ROMRIG NIGERIA LIMITED v. FEDERAL REPUBLIC OF NIGERIA(2017)

ROMRIG NIGERIA LIMITED v. FEDERAL REPUBLIC OF NIGERIA

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.254/2014

RATIO

WHETHER A PLEA BARGAIN CAN BE DONE IN THE ABSENCE OF THE ACCUSED PERSON OR BY HIS REPRESENTATIVES AND WHETHER SAME MUST BE DOCUMENTED

Now in the present scenario, one must in the first place consider whether there was actually any agreement on plea bargain between the appellant and the present respondent in the case before the Enugu Federal High Court. It is worthy of note that the appellant herein, being a company was not represented by any of its directors who took part in the supposed or alleged plea bargain at the Federal High Court, Enugu. Similarly, at Enugu, there was no evidence showing that the appellant was ever tried or was either convicted or acquitted as would constitute or put a bar on the EFCC from arraigning it before the Benin Federal High Court for prosecution on the new charges or counts. There is also no agreement whatsoever, to establish that some charges were to be condoned, especially the charges on which it was arraigned before Federal High Court Benin. My lords, permit me to even observe at this stage, that none of the parties at both the trial Court and the lower Court produced any term of agreement relating to the “Plea Bargain Arraigned” or “settlement”. This Observation was validly made page 2426 of volume V of the Record of Appeal. Therefore, it is also my opinion that by presenting or canvassing the issue of Plea Bargain which was not backed by any written term/agreement, the appellant only wanted to call upon the two lower Courts to act within the realm of conjecture or to speculate which is not the duty or function of a Court of law. It is even instructive to note that the concept of Plea Bargain become part of the Federal law only in 2015 when the National Assembly enacted the Administration of Criminal Justice Act in which in part 28 of that Act, Section 270 (7) made provision for plea bargain agreement which it even had emphasised that such agreement must be reduced into writing. Only Lagos State Government had earlier in 2011 enacted, Administration of Criminal Justice Law in which provision of Plea Bargain was made under Section 75 of that Law in which it also insisted in Section 76 (4) that agreement between the parties must be in writing and shall be agreed upon by the parties. Thus consequent upon all that I have posited above, I am inclined to agree with the finding of lower Court when it stated at page 2-26 vol v of the Record as below: – “There is no evidence or documentation of any plea bargain agreement. The fact that the Appellant’s company herein was not represented by any of its directors either to arrange a plea bargain meeting is also fatal to its case as it has been established that directors of the Appellant’s company were even at large during the period Lucky Igbinedion entered in to agreement with the EFCC and all through trial I am of the view that a plea bargain agreement is a post arrangement agreement of some sort since it may result in a situation where the accused may plead guilty to some charges against him, so that others may be dropped. In the same vein, a plea bargain cannot be done in abstantia or by representation of the accused person. Only directors to an accused corporate entity can represent such a company in a plea bargain arrangement. Since the accused must personally make his plea in Court, an accused person must also be present personally to negotiate his plea bargain agreement Parties cannot expect the Court to act on an imaginary agreement.” This lower Court’s funding above cannot be faulted at all. In the result, it is my view that the plea bargain did not inure to the appellant herein. PER AMIRU SANUSI, J.S.C.

INTERPRETATION OF THE PROVISIONS OF SECTION 14 (2) OF THE EFCC ACT WITH RESPECT TO THE CONDITIONS THAT MUST BE MET BEFORE AN OFFENCE CAN BE COMPOUNDED BY THE ECONOMIC AND FINANCIAL CRIMES COMMISSION

With regard to the second issue for determination which deal with the power of the EFCC to compound the offences under the Economic and Financial Crimes Commission (Establishment) Act of 2004, it is the stance of the learned counsel for the appellant that the EFCC has power under Section 14 (2) of the Act to compound, compromise, condone or compromise such offences and if that is done by the Attorney General of the Federation, as in this instant case, the EFCC can not later re-arraign such person on the same charge. To the appellant’s learned counsel, the prosecutor i.e EFCC had reached a compromise and collected from Lucky Igbinedion (the principal offender) some amount following the Enugu FHC plea bargain agreement and the offences before Federal High Court Benin (the trial Court) had been duly compromised. The above stance of the appellant’s counsel were anchored an the provisions of Section 14 (2) of the EFCC Act. Let us now examine the provisions of Section 14 (2) of that Act which reads thus: – “Subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the 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 thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.” (Emphasis supplied by me) From the wordings of the above quoted provisions, there are three conditions which must be met or satisfied before an offence can be compounded; namely (a) The offence to be compounded must be one that is punishable under the EFCC Act (b) the sum of money that EFCC can accept must exceed the maximum amount to which person would have been liable to pay if he had been convicted. (c) the EFCC can accept money in compounding the offence. In addition, there must be a written agreement between the appellant and the Respondent on the issue of compounding of the crime for which the appellant was charged and also the amount to be accepted by the respondent must be explicitly stated in the written agreement for compounding the offence no more no less. Considering the antecedents of this instant case, I am not convinced that all these pre-requisites mentioned above were met or fulfilled by the appellant for it to benefit from the above provisions which was relied on by the appellant’s learned counsel and Section 14 (2) is therefore not applicable to this instant case. Similarly, no evidence was adduced by the appellant to show that a sum exceeding the amount involved in the offence was paid by it to the present respondent. In the light of my discourse above, I endorse the finding of the lower Court that plea bargain did not inure to the appellant herein and also there was not any compromise that had existed between Lucky Igbinedion on one hand and the EFCC on the other hand, as would inure in favour of the appellant. PER AMIRU SANUSI, J.S.C.

MEANING OF THE WORD OF CONDONE

On condonation, my understanding of the word “condone”, is that it means to pardon or to over look (an offence), to forgive or to show act of forgiveness. PER AMIRU SANUSI, J.S.C.

WHETHER THE WITHDRAWAL OF A CHARGE AMOUNTS TO AN ACQUITTAL

The next point canvassed by parties learned counsel, is whether withdrawal of a charge amounted to an “acquittal”. Here I do not think much energy should be exerted in answering this question. The issue of acquittal only arises in a situation where there is a full-blown trial in which evidence was led by the prosecution and the defence or that the latter had admitted committing of the offence charged. Where a Court having jurisdiction, had taken evidence and finally acquitted or convicted an accused person, in that case such acquitted or convicted person can not later be taken or arraigned before another Court or any Court for the trial on the same offence or offences because to do so would certainly amount to double jeopardy. See Section 182 of the Criminal Procedure Act, which is in pari materia with Sections 238 and 239 of the Administration of Criminal Justice Act of 2015. For this provisions to apply, it must be shown through credible evidence that there was a previous conviction or acquittal made by a Court that had jurisdiction to try that person. See Section 36 (a) of the 1999 Constitution. See also Chief of Air Staff vs. Iyen (2005) 6 NWLR (pt. 924) 496 at 535. On the other hand, WITHDRAWAL of charge, does not amount to acquittal as rightly held by the lower Court. The prosecution always has the power to withdraw any charge it had filed earlier before a Court against an accused person. That withdrawal may be done for purpose of abandonment of the charge or for whatever reason the prosecution decides to do so without necessarily informing the trial Court the reason for such withdrawal. Withdrawal can also be done at any stage of the trial before conclusion or before Judgment is delivered either convicting or acquitting the accused person. In some of our laws however, “withdrawal” does not amount to dismissal of the case, in which case a bar to further prosecution could avail the appellant, depending on the circumstance of a given case. PER AMIRU SANUSI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

ROMRIG NIGERIA LIMITED Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Court of Appeal, Benin Division (the lower Court) delivered on the 9th of April, 2014 which affirmed the decision of the Federal High Court, Benin division (the trial Court)

The background facts which gave rise to this appeal as gathered from the Record are summarised below. The prosecution preferred 66 count charge against the appellant and 6 other accused persons before the trial Court. The appellant herein, was the 5th accused person and he and his co-accused were alleged to be involved in the laundering of the funds belonging to the Edo State Government and Local Government, of the State.

On being served with the charge, the accused persons filed an application dated 4th February, 2011 challenging the jurisdiction of the Federal High Court Benin to entertain the charge. The application was predicated on the doctrines of double jeopardy and condonation. They complained that they have been charged at the Federal High Court, Enugu in charge No FHC/EN/6C/2008 between FRN v. LUCKY NOSAAKHARE IGBINEDION and Others and that Judgment was

entered after a plea bargain arrangement between the accused persons and the prosecution.

In opposing the motion, the prosecution filed a counter affidavit, wherein it was stated that neither the appellant herein, nor any of the accused persons was convicted in the charge filed at Enugu Federal High Court for the offence of money laundering and that it was only the 1st accused person (Lucky Igbinedion) who was charged and convicted for the offence bordering on non-disclosure of assets (Money in GTB Account) before the trial Court.

The prosecution stated that it is not in dispute that charge no. FHC/EN/6c/2008 was filed by the respondent herein, at Enugu Division of the Federal High Court and that it is also not in dispute that the name of appellant featured as one of the accused persons in the charge filed at Enugu While the charge was pending, Lucky Igbinedion approached the prosecution for a plea bargain arrangement which was strictly between the EFCC on one part and Lucky Igbinedion and KIVA corporation on the other part and one of the conditions for the plea bargain was for Lucky Igbinedion to make full disclosure of his interests in the appellant

herein and his relationship with Patrick Eboigbodim (the 2nd accused in the charge before the trial Court and one Amadim David Eriyo.

Lucky Igbinedion denied knowing the appellant herein and he also denied ever instructing the duo of Patrick Eboigbodim and Amadim David Eriyo to pay money into the account of the appellant and other companies including the 4th, 6th and 7th accused persons.

The prosecution also pointed out that Michael Igbinedion and Patrick Eboigbodin were major persons who deposited the various proceeds of crime into the accounts of the appellant herein and that contrary to the contention of the appellant, there was no agreement between it and the prosecution that it will not be prosecuted for various sums of money laundered through the appellant. The prosecution further stated that the appellant was never a party to the settlement arrangement in the charge preferred at Enugu Federal High Court because Michael Igbinedion (the alter ego of the company). Patrick Eboigbodin and Amadi Erigo who paid several sums of money in to the account of the appellant company were not available to explain the circumstances under which they made various

lodgments.

At the trial Court, parties filed and exchanged written addresses in support and opposition to the joint motion filed by the accused persons before the trial Court and oral arguments were also taken (pages 713 – 748 of Vol II for the accused/applicant written address and pages 848-891 of Vol II of the record for the complainants/respondents written address. In its ruling dated 31st May, 2011, the trial Court dismissed the application and held that the doctrine of double jeopardy and abuse of Court process were not available to the appellant as well as 2nd, 3rd, 4th and 7th accused persons.

Dissatisfied with the Ruling, the appellant unsuccessfully appealed to the Court of Appeal (lower Court), hence the present appeal to the Supreme Court. Parties filed and exchanged their respective briefs of argument. The appellant in its brief of argument formulated five (5) Issues for determination out of the thirteen grounds of appeal. The issues raised by the appellant are set out below: –
1. Whether the Court of Appeal was right when it held that the Plea Bargain Agreement/Arrangement entered into in Enugu with the Economic and Financial Crimes

Commission (Respondent) does not inure to the benefit of the Appellant (Grounds 1, 2 & 3).
2. Whether the Court of Appeal was right when it held that a crime cannot be condoned by the State (Ground 4).
3. Whether the Court of Appeal was right when it held that the withdrawal of the charge in the circumstance of this case can never amount to an acquittal (Grounds 5 and 6).
4. Whether the Court of Appeal was right when it held that the Plea of Double Jeopardy was not available to the appellant.
5. Whether the Court of Appeal was right when it held that the charge preferred against the accused person leading up to the appeal did not constitute abuse of Court process (Grounds 10 & 1 1).

On its part, the respondent which filed its brief of argument on 26/2/16 settled by Rotimi Jacobs SAN in which only two issues were proposed for the determination of this appeal of course, out of the thirteen rounds of appeal. The two issues for determination are set out hereunder:
A. Whether the Court of Appeal was 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 (See Grounds 1, 2, 3 and 5)
B. Whether the Court of Appeal was not right in affirming the decision of the 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 (See Grounds 4, 6, 7, 8, 9, 10, 11, 12 and 13).

In its brief of argument, the learned appellant’s counsel, argued the first issue for determination separately and then argued Issues Nos. 2, 3, 4 and 5 together. I will therefore treat the appeal in the way the appellant argued his issues for determination as stated supra.

SUBMISSION OF COUNSEL ON ISSUES FOR DETERMINATION (BY APPELLANT)
ISSUE NO 1
This issue deals with whether the Court below was right when it held that the plea bargain agreement does not inure to the benefit of the appellant.

The learned, counsel to the appellant contended that the appellant was only charged in counts Nos. 129, 130, 131, 132 and, 134 (pages 1304-1305) of the record. He stated also, that the appellant in this appeal is a corporate entity which can only act through

human medium agency. He argued that each count against the appellant herein, has been replicated in the counts preferred against LUCKY IGBINIEDION in counts 1-61, 125, 126, 127, 128 and 133 when he was accused of procuring the appellant herein, and others to commit the alleged offences. He cited several cases and submitted that, in this case, it is beyond dispute that the need to amend the charge arose after an agreement had been reached between parties for a compromise and that once parties have agreed to reach a compromise on an issue, effect is given to their agreement and none of the parties should be allowed to renege or go back on the promise made. He cited the case of AG Rivers State v. AG Akwa Ibom State (2011) 8 NWLR (pt. 1248) 31. He submitted further, that as long as the appellant herein, was charged as an agent or privy of the said LUCKY IGBINIEDION, any right or privileges which should ordinarily inure to the said LUCKY IGBINIEDION should also inure in favour of the appellant herein. He argued that as at 17/12/200, the charge leading to plea bargain and conviction on 18/12/2008, had not been filed and that the amended, charge leading to plea

bargain and conviction was done on 18/12/2008 and that reference to the accused persons on 17/12/2008 in Court by the prosecution could only have been reference to all the persons contained in the charge as it was on 17/12/2008, wherein the appellant was the 5th accused person as per the amended charge dated 13/10/08 (pages 1839-1902) of the record and not what the charge metamorphosed into on 18/12/08, when the amended charged dated 17/12/08 was filed.

He argued that at no point in time, was it shown that the plea bargain arrangement did not cover every person charged in FHC/EN/6c/08 before the FHC Enugu as at 17/12/2008. He argued further, that the law does not allow any party to benefit from his wrong doing by failing to find judicial recognition to the agreement which led LUCKY IGBINIEDION to change his plea from NOT GUILTY to GUILTY and to take undue advantage of them when it is the same prosecutor ROTIMI JACOBS SAN, who was the same person who attended on behalf of the respondent at Enugu, when the plea bargain arrangement was entered, into. He then urged the Court to resolve this issue in favour of the appellant and strike out charge No

FHC/B/NC/2011 or on in the alternative, strike out the name of the appellant herein, from that charge.

ISSUES NO. 2, 3, 4 and 5
The learned counsel to the appellant argued that where an offence has been compromised by EFCC, it is only the Attorney General of the Federation that can prosecute any person further and that EFCC cannot subsequently re-arraign such accused person in view of Section 14 (2) of the EFCC Act, 2010. He submitted that an Act of National Assembly have made provision, for condonation of certain crimes and these provisions have received judicial backing of the Supreme Court in the case of NIGERIA ARMY V. AMINU KANO (2010) 5 NWLR (pt. 1188) 429 and ASAKE V. NIGERIA ARMY (2007) 1 NWLR (pt. 1015) 408. He referred to the decision of the trial Court where it was held that LUCKY IGBINIEDION whose is under scrating in all counts charge cannot be tried again for the offences contained in the new charge which no doubt recognised that a compromise was reached along the line with the said LUCKY IGBINIEDION with EFCC. He submitted further, that if law treats agent and principal as one person, the plea bargain agreement entered into with LUCKY

IGBINIEDION must therefore be accepted as protecting his agent and all persons who acted under him, as to do otherwise, will put the said LUCKY through another criminal trial. He quoted the Judgment of the trial Court in respect of charge no FHC/B/HC/2011. He then urged the Court to resolve these issues in favour of the appellant and allow this appeal.

SUBMISSION ON ISSUES FOR DETERMINATION MADE BY RESPONDENT’S SENIOR COUNSEL
The respondent in its own part formulated two issues for determination.
The respondent’s issue no 1 deals with whether the Court below was right in affirming the decision of the trial Court that there was no plea bargain agreement between the appellant and the respondent in respect of the charge before the FHC Enugu.

The learned senior counsel for the respondents referred to the Judgment of the Court below at page 2426 of Vol. V of the record and argued that contrary to argument of the appellants counsel that LUCKY IGBINIEDION has been left off the hook (in paragraphs 2. 15 and 2. 22 of its brief), he submitted that, that argument is misleading and that LUCKY IGBINIEDION has not been left off the hook at all. He pointed

out that the correct position of things in relation to the said LUCKY, is that the joint application filed by the accused persons before the FHC Benin was granted only in relation to the said LUCKY IGBINIEDION while the 2nd – 7th accused were directed to take pleas. He stated further, that prosecution appealed against the decision discharging the said LUCKY while the 2nd-7th accused persons also appealed against the decision of the trial Court and the Court of Appeal set aside the decision of the trial Court when it discharged LUCKY IGBINIEDION on the basis of doctrine of plea bargain agreement, double Jeopardy condonation and abuse of Court process. See FRN v. IGBINEDION (2015) 2 NWLR (pt. 1441) 475. He submitted that by virtue of the Court of Appeal decision in FRN v. IGBINEDION, the impression being created by the appellant is that LUCKY IGBINIEDION has been set free and hence should be excluded to the appellant, is clearly misleading. He argued further, that the Court of Appeal held that it could not infer any legal mandates of a plea bargain agreement between EFCC and the said Lucky IGBINIEDION. He urged the Court to discountenance any argument that

tends to suggest that LUCKY IGBINIEDION has been left off the hook.

On whether there was a plea bargain agreement, he referred to the Judgment of the Court below at page 2414 of Vol. V of the record, where the Court held that it is alien to the Nigeria Criminal Justice but imported to our Judicial system by implication of Section 14 (2) of the EFCC Act and also reference of the Court of Appeal to the Administration of Criminal Justice Law of Lagos State, 2011, which can be said to be the first legislation in Nigeria to expressly localise and import plea bargain into Nigeria’s criminal jurisprudence. He referred to Section 26 of the ACJL which prescribes the modality for the plea bargain arrangement. He also pointed out that sometimes in 2015, the National Assembly enacted Administration of Criminal Justice Act and part 28 thereof, is on plea bargain. He Submitted that Section 270 (7) of Act provides that the plea bargain agreement must be in writing and that the Act was not in existence as at the time of the facts of the case leading to the instant appeal.

Learned counsel also submitted further, that the appellant’s contention that there was a plea

bargain is unfounded. He conceded that there were attempts at settling some issues involving LUCKY IGBINIEDION and KIVA Corporation Ltd, but that there were disagreements in the scope and extent of the settlement agreement. He therefore submitted that the appellant having failed to establish that it ever held any meeting with the prosecution in an attempt to enter into plea bargain, renders the contention of the appellant that there was a plea bargain, unfounded.

On circumstances under which the charge was amended, he submitted that the circumstances under which the charge was amended were well illustrated in the counter affidavit filed by the prosecution in opposition to the joint application filed by the appellant and other accused persons at the trial Court as contained in pages 783-786 of the record and Further Counter Affidavit at page 833 of vol II of the Record. He argued that Michael Igbiniedion, who is the alter ego of the appellant herein, had escaped from the jurisdiction of the Court as at the time of filing charge No FHC/EN/6C/2008, including Patrick Ejboigbodin and David Amadin Eriyo who were the main persons who laundered funds using the

account of the appellant and those of the 4th, 6th and 7th accused persons. He pointed out that Lucky Igbiniedion was convicted for failure to declare his interest in the account no 4124013983110 with GTB, while KIVA Corporation was convicted for money laundering in the amended charge of 18th December, 2008 before the FHC, Enugu. He submitted that none of the transactions covered by charge no FHC/C/B/UC/2011 leading to the instant appeal featured in the amended charge filed at the FHC Enugu in charge no FHC/EN/6c/2008 on the 18th December, 2008. He therefore submitted that there was no agreement undertaking not to prosecute the appellant and he therefore urged the Court to so hold.

On the effect of the amendment, he submitted that charge no FHC/EN/6C/2008 will be deemed to have been filed, in the same as the amended charge dated 17 December, 2008, See ATTAH v. STATE (1993) 7 NWLR (pt. 305) 257 at 286. He urged the Court to resolve this issue in favour of the respondent.

Issue No 2 of Respondent
Issue no. 2 deals with whether the Court below was right in affirming the decision of the trial Court that the appellant is not entitled to any of the

defences of condonation, plea of autrefios convict or doctrine of double jeopardy.

The learned senior counsel for the respondent referred to Section 14(2) of the EFCC Act and submitted that it is inapplicable to the instant situation and stated that the following must be borne in mind in construing the provisions: –
(a) that EFCC has the power to compound an offence
(b) that offence to be compounded is punishable under the EFCC Act
(c) that EFCC can accept money in compound of the offence
(d) that the sum of money the EFCC can accept must be that which must exceed the maximum amount to which that person would have been able to pay if he had been convicted of that offence.

He submitted that no scintilla of evidence have been produced before the Court to show that EFCC had at any time accepted or agreed to accept any sum of money from the appellant ie Lucky Igbinedion. He cited, the case of CHIDOLUE V. EFCC (2012) 5 NWLR (pt. 1292) 160 where it was held that the amount must exceed the maximum amount. He submitted that none of the three elements listed above by the Court is present in the instant case and therefore Section 14 (2) of

the EFCC Act is not applicable. He again argued that even if the offences were compoundable under Section 14 (2) of the EFCC Act, it is without prejudice to the power of the Attorney General of the Federation to still initiate criminal proceedings in view of the provisions of Section 174 of the 1999 Constitution as amended. He therefore urged the Court to discountenance the appellant’s submission and hold that the EFCC did not at any time compound the offences as alleged by the appellant.

On the issue of condonation, he responded by saying that it is surprising that the appellant can still reproduce that part of the trial Court’s ruling to buttress his arguments on same, when he knows that the ruling has been set aside by the Court. He urged the Court to discountenance the appellant’s submission on the issue of condonation. He stressed that condonation has its own intuition when it comes to the application in criminal ease and that the application of the doctrine is usually presented by statutes. He referred to Section 26 of the Matrimonial Causes Act Cap M7 LFN 2004 and Section 171 (1) & (2) of the Armed Forces Act, Cap A20 LFN 2004 and Section 119

of the Nigeria Army Forces Act Cap 291 LFN 1990 which specifically provide for condonation. He also cited the case of Nigeria Army vs Aminu Kano (supra) and submitted that apart from Matrimonial Causes offences, the other categories of persons to when the doctrine applies are persons subjected to service laws.
He therefore submitted that condonation is not applicable in criminal cases.

On whether Agency is a valid defence to criminal responsibility, the learned Senior counsel for the respondent argued that criminal liability is personal and that it will not serve as a valid defence in law for any person who is alleged to have committed an offence hence he can not argue that he was acting as an agent while committing the offence. He urged the Court to discountenance all the cases cited by the appellant in paragraphs 2. 43 of its brief as they are not applicable.

On the alleged double jeopardy, he submitted that having regard to Section 36 (9) of the 1999 Constitution as amended, the issue of double jeopardy will only answer 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 again. He argued that in the instant case, there is no evidence that the appellant had been convicted or acquitted by any Court of law on account of the offences alleged in charge no FHC/B/11C/2011 and that it was only LUCKY IGBINIEDION and KIVA Corporation Ltd who were convicted in charge no FHC/EN/6C/2008. He argued that none of the counts in charge no FHC/B/11C/2011 is similar to the offences alleged in charge filed before the FHC Enugu. He then urged this Court to resolve this issue in favour of the respondent and to dismiss the appeal.

The Reply brief of the appellant simply contain argument on issues of facts, or at best can be regarded as re-arguments of what has been argued in its main brief. I will therefore bother not to consider it.

ISSUE NO 1
On this issue, the appellant’s contention is that the lower Court was wrong in its finding that the Plea Bargain agreement entered did not inure the appellants. Learned appellant’s counsel emphasized that the present appellant’s name featured in some of the named charges filed before the Enugu Federal High Court even though it is not a natural person but a corporate body. His further

contention is that since each of the counts framed against the appellant was replicated and preferred to Lucky Nosakhere Igbinedion and that the latter procured the appellant and others to commit the alleged offences and since the said Lucky Igbinedion was let off the hook, then it (i.e the appellant) being an agent or accomplice must be let off the hook too. The learned appellant’s counsel cited some decided authorities to buttress the point that since they were charged together and that Lucky was let off the hook, it must also have to benefit from the Lucky’s exoneration.

His other contention is that there was even no need to amend the charge, since there had already been a standing and subsisting agreement which was reached between the parties arriving at a compromise. It was argued that where there is such compromise, none of the parties should be allowed to opt out of the already consented agreement. In other words, the respondent is estopped from bolting out of the agreement in which the plea of “Not Guilty” was changed to plea of “Guilty”.

Now in the present scenario, one must in the first place consider whether there was actually any agreement

on plea bargain between the appellant and the present respondent in the case before the Enugu Federal High Court. It is worthy of note that the appellant herein, being a company was not represented by any of its directors who took part in the supposed or alleged plea bargain at the Federal High Court, Enugu. Similarly, at Enugu, there was no evidence showing that the appellant was ever tried or was either convicted or acquitted as would constitute or put a bar on the EFCC from arraigning it before the Benin Federal High Court for prosecution on the new charges or counts. There is also no agreement whatsoever, to establish that some charges were to be condoned, especially the charges on which it was arraigned before Federal High Court Benin. My lords, permit me to even observe at this stage, that none of the parties at both the trial Court and the lower Court produced any term of agreement relating to the “Plea Bargain Arraigned” or “settlement”. This Observation was validly made page 2426 of volume V of the Record of Appeal. Therefore, it is also my opinion that by presenting or canvassing the issue of Plea Bargain which was not backed by any written

term/agreement, the appellant only wanted to call upon the two lower Courts to act within the realm of conjecture or to speculate which is not the duty or function of a Court of law.
It is even instructive to note that the concept of Plea Bargain become part of the Federal law only in 2015 when the National Assembly enacted the Administration of Criminal Justice Act in which in part 28 of that Act, Section 270 (7) made provision for plea bargain agreement which it even had emphasised that such agreement must be reduced into writing. Only Lagos State Government had earlier in 2011 enacted, Administration of Criminal Justice Law in which provision of Plea Bargain was made under Section 75 of that Law in which it also insisted in Section 76 (4) that agreement between the parties must be in writing and shall be agreed upon by the parties.
Thus consequent upon all that I have posited above, I am inclined to agree with the finding of lower Court when it stated at page 2-26 vol v of the Record as below: –
“There is no evidence or documentation of any plea bargain agreement. The fact that the Appellant’s company herein was not represented by any

of its directors either to arrange a plea bargain meeting is also fatal to its case as it has been established that directors of the Appellant’s company were even at large during the period Lucky Igbinedion entered in to agreement with the EFCC and all through trial I am of the view that a plea bargain agreement is a post arrangement agreement of some sort since it may result in a situation where the accused may plead guilty to some charges against him, so that others may be dropped. In the same vein, a plea bargain cannot be done in abstantia or by representation of the accused person. Only directors to an accused corporate entity can represent such a company in a plea bargain arrangement. Since the accused must personally make his plea in Court, an accused person must also be present personally to negotiate his plea bargain agreement Parties cannot expect the Court to act on an imaginary agreement.”
This lower Court’s funding above cannot be faulted at all.
In the result, it is my view that the plea bargain did not inure to the appellant herein. This issue is therefore resolved against the appellant herein.

Issues 2, 3, 4 and 5
With

regard to the second issue for determination which deal with the power of the EFCC to compound the offences under the Economic and Financial Crimes Commission (Establishment) Act of 2004, it is the stance of the learned counsel for the appellant that the EFCC has power under Section 14 (2) of the Act to compound, compromise, condone or compromise such offences and if that is done by the Attorney General of the Federation, as in this instant case, the EFCC can not later re-arraign such person on the same charge. To the appellant’s learned counsel, the prosecutor i.e EFCC had reached a compromise and collected from Lucky Igbinedion (the principal offender) some amount following the Enugu FHC plea bargain agreement and the offences before Federal High Court Benin (the trial Court) had been duly compromised. The above stance of the appellant’s counsel were anchored an the provisions of Section 14 (2) of the EFCC Act.
Let us now examine the provisions of Section 14 (2) of that Act which reads thus: –
“Subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the 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 thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.” (Emphasis supplied by me)
From the wordings of the above quoted provisions, there are three conditions which must be met or satisfied before an offence can be compounded; namely
(a) The offence to be compounded must be one that is punishable under the EFCC
Act
(b) the sum of money that EFCC can accept must exceed the maximum amount to which person would have been liable to pay if he had been convicted.
(c) the EFCC can accept money in compounding the offence.
In addition, there must be a written agreement between the appellant and the Respondent on the issue of compounding of the crime for which the appellant was charged and also the amount to be accepted by the respondent must be explicitly stated in the written agreement for compounding the offence no more no less.<br< p=””

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Considering the antecedents of this instant case, I am not convinced that all these pre-requisites mentioned above were met or fulfilled by the appellant for it to benefit from the above provisions which was relied on by the appellant’s learned counsel and Section 14 (2) is therefore not applicable to this instant case. Similarly, no evidence was adduced by the appellant to show that a sum exceeding the amount involved in the offence was paid by it to the present respondent.
In the light of my discourse above, I endorse the finding of the lower Court that plea bargain did not inure to the appellant herein and also there was not any compromise that had existed between Lucky Igbinedion on one hand and the EFCC on the other hand, as would inure in favour of the appellant.

On condonation, my understanding of the word “condone”, is that it means to pardon or to over look (an offence), to forgive or to show act of forgiveness. I do not think such term or terminology fits well in the instant scenario. It is in the light of what I have highlighted above, that I hold the firm view that the crime on which the appellant was accused of committing can not be

condoned, as rightly held by the lower Court.

of Air Staff vs. Iyen (2005) 6 NWLR (pt. 924) 496 at 535.
On the other hand, WITHDRAWAL of charge, does not amount to acquittal as rightly held by the lower Court. The prosecution always has the power to withdraw any charge it had filed earlier before a Court against an accused person. That withdrawal may be done for purpose of abandonment of the charge or for whatever reason the prosecution decides to do so without necessarily informing the trial Court the reason for such withdrawal. Withdrawal can also be done at any stage of the trial before conclusion or before Judgment is delivered either convicting or acquitting the accused person.
In some of our laws however, “withdrawal” does not amount to dismissal of the case, in which case a bar to further prosecution could avail the appellant, depending on the circumstance of a given case.

As regards the issue of double jeopardy, an accused person can always plead the doctrine of autrefios convict or autre acquit. It will however be pertinent to examine Sections 181 and 182 of the Criminal Procedure Act which are reproduced hereunder for ease of reference.
Section 181 reads: –
“Without

prejudice to Section 171 of this Act, a person charged with an offence (in this section referred to as “the offence charged”) shall not be liable to be tried thereafter if it is shown
(a) that he has previously been convicted or acquitted of the seine offence by a competent Court, or
(b) that he has previously been convicted or acquitted by a competent Court on a charge on which he ought to have been convicted of the offence charged; or
(c) that he has been previously convicted or acquitted by a competent Court of an offence other then the offence charged, being an offence of which a part from this section, he ought to be convicted by virtue of being charged with the offence charged
2. Nothing in Subsection (1) of the Section shall prejudice the operation of any law giving power to any Court, on an appeal to set aside a verdict or finding of any other Court and order a retrial.
Section 182 states: –
“A person acquitted or convicted of any offence may afterword be tried for any distinct offence for which a separate charge ought to have been made against him in the previous trial under the provisions of Section 158 of this Act”.

The above two sections are in pari materia with Sections 238 and 239 of the Administration of Criminal Justice Act of 2015.
In the result, a person who has been duly tried by a Court which has Jurisdiction of any offence and in the end acquitted or convicted can not later be arraigned before that Court or any other Court for the same offence, for to do so, will amount to double jeopardy and will thus run riot and violent to the above provisions and Section 36 (9) of the 1999 Constitution as amended. It must however be emphasised that for the above provisions to operate, the offence tried and the fresh one to be tried must be the same. In the present case, as rightly found by the trial Court and endorsed by the lower Court, evidence was not adduced to show that the appellant was in fact convicted or acquitted by any Court on the offence, contained in charge No FHC/B/11C/2011. Therefore, it is my humble view, that the doctrine of double Jeopardy could not avail the present appellant, as correctly found by the two Courts below.

The last issue raised by the appellant pertains to alleged abuse of Court process.

Although the appellant did not

specifically canvass what he really perceived to be an abuse of Court process on this last issue, it can be gathered from his submissions generally, that his grouse is that the lower Court was wrong in holding that the charge framed against the appellant culminating into the present appeal, constituted abuse of Court process. In otherwords, the appellant seems to be insinuating that the latter charge No FHC/B/11C/2011 constitutes an abuse of Court process in view of the existence of an earlier charge No FHC/EN/8C/2008 which was earlier filed before the Enugu FHC. A quick answer to this poser, is that it had not been shown by him that there was any conviction or acquittal by any Court with regard to the transaction for which the appellant was arraigned on a charge before the Benin Federal High Court and there was no evidence adduced to show that the charge before the Federal High Court Enugu covered the latter charge filed before Federal High Court Benin. Closely looking at the charges filed before Benin Federal High Court (the trial Court) they are at wide variance with those filed earlier before the Enugu Federal High Court. I therefore hold that the

filing of the charge before Benin Federal High Court which did not relate to the same transaction covered in the charge filed before the Enugu Federal High Court, such did not amount to abuse of Court process. The Attorney General of the Federation therefore has unfettered right to institute the charge before the trial Court. Consequently, all the five issues for determination have been resolved against the appellant herein.

In the result, I am unable to find any merit with this appeal. It is hereby accordingly dismissed by me

The Judgment of the lower Court which had earlier affirmed the Ruling of the trial Federal High Court Benin is hereby further affirmed. The appeal being lacking in merit is hereby dismissed by me.
Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading the leading judgment just delivered by my learned brother, Sanusi JSC. I agree with his reasoning and conclusions.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to underscore the support I shall make some

comments.

This is an appeal by the appellant herein against the decision of the Court of Appeal or Court below, Benin Division delivered on the 9th April, 2014 wherein the Court below affirmed the decision of the Federal High Court, Benin City and held that the defences of autrefois convict, condonation, plea bargain agreement, double jeopardy and abuse of Court process were not available to the appellant.

The background facts of this appeal are well captured in the lead judgment and I shall not repeat them here.

On the 11th day of October, 2017 date of hearing, Chief Richard Oma Ahonarruogho of counsel adopted the appellant’s brief of argument filed on 11/3/2015 and deemed filed on 27/1/16. In the brief were crafted five issues for determination which are as follows:
1. Whether the Court of Appeal was right when it held that the plea bargain agreement/arrangement entered into in Enugu with the Economic and Financial Crimes Commission (Respondent) does not inure to the benefit of the appellant herein (Grounds 1, 2 and 3).
2.Whether the Court of Appeal was right when it held that a crime cannot be condoned by the State (Ground 4).<br< p=””

</br<

Whether the Court of Appeal was right when it held that the withdrawal of the charge in the circumstances of his case can never amount to an acquittal (Grounds 5 & 6).
4. Whether the Court of Appeal was right when it held that the plea of double jeopardy was not available to the appellant (Grounds 7, 8, 9, 12 and 13).
5. Whether the Court of Appeal was right when it held that the charge preferred against the accused person leading to this appeal did not constitute an abuse of Court process (Grounds 10 and 11).Learned counsel for the respondent, Adebisi Adeniyi Esq., adopted the Brief of Argument settled by Rotimi Jacobs SAN and filed on 26/2/2016.

In the brief of argument were identified two issues for determination which are, viz:
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 (Grounds 1, 2, 3 and 5).
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. (Grounds 4, 6, 7, 8, 9, 10, 11, 12 and 13).

I shall utilise the issues as drafted by the respondent since they are simpler and apt.

ISSUE 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.

Learned counsel for the appellant contended that the Court below was wrong to have held that the plea bargain agreement entered into in Enugu with the respondent does not inure to the benefit of the appellant. That it is not disputed that before the Federal High Court Enugu, the appellant was amongst those originally charged in Charge No. FHC/EN/6C/2008 between Federal Republic of Nigeria v. Lucky Nosakhare Igbinedion & Ors wherein the appellant was the 5th accused and a corporate body.

That the proceedings of the Federal High Court, Enugu in Charge No. FHC/EN/6C/2008, the appellant herein was covered by the plea bargain arrangement and once the

1st accused Person is held to suffer double jeopardy same must go for his co-accused person in that charge as they were all taken or deemed to have been taken into consideration before that case, FHC/EN/6C/2008 was terminated.

That with respect to charge FHC/B/11C/2011, the Court should discharge and acquit the appellant or alternatively to strike out the name of the appellant herein from that charge.

It was further submitted that the appellant is not a natural person and cannot act except through humans. That each and every count against the appellant had been replicated in the 66 counts preferred against Lucky Nosakhare Igbinedion in counts to 61, 125, 126, 127, 128 and 133 where he was accused that he procured the appellant herein and others to commit the alleged offences and if for any reason whatsoever, the said Lucky Nosakhare Igbinedion is let off the hook in respect of those charges, any other person connected with the charge through him as either an agent or accomplice must also be let off the hook. Learned counsel cited the cases of Idiok v. The State (2008) 13 NWLR (Pt. 1104) 225; Ebri v. The State (2004) 11 NWLR (Pt. 885) 589; Okoro v.

The State (2012) ALL FWLR (Pt. 621) 1471: (2012) 4 NWLR (Pt. 1290) 351 etc.

For the respondent, it was submitted that the Federal High Court, Benin City in its ruling found that there was no plea bargain agreement between the appellant and the EFCC to the effect that the appellant would not be prosecuted in respect of the offences which the prosecution alleged against it. That there is a concurrent finding of fact by both the Federal High Court Benin and the Court below on the issue as to whether there was a plea bargain agreement or arrangement between the appellant and the prosecution with regard to the charges filed at the Federal High Court, Enugu. That both counts are ad idem that there was no plea bargain agreement that was reached between the prosecution and the appellant. That this is one of those occasions in concurrent findings of fact that the Supreme Court ought not to interfere unless it is shown by the appellant that such findings are perverse and that is not the case here. He cited Sobakin v. State (1981) 5 5C 375: Abirifon v. State (2013) 13 NWLR (Pt.1372) 619 at 636; Egunjobi v. FRN (2013) 3 NWLR (Pt. 1342) 534 at 555.

The appellant’s posture is that it is inequitable to allow the respondent to continue with the prosecution of charge FHC/B/11C/2011 having condoned the charges as appellant being an agent of Lucky Nosakahare Igbinedion who had been set free is entitled to be set free also.

The contrary view of the respondent is that the Court of Appeal was 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.

I shall recast some parts of the judgment of the learned trial judge and it is thus:
“However, regrettably enough, none of the 2nd – 7th accused persons-applicants 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 prosecutions (sic) 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 (sic) not available and opened to any of the 2nd – 7th accused persons-applicants.

In fact, there is uncontroverted evidence that some of the accused – applicants escaped from jurisdiction while the case of Enugu was going on. How can such accused – applicant turn round now and raise the defence of or plea double jeopardy.

It appears upon totality of this case the grounds upon which this 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 pardoned, (sic) under Section 36 (10) of the Constitution.

Consequently, their application must fail in entirety and be so dismissed. It is hereby dismissed in its entirety for lack of merit, frivolity and wanting in bonafide.

The Court of Appeal found as follows:
“There is no evidence or document of any plea bargain agreement. The fact that the appellant’s company herein was not represented by any of its directors either to arrange a plea bargain meeting is also fatal to its case as it has been established that directors of the

appellant’s company were even at large during the period Lucky Igbiniedion entered agreement with the EFCC and all through trial.
I am of the humble view that a plea bargain agreement is a post arraignment agreement of some sort. Since it may result in a situation where the accused may plead guilty to some charges against him, so that other my be dropped. In the same vein, a plea bargain cannot be done in absentia or by representatives of the accused person. Only directors to an accused corporate entity can represent such a company in a Plea bargain arrangement. Since the accused must personally make his plea in Court, on accused person must also be present personably to negotiate his plea bargain agreement. Parties cannot expect the Court to act on an imaginary agreement.”

What is on ground is a concurrent finding of fact by both the Federal High Court Benin city and the Court of Appeal, Benin Division on the issue that there was no plea bargain agreement or arrangement between the appellant and the prosecution with regard to the charge filed at the Federal High Court, Enugu. This Court has over the years and without equivocation shown its attitude

not to interfere with the concurrent findings of fact of both Courts below, the High Court and the appellate Court unless it is established by the appellant that such findings are perverse. I rely on the cases of Sobakin v. State (1981) 5 SC 375: Abirifon v. State (2013) 13 NWLR (Pt. 1372) 619 at 636; Egunjobi v. FRN (2013) 3 NWLR (Pt. 1342) 534 at 555.

The two Courts below noted that there was no evidence of any plea bargain agreement that was placed before the Court by the appellant and so touting the plea bargain of the 1st accused i.e. Lucky Nosakhare Igbinedion cannot be taken as getting the appellant as co-accused off the hook or deriving the benefit that enure from that plea bargain in the Federal High Court, Enugu of 18th December, 2008.
The appellant at no given point held any meeting either with the prosecution or its agents and a plea bargain cannot be taken or entered into in absentia. This is because a plea bargain must be a deliberate and conscious act taken by the accused and prosecution. Another way of stating it is that a plea bargain is only valid or effective when agreed upon by the prosecution and the accused in person and not by

proxy. Also a plea bargain is not such as an accused can inherit the benefit from a co-accused no matter the relationship. It is recognised by me that the concept of plea bargain is new in our administration of justice system hence the paucity of judicial authorities and so the need to resort to the Supreme Court of the United States of America in which the system had taken root for very long and from whom we can tap some way forward. See Robert M. Brady v. United States 397 US 642 (90 SCT. 1463, 25 L. Ed. 2d 747) wherein the Supreme Court held thus:
“Of course, that the prevalence of guilty plea is explanation does not necessarily invalidate those pleas or the system which produced them. But we cannot hold that it is constitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and enter a correctional system in a frame of mind that affords hope for success in rehabilitation over shorter period of time than might be otherwise necessary.”
In this case at hand, at the Enugu Federal High Court proceedings only Lucky

Nosakhare Igbinedion and Kiva Corporation Limited of the accused persons including the now appellant approached the prosecution for settlement in Charge No: FHC/EN/6C/2008 and the prosecution agreed in principle on the condition that the said Lucky Igbinedion would make full disclosure of his involvement in all the transactions. Somewhere along the line there was not much progress made on the matter of the disclosure and so as a way to move forward the prosecution removed the name of the appellant as well as those of 4th, 6th and 7th accused persons from that charge, FHC/EN/6C/2008 and so the charge was amended to reflect those accused persons available for prosecution and so the charge was amended to reflect the said Lucky Igbinedion and appellant and those others were dropped from this amended charge. That was the situation as at the time, Lucky Igbinedion entered into the plea bargain and the Court made an order concerning him. Therefore the order of Court and whatever benefits that enured certainly did not affect the appellant and those others discharged. The effect is that the earlier charge becomes a nullity and of no useful purpose while the

amended charge takes the valid date of the earlier charge. See Attah v. State (1993) 7 NWLR (Pt. 305) 257 at 286; FRN v. Adewunmi (2007) 10 NWLR (Pt. 1042) 399 at 422.
The Court of Appeal stated thus:
“It seems to me that the argument of the appellant is that the plea bargain entered by Lucky Igbinedion covered the appellant’s offences. As I mentioned earlier, apart from the fact that a plea bargain agreement cannot be made on behalf of an accused, the non-arraignment of the appellant only amounted to the prosecution’s exercise of his power of withdrawal. A withdrawal of charge before the accused enters his defence can never amount to an acquittal.”
The implication of what the Court below stated and which I am in agreement is that, the effect of the amendment or substitution of the charge of 18th December, 2008 by the Enugu Federal High Court in charge No FHC/EN/6C/2008 was to date back to the day the first charge was filed and the original charge of 22nd January, 2008 and that of 13th October, 2008 are deemed not to be in existence. The appellant and the other accused persons cannot therefore claim that they were charged under those original

charges and the amended charge of 13th October, 2008. The effect of the amendment of 18th December, 2008 is to render all earlier or previous charges irrelevant and the appellant has no claim whatever in that which transpired in the amended charges and the benefits thereof.

From the foregoing, it can be seen that the issue has to be resolved and it is resolved against the appellant and in favour of the respondent.

ISSUE NO 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.

For the appellant, learned counsel stated that the EFCC has the power to compound offences under the EFCC Act, 2010 Section 14(2). that where an offence had been thus compounded, condoned or compromised it is only the Attorney General of the Federal that may prosecute any such person further as the EFCC cannot subsequently re-arraign such person. He cited Nigerian Army v. Aminu – Kano (2010) 5 NWLR (Pt. 1188) 429; Asake v. Nigerian Army (2007) 1 NWLR (Pt. 1051) 408.<br< p=””

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He stated that the trial Court held that Lucky Nosakhare Igbinedion whose act is under scrutiny in all the charges cannot be tried again for offences contained in the new charge that is FHC/B/11C/2011 as the Court recognized the fact that a compromise was reached somewhere along the line with the said Lucky Nosakhare Igbinedion and the EFCC (respondent). That the appellant was charged as an agent used by the said Lucky Nosakhare Igbinedion to launder money. That if the offence against the said Lucky Nosakhare Igbinedion are held to be abuse of Court process and consequently struck out by the trial Court, then every person charged along with him as an agent must be allowed to go free under the maxim – he who acts through another acts by himself. That an agent of a disclosed Principal bears no liability and where the Principal on whose behalf the Agent act of all material times is let off the hook, then the agent must also go scot free especially as the agent has not been charged with anything other than what it did on behalf of the Principal that has been set free. He relied on Yisi (Nig) Ltd v. Trade Bank Plc (2013) 7 NWLR (Pt. 1357) 522 at 539, Quo Vadis

Hotels & Restaurants Ltd v. Nigeria Maritime Services Ltd. (1992) 7 SCNJ 172 etc.

In response, learned counsel for the respondent contended that Section 14(2) of the EFCC Act is inapplicable because of no time did the prosecution enter into an agreement with the appellant not to prosecute it. Secondly nothing before the Court to suggest that the appellant conceded to having knowledge of the actual commission of crime. Thirdly there is no evidence that the EFCC received monetary consideration from the appellant. Also that Section 14(2) of the EFCC Act is designed to apply to offences not yet brought before the Court that is during investigation and so cannot applying to a matter pending before a Court.

For the respondent, it was further submitted that condonation is applicable only to matrimonial causes and within the Armed Forces Act and not to normal criminal offences. It was cited, the cases of Nigerian Army v. Aminun – Kano (2010) 5 NWLR (Pt. 1188) 429 at 453 – 454: Section 171(1) (c) and (2) (c) of the Armed Forces Act.

Learned counsel for the respondent contended that it must be borne in mind that in our criminal jurisprudence, criminal

liability is personal. He referred to A.C.B. v. Okonkwo (1997) 1 NWLR (Pt.480) 194 at 207.

That the 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 mater for which he is being prosecuted. He cited Section 36(9) of the 1999 Constitution of the Federation (as amended), Kalu v. Nigeria Army (2010) 4 NWLR (Pt. 1185) 433 at 451: Sections 181- 185 of the Criminal Procedure Act now Sections 238 – 240 of the Administration of Criminal Justice Act.

The appellant posits that he is entitled to the pleas of condonation, double jeopardy and abuse of Court process. The respondent contends that appellant is confusing the power of the Economic and Financial Crimes Commission to compound on offence under Section 14(2) of the EFCC Act with condonation as the two are distinct and not opposite.

Section 14(2) of the EFCC Act provides as follows:
“Subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (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 commission may compound any offence punishable under this Act by accepting such sum of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.”
The implication of the said Section 14(2) of the EFCC is as follows:
(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 exceed the maximum amount to which that person would have been liable to pay if he had been convicted of that offence.
The Court of Appeal in the case of Chidolue v. EFCC (2012) 5 NWLR (Pt. 1292) 160 at 177 construed that Section 14 (2) of the EFCC Act thus:
“The same dictionary gives three elements at common law and under typical compounding statute that must present before an offence can be compounded. These elements are:
1. An agreement not to prosecute
2. Knowledge of the actual commission of crime

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 fine 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.”
Taking the Chidolue case (supra) in con herein, it is clear that Section 14(2) of the EFCC Act is inapplicable to the case at hand as the conditions for the applicability of the said Section 14(2) do not exist here.

In respect to the condonation which the appellant is hanging on, a definition as stated in Black’s Law Dictionary would help.
Black’s Law Dictionary 8th Edition defines condonation at page 315 as;
“A victim’s expressed or implied forgiveness of an offence especially by treating the offender as if there has been no offence. Condonation is not usually a valid defence to a crime. One’s spouse expresses or implied forgiveness of a marital offence by resuming marital life and sexual intimacy.”
Also, Professor Itse Sagay in his book – Nigerian Family Law at page 393 defines legal condonation as:
“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 of forgiving or remitting the wrong is so condoned does not thenceforth, commit any further matrimonial offence. Condonation has two essential ingredients;
1. Forgiveness of the wronged spouse, and
2. Reinstatement of the offending spouse to his former position.”
The Court of Appeal per Ogunwumiju JCA held in respect of whether or not the charge had been compounded or condoned as follows:
“Suffice it to say that I cannot infer the legal incidents of a plea bargain agreement with uncertain terms in the circumstances of this case. I cannot also find any evidence of the compounding or condonation of any of the offences with which the respondent was charged in FHC/EN/6C/2011 sic 2008. That part of the ruling of the trial judge, Hobon J. in FHC/B/11C/2011 delivered on 31/5/2011 concerning the respondent is hereby set aside. The respondent is hereby ordered to plead to the charges filed in Charge No. FHC/B/11C/2011.”
This Court had however delineated the limits of condonation in the case of Nigerian Army v. Aminu Kano (2010) 5 NWLR (Pt. 1188) 429 at 453 – 454 per Muhammad JSC thus:
“I think we need to seek for the definition

of the word “condoned” or condone which, literarily means to pardon; to overlook (as offence), to forgive or to act so as to imply forgiveness. Thus, condonation is the act of condoning or pardoning a wrong act, the implied forgiving or pardon of an offence by overlooking it. See Lexicon Webster Dictionary, Vol. 1. 1980… In law, however, the word “condone” or condonation which has several variants such as condonment, condonance, strictly speaking, has to do with marital causes specially and it connotes the conditional remission of forgiveness, by means of continuance or resumption of matrimonial cohabitation by one of the married parties of a known matrimonial offence e.g. Adultery committed by the other that would constitute a course of divorce, the condition being that the offence shall not be repeated. See Obafemi v. Obafemi (1965) 1 NMLR 446 at page 448. If adultery is charged as a ground for divorce and condonation is proved, the forgiving spouse is barred from proof of that offence…in the revised editions of 1999 and 2004 of the Black’s Law Dictionary, the authors brought to fore the definition of the word condonation as it relates to general

application of the word where they defined it to mean a victims express or, especially implied, forgiveness of an offence by treating the offender as if there has been no offence.”
Clearly, condonation has no place in the case at hand and so the appellant not being charged under a Court Martial to which Section 171 (l) (c) and (2) (c) of the Armed Forces Act applies nor in a matrimonial dispute under the Matrimonial Causes Act operates and so the matter of condonation of the offences charged are not available to him.
For clarity I shall quote the said Section 171 of the Armed Forces Act thus:
Section 171 (1) (c) and (2) (c):
“Where a person subjected to service law under this Act 1(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.
2(c) an offence shall be deemed to have been condoned by the commanding officer of a person alleged to have committed an offence if an only if, that officer or any officer authorized by him to act in relation to the alleged offence has, with knowledge of all

circumstance, informed him that he will not be charged with the offence.”

On the other leg of defence to which the appellant is seeking refuge which is that since the principal, Lucky Igbinedion had taken a plea bargain, the appellant as agent of the said known principal cannot have a charge against him in related offences. This stand is strange to our jurisprudence and cannot be sustained as criminal liability is personal and an accused cannot be heard to say when charged for a criminal offence that he was acting as an agent of a principal. See A. C. B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207.
It follows that the issue of double jeopardy cannot arise since the matter of conviction or acquittal had to do with Lucky Igbinedion and not the appellant. The relevant statute being Sections 181 – 185 of the Criminal Procedure Act now Sections 238 – 240 of the Administration of Criminal Justice Act would clear some air. I quote:
Sections 181 and 182 of the Criminal Procedure Act provides as follows:
“181
(1) Without prejudice to Section 171 of this Act, a person charged with an offence (in this section referred to as “the offence charged”)

shall not be liable to be tried thereafter if it is shown-
a. That he has previously been convicted or acquitted of the same offence by a competent Court; or
b. That he has previously been convicted or acquitted by a competent Court on a charge on which he might have been convicted of the offence charged; or
c. That has previously been convicted or acquitted by a competent Court of an offence other than the offence charged, being an offence of which, apart from this section, he might be convicted by virtue of being charged with the offence charged.
Subsection (2) goes on:
(2) Nothing in Subsection (1) of this Section shall prejudice the operation of any law giving power to any Court, on an appeal, to set aside a verdict or finding of any other Court and order a re-trial.
182. A person acquitted or convicted of any offence may afterwards be tried for any distinct offence for which a separate charge might have been mode against him on the previous trial under the provisions of Section 158 of this Act.”
Since the appellant cannot show that he had been previously convicted or acquitted of the offences for which he is now being

called upon to answer, the principles of autrfois acquit or autrefois convict are not applicable in this instance. See Chief of Air Staff v. Iyen (2005) 6 NWLR (Pt.922) 496 at 535 per Edozie JSC.

By the same token, the issue of abuse of Court process in the initiation of this present charge flies off the hook as there is nothing on which it can hang. The concurrent findings of the two Courts below cannot be faulted and along with the better reasoning in the lead judgment, I find no merit in this appeal. I dismiss it and abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: My learned brother Sanusi, JSC has resolved all the issues raised in this appeal comprehensively. I agree also that the appeal lacks merit and should be dismissed.

The facts and historical background of this appeal are all restated very clearly in the lead judgment. I will not repeat same.

Suffice it to say at this point that the concept of plea bargain agreement itself originated from the American jurisprudence and became established in the case of Robert M. Brady V. United States 397 U.S. 742 (90 S. Ct. 1563, 25 L. Ed 2d 747).

It dated as far back as 1959 wherein the accused was charged with kidnapping and faced maximum penalty of death. He pleaded guilty to the charge and was sentenced to 50 years imprisonment. In 1967, he sought for relief under 28 U.S.C 2255 claiming that his plea of guilty was not voluntary but that his counsel mounted impermissible pressure on him to plead guilty. The District Court for the District of New Mexico denied him the relief. The Court of Appeal affirmed the decision of the District Court. The Supreme Court of the United States also affirmed the decision of the Court of Appeal.
Since the seal of approval by the US Supreme Court therefore the Courts have treated plea bargain as contracts between the prosecutors and defendants.
It is pertinent to state that Section 75 of the Administration of Criminal Justice Law of Lagos State is the first legislation to localize and import the concept of plea bargain into Nigeria’s Criminal jurisprudence and it provides thus: –
“Notwithstanding anything in this law or in any other law, the Attorney General of the State shall have the power to consider and accept a plea bargain from a person charged with

any offence where the Attorney General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of Legal Process.”
It is significant to state that the terms are clear cut as parties must not be in doubt as to what benefits will arise from the terms of agreement because all interests are taken into consideration.
The question that is central in this appeal is: –
Was there a plea bargain agreement between the parties If there was, who were the parties involved and what was the procedure employed by the parties involved
It is clear on the record that the letters exchanged between Lucky I. Igbinedion and the Commission at Pages 1256 and 1257 are instructive. In other words from the letters, that exchanged between the parties, there were attempts at settlement between Mr. Lucky Igbinedion and the EFCC.
The various correspondences on record reveal that there is nothing to show that the appellant herein or any of the other accused persons except Lucky Igbinedion approached the EFCC for plea bargain. This was as rightly said by the two lower Courts. There is

also no evidence or documentation of any plea bargain agreement.
The fact that the appellant company herein was not represented by any of its directors either to arrange a plea bargain meeting is also fatal to its case as it has been established that directors of the appellant company were even of large during the period Lucky Igbinedion entered agreement with the EFCC and all through trial.
The Court of Appeal at page 2426 of the record had this to say on modalities of the procedure: –
“Since the accused must personally make his plea in Court and accused person must also be present personally to negotiate his plea bargain agreement.
Parties cannot expect the Court to act on an imaginary agreement. Even through there was at that time no procedural law of the Federal High Court or the Criminal Procedure Act regulating plea bargain agreement. I am of the opinion that the procedure employed by parties was too casual. Even in ordinary out of Court settlement issues, parties reduce their settlement terms into writing and present it to the Court. The documentation of a plea bargain agreement is not only desirable, it is most logical as it would

prevent the inconsistencies that trial oral evidence such as distortion of agreement terms by parties at will.”
I endorse in totality the view held and expressed by the lower Court which same cannot be faulted but bears witness to a solid foundational background binding a plea bargaining agreement.
For all intents and purposes, the appellant seemed to be engulfed in mere imagination of believing that it has entered into a plea bargaining agreement as thought.

With the few words of mine and relying particularly on the comprehensive judgment of my learned brother Sanusi, JSC, I agree that the entire appeal is devoid of any merit and is hereby dismissed also by me in terms of the lead judgment.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me.

Appearances:

Chief Richard Oma Ahonaruoghofor with him, Chukwudubem Chukwara, Esq. For Appellant(s)

Adebisi Adeniyi, Esq., with him, O. A. Atolagbe, Esq. For Respondent(s)

Appearances

Chief Richard Oma Ahonaruoghofor with him, Chukwudubem Chukwara, Esq. For Appellant

AND

Adebisi Adeniyi, Esq., with him, O. A. Atolagbe, Esq. For Respondent