AGBI v. FRN (2020)

AGBI v. FRN

(2020)LCN/14106(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/A/873C/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

OLUMIDE AGBI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE LAW ON INTERPRETATION OF STATUTES

HON. HENRY SERIAKE DICKSON V. CHIEF TIMIPRE MARKIN SYLVA ORS (2017) 8 NWLR (PART 1567) 167 at 233 D – F per KEKERE-EKUN, JSC who said:
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim V. Barde(1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F-N. The exception is where to do so would lead to absurdity. See: Toriola V. Williams (1982) 7 SC 27 @ 46; Nnonye V. Anyichie (2005) 1 SCNJ 306 @ 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the Court would not lend its weight to such on interpretation. See: Amalgamated Trustees Ltd. V. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.” PER IGE, J.C.A.

THE ESSENCE OF PLEA BARGAIN

The whole essence of a plea bargain has been defined and explained in BLACKS LAW DICTIONARY 10TH EDITION page 1338 as follows:
“Plea bargain, n. (1963) A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty or no contest to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a dismissal of the other charges.- Also termed plead agreement; negotiated plea; sentence bargain. – plea bargain. vb. – plea-bargaining.
The apex Court in the land has also stated and explained the implication or incidence of a plea-bargain agreement in some cases. Suffice to refer to the following viz:
1.PML (SECURITIES) COMPANY LIMITED V. FRN (2018) 13 NWLR (PART 1635) 157 at 175 E – F per AUGIE, JSC who said:
“ALL the same, the first question that must be resolved is whether there was a plea bargain agreement between the appellant and the respondent at appeal per Lokulo-Sodipe, JCA, who wrote the lead judgment observed –
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 first legislation to bring in plea bargain into our criminal jurisprudence is the Administration of Criminal Justice Law of Lagos State (ACJL), 2011. The second is theAdministration 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 receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf or (b) offer a plea bargain to a defendant charged with an offence”. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned on a one count charge of offence of cheating on 18th July, 2019 at the High Court of Federal Capital Territory. The one count charge reads thus:-
“CHARGE
That you Olumide Agbi (a.k.a Seam William Streak/James Brown) sometimes in 2018, at Abuja within the jurisdiction of this honourable Court, committed the offence of cheating by fraudulently obtaining the sum of $1000 from the trio of Susan Ross and Tommy Joanna and Rita (all citizen of the United States of America) when you represented yourself as William Streak a Caucasian which representation you know to be false and thereby committed an offence contrary to Section 320(b) and punishable under Section 322 of the some Act.”

The charge was accompanied with summary of evidence of witnesses and plea bargain agreement entered into and executed by the parties to this appeal. The plea of the Appellant was taken on 24th July, 2019 and the proceedings of the day reads:-
“RECORD OF PROCEEDINGS
24/07/2019
Defendant in Court. He speaks English language
Ayodeji Fadalimsi Esq., for the

prosecution.
Adeji Abel Esq. for the defendant
Fadahunsi – The matter is for arraignment. We urge the Court to read the charge to the defendant.
Court- Registrar read the charge.
Court 1
Court- Do you understand the charge.
Defendant- Yes
Count- Are you guilty
Yes lam
Fadahunsi- The defendant having pleaded, we also have a plea bargain agreement which is attached to the charge.
The defendant had returned all the proceed of crime, hence the plea bargain agreement. We urge the Court to give effect to the agreement in conviction and sentencing.
Abel – The defendant is one of the beneficiaries of our services to inmates in detention. We have a host of them whom we have tutored and rehabilitated in to the society.
He has saved the time of the Court. He is remorseful. His confession and cooperation has helped investigators to apprehend some fraudsters. He promised to work with the investigators for 2 years.
We urge the Court to give the defendant a chance to turn a new leaf in his life.
Court – Pursuant to the plea of guilty by the defendant and the plea bargain agreement. the defendant is convicted

as charged. The convict shall be remanded in prison custody.
Hon. Judge
24/7/19.”

The sentence upon the Appellant was deferred to 29th July. 2019.
In sentencing the Appellant the lower Court said:-
“Learned Counsel for the convict urge the Court to tamper justice with mercy.
I have read the plea bargain ag-reement, parties agreed on ridiculous terms of one month imprisonment. Let me say that it is not incumbent on the Court to adopt the agreement in toto.
Court have a duty to enforce the provisions of the Act under which on accused is charged.
It is not in doubt that cyber crimes dent the image and affect the integrity of our dear country and I must say that the appropriate Law/Act to charge the convict is the Cyber Crimes (Protection and Prohibition) Act that has laudable provisions aimed at redeeming the image and integrity of this nation. It has harsh and appropriate punishment that can deter young persons from engaging in cybercrimes. My Lord Hon. Justice Hannatu Jummai Sankey, JCA made a striking comment in the case of JUBRIL V. FRN (2018) LPELR – 43993 (CA).
“It must be disheartening to all right thinking

Nigerian that the rampant, atrocious and egocentric crime has unleashed dire consequences on the integrity and image of the country. This has both short and long term effects on the society and the nation as a whole. Therefore although the punishment prescribed by law may be appear harsh and draconian, it is hoped that it will deter like-minded persons from embarking on such criminal ventures.”
Cybercrimes are flourishing amongst our youth to the extent that even secondary school students engage in it. As a result of Cybercrimes many have become hypertensive or mentally unstable with no resources to attend to their health.
It is most appropriate that our prosecution agencies arraign accused persons under the provisions of the right law, before the Court that has jurisdictional competence to try the case, I say no more.
Section 270(11)(c) ACJA 2015 gives the Court the power to impose a heavier punishment other that the one agreed by the parties and I intend to go by that provision. It is my humbly view that by charging the convict under the Penal Code Law, the convict had reaped the benefit of the bargain. Consequently, the convict is

hereby sentenced to a term of 3 years imprisonment on the one count charge.”

The Appellant was aggrieved and has by his Notice of Appeal dated 9th August, 2019 and filed on 16th August, 2019 appealed to this Court on four (4) grounds as follows:-
“NOTICE OF APPEAL
I, OLUMIDE AGBI, having been convicted of the offence of cheating in the High Court of the Federal Capital Territory, Abuja on the 24th day of July, 2019 AND NOW BEING a prisoner at Nigerian Prison, Kuje, Federal Capital Territory, Abuja or whose Address for service is C/O his counsel, Kayode Ajulo & Co. Castle of Law of No. 21 Amazon Street, Ministers Hill, Maitama, Abuja do hereby give Notice of Appeal against my conviction and sentence (particulars of which are hereafter stated) and hereby appeal to the Court of Appeal on the following grounds:

GROUND ONE
That the decision of the High Court is unreasonable and cannot be supported having regards to the weight of evidence.

GROUND TWO
The learned trial Judge erred in law and misdirected himself when he held that:
“Section 270 (11) (c) ACJA 2015 gives the Court the power to impose a heavier

punishment other than the one agreed by the parties and I intend to go by that provision. It is my humble view that by charging the convict under the Penal Code Law, the convict had reaped the benefit of the bargain. Consequently, the convict is hereby sentenced to a term of 3 years imprisonment on the one count charge.”
PARTICULARS OF ERROR
i. The learned trial Judge failed to impose the sentence contained in the Plea Bargain Agreement already adopted by the parties and the Court without informing the Appellant.
ii. The learned trial Judge imposed a heavier sentence other than the one agreed by the parties pursuant to the plea bargain agreement without informing the Appellant of such heavier sentence contrary to Section 270 (11) (c) of the Administration of Criminal justice Act (ACJA) 2015.
iii. The learned trial Judge convicted the Appellant pursuant to the Plea Bargain Agreement but erroneously sentenced the Appellant to a term heavier than that contained in the Plea Bargain before the Court contrary to Section 270 (11)(c) of Administration of Criminal Justice (ACJA) 2015.
iv. That the learned trial Judge failed to follow the

procedure stipulated under Section 270(15) (a) and (b) of the Administration of the Criminal Justice Act (ACJA) 2015.

GROUND THREE
That the learned trial judge erred in law and misdirected himself when he convicted the Appellant pursuant to the Plea Bargain Agreement but imposed a sentence heavier than that contained in the Plea Bargain Agreement without affording the Appellant the opportunity to open his defence pursuant to Section 270 (15) (a) of the Administration of Criminal Justice Act (ACJA) 2015 thereby violating his right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
PARTICULARS OF ERROR
i. That the Respondent filed the Plea Bargain Agreement on the 18th day of July, 2019 at the trial Court registry wherein the Appellant agreed to enter a plea of guilt upon which he agreed to accept a sentence to a term of one imprisonment or be given an option of fine.
ii. Pursuant to the said Plea Bargain Agreement, the Appellant pleaded guilty and the trial Judge convicted him but rather than sentence him to the term contained in the Plea Bargain Agreement the trial Judge

sentenced the Appellant to a maximum term of three years imprisonment.
iii. That the learned trial Judge failed to take into consideration the Plea Bargain Agreement.
iv. The law is that where the Court intends to pass a sentence heavier than that contained in the Plea Bargain Agreement, the Appellant ought to be informed by the Court of such heavier sentence and given adequate time to lead evidence and present argument-relevant to sentencing.
v. The learned trial Judge failed to inform the Appellant of the heavier sentence.
vi. That the learned trial Judge violated the Appellant’s right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by refusing the Appellant a chance to lead evidence and proffer argument relevant to sentencing as provided by the law.
vii. That the act of the trial Judge has occasioned a miscarriage of justice to the Appellant.

GROUND FOUR
That the learned trial Judge erred in law and misdirected himself when he failed to rule on the application of the Appellant to withdraw his plea of guilt thereby violating his right to fair hearing

guaranteed by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
PARTICULARS OF ERROR
i. That it is elementary principle of law that a Court must rule on all applications made before it before the final determination of the case before it.
ii. That the Appellant is entitled under the law to withdraw his plea of guilt once a heavier sentence is envisaged.
iii. That the failure of the learned trial Judge to rule on the Appellant’s application to withdraw his plea of guilt has occasioned a grave miscarriage of justice to the Appellant who is currently languishing in prison.
More grounds of appeal will be filed upon the receipt of the record of appeal.

RELIEFS SOUGHT FROM THE COURT Of APPEAL:
i. AN ORDER setting aside the Ruling of the High Court of the Federal Capital Territory, Abuja delivered by Honourable Justice MUAWIYAH BABA IDRIS on the 29th day of July, 2019 sentencing the Appellant to a term of three (3) years imprisonment contrary to the Plea Bargain Agreement.
ii. AN ORDER entering judgment as per the Plea Bargain Agreement filed before the lower Court. OR

IN THE ALTERNATIVE;
AN ORDER setting aside the conviction of the Appellant by the lower Court on the 24th day of July, 2019 and directing that the trial be commenced de novo before another Judge of the High Court of Federal Capital Territory. Abuja.
iii. Any other Orders(s) this Honourable Court may make in the interest of justice.”

Appellant’s Briefs of Argument dated 7th November, 2019 was filed on 27th September, 2019 while Respondent’s Brief of Argument was filed on 17th February, 2020. It is dated 12th February, 2020.

The learned Counsel to the Appellant, DR. KAYODE AJULO distilled two issues for determination as follows:-
“a) Whether having regard to the Plea Bargain Agreement of the parties filed before the trial Court, the sentence of the Appellant to a maximum term of 3 years imprisonment is according to the law. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).
b) Whether having regard to the provisions of Section 270 (11) (c) & (15) (b) of the Administration of Criminal Justice Act 2015, the Appellant is not entitled to be informed of the heavier sentence of 3 years imprisonment

before being sentenced by the trial Court and to thereafter withdrew his plea of guilt. (Distilled from Ground 4 of the Notice of Appeal).”

The Respondent’s learned Counsel AYODEJI FADAHUNSI, ESQ nominated an issue for consideration of the appeal viz:-
“Whether having regards to the Plea Bargain Agreement of the parties before the Court, the Learned Trial Judge was right to sentence the Appellant to a term of 3 years pursuant to the provisions of Section 322 of the Penal Code Act, Laws of the Federation (Abuja), 1990.”

The appeal will be determined on the two issues raised by the Appellant and they will be taken together:
“a) Whether having regard to the Plea Bargain Agreement of the parties filed before the trial Court, the sentence of the Appellant to a maximum term of 3 years imprisonment is according to the law. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).
b) Whether having regard to the provisions of Section 270 (11) (c) & (15) (b) of the Administration of Criminal Justice Act 2015, the Appellant is not entitled to be informed of the heavier sentence of 3 years Imprisonment before being sentenced by the

trial Court and to thereafter withdrew his plea of guilt. (Distilled from Ground 4 of the Notice of Appeal).”

The Learned Counsel to the Appellant Dr. Kayode Ajulo Stated that the appeal challenges the 3 years sentence passed on the Appellant by the trial Court contrary to the plea bargain agreement between the Appellant and the Respondent and the light of the Appellant to be informed of the Learned trial Judge intention to pass heavier sentence on him contrary to the Agreement.

He agreed with the principle of law that a Judge has discretion to impose punishment provided by law on a convict. He stated however that the discretion must be exercised judicially and judiciously. He relied on the cases of:
1. ALFRED V. STATE (2017) LEPLR – 42612 CA.
2. OKECHUKWU V. STATE (1993) 9 NWLR (PT. 315) 78 at 94 – 95.
3. UDOYE V. THE STATE (1967) NMLR 197 and
4. IORTOM V. THE STATE (1997) 2 NWLR (PT. 490) P. 771.

That offence of cheating for which the Appellant was charged is not one that attracts mandatory punishment. The statute prohibiting the offence according to him allows for sentencing discretion. He relied on Section 322 of Penal Code Act Cap (3) LFN 1990

and Section 270(1) (4) (9) of the Administration of Criminal Justice Act. He also drew attention to the plea bargain Agreement of the parties on pages4-5 of the Record.

That sentence to be posses on a Defendant who pleaded guilty to the offence charged must be in accordance with the plea bargain agreement relying on:
(1) SECTION 270(10) (A) OF ACJA
(2) PML NIG. LIMITED v. FRN LPELR – 22767 CA and the case of NWUDE V. FRN & ORS LPELR – 25858 CA.

It s the submission of the Appellants Learned Counsel that pursuant to Section 270 (11) (a) (c) of ACJA the Presiding Justice will impose the sentence agreed by the parties where the Judge is satisfied that the sentence is appropriate but where the Presiding Judge or Magistrate believes that a heavier punishment should be impose then he, the Judge must inform the Defendant of his intention.

That in this case the trial Judge imposed heavier sentence contrary to the plea Bargain agreement without informing the Defendant of his intention. That the decision of the trial Judge breached Section 270 (15) (b) of the Administration of Criminal Justice Act.

That where a statute

has laid down a procedure to be followed for the performance of an act it must be fully followed. He relied on INAKOJU V. ADELEKE (2007) 2 FR P. 17 B – C. He submitted that the trial Judge having exceeded the terms of years allocated by law this Appellate Court ought to set the decision aside. He relied on the case of USHIE V. STATE (2012) LPELR – 9705 CA PAGES 21 – 22 B-A.

The Learned Counsel submitted that the plea bargain is a continuation of prosecutorial discretion, defence options and judicial discretion and as such its essence is that the imposition of sentence is based solely on what has been agreed upon between the defendant and the prosecution and filed before the Court. That the Appellant cannot be denied the fruits of his bargain by being punished in full for the said offence with which he was charged. He relied on the case of NWUDE V. THE STATE (supra).

He further submitted that the three years sentence passed on the Appellant was contrary to the plea bargain Agreement and the provisions of Section 270 11(a) and 15 (b) of the Administration of the Criminal Justice Actand against the spirit of Plea bargain and Criminal trial and that it

is unlawful and therefore liable to be set aside by this Court relying on Section 21(1) of the Court of Appeal Act.

In response to the above submissions, Ayodeji A. Fadahunsi Esq. for the Respondent submitted that the proceedings before the lower Court was in accordance with the law. That the lower Court rightly convicted the Appellant of offence of cheating and had exercised his discretion judiciously and judicially in imposing the sentence on the Appellant. He relied on Section 320 (b) and 322 of Penal Code Act LFN 1990. He stated that the Plea Bargain agreement provided that upon conviction, the defendant shall be sentenced to a term of one month imprisonment or given an option of fine.

He however submitted that, where parties enter into a plea bargain the sentence to be imposed by the Judge is dependent on what was agreed by the parties. He relied on the case of NWUDE V. FRN & ORS (2015) LPELR – 25858 CA. He stated that the Learned trial Judge justly exercised his discretion in accordance with case of NWUDE V. FRN supra. He conceded that notwithstanding the plea bargain agreement the Learned trial Judge imposed the maximum sentence provided

for the offence despite the plea bargain agreement between the parties in bid to get lesser sentence for the offence. He also agreed that the sentence imposed by the Learned trial Judge deviated from the agreed punishment as contained in the plea bargain agreement.

He however relied on Section 7 of the Federal Capital Territory Courts (Sentencing Guidelines). Practice Direction, 2016 and urged this Court to reduce the sentence imposed by the trial Court in order to realize the aim of the plea bargain agreement. He also relied on Section 416 (2) (c) of the Administration of Criminal Justice Act, 2015.

Despite the submissions made all which enjoined this Court to exercise discretion in favour of Appellant by reducing the sentence, the Prosecutor/Respondent nevertheless concluded his submission by urging this Court to hold that the Lower Court was right to convict the Appellant and that though the sentence imposed is excessive it is in accordance with the law. He also urged the Court to affirm the conviction of the Appellant but to invoke the provision of Section 416 (2) (c) of the ACJA, 2015 in reducing the sentence imposed by the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This appeal revolves around the whole essence of plea bargain agreement particularly as regard sentence to be imposed on the Defendant as per the terms of the plea bargain. It also raises the question as to the extent of the power or discretion of a Presiding Judge to jettison the term of sentence agreed upon by the prosecution and Defendant to award punitive sentence commensurate with the offence committed on the offenders all within the context of the Administration of Criminal Justice Act, 2015 and the statute prescribing punishment for an offence for which a Defendant is arraigned.

For a proper understanding of the implication of plea bargain and sentence a Court may impose upon plea of guilty by the Defendant and conviction recourse must be had to Sections 1, 2 and 270 of the Administration of Criminal Justice Act, 2015 which provide:
1. The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the

defendant, and the victim.
2. The Courts, law enforcement agencies and other authorities or persons involved an criminal justice administration shall ensure compliance with the provisions of this Act for the realisation of its purposes.
(1) Without prejudice to Section 86 of this Act, the provisions of this Act shall apply Application, to criminal trials for of fences established by an Act of the National Assembly and other of fences punishable in the Federal Capital Territory, Abuja.
(2) The provisions of this Act shall not apply to a Court Martial.
270. (1) Notwithstanding anything in this Act or in any other law, the Prosecution may:
(a) receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf; or
(b) offer a plea bargain to a defendant charged with an offence.
(2) The prosecution may enter into plea bargaining with the defendant, with the consent of the victim or his representative during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence, provided that all of the following

conditions are present-
(a) the evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt;
(b) Where the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative; or
(c) where the defendant, in a case of conspiracy, has fully cooperated with the investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders.
(3) Where the prosecutor is of the view that the offer or acceptance of a plea bargain is in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process, he may offer or accept the plea bargain.
(4) The prosecutor and the defendant or his legal practitioner may, before the plea to the charge, enter into an agreement in respect of-
a) the term of the plea bargain which may include the sentence recommended within the appropriate range of punishment stipulated for the offence or a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge; and
(b) an appropriate

sentence to be imposed by the Court where the defendant is convicted of the offence to which he intends to plead guilty.
(5) The prosecutor may only enter into an agreement contemplated in subsection (3) of this section-
(a) after consultation with the police responsible for the investigation of the case and the victim or his representative; and
(b) with due regard to the nature of and circumstances relating to the offence, the defendant and public interest;
Provided that in determining whether it is in the public interest to enter into a plea bargain the prosecution shall weigh all relevant factors, including-
(i) the defendant’s willingness to cooperate in the investigation or prosecution of others,
(ii) the defendant’s history with respect to criminal activity.
(iii) the defendant’s remorse or contrition and his willingness to assume responsibility for his conduct,
(iv) the desirability of prompt and certain disposition of the case.
(v) the likelihood of obtaining a conviction at trial and the probable effect on witnesses,
(vi) the probable sentence or other consequences if the defendant is

convicted.
vii) the need to avoid delay in the disposition of other pending cases,
(vii) the expense of trial and appeal, and
(ix) the defendant’s willingness to make restitution or pay compensation to the victim where appropriate.
(6) The prosecution shall afford the victim or his representative the opportunity to make representations to the prosecutor regarding-
a) the content of the agreement: and
(b) the inclusion in the agreement of a compensation or restitution order.
(7) An agreement between the parties contemplated in subsection (3) of this section shall be reduced to writing and shall-
(a) state that, before conclusion of the agreement, the defendant has been informed-
(i) that he has a right to remain silent,
(ii) of the consequences of not remaining silent, and
(iii) that he is not obliged to make any confession or admission that could be used in evidence against him;
(b) state fully, the terms of the agreement and any admission made:
(c) be signed by the prosecutor, the defendant, the legal practitioner and the interpreter, as the case may be; and
(d) a copy of the

agreement forwarded to the Attorney-General of the Federation.
(8) The presiding judge or magistrate before whom the criminal proceedings are pending shall not participate in the discussion contemplated in subsection (3) of this section.
(9) Where a plea agreement is reached by the prosecution and the defence, the prosecutor shall inform the Court that the parties have reached an agreement and the presiding judge or magistrate shall then inquire from the defendant to confirm the terms of the agreement.
(10) The presiding judge or magistrate shall ascertain whether the defendant admits the allegation in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence and may where-
(a) he is satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the defendant on his plea of guilty to that offence, and shall, award the compensation to the victim in accordance with the term of the agreement which shall be delivered by the court in accordance with Section 308 of this Act; or
(b) he is for any reason of the opinion that the defendant cannot be

convicted of the offence in respect of which the agreement was reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendants right referred to in subsection (6) of this section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.
(11) Where a defendant has been convicted under subsection (9) (a) the presiding judge or magistrate shall consider the sentence as agreed upon arid where he is-
(a) satisfied that such sentence is an appropriate sentence, impose the sentence;
(b) of the view that he would have imposed a lesser sentence than the sentence agreed, impose the lesser sentence; or
(c) of the view that the offence requires a heavier sentence than the sentence agreed pan, he shall inform the defendant of such heavier sentence he considers to be appropriate.
(12) The presiding Judge or Magistrate shall make an order that any money, asset or property agreed to be forfeited wider the plea bargain shall be transferred to and vest in the victim or his representative or any other person as may be appropriate or reasonably feasible.

(13) Notwithstanding the provisions of the Sheriffs and Civil Process Act, the prosecutor shall take reasonably steps to ensure that any money, asset or property agreed to be forfeited or returned by the offender wider a plea bargain are transferred to or vested in the victim, his representative or other person lawfully entitled to it
(14) Any person who, willfully and without just cause, obstructs or impedes the vesting or transfer of any money, asset or property eider this Act commits an offence and is liable on conviction to imprisonment for 7 years without on option of fine.
(15) Where the defendant has been informed of the heavier sentence as contemplated in section (11) (c) of this section, the defendant may-
a) abide by his plea of guilty as agreed upon and agree that, subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the presiding judge or magistrate proceed with the sentencing: or
(b) withdraw from his plea agreement, in which event the trial shall proceed de novo before another presiding judge or magistrate, as the case may be.
(16) Where a trial proceeds as contemplated under

subsection (15) (a) or de novo before another presiding judge or magistrate as contemplated in subsection (15) (a-b) no references shall be mode to the agreement;
(b) no admission contained therein or statements relating thereto shall be admissible against the defendant; and
(c) the prosecutor and the defendant may not enter into a similar plea and sentence agreement.
17) Where a person is convicted and sentenced under the provisions of subsection (1) of this section, he shall not be charged or tried again on the same facts for the eater offence earlier charged to which he had pleaded to a lesser offence.
(18) The judgment of the Court contemplated in subsection 10(a) of this section shall be final and no appeal shall lie in any Court against such judgment except where fraud is alleged.”
The settled position of the law is that provisions of a statute must not be constructed in a way as would defeat the intendment of the statute and the desire of the Legislature. The Court should not interpret the provisions of the statute to defeat the obvious end it was meant to serve otherwise it will entail injustice. Where the words of the

statute are plain and unambiguous the literal interpretation should be followed.
See
1. ALHAJI ATUSU ABUBAKAR & ORS V. ALHAJI UMARU MUSA YAR’ADUA & ORS (2008) 19 NWLR (PART 1120) 1 at 94 F per KATSINA – ALU JSC later CJN of blessed memory who said:
“It is trite law that the Court has a duty to interprete a statute or provision thereof by giving them their plain, ordinary and literal meaning except where such an interpretation will lead to manifest absurdity.”
2.APC & ANOR V. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F – G per RHODES-VIVOUR, JSC who said:
“Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretations or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A.-G., Anambra State V. A.- G., Federation (1993) 6 NWLR (Pt. 302) p. 692; Mobil V. F.B.I.R. (1977) 3 SC p. 53; Toriola V. Williams (1982) 7 SC p. 27.
The words used in the statute supra are clear and unambiguous.
They should be given their

plain ordinary meaning which is not in doubt.”
3. HON. HENRY SERIAKE DICKSON V. CHIEF TIMIPRE MARKIN SYLVA ORS (2017) 8 NWLR (PART 1567) 167 at 233 D – F per KEKERE-EKUN, JSC who said:
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim V. Barde(1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F-N. The exception is where to do so would lead to absurdity. See: Toriola V. Williams (1982) 7 SC 27 @ 46; Nnonye V. Anyichie (2005) 1 SCNJ 306 @ 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the Court would not lend its weight to such on interpretation. See: Amalgamated Trustees Ltd. V. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
The incentive for a plea bargain as can be gathered from calm reading and interpretation of Section 270 of the Administration of Criminal Justice Act, 2015 enables the Prosecutor and the Defendant to enter into a plea bargain agreement that is mutually beneficial to the interest of the

Prosecutor and the Defendant in a criminal trial to which Administration of Criminal Justice Act is applicable. The bottom line is that the Defendant must be ready and willing to plead guilty to the offence or offences for which he is charged and arraigned.
The Agreement must evince legal intention to accommodate the Defendant to obtain lesser punishment in terms of sentence to imprisonment or a fine against the Defendant. Some of the essential ingredients of plea bargain are that Defendant must acknowledge commission of the crime charged, plead guilty to it and must be convicted by the presiding judge whether at magisterial level or a High Court.
It is equally important that upon execution of the plea bargain agreement, the prosecutor would at trial inform the Court or the trial judge of the agreement and request the trial Court to sanction the agreement and make the terms and conditions therein the judgment of the Court in the trial particularly the lighter sentence offered to the Defendant by the Prosecution, having regard to the fact that the Defendant has saved the prosecution and the Court valuable time that would have been expended in trying

the offence(s) for which the Defendant is charged.
It is an innovation brought about by the said law for the benefit of the Defendant, the prosecutor the victim of the offence and the society at large. In most cases the Accused/Defendant would forfeit all proceeds of the Crime and where the properties acquired with the proceeds of crime for which the Defendant is arraigned have not been dissipated they would be forfeited to the state and given back to the victim of the crime in restitution and such victim may be the government, authority, organization or individuals. Plea bargain is a legal contract the terms of which must be mutually agreed to by the Prosecutor and Defendant duly signed or executed by the Parties.
The whole essence of a plea bargain has been defined and explained in BLACKS LAW DICTIONARY 10TH EDITION page 1338 as follows:
“Plea bargain, n. (1963) A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty or no contest to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a dismissal of the other charges.

– Also termed plead agreement; negotiated plea; sentence bargain. – plea bargain. vb. – plea-bargaining.
The apex Court in the land has also stated and explained the implication or incidence of a plea-bargain agreement in some cases. Suffice to refer to the following viz:
1.PML (SECURITIES) COMPANY LIMITED V. FRN (2018) 13 NWLR (PART 1635) 157 at 175 E – F per AUGIE, JSC who said:
“ALL the same, the first question that must be resolved is whether there was a plea bargain agreement between the appellant and the respondent at appeal per Lokulo-Sodipe, JCA, who wrote the lead judgment observed –
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 first legislation to bring in plea bargain into our 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 receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf or (b) offer a plea bargain to a defendant charged with an offence”.
At pages 180 H – 181 A – D my Noble Lord continues:
“But the essence of a plea bargain agreement is not just to conclude a trial. There has to 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 Blacks Law Dictionary, 9th Ed.
In this case, prosecution counsel told the FHC Enugu on 17/12/2008 that the accused persons approached us for “settlement”. But there is no evidence on record to indicate that the appellant was one of the “accused persons”, who approached the prosecution for

“settlement” on 17/12/2008.
The proceedings of 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 further amended charge, and there was no mention of the appellant in the proceedings. The appellant says its name was removed because they agreed that Lucky Igbinedion “should take the fall” and that Kiva Corporation should plead guilty to some counts.
However, “agreement” to plead guilty is the essence of a plea bargain, and even if there was an agreement for one of the accused “to take the fall” as the appellant argued, the Court of Appeal was absolute right that:-
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 being place between the prosecutor and an accused relying on

plea bargain.” (Underlined mine)
On pages 191 H to 192 A my noble lord PETER ODILI, JSC had this to say:
“For a jolting of the memory, the National Assembly enacted the Administration of Criminal Justice Act (ACJA), 2015 which also provides for a plea bargain agreement, which must be reduced into writing. However at the time the facts leading to this appeal took place the ACJA was not in existence.
The first legislation in Nigeria to localize and import plea bargain into Nigeria‘s Criminal jurisprudence is the Administration of Criminal Justice Law of Logos State ACJL, 2011 which can be considered the forerunner of the present ACJA of the National Assembly.
The Court below followed the definition of plea bargain as stated inBlack’s Law Dictionary which makes it clear that a plea bargain can only be a conscious and deliberate act between the prosecution and an accused with a plea of guilty being an overt act on the part of the accused in evidence of the plea bargain. In the instant situation what is evident is that the prosecution entered into a plea bargain with the 1st accused person in the Enugu Federal High Court at the

proceeding of 18th December 2008, which is that the accused approached the prosecution for settlement and that necessitated the amendment of the charge. In that amendment of charge of 1st December 2008 the number of accused persons were reduced from seven to two and the appellant was not one of the two and its name was not reflected In the amended charge.” (Underlined mine)
2. ROMRIG (NIGERIA) LIMITED V. FRN (2018) 15 NWLR (PART 1642) 284 at 304 C – E per SANUSI JSC who said:
“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 at 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 emphasized 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 pea 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.” (Underlined mine)
My lord OGUNBIYI JSC on page 318 A – C of the Report said as follows:
“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 B 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.” (Underlined mine)
Thus when executed or signed by Prosecutor and Defendant the plea bargain agreement becomes binding on the parties and statutorily enforceable.
The plea Bargain Agreement between the prosecutor and the Appellant can be found on pages 4 and 5 of the Record. It reads:
“IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
CHARGE NO:
BETWEEN
FEDERAL REPUBLIC OF NIGERIA COMPLAINANT
AND
OLUMIDE AGBI (AKA WILLIAM STREAK/JAMES BROWN) DEFENDANT
PLEA BARGAIN AGREEMENT
This plea bargain is made this … day of

… 2019. The Defendant, OLUMIDE AGBI AKA WILLIAM STREAK/JAMES BROWN charged with the offence of obtaining under false pretense has shown remorse for his actions. The Defendant having admitted the Offence has agreed to enter a plea of guilt through this agreement and the prosecution accepts.
WHEREAS the parties, by mutual consent, have agreed as follows:
1. That the complainant shall file a one count charge of Cheating
2. That the Defendant has agreed to enter a plea of guilty to the Charge.
3. That the Defendant has shown remorse and already agreed to forfeit things acquired with the proceed of his crime which gave rise to the charge before this Honourable Court.
4. That the subject matter of the alleged of fence is the sum of $1000 which the defendant received from the trio of Susan Ross Tommy Joana and Rita while pretending to be William Streak.
5. That the Defendant hereby agrees to forfeit the entire proceeds of his crime which he used to acquire a Macbook Air Laptop
6. The Defendant has also from the inception of the investigation up to the filing of the charge in court cooperated with the Operatives of the EFCC (the

Nominal Complainant)
7. That there is no need to further dissipates the resource of the Federal Government of Nigeria in prosecuting the case.
8. That there is also the need to avoid wastage of the precious judicial machinery, time and manpower.
9. An whereas the foregoing seeks to achieve the justice desired.
10. That the term of this bargain shall form and constitute the judgment of this Honourable Court.
11. No any other charge shall arise against the Defendant in respect of this offence.
IT IS FURTHER agreed that:
Upon conviction, the Defendant shall be sentenced to a term of one (1) month imprisonment or given an option of fine.
That the defendant was cautioned before this Bargain was drawn up.
Dated this 27th day of June 2019.
IN WITNESS WHEREOF the parties hereunto set their hands the day and year first above written.
DEFENDANT’S COUNSEL NAME: ADAJI ABET
SIGNATURE: …
PROSECUTOR NAME: A. FADALUSI
SIGNATURE: …
DEFENDANT
NAME: OLUMUDE AGBI
SIGNATURE: …
DATE: 27/06/19″
The charge was read to the Appellant on 24-7-2019 and he pleaded guilty to the one count charge.

The Learned Counsel to the Respondent who was the prosecutor at the Court below showed the willingness of the Respondent to abide by the plea Bargain Agreement and he urged the Court below to “give effect to the plea bargain agreement in conviction and sentencing.”
The Court remanded the Appellant in Prison custody till 29/7/2019. See pages 18 and 19 of the record.
Ruling on sentence to be passed on the Appellant on 29/1/2019, the lower Court sentenced him to 3 years imprisonment contrary to the Plea Bargain Agreement and as urged on the lower Court by the prosecutor.
Can it be said that the lower Court wrongly and unlawfully exercised its discretion when it sentenced the Appellant to 3 years imprisonment?
It must be stated that notwithstanding that the trial Court is not a party to a plea bargain agreement, the Administration of Criminal Justice Act, 2015 nonetheless empowers and endowed a trial Court with limited jurisdiction and powers to examine critically the plea bargain agreement pursuant to Section 270 (10) of the Administration of Criminal Justice Act, 2015 in order to ascertain whether the Defendant admits the allegation contained in

the charge to which he has pleaded guilty and whether the Defendants entered into the agreement voluntarily and without undue influence.
The Presiding Judge or Magistrate in addition to his power to convict the Defendant also has authority to award compensation to the victim as per the terms of the plea bargain agreement.
All these are to ensure that there is no collusion between the Prosecutor and Defendant to defeat the purpose and intendment of Section 270 of Administration of Criminal Justice Act. It is also to ensure that the parties do not enter into unconscionable bargain that will be in injurious or inimical to the interest of the victim of the offence and must ensure there is provision in the Agreement for restitution. It is also designed to forestall any bargain that is illegal or against public policy.
The Presiding Judge or Magistrate is also entitled to examine, consider and evaluate the sentence agreed upon by the Prosecutor and the Defendant and where it appears to the Presiding Judge or Magistrate that the sentence agreed upon is not commensurate with the gravity of the offence committed, the Presiding Justice or Magistrate could

impose heavier punishment subject to the condition prescribed or laid down in Section 270 (11) (C) of the Administration of Criminal Justice Act, which states:
“270(11) (c) Where a defendant has been convicted under subsection 9(a) the Presiding Judge or Magistrate shall consider the sentence as agreed upon and where he is –
(c) of the view that the offence requires a heavier sentence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.” (Underlined mine)
The Learned trial Judge in this case took refuge in the above provisions of Section 270(11) (C) of Administration of Criminal Justice Act to heavily punish the Appellant by awarding the maximum term of imprisonment of 3 year prescribed under Section 322 of the Penal Code Act. To the Learned trial Judge the sentence agreed upon was ridiculously low compared to the dent such crimes have caused to the image of this Country and unsolicited embarrassment it has caused the Nation and its people both within and outside the Country.
It is however important to stress that no matter the enormity of disturbance or concern a Court may

feel concerning sentence agreed to be imposed upon a Defendant upon plea of guilty and conviction as contained in the plea bargain agreement, the Presiding Judge or Magistrate must act at all times within the confines of the Administration of Criminal Justice Act 2015 particularly the procedure laid down and pre-condition put in place to the effect that a Defendant must be informed before a heavier punishment or sentence could be meted upon the Defendant.
The Presiding Justice is under a statutory and constitutional duty to first draw or call attention of the Defendant or his Learned Counsel to the trial Court’s resolve to impose heavier punishment over and above the sentence agreed upon by the parties in the plea bargain agreement.
The Defendant must be informed as provided in Section 270 (11) (c) of the ACJA supra.
See MOBIL PRODUCING NIGERIA UNLIMITED V. OKON JOHNSON & ORS (2018) 14 NWLR (PART 1639) 329 at 359 A – D per OKORO, JSC who said:
“As was rightly submitted by the learned counsel for the 1st – 15th respondents, where a statute has provided for the method of doing anything, it must be done in accordance with the express

provision of the statute. It is trite law that when a law provides a particular way/method of doing a thing, and wishes such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever. See Ude V. Nwara & Anor (1993) 2 NWLR (Pt. 278) 638, (1993) LPELR-3289 (SC); M.PPP V. I.N.E.C. & Ors (2015) LPELR- 25706 (SC), (2015) 18 NWLR (Pt. 1491) 251; Federal Republic of Nigeria V. Wabara & Ors (2013) LPELR – 20083 (SC), (2013) 5 NWLR (Pt. 1347) 331: Nnonye V. Anyichie (2005) 2 FWLR (Pt. 268) 121, (2005) 2 NWLR (Pt. 910) 623; Ntiero V. NPA (2008) 10 NWLR (Pt. 1094) 129.
As rightly pointed out by the Court below, there is nothing on record to show that the appellant ever applied to the Inspector General of Police in accordance with Section 18(1) of the Police Act of its desire to have the services of Supernumerary Police Officers. Neither is there evidence of any approval by the President to that effect. There is yet no evidence of any directive by the Inspector General to “the appropriate authority” to appoint these officers. Moreso, the

appellant failed to show evidence of the payment of cost of uniform to the Accountant General including the quarterly payment of the salaries of the 1st – 15th respondents.”
There is nothing in the record of appeal to show that the learned trial Judge complied with Section 270 (11) (C) of the Administration of Criminal Justice Act 2015 which mandatorily enjoined the Presiding Judge or Magistrate to inform the Defendant of such heavier sentence he considers to be appropriate.
The provision is not enacted for the fun of it. It is designed to protect and enable the Defendant to be heard if such heavier punishment will be convenient or alright by him. The condition is also put in place to afford the Defendant the opportunity of changing his plea of guilty or to completely bow out of the plea bargain, bearing in mind that it is the lesser punishment offered by the prosecution for his plea of guilty and conviction that goaded the Defendant to voluntarily agree to plead guilty. That was the understanding that made the parties consummated the plea bargain Agreement.
The trial Judge cannot out of his abhorrence or shock that a one month sentence was

agreed between the parties jumped the gun in gross violation of the Defendant’s right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999 as amended Section 36 (1) thereof which provides:
“In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The decision to sentence the Defendant to three years heavier punishment as opposed to the Plea Bargain Agreement is clearly a breach of Appellants right to fair hearing. Little wonder the Respondent was arguing front and back and at the end urged this Court to reduce the sentence in accordance with provision of Section 416 (2) (c) of the ACJA 2015.
The Learned Counsel to the Respondent had submitted in paragraph 4.0 of the Respondent’s Brief of Argument as follows:
“We concede that the learned trial judge imposed the maximum sentence prescribed for the offence despite the plea

bargain agreement entered into between the Appellant and the Respondent in a bid to get a lesser sentence for the offence, we also concede that the sentence imposed by the learned trial judge deviated from the agreed punishment as contained in the plea bargain agreement.”
This is an admission that the learned trial Judge erred in law in sentencing the Appellant to 3 years imprisonment without informing the Appellant as prescribed under Section 270 (11) (c) of ACJA.

I fully agree with submissions of Learned Counsel to the Appellant. The appeal has merit. The two issues distilled by the Appellant are resolved in his favour. The Appellants appeal is allowed. The judgment of the lower Court in respect of the sentence (only) of three years imposed on the Appellant is hereby set aside.

In its stead I hereby sentence the Appellant to a term of one (1) month imprisonment as agreed by the parties to this appeal in the Plea Bargain Agreement executed or entered into by them on 27th day of June. 2019. The one (1) month imprisonment term shall run from 27th day of June 2019.

The Appellant shall be released from correctional Centre or Prison Custody

immediately.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA.

I agree with the reasoning, conclusions and orders therein.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Peter Olabisi Ige, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances: