the 4th Accused Person it mentioned is not a Party to this Appeal.
Even so, the key question that rears its head in this Appeal is whether there was a plea bargain agreement between the Appellant and the Respondent during the said proceedings at the FHC Enugu.
Plea bargain is an imported concept, and as the Court of Appeal per Lokulo-Shodipe, JCA, observed in the Lead Judgment he wrote-
In the criminal jurisprudence in this country, it would appear that plea bargain as a prosecutorial strategy or tool is an emerging phenomenon, thus, there would appear to be no codified guidelines in relation to it as it obtains in some other jurisdictions. It would also appear that there is a dearth of authorities of our Courts therein as it is an emerging phenomenon.
The Respondent also pointed out that the first legislation to localize and import plea bargain into Nigeria’s criminal jurisprudence is the Administration of Criminal Justice Law of Lagos State (ACJL), 2011.
The second is the Administration of Criminal Justice Act, 2015, [ACJA] which provides in its Section 270 (1) that “notwithstanding anything in this Act or in any other law, the Prosecutor may:
(a) Receive and consider a plea bargain from a Defendant charged with an offence directly from that Defendant or on his behalf;
(b) Offer a plea bargain to a Defendant charged with an offence.
The Respondent submitted that the application of the ACJL is limited to Lagos State and is, therefore, not applicable in this case, and that the ACJA was not in existence at the time of the facts of this case.
The point is well taken but the fact remains that this Appeal is not concerned with the legality or otherwise of the said plea bargain entertained by the FHC Enugu in 2008 This Appeal is predicated on the Application challenging the jurisdiction of the FHC Benin to try, hear and determine the offences in the Benin Charge filed in 2011.
The Appellants grouse is that he is covered by the plea bargain arrangement at the FHC Enugu and once Lucky Igbinedion was held to suffer double jeopardy, same must go for him since they were all taken into consideration before the Enugu charge was terminated.
In resolving the issue of whether the plea bargain covered him,the Court of Appeal per Lokulo-Sodipo JCA , specifically stated that-
The concept of plea bargain – – clearly operates in personam, so to say and not by privy or proxy. By this I mean that a plea bargain must be a deliberate and conscious act taken by the Prosecutor and a particular Accused person or specific Accused Persons in a Charge wherein the Accused Person or each of the specified Accused Persons must suffer a conviction (I have advisedly not used the word sentence) no matter how insignificant or trivial the offence to which the conviction relates. Undisputedly, the Appellant personally never suffered a conviction of any
kind in respect of any of the Charges that came up before the FHC Enugu. This condition is sine qua non for a plea bargain to be in place between the Prosecutor and an Accused relying on plea bargain. An Accused Person, who alleges that he had a plea bargain with the Prosecutor, cannot emerge from the matter unscarred or without blemish or stigmatization of conviction. Going by all the arguments or submissions of learned lead counsel – – the said Appellant has not been shown to have come out worse than when it came before the Court. Indeed, if the position of learned lead counsel for the Appellant that there was a plea bargain between the Appellant and Prosecuting Counsel in the Charge before the Enugu FHC is correct, the Appellant would appear to have emerged from its situation much better than when it was brought before the Court. This is because without having undergone any trial talk less of suffering any form of conviction, it would not want to be tried at all for the matter in respect of which he was initially brought to Court or any offences related thereto. The main purpose of criminal trial is to ensure that a person, who has chosen to break any aspect of the criminal law, is not left to go scot free and for this reason the Prosecution has to establish the guilt of on Accused Person beyond reasonable doubt to pave the way for his punishment by law. The concept of plea bargain has in no way derogated from the purpose or objective of criminal prosecution given the fact that before an Accused can benefit from the arrangement, the Accused in question must plead guilty to some form of offence and of course, be convicted for what he has pleaded guilty to. It would therefore appear indisputable that to the extent that it is the pleas of guilty of Lucky Igbinedion and Kiva Corporation Ltd that the Appellant relies upon in respect of its plea bargain, no plea bargain can be said to have been made between the Appellant and the Prosecution, And that the plea bargain in the Charge entertained by the FHC Enugu was between the Prosecution and Lucky Igbinedion and Kiva Corporation.
In arguing that the Court of Appeal is wrong, the Appellant submitted that it is a corporate entity that can only act through human medium or agency-NNSC Ltd. V. Sabana & Co. Ltd. (1988) NWLR (Pt.74) 23, Lennards Carrying Co. Ltd. V. Asiatic Co Ltd. (1915) AC 705, Longe V First Bank (2010) 6 NWLR (Pt.1189) 1. Trenco Nig. Ltd. V. African Real Estate & Inv. Co. Ltd. (1978) ALL NLR 724, (1978) 4 SC 8 cited.
Furthermore, that it cannot act except through humans, and if Lucky Igbinedion is let off the hook in respect of the Enugu Charge, any other person connected to it through him as agent or accomplice must also be let off the hook, citing Idiok V. State (2008) 13 NWLR (Pt. 1104) 225, Ebri V. State (2004) 11 NWLR (Pt. 885) 589, Okoro V. The State (2012) 4 NWLR (PT. 1290) 351, Adele v. State (1995) 2 NWLR (PT.377) 269, and Kalu V. State (1988)4 NWLR (PT 90) 503.
It argued that the Enugu charge was amended after the Parties reached a compromise, and once Parties have agreed and it is given effect, none of the Parties should be allowed to renege or go back on the promise made – Att-Gen., Rivers State V Att-Gen., Akwa Ibom State (2015) 8 NWLR (Pt.1248)31, Ude V. Osuji (1998) 10 SCNJ 75, Mil. Gov., of Lagos State v. Adeyiga (2012) 5 NWLR (Pt 1293) 297, Anaeze V. Anyaso (1993) 5 NWLR (PT 291) 1, Att-Gen., Nasarawa State V. Att-Gen., Plateau State (2012) 10 NWLR (PT 1309) 419, BFI Group Corporation V. BPE (2012) 18 NWLR (PT 1332) 209 and Maiyegun V. The Gov., Lagos State (2011) 2 NWLR (PT 1230) 154.
It further argued that the proceedings of 17/12/2008 covered all the Accused Persons because they were represented by Counsel; that the authority of the Counsel cannot be questioned or limited and he has authority to compromise any aspect of the Client’s case; and that this principle affects both Parties as they were represented by counsel, who decided to compromise on certain Issues – Ogboru V. Uduaghah (2013) 13 NWLR (PT 1370) 33 and 5 other cases cited.
The Respondent proffered arguments on the facts leading up to the Enugu Charge; reasons for amending same; and why the name of the Appellant did not reflect in the Amended Charge of 18/1/2008. However, this Appeal, as I said, is only concerned with the issue of whether there was a plea bargain agreement between both Parties.
As it is, the Respondent argued that Appellant has not adduced strong, compelling and special reasons that would make this Court to interfere with the concurrent findings of the two lower Courts that there was no plea bargain agreement between the Parties; that the attitude of this Court is that it would not interfere with such findings, unless it is shown to be perverse
– Sobakin V. State (1981) 5 SC 375, Abirifon V. State (2013) 13 NWLR (Pt. 1372) 679 and Egunjobi V. FRN (2013) 3 NWLR (Pt. 1342) 534; and that no evidence of any plea bargain agreement was placed before the Court by the Appellant.
On the argument that the 1st Accused Person, Lucky Igbinedion, had been left off the hook, the Respondent explained as follows-
The Prosecution appealed against the decision of the trial High Court discharging the said Lucky Nosakhore Igbinedion – – The Court of Appeal set aside the decision of the trial High Court, which discharged Lucky Igbinedion on the basis of the doctrines of plea bargain, double jeopardy, condonation and abuse of Court process – – FRN V. Igbinedion (2015) 2 NWLR (Pt. 1444) 475. By virtue of the (said) Judgment – – the impression being created by the Appellant that Lucky Igbinedion has been set free and same should be extended to the Appellant is clearly misleading. – – The Court of Appeal, after it found that it could not infer any legal incidents of a plea bargain agreement between EFCC and Lucky Nosakhare Igbinedion, ordered him to plead to the [Benin Charge]. We urge [this Court] to discountenance any argument, which tends to suggest that Lucky Nosakhare Igbinedion has been left off the hook.
The Appellant took this up in its Reply Brief. It argued that since the Respondent did not cross-appeal or file a Respondents Notice in this Appeal, it cannot bring in the issue of its appeal against the Ruling – Imoniyame Holdings V Soneb Enterprises (2010) 4 NWLR (pt. 1185) 561, Mulina V Usman (2014) 16 NWLR (pt. 1432) 760. It submitted that it is mandatory that a Respondent, who has not cross-appealed, must confine himself to the Grounds of Appeal in formulating his issues for determination; and that such a Respondent either adopts the issues as formulated by the Appellant or distills his own issues, which must arise from or relate to the Grounds of Appeal – Oke V. Maja (2014) 3 NWLR (Pt. 1394) 374. Furthermore, that the essence of a Respondents Notice is that the Respondent desires to contend that even if the Appellants appeal is well taken, the Judgment ought not to be set aside there being other principles of law or findings not relied upon by the Court below but which can sustain the Judgment – Onugha V. Ezeigwe (2011) 13 NWLR (pt. 1263) 184 at 199, Touton S.A. v. G.C.D.N.Z.S.P.A(2011)4 NWLR (pt. 1236) 1 at 24.
It further submitted that it is trite law that an appellate Court determines the disputes of Parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court; that an Appeal Court is bound by the records of appeal, therefore, the contest on appeal cannot be outside the records and must be on issues properly raised before the lower Court and pronounced upon by that Court – Oshatoba V. Lujitan (2000) 5 NWLR (pt. 655) 159.
Yes, that is the law; any issue formulated for determination of an appeal by the Respondent must relate to the Grounds of Appeal, and to validly raise any issue not related to or arising from the said Grounds of Appeal, the Respondent must file a cross-appeal or file a Respondents Notice – APGA V. Umeh (2011) 8 NWLR (Pt. 1250) 544.
However, in this case, it is the Appellant that opened the door for the Respondent to bring in the said argument regarding its appeal against the Ruling of the FHC Benin in respect of Lucky Igbinedion, when it argued at page 9 of its Brief that all the Counts against it had been replicated in the Counts against Lucky Igbinedlon; and that-
If for any reason whatsoever, the said Lucky Nosakhare Igbinedion is let off the hook in respect of those Charges, either in the original form or amended form, any other person connected with the Charge through him as either an Agent or Accomplice must also be let off the hook.
The said Lucky Igbinedion may have been the 1st Accused Person in all the Charges filed at the FHC Enugu and Benin but he is a stranger in this Appeal, and the issue of whether he was “let off the hook, and so, the Appellant “must also be let off the hook”, is uncalled-for.
It is settled law that an appellate Court is duty-bound to limit its consideration to the case made out and decided by the lower Court – see Anfa V. Anyanbola & Ors (1977) NSCC (Vol. 11) 162. In this case, it is clear from the Judgment appealed against that the issue is simply whether there was a plea bargain agreement between the Parties, and convincing this Court to set aside concurrent findings of the two lower Courts that there was none is what the the Appellant is faced with.
The Appellant argued in its Reply Brief that the only evidence identifying Parties to the plea bargain is the record of proceedings of the FHC Enugu on 17/12/2008; that the only evidence available to the Court of terms of the plea bargain is the “Respondents sudden move to amending the Amended Charge by a Further Amended Charge by when [its] name was deleted, based on the plea bargain”; and that a Court of law can draw inference based on circumstantial evidence in the absence of direct evidence, however, the Court is not allowed to speculate, which is what the two lower Courts did when they made the findings that it was not a party to the plea bargain.
Furthermore, that if the lower Court had referred to decisions of this Court that Parties that acquiesced to an irregular procedure cannot turn around to complain, it would have arrived at a different conclusion – Enterprise Bank V. Aroso (2014) 3 NWLR (Pt. 1394) 256, Sonuga V. Anadein (1967) ANLR 98, Buhari V. Obasanjo (2005) 13 NWLR (Pt. 947) 1, Borishade V. FRN (2012) 78 NWLR (pt. 1332) 347, Ugba V Suswam (2014) 14 NWLR (Pt. 1427) 264; and that this Court has the jurisdiction to interfere with concurrent findings of the lower Courts where the findings are perverse and occasioned a miscarriage of justice – Matanmi v. Dada (2013)7 NWLR (pt. 1353) 379 at 366.
The Appellant, therefore, urged this Court to invoke its powers under Section 22 of the Supreme Court Act to interfere with the said findings of the Court of Appeal and to set same aside, while further making a consequential order quashing the said Charges against it.
As the Appellant rightly submitted, an appellate Court is bound by the Record of Appeal, which means that this Court is not allowed to venture outside the perimeter of its contents – see Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207, where Tobi, JSC, observed
“An appellate Court has no jurisdiction to read into the Record what is not there and it equally has no jurisdiction to read out of the Record what is there. Both are forbidden areas of an appellate Court – – – An appellate Court must read the Record in its exact content and interpret it. Of course, it has the jurisdiction to decide whether on the face of the Record and on the cold facts the decision was proper or not.”
In this case, the proceedings of the FHC Enugu on 17/12/2008 read
FEDERAL REPUBLIC OF NIGERIA COMPLAINANT
1. LUCKY N. IGBINEDION
2. MICHAEL IGBINEDION
3. KIVA CORPORATION LIMITED
4. GAVA CORPORATION LIMITED ACCUSED
5. ROMRIG NIGERIA LIMITED
6. PML SECURITIES COMPANY LIMITED
7. PML (NIGERIA) LIMITED
Accused person present.
Mr. Rotimi Jacobs for the Prosecution (with him J. O. Uzor Esq.)
Mr. Adetunji Oyeyipo SAN (with him N. O. O. Oke SAN, Ebenezer Obeya Esq, and Anselem Ojezua Esq.) for the 1st Accused.
Mr. Richard Ahonamogho (sic) (with him Mrs. O. H. Adewunmi and Cyril Okoro Esq. for the 2nd – 7th Accused Persons.
Mr. Jacobs: The Accused Persons approached us for settlement and we are about to conclude the term and also amend the charge accordingly. We need a date to report back. We have agreed on tomorrow, 18th day of December 2008.
Mr. Oyeyipo SAN: That is the position.
Mr. Ahonomogho (sic): That is the position.
Court: Case adjourned to 18/12/2008 at 10.00a.m for plea. (SIGNED)
A. ABDU – KAFARATI
The proceedings of the FHC Enugu the next day -18/12/2008 reads
FEDERAL REPUBLIC OF NIGERIA – COMPLAINANT
1. LUCKY NOSAKHARE IGBINEDION – ACCUSED
2. KIVA CORPORATION LIMITED
Accused persons present.
Mr. Rotimi Jacobs (with him J. O. Uzor Esq.) for the Prosecution.
Mr. Adetunji Oyeyipo SAN (with him N. O. O. Oke SAN, E. Obeya Esq. and Anslem Ojizuo (sic) and C. Ude-kalu) for the 1st Accused.
Mr. Richard Omo Ahonoruogho (with him O. H. Adewunmi Mrs.) (sic) the 2nd Accused Person.
Mr. Jacobs: We filed on amended charge dated 17/12/08 and filed on 18/12/08. I pray the Court to accept the amended charge.
Mr. Oyeyipo SAN: We have been served and we have been served (sic).
Mr. Ahonoruogbo: We have no objection. We have been served. Court: Amended Charge dated 17/12/08 accepted. Amended charge to be read to the accused for their plea.
The Appellants contention is that “the only evidence that identifies Parties to the plea bargain agreement is the record of proceedings of the FHC Enugu on 17/12/2008.” It also argued that the proceedings of 17/12/2008 “covered all the Accused Persons because all of them were represented by counsel”; and that from the proceedings at the FHC Enugu, it was also “covered by the plea bargain arrangement”.
To start with, the number of the Accused persons listed on the Record for the proceedings of 17/12/08 and 18/12/08 are different. The seven Accused Persons, including the Appellant as 7th Accused, may have been covered by the proceedings of 17/12/2008, however, it is clear from the proceedings of the FHC Enugu on 18/12/2008 that only two out of the seven Accused Persons were covered that day.
Secondly, the said Amended Charge may be dated 17/12/2008, but it was filed on 18/12/2008, and the law makes a clear distinction between the day a Court process is dated and the date same is filed – the material date is the date of filing the process not the date a party or legal practitioner appended on it – see Eke V. Ogbonda(2006) 18 NWLR (Pt. 1012) 505. In this case, learned counsel for the Appellant, Richard Oma Ahonaruogho, whose name was mis-spelt in the Record of 17/12/2008, appeared for the 2nd – 7th Accused persons that day.
On the day the said Amended Charge was filed – 18/12/2008, the same counsel put in appearance for Kiva Corporation Ltd. only; Kiva Corporation Ltd., who had been the 3rd Accused on 17/12/2008. There is no mention of the other Accused Persons he represented on 17/12/2008 in the Amended Charge or proceedings of 18/12/2008. How then can the Appellant argue that since they were represented by counsel, they are also covered by the plea bargain arrangement, which resulted in the said Amended Charge filed on 18/12/2008?
Finally on this issue, it is important to consider the effect of the amendment on the Enugu Charge. The FHC Benin stated clearly that “where a charge is amended, the former one seizes to govern the proceedings and remains a nullity and of no useful purpose“; and in affirming the decision of FHC Benin, the Court of Appeal observed-
“The position of the law – – remains the same in the instant situation where the amended Charge accepted on 14/10/2008 was not formally withdrawn but was by force of law no longer in existence consequent to the filing of another Charge by the Prosecutor on 18/12/2008.
The Respondent, citing Section 164 (4) of the Criminal Procedure Act, Attah V. State (1993) 7 NWLR (Pt.305) 257 and FRN V. Adewunmi (2007) 10 NWLR (Pt.1042)399submitted that the said Charge will be deemed to have been filed in the same form as the Amended Charge filed on 18/12/2008. It also argued as follows at page 18 of its Brief –
The effect of the amendment or the substitution of the charge of 18/12/2008 by FHC Enugu in Charge No: FHC/EN/6C/2008 was to relate back to the date that the first Charge was filed and the original charge of 22/1/2008 and that of 13/10/2008 are deemed not to be in existence. The Appellant herein and the other Accused Persons cannot, therefore, claim that they were charged under those original Charges and the Amended Charge of 13/10/2008. The effect of the amendment of 18/12/2008 is to render all previous charges irrelevant.
I agree entirely; Section 163 of the Criminal Procedure Act empowers a Court to alter, amend or add to any charge
in a criminal case at any time before Judgment is given in the case. Section 164 (1) and (4) of the same Criminal Procedure Act, further stipulates as follows-
(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 of Section 163 of this Act, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.
(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form.
As Karibi-Whyte, JSC, stated in Attah V. State (supra), Subsection (4) renders an amendment retrospective to the date of filing of a charge. Essentially, “the Amended Charge shall replace the original Charge and shall be read and explained to the Accused as the new Charge” – See Uguru V. State (2002) 9 NWLR (pt. 771) 90 [per Kalgo, JSC].
In Uguru V. State (supra), this Court explained that Section 163 of the Criminal Procedure Act does not give any condition precedent to its application but ensures that the Amended charge be read out and explained to the Accused person. Kalgo, JSC, further observed-
This means that whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so. It then applies to the Court to accept the amendment pursuant to the provisions of Section 163 (ibid) and the Court after hearing the Party, may or may not accept or allow the amendment. If it allows the amendment, the amended charge shall replace the original charge and shall be read and explained to the accused as the new charge. If it rejects the charge, the original charge remains. This is what obtains in criminal matters pertaining to amendment of charges generally.
In this case, the Appellant was not listed as an Accused person in the original Charge of 22/1/2008. However, its name was included as the 7th Accused person in the Amended charge filed on 14/10/2008, which was not read and explained to it, and it was not called upon to plead to the said Amended Charge before the Respondent applied to the FHC Enugu on 18/12/2008 to accept another Amended Charge.
The second Amended charge was against two Accused persons out of the five Accused persons on the original charge and out of the seven Accused persons on the first Amended charge of 14/10/2008. Learned counsel for the said two Accused persons had no objection, and the FHC Enugu “accepted” the Amended Charge, and ordered –
“Amended Charge to be read to the Accused for their plea.”
In effect, the Amended Charge accepted by the FHC Enugu replaced the original charge and the first Amended charge, which means that the Appellant was never charged at the FHC Enugu in the first place.
Plea bargain boils down to a negotiation between an Accused and the Prosecution, in which the Accused agrees to plead “guilty to some crimes in return for reduction of the severity of the charges, dismissal of some of the charges, and the Prosecutor’s willingness to recommend a particular sentence or other benefit to the accused – Wikipedia, uslegal.com and legal-dictionary.the freedictionory.com. The Appellants position, as argued in its Reply Brief, is as follows-
The essence of Plea Bargain is to conclude the trial. Here all Parties where represented during the plea bargain by Counsel and it was agreed that since Lucky Igbinedion who was the Principal, he should take the fall and plead guilty to Count 1 of the Further Amended Charge, and for one of the companies associated with him (Kivo Corporation) to plead guilty to the remaining Counts in the Further Amended Charge, pay the sum of N500million, forfeit 3 properties and have its business wound-up thus leading to the final Charge – – dated 17/12/2008 but filed on 18/12/2008 in which [Appellant]s name was removed by the Respondent together with other accused, who were not to be convicted in the Enugu trial.
Obviously, the essence of plea bargain is not just to conclude a trial. There must be a negotiated agreement between the Prosecution and the person accused of a crime, whereby the accused agrees to plead guilty to a lesser offence or to one of multiple charges in exchange for some concession by the Prosecution, which is usually in the form of a more lenient sentence or a dismissal of the other charges – see Black’s Law Dictionary, 9th Ed. In this case, the Prosecution counsel informed the FHC Enugu on 17/12/2008 that “the Accused Persons approached us for settlement”. There is no evidence whatsoever on Record to show that the Appellant was one of the “Accused Persons”, who approached the Prosecution for
“settlement” on 17/12/2008.
The proceedings the next day – 18/12/2008 reinforces the fact that there was no plea bargain agreement between the Prosecution and Appellant because its name had been removed from the Charge, and there was no mention of the Appellant in the said proceedings. The Appellant says that its name was removed because they agreed that “Lucky Igbinedion, who was the principal, should take the fall”; and that Kiva Corporation should also plead guilty to some Counts.
The agreement to plead guilty is the essence of a plea bargain. The said Lucky Igbinedion and Kiva Corporation Ltd., pleaded guilty to some of the Counts in the said Amended Charge, as they had agreed, and were convicted accordingly. The Appellant, who insists that they agreed that the principal actor, Lucky Igbinedion, should take the fall, has not provided any evidence of such an agreement with anyone. Even if there was such an agreement for one accused to take the fall, the Court of Appeal was absolutely on point when it held as follows-
Plea bargain must be a conscious and deliberate act between the Prosecution and an accused with a plea of guilty being an avert act on the part of the accused in evidence of the plea bargain. – – The concept of plea bargain – – clearly operates in personam, so to say, and not by privy or proxy, – – A plea bargain must be a deliberate and conscious act taken by the Prosecutor and a particular Accused – – wherein the Accused – – must suffer a conviction – – no matter how insignificant or trivial the offence to which the conviction relates. – – The Appellant personally never suffered a conviction of any kind in respect of any of the Charges – – This condition is sine qua non for a plea bargain to be in place between the Prosecutor and an Accused relying on plea bargain.
The decision of the Court of Appeal on this Issue cannot be faulted, thus, the concurrent findings of the two lower Courts remain intact.
Issue 2 is whether the lower Court was right to affirm the trial Courts decision that Appellant is not entitled to the other defences – condonation, plea of autrefois convict, doctrines of double jeopardy and abuse of Court process, which the Appellant also relied upon.
The Appellant’s contention is that the Court of Appeal is wrong because the Economic and Financial Crime Commission [EFCC] has power to compound offences under the EFCC (Establishment Act), 2004 [now EFCC (Establishment etc.) Act (Cap. E1), LFN, 2010], citing Section 14 (2), Nigerian Army V. Aminun-Kano (2010) 5 NWLR (Pt. 1188) 429, Asake V. Nigerian Army (2007) 1 NWLR (Pt. 1051) 408.
It submitted that once the Prosecution and EFCC had reached a compromise and “decided to collect money from Lucky Igbinedion”, who is its “principal” and “dramatis personae in all the Counts of the Charges [at] FHC Enugu and Benin”, the offences alleged against it, had been compromised, compounded or condoned, so EFCC cannot come up again to prosecute it for the same offences in FHC Benin.
Furthermore, that the withdrawal of the Charges amounted to an acquittal; and that it was charged as an agent of Lucky Igbinedion and must be allowed to go free because the maxim is qui facit per alum facit perse – he who acts through another acts by himself – Yisi (Nig.) Ltd. v. Trade Bank (2013) 7 NWLR (Pt. 1357) 522, Quo Vadis Hotels V. Maritime Services (1992) NWLR (Pt. 250) 653, Ikedife V. Obienu (1975) 4 SC 27, Okwejiminor V. Gbakeji(2008) 5 NWLR (Pt 1079) 172 and James V. Mid-motors Nig. Ltd. (1978) 11- 72 SC 31.
On double jeopardy, it cited Sections 36(9) of the Constitution, Sections 18 & 25 of the Interpretation Act, Section 181(1) & (2) of the Criminal Procedure Act, Nafiu Rabiu V. The State (1980) 2 NLR 117, The Presidential Constitution of Nigeria by Professor B. Nwabueze, and Unibiz (Nig.) Ltd. V. Commercial Bank Credit Lyonnais (2003) 6 NWLR (PT. 816) 40. lt is its contention that “fault cannot be ascribed to both principal and agent separately or severally; once one is liable, that liability covers the other, once one is set free, the other also enjoys the freedom”; that it amounts to approbating and reprobating to allow the Prosecution bring further Charges against it; and that –
By going into an arrangement whereupon Lucky Igbinedion pleaded guilty – – would amount to leaving the Appellant defenseless and arming the Respondent with the weapon acquired in peace time “confidential arrangement” to be used by the Respondent against the Appellant.
It further argued that having allowed Lucky Igbinedion to let down his guards by a “plea of guilty”, equity and good conscience will not allow the Respondent to attack him and his “disclosed agent” at the time of the said “plea of guilty”,
therefore, they are estopped from doing so whether the proceedings are criminal, civil or quasi criminal – Okonkwo V. Kpajie (1992) NWLR (PT. 226) 533, Tika – Tore Press V. Abina (1973) 12 SC 67, Ude V. Nwara (1993) 2 NWLR (pt. 278) 639; and that the FHC Benin and the Court of Appeal having held that the Charge against Lucky Igbinedion constituted abuse of Court process, the lower Courts were wrong to have held that the Charge against the Appellant did not also constitute an abuse of Court process.
The Respondent argued that the Appellant confused the power of EFCC to compound an offence under Section 14 (2) of the EFCC Act with condonation, which is different. It submitted that the following facts must be borne in mind in construing the said Section 14(2);
a. The EFCC has the power to compound an offence
b. The offence to be compounded must be one that is punishable under the EFCC Act.
c. The EFCC can accept money in compounding the offence
d. The sum of money the EFCC can accept must be that which must not exceed the maximum amount to which that person would have been liable to pay if he had been convicted of that offence.
It further argued that “no scintilla of evidence” has been produced by the Appellant to show that the EFCC accepted or agreed to accept “any sum of money” from it or Lucky Igbinedion – Chidolue V EFCC (2012) 5 NWLR (Pt.1292) 160, therefore, the Section is inapplicable; that the funds allegedly laundered belong to Edo State Government and by Section 14(3) of the Act, monies collected as consideration for compounding an offence must be paid into the Consolidated Revenue Fund of the Federation; and that money belonging to Edo State cannot be paid into the said Consolidated Revenue Fund.
Furthermore, that even if the offences were compounded, it is without prejudice to the Attorney General’s power to still initiate the criminal proceedings – Section 174 of the Constitution; and that apart from the foregoing, a careful perusal of Section 14 (2) of the EFCC Act would reveal that the Section is designed to apply to offences not yet brought before the Court, that is, during investigation, and therefore, the said Section 14 (2)cannot be applied to a pending proceeding.
On condonation, the Respondent referred to the definition in Black’s Law Dictionary, 8th Ed., and the book – Nigerian Family Law by Professor Itse Sagay, and submitted that condonation, which is usually prescribed by statutes has its own limitations when it comes to its application in criminal cases, and it referred to the following Section 26 of the Matrimonial Causes Act, Section 171 (1) & (2) of the Armed Forces Act, and Section 119 of the Nigerian Army Act.
It argued that apart from the marital causes of forgiveness in which there could be occasional conditional remission of forgiveness, other category of persons to whom the doctrine applies are persons subject to service law – Nigerian Army .V. Aminun-Kano (supra) cited; that condonation applies mainly to matrimonial causes and not to criminal offences except where it is expressly provided for in a statute, so in the absence of any statutory provision to the contrary, condonation cannot constitute a bar to criminal prosecution.
The Respondent also distinguished the cases of Nigerian Army V. Aminun-Kano (supra) and Asake V. Nigerian Army (supra) cited by the Appellant, and argued that they were decided on peculiar facts and circumstances and being armed forces offences are inapplicable.
It also argued that the Appellant did not refer to any document from which the inference of any condonation by the Prosecution could be drawn; therefore, the reliance the Appellant placed on the doctrine of condonation is without substance, as nothing has been placed before the Court as evidence of the purported condonation.
The Respondent is right that the power of EFCC to compound an offence is different from condonation. But the Respondent also confused compounding a crime or offence, which is an offence itself, with compounding of an offence in criminal trials, which is very legit.
The definition of the word “compound” includes “to agree for consideration not to prosecute (a crime)”. “Compounding a crime” is defined in the same Black’s Law Dictionary, 9th Ed., as follows
The offense of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution.
Compounding a crime is also “a criminal act in which a person agrees not to report the occurrence of a crime or not to prosecute a criminal offender in exchange for money or other consideration” – see legal dictionary, thefreedictionary. com, wherein it was further explained-
Under the Common Law and most modern statutes, a compounding offense consists of three basic elements: (1) knowledge of the crime; (2) the agreement not to prosecute or inform; and (3) the receipt of consideration. The offense is complete when there is an agreement to either withhold evidence of the crime, conceal it, or fail to prosecute it.
“Compounding of offences” on the other hand, is an act on the part of the victim, who decides to pardon the offence committed by the accused person, and requests the Court to exonerate him. This does not mean that the offence has not been committed; it only means that the victim is willing to pardon it, or has accepted some form of compensation for what he or she has suffered. So, the compounding of offences terminates the legal proceeding against the offender and he is entitled to an acquittal – see UKESSAYS – published: 27/3/2015. The law of compounding is provided for in many other jurisdictions.
For instance, in Singapore, the compounding of an offence (also known as composition) refers to the settlement of a charge (without entering a conviction) between the alleged victim and the accused. Usually in Singapore, the accused makes monetary compensation and offers an apology to the alleged victim. When an offence has been compounded, the accused is effectively acquitted of the crime – see singaporelegalodvice.com, wherein it was further explained –
Usually, only the alleged victim may compound an offence. However, as to the compoundable offences listed in the Fourth Schedule (of the Singapore Criminal Procedure Code [CPC]), where police investigations have commenced, or where the accused has been charged in Court for that offence, they may only be compounded with the consent of the Public Prosecutor. This is provided for in Section 241 of the CPC. Separately, Section 242 of the CPC confers the public prosecutor with the power to compound offences by collecting from the accused a sum of money, which shall not exceed one half of the amount of the maximum fine that is prescribed for the offence or $5, 000, whichever is lower, – – – Compounding is initiated by the accused and his lawyer.
Coming home to Nigeria, Section 14 (2) of the EFCC Act provides –
Subject to the provisions of Section 174 of the Constitution – – (which relates to power of the Attorney General of the Federation to institute, continue, take over or discontinue criminal proceedings against any person in any Court of law), the Commission may compound any offence punishable under this Act by accepting such sum of money as it think fit, not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.
This provision in the EFCC Act is self-explanatory; EFCC has power to compound any offence punishable under the Act by accepting such sum of money as it thinks fit, not exceeding the maximum amount that the accused would have been liable if he had been convicted, which is compounding of an offence, and not compounding a crime.
In Chidolue V. EFCC (supra), which the Respondent relied upon, the Court of Appeal based its decision on compounding crime thus-
The Black’s Law Dictionary, 6th Ed., defines compounding crime in the following words:
“Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime”.
The same dictionary gives three elements at common law and under typical compounding statute that must be present before an offence can be compounded, These elements are:
(1) An agreement not to prosecute
(2) Knowledge of the actual commission of crime
(3) The receipt of some consideration.
It is clear from the proceedings at the lower Court that the Appellant had knowledge of the crime for which he was arrested and detained. This is so because all the statements he made were so made after he had been duly cautioned. It is also on record that he paid N100,000,000 to the Respondent. However, there is no evidence that there is a valid agreement between the Appellant and the Respondent on the issue of compounding the crime for which the Appellant was charged. The three elements in a typical compounding statute as is provided for under Section 13 (2) (sic) 14 (2) of the Act and they must be established conjunctively – – From the provisions of Section 13 (2) (sic) 14 (2) of the Act, the amount liable to be accepted by the Respondent shall be such amount that a person convicted should have paid as fine. This is clearly the import of the Section – – The N100,000,000 received from the Appellant is said to belong to Bayelsa State
Government, it is not representing the amount of line which the Appellant would have paid if he were convicted. The Collection of that money is certainly not in accordance with the provision of Section 13 (2) (sic) 14 (2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.”
The Respondent reproduced this decision at page 20/21 of its Brief, and based its arguments on the misconception that “compounding a crime” is the same as “compounding of an offence” in a criminal trial. But compounding crime is an offence, while compounding an offence allows the accused to be exonerated and acquitted for the crime.
I must clear up another misconception by the Respondent that Section 14(2) of the EFCC Act is designed to apply to offences not yet brought before the Court; rather that it applies during investigations. It is settled that the Court has a duty to construe provisions of a law literally and the words used must be given their ordinary meaning – see Chigbu V. Tonimas (Nig.) Ltd. (2006) NWLR (Pt.984) 189 SC.
The Singapore law is clear that where police investigations have commenced or where the accused has been charged in Court for the offence, the said offence may only be compounded with the consent of the Public Prosecutor, who has power to compound an offence by collecting a sum of money, as specified therein, from the accused.
In this case, Section 14 (2) of the EFCC Act says that subject to the provisions of Section 174 of the Constitution, which relates to the power of the Attorney-General of the Federation to “institute, continue, takeover or discontinue criminal proceedings against any person in any Court of law”, the EFCC may compound any offence.
As I said, compounding an offence terminates legal proceedings and leads to acquittal of the accused. The EFCC merely investigates; it has no power to acquit the accused. It is the Court that has power to acquit the accused. If EFCC only investigates but has the power to compound an offence, and it is the Court that can acquit an accused, EFCC “may compound an offence” that is already before the Court, but subject to the power of the Attorney-General of the Federation “to institute, continue, takeover or discontinue criminal proceedings”.
All the same, I do agree with the Respondent that the Appellant used the terms “compounding” and “condonation” interchangeably, as if the one can replace the other or be used in place of each other, which is a misapprehension of the law regarding the two principles.
These are two different principles with two different outcomes. “Condonation” is “the voluntary overlooking or pardon of on offence” – see Merriam-webster.com, wherein condonation is also defined as “implied pardon of an offence by treating the offender as if it had not been committed”. The difference between the two, therefore, is that while the compounding of an offence does not mean that the offence had not been committed, by condoning the offence, the offender is treated as if the offence had not been committed in the first place.
Condonation is, principally, used in canon law and military law. In canon law, condonation is a defence to an action for divorce that the “innocent spouse having forgiven the adulterous spouse cannot now take proceedings – see legal_dictionary.thefreedictionary.com. In Nigeria, Section 26 of the Matrimonial Causes Act provides that-
Except where Section 16(1) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based.
In his book, Nigerian Family law, Professor I. Sagay expounded thus-
In law, there is condonation when one spouse, with full knowledge of the matrimonial wrong committed by the other spouse, reinstates the offending spouse to his or her earlier marital position, with the intention that the spouse whose wrong is so condoned does not henceforth, commit any furthermatrimonial offence.
The principle of “condonation” in military law has been traced back to 1832 in the Memorandum on Corporal Punishment issued by the Duke of Wellington on 4/3/1832 (see Wikipedia), wherein he stated-
The performance of a duty of honour or of trust, after the knowledge of an offence, committed by a soldier, ought to convey a pardon for the offence.
In Nigeria, Section 171 (1) (c) of the Armed Forces Act provides that-
Where a person subject to service law under this Act
(c) Has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by a Court martial or to have the case dealt with
summarily under this Act-
In Nigerian Army V. Aminun-Kano (supra), cited by the Appellant, the Respondent pleaded that by virtue of a document [Exhibit P45], in which charges against him were withdrawn and substituted with a “final warning letter”, he could not be subjected to trial anymore as it amounted to condonation by his commanding officer as provided by Section 171 of the Armed Forces Act. This plea was dismissed and at the end of the day, he was found guilty, convicted and sentenced. The Court of Appeal allowed his appeal, and in dismissing the appeal filed in this Court by the Nigerian Army, Oguntade, JSC, observed-
It is not in dispute that Section 171 of the Act divests any Court or Tribunal of competence to subject the Respondent to any further trial after having been condoned by the appropriate authority. Thus, if any Court or Tribunal should proceed to make pronouncements on persons such as the Respondent in spite of the condonation and damning the consequences of lack of competence, this Court cannot close its eyes on such abnormality or illegality.
In Asake V. Nigerian Army (supra), decided by the Court of Appeal, the issue was simply whether the offence charged was known to law.
In this case, the Appellant contends that once the Respondent collected money from Lucky Igbinedion, the offences alleged against it had been “effectively compromised, compounded or condoned”.
The Respondent countered that the Appellant’s submission by which it has tried to import the principle of agency into our criminal jurisprudence is not only strange but misconceived bearing in mind that in our criminal jurisprudence, criminal liability is personal – ACB V. Okonkwo (1997) 1 NWLR (pt.480) 194. Thus, it will not be a valid defence in law for any person, who is alleged to have committed an offence to argue that while committing that offence he was acting as agent of a principal since it is not a defence that is known to law.
Very true; criminal liability is personal, it cannot be transferred because the mens rea or actus reus is on the accused in Court – SeeAkpa v State (2008) 14 NWLR (pt. 1106) 72. In this case, even if it can be said that Lucky Igbinedion is vicariously liable for the offences allegedly committed by the Appellant, where is the evidence that the Respondent compromised, compounded or condoned the offences?
There is “no scintilla of evidence” as the Respondent put it that EFCC accepted to collect any money from the said Lucky Igbinedion, thereby compounding the offence. There is no evidence whatsoever from which it can also be implied that the EFCC or the Respondent had previously condoned in some way or some level supported the act about which they are complaining. Thus, the Appellant failed to establish that the said offences were compounded or condoned.
As to double jeopardy, the Appellant argued that the semantics involved in whether double jeopardy can apply in the absence of a conviction or an acquittal must be judged and applied in relation to the peculiar facts and circumstances of this case. Furthermore, that-
If in view of a plea bargain agreement reached between the PRINCIPAL of the Appellant and the Prosecutor herein (EFCC) the Charges against the Appellant were dropped and the Principal of the Appellant then went on to plead guilty and to forfeit both cash and property to the state through the Prosecutor, whenever and whatever circumstances it is held that the plea of autre fois acquit and convict will protect LUCKY NOSAKHARE IGBINEDION, then same must be held to be open to the Appellant herein since the Appellant is an Agent of LUCKY NOSAKHARE IGBINEDION and the Charges against the Appellant are inextricably tied to the said LUCKY NOSAKHARE IGBINEDION who can no longer be tried again because of the plea bargain he had gone into with the EFCC.
The Respondent submitted that the said issue of double jeopardy will only arise where a person is able to show that he had earlier been convicted or acquitted in respect of the matter for which he is being prosecuted – Kalu V. Nigerian Army (2010)4 NWLR (Pt 1185) 433, Sections 181 – 185 of the CPA now Sections 238 – 240 of the ACJAthat there must be evidence of a previous conviction or acquittal – Chief of Air Staff V. Iyen (2005) 5 NWLR (Pt 922) 496; that there is no evidence that the Appellant had been convicted or acquitted by any Court on account of the offences alleged against it; that none of the counts in the Benin Charge is similar to the offences alleged in the Enugu Charge, citing Connelly v DPP (1964) 2 All ELR 401, DPP v Humphrys (1977) AC 1 and Edu V COP 14 WACA 763; and that the dictum of Udoma, JSC, in Rabiu v. Statecannot assist the Appellant.
Now, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges and on the same facts, following a valid acquittal or conviction – see Wikipedia. The doctrine of double jeopardy prohibits a person being tried or punished twice for the same offence with same set of facts, and this principle is also enshrined as a fundamental right in Nigeria under Section 36(9) & (10) of the 1999 Constitution, which provides-
(9) No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.
(10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.
In Nigerian Army V. Aminun-Kano’s case, I.T. Muhammad, JSC, said
It is never in doubt that the Court below found that the Respondent had been condoned by his commanding officer for the offences for which he was tried. The Court below, applying Section 171 of the Act and the case of Asake v. Nigerian Army (supra), held that the condonation in law is a bar to subsequent prosecution. The Court below then applied the provision of that law rightly in my view, to hold that once an offence has been condoned, any subsequent trial of the same offence(s) would amount to double jeopardy.
He referred to the evidence of PW8, and further held as follows-
I think this is what the Court below was stating that by subjecting the Respondent to another series of punishment, convictions, sentences before another body, whether sitting as a panel, a Tribunal, a Court of law including the Court Martial, in spite of all the warnings, reprimands in strong terms, which were, of course, capable of Portraying the Respondent as an “Irresponsible” Senior Officer of the Nigerian Army, would mean subjecting the Respondent to double jeopardy. This would – be against the spirit of Section 171 (1) (c) of the Act. It is also against the general principles of penal laws in this Country including the Constitution of the Federal Republic of Nigeria, 1999 – Section 36 (10).
In Rabiu V. State (supra), cited by the Appellant, Udoma, JSC, stated-
When once a criminal Charge has been adjudicated upon by a Court of competent jurisdiction, that adjudication is accepted as final whether it takes the form of an acquittal or a conviction; and may be pleaded in bar of a subsequent prosecution for the same offence – – I am also of the opinion that it is unnecessary to consider the American doctrine of “double jeopardy” based on the 5th Amendment to the American Constitution. Indeed, to do so might be regarded as an attempted impartation of a foreign doctrine into this Country, which doctrine unless carefully examined, might turn out to be a gloss on, and a pollution of the pure and sparkling stream of our new Constitution.
In other words, while acknowledging the application of the doctrine in other jurisdictions such as United States of America and England, this Court made it clear in that case – Nafiu Rabiu V. State (supra) that it is primarily the Constitution of the Federal Republic of Nigeria that determines the application of the said Doctrine in this Country
By Section 36 (9) of the 1999 Constitution, an accused person, who shows that he had been tried for a criminal offence, and was convicted or acquitted, shall not be tried again for the same offence or for a criminal offence having the same ingredients as that offence.
For the plea of autrefoit acquit or autrefoit convict to succeed, the following factors must be proved to the Courts satisfaction
1. That the Accused had previously been tried on a criminal charge.
2. The former trial must have been conducted before a Court of competent jurisdiction.
3. The trial must have ended with an acquittal or a conviction
4. The criminal charge for which the Accused was tried should be the same as the new charge against him or alternatively the new charge should be one in respect of which the Accused could have been convicted at the former trial, although not charged with it. See Sunday V. The State (2017) LPELR-42140(CA) per Oho, JCA
In this case, the Appellant argued that the withdrawal of the Charges against it amounted to an “acquittal”, which is – “a setting free from the charge of an offense by verdict, sentence or other legal process” see Merriam-webster.com. It also means “the legal certification – that an accused person is not guilty of a charged offence” – see Black’s Law Dictionary, 9th Ed., where autrefois acquit is defined so-
[Law French “previously acquitted”] A plea in bar of arraignment that the defendant has been acquitted of the offense – Also termed former acquittal. See Double jeopardy. Cases: Criminal Law; Double Jeopardy: “Suppose that a
transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed in legal Frenglish (sic), the defence of autrelois acquit. Similarly, if he is convicted, even though he is left off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict. These uncouth phrases have never been superseded, though they might well be called the defence of “previous acquittal” and “previous conviction” and “double jeopardy” makes an acceptable generic name for both.” Glanville Williams, Textbook of Criminal Law 24 (1978).
In this case, the question is whether in the circumstances of the case, the Appellant is entitled to the said defence of “double jeopardy”.
In resolving this issue against the Appellant, the FHC Benin held that it did not adduce any evidence to show that it had gone through any trial and was convicted or acquitted or pardoned. Furthermore, that there was no evidence of any plea bargain agreement with the Prosecution or EFCC to drop or condone the said Charges, therefore, “in the absence of any evidence, the doctrine of double jeopardy and abuse of Court process is not available and open” to the Appellant.
In affirming the trial Court’s decision, the Court of Appeal held that the Appellant is not entitled to defences of double jeopardy and abuse of Court process; predicated on a non-existent plea bargain.
Obviously, the conclusions of FHC Benin and Court of Appeal are based on sound and logical reasoning, which cannot be faulted. The Appellant predicated its entitlement to those defences on a non-existent plea bargain agreement. The Appellant did not plead to the Amended Charge at the FHC Enugu, and was never tried, convicted or acquitted by any Court of law for the offences or similar offences contained in the Benin Charge The Appellant did not adduce any evidence of an agreement with EFCC to compound the said offences.
There is also no evidence that the Appellant was pardoned for the acts complained of in the Charges, and there is no evidence that the Prosecution or EFCC acted in any way to condone those offences The decisions of the two lower Courts are therefore, unassailable.
As to the last defence – abuse of Court process, it is well settled that the term has an element of malice in it – see Amaefule V State (1988) 2 NWLR (Pt 75)156 SC, wherein Oputa, JSC explained that-
To amount to an abuse of process, the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fides; it has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby.
In this case, where is the evidence of malice on the part of the EFCC or malicious perversion of the Court processes by the Prosecution?
The Appellant failed to adduce evidence pointing to that effect; rather the Appellant resorted or appealed to nothing but sentiments.
For instance, it argued that this Court allowing the Respondent “to do what it is doing now by going into on arrangement whereupon Lucky Igbinedion pleaded guilty to certain charges would amount to leaving the Appellant defenseless and arming the Respondent with the weapon acquired in peace time “confidential arrangement” to be used by the Respondent against the Appellant”. This will not work
It is trite that sentiments has no place in judicial deliberations – Kalu V. FRN (2016) 9 NWLR (Pt. 1516) 1. The Appellant was never charged or tried at the trial Courts, and there is nothing to indicate that the Respondent or EFCC made improper use of any legitimately issued Court process to obtain a result that is unlawfuI or beyond the scope of the said process, which is the definition of abuse of process in Black’s Law Dictionary, 9th Ed. So, there is no reason whatsoever to interfere with the concurrent decisions of the Court of Appeal and the trial Court – FHC Benin, which are, in my view sound decisions.
This Appeal clearly lacks merit; it fails and is hereby dismissed
IBRAHIM TANKO MUHAMMAD, J.S.C.: I read the judgment just delivered by my learned brother, Augie, JSC. I entirely agree with my lord’s sound reasoning in dismissing the appeal which I adopt as mine. I hereby, for same reasons, dismiss the appeal as lacking in merit.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Amina Augie, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal. Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: I read in draft before now the judgment just delivered by my learned brother, Amina Adamu Augie, JSC, which I am in agreement with both the reasoning and conclusion that this appeal has no merit and ought to be dismissed. My learned brother has meticulously and quite efficiently resolved all the salient issues submitted for the determination of this appeal and I do not have much to add except to make a few comments in support of the judgment
Whenever it is alleged that a matter filed in Court is an abuse of Court process, it centres on an improper use of judicial process by a party in litigation aimed at or targeting an interference with due administration of justice. Some of the features of abuse of Court process would certainly include the following, though not exhaustive. These include:
1. Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action.
2. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
3. Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent’s notice.
4. Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action is prima facie vexations and an abuse of Court Process.
See Chief B. A. Allanah & Ors v Mr. Kanayo Kpolokwu & Ors (2016) LPELR – 40724 (SC), Okorocha v PDP (2014) 7 NWLR (pt 4406) 213, Ogoejiofor v Ogoejiofor (2006) 3 NWLR (pt 996) 206, Oyeyemi & Ors v Owoyeye & Ors (2017) LPELR – 41903 (SC).
In the instant case, there is nothing to suggest that there is an abuse of Court process. The appellant has not pointed to any evidence showing that it was pardoned for the acts complained of in the charges. There is also no evidence that those offences were condoned by the Economic and Financial Crimes Commission. I cannot fault the decision of the two lower Courts on this issue. This Court does not interfere with concurrent findings of the two lower Courts except it is found to be perverse or it is based on wrong principles of law. See Oluwatoyin Sobakin v The State (1981) LPELR – 3077 (SC), (1981) 5 S.C. P.75.
On the whole, based on all I have said above and the more detailed reasons in the lead judgment, it is my view that this appeal is unmeritorious. It is accordingly dismissed.
EJEMBI EKO, J.S.C.: In the lead judgment just delivered in this appeal my learned brother, AMINA ADAMU AUGIE, JSC, has adroitly summarised the facts of this case. The facts, as summarised, are hereby adopted by me.
One Lucky Nosakhare Igbinedion was the alter ego of the appellant, a limited liability company. The appellant is one of the companies the said Lucky Nosakhare Igbinedion is the alter ego of. In the charge No. FHC/EN/6C/2008: Federal Republic of Nigeria V. Lucky Nosakhare Igbinedion & Ors, the appellant company was one of the persons being jointly prosecuted for sundry criminal offences by the Economic and Financial Crimes Commission (EFCC). It is being alleged in this appeal that the EFCC, on one hand, and Lucky Nosakhare Igbinedion and one Kiva Corporation Ltd, on the other part, had struck a plea bargain agreement whereby the said Lucky N. Igbinedion and Kiva corporation Ltd pleaded guilty to the offences relating to them and they were accordingly convicted and sentenced for those offences.
The appellant, in this appeal, alleges that the said plea bargain the EFCC struck with Lucky N. Igbinedion and Kiva corporation Ltd operates to estop the respondent, the EFCC, from further prosecuting it for the offences it was jointly accused of committing with the said Lucky N. Igbinedion. The existence or non-existence of the plea bargain agreement is one of facts. By this assertion, the burden of proof lies squarely on the appellant, by virtue of Sections 131(1), 132 and 133(1) of the Evidence Act, 2011, which previously under the Evidence Act, 2004 were respectively Sections 134(1), 135 and 136(1), to prove these assertions in order to be entitled to the favourable judgment of the trial Court. The burden of proof was not discharged by the appellant. The trial Court and the Court of Appeal (hereinafter called “the Lower Court) in their concurrent findings of fact found that there was no plea bargain agreement between the EFCC (the respondent) and the appellant, and that whatever plea bargain arrangement there may be between the said Lucky N. Igbinedion and the respondent, only operated between the parties to the said parties thereto. This cannot be faulted.
The appellant had no empirical proof of any plea bargain arrangement it had directly with the respondent. It has predicated this contention on mere deductive reasoning: that since Lucky N. Igbinedion is the principal actor in all the charges, it follows that the plea bargain arrangement he struck with the respondent should cover all the other accused persons, as agents of the said Lucky N. Igbinedion. This argument did not impress the Courts below. The Lower Court, in particular, had dismissively held that the concept of plea bargain operates in personam and not by proxy. I completely agree.
It appears that the appellant is merely adumbrating the principles of agency and vicarious liability, which in criminal proceedings do not avail him. Criminal liability or responsibility operates on mens rea criminal liability or responsibility is therefore personal, and not vicarious. See AKPA V. THE STATE (2008) 14 NWLR (pt. 1106) 72; ACB v. OKONKWO (1997) 1 NWLR (pt. 480) 194.
If, as the appellant argues, that plea bargain, successfully proved, operates as autrefois convict under Section 36(9) of the 1999 Constitution, then the burden of proof falls heavily on the appellant to discharge. Section 36(9)& (10) of the Constitution provides –
36.(9) No person who shows that he has been tried any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.
(10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.
The sine qua non for the plea, under Section 36(9) of the Constitution, is the conviction or acquittal by a Court of competent jurisdiction. See CHIEF OF AIR STAFF v. IYEN (2005) 6 NWLR (pt.922) 496. A plea of autrefois convict founded on the fact of a plea bargain arrangement presupposes that the fact of the plea bargain arrangement was before a Court of competent jurisdiction, and that Court, upon the plea bargain arrangement, convicted the accused person for some offence(s).
Proof of previous conviction under the Evidence Act (Section 248(1) of the 2011 Act and 224(1) of the 2004 Act) is by the production of a certificate of conviction containing the substance and effect of the conviction. The certificate shall have been signed by the registrar or the officer of the Court in whose custody is the record of the said conviction. The only exception to this is when the conviction has been admitted. In that situation the rule is: facts admitted need no further proof. In the instant case the alleged conviction has been denied. The appellant who asserts it is, thus, put to prove its assertion.
By virtue of Section 131(1) of the Evidence Act, 2004 (now Section 128(1) of the 2011 Act) the fact of any conviction by any Court of law, unless the conviction is admitted, cannot be proved by any other evidence, oral or otherwise, except by the production of the certificate of conviction duly authenticated by the registrar or the officer of the Court in whose custody is the record of the said conviction. The appellant did not produce any evidence required by Section 131(1) and 224(1) of the 2004 Evidence Act (which now respectively are Sections 128(1) and 248(1) of the 2011 Act).
Plea bargain is just a recent phenomenon introduced into the administration of criminal justice in respect of Federal offences by the Administration of Criminal Justice Act, 2015. The Act, signed to law only on 13th May, 2015, does not have retroactive effect. It applies only to criminal trials for offences established by any Act of the National Assembly and other offences punishable in the Federal
Capital Territory, Abuja. See Sections 2(1) and 86 of the Act.
The only statutory authority for plea bargain agreement between the prosecutor and the defendant in respect of a federal offence is to be found in Part 28 of the ACJA, 2015, particularly in Section 270(7) thereof. The plea bargain arrangement the appellant relies upon, as a statutory defence under Section 270 (7) of the ACJA and Section 36(9) of the Constitution, was not available to the appellant and the respondent to resort to in relation to the Federal offences the appellant was being prosecuted for at the Federal High Court at the commencement of the proceedings, the subject of this appeal. Either in 2008 when the charge No FHC/EN/6C/2008 or in 2011 when the charge No FHC/B/11C/2011 were brought against the appellant the ACJA, 2015 was yet to be enacted. I do not think, and I agree with the lower Court, that at the commencement of the proceedings culminating in this appeal, either at the trial Court or the lower Court no power, statutorily, reposed in the respondent to enter into plea bargain arrangement with the appellant.
The sum total of all I have been trying to say is that appellant has not shown that it had any plea bargain arrangement with the respondent such as to entitle it to plead estoppel of autrefois convict against the respondent in relation to his trial at the Federal High Court. The appellant has not shown any exceptional circumstances warranting the interference by this Court with the concurrent findings of fact by the trial Court and the lower Court. The settled policy of this Court is that it will not interfere with concurrent findings of fact by the Courts below unless upon exceptional circumstances shown. None has so far been shown in this case.
The appeal is frivolous and vexatious. It lacks substance. The lead judgment of my learned brother, AMINA ADAMU AUGIE, JSC, has dismissed it and I concur.
Chief Richard Oma Ahonaruogho, with him, Anozie Obi, Esq. –For Appellant
Adebisi Adeniyi, Esq. – For Respondent