FEDERAL REPUBLIC OF NIGERIA v. LUCKY NOSAKHARE IGBINEDION & ORS
(2014)LCN/7100(CA)
RATIO
EVIDENCE: WHETHER ORAL EVIDENCE MAY BE ADDUCED TO RESOLVE CONTRADICTIONS IN AFFIDAVIT EVIDENCE
It is trite that the only way to resolve contradictions in affidavit evidence is by calling oral evidence to resolve same. That is the way the affidavit evidence of each party can be tested by cross examination and the trial court can make a finding of who is stating the truth by determining the credibility of the witnesses by their demeanour under the fire of cross examination. See Eze v. Okweremuo (2010) 17 NWLR Pt. 1221 Pg. 53; G.M.O.N & S Co. Ltd v. Akputa (2010) 9 NWLR Pt. 1200 Pg. 443; Onyejekwe v. Enweonu (2010) 4 NWLR Pt. 1185 Pg. 477. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of April, 2014
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of the Federal High Court, Benin Division, per Honourable Justice Adamu Hobon dated 31st May, 2011, which upheld the pleas of double jeopardy and condonation raised by the Respondent who was the 1st Accused person, against his trial before that court. The Appellant being dissatisfied with the said decision now appealed to this Court by its notice of appeal dated and filed on 5th July, 2011. Below are the facts that led to this appeal:
The Respondent was the Executive Governor of Edo State between 1999 and 2007. A charge was preferred against the Respondent along with six (6) other natural and juristic persons on 31st January, 2011 before the Federal High Court Benin, for offences of money laundering of funds allegedly belonging to the Edo State Government and Local Governments in Edo State. After the Accused persons were served with the charge along with the proof of evidence, all the accused persons jointly filed a motion on notice dated and filed on 4th February, 2011 praying the trial court to set aside the charge preferred against them for want of jurisdiction on the ground that the charge is caught by the doctrine of double jeopardy and condonation. The position taken by the Respondent was that he and the other accused persons had earlier been charged in Charge No. FHC/EN/6C/2008 between the Federal Republic of Nigeria v. Lucky Nosakhare Igbinedion & Ors and that judgment was entered after a plea bargain agreement and that the prosecution was in law, barred from initiating any further criminal proceedings against all the accused persons including the Respondent herein.
The Appellant in reaction to the said motion filed a counter affidavit sworn to on 18th February, 2011 wherein it stated that none of the accused persons was convicted in the earlier charge for the offence of money laundering and that it was only the 1st accused (now Respondent) who was charged and convicted for an office of none disclosure of assets [money in GTB Account] under S. 27(3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004. The Appellant also agreed in principle that there was a settlement in the Enugu trial but that the settlement did not cover the facts and the various offences disclosed in the present charge before the Federal High Court, Benin.
Both parties filed written addresses in support of and in opposition to the motion and oral arguments were canvassed before the trial court. In its ruling, dated 31st May, 2011, the lower court, presided over by His Lordship, Hon. Justice Adamu Hobon granted the prayer of the Respondent and found that he could avail himself of the pleas of:
(a) Plea bargain agreement
(b) Condonation
(c) Autre fois convict
(d) Double jeopardy
(e) Abuse of court process.
His Lordship however dismissed the application as it related to the 2nd-7th accused persons. The Appellant, being dissatisfied with that part of the ruling appealed to this Honourable Court by its notice of appeal dated and filed on 5/07/2011.
At the hearing of the appeal, the learned senior counsel for the Respondent moved the notice of preliminary objection dated 20/5/2013 and filed on 21/5/2013 which was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules. The arguments in respect thereof were embedded in the Respondent’s brief. The appellant’s brief was filed on 30/11/2011. The Respondent’s brief was filed on 21/5/2013. The Appellant filed reply brief on 10/6/2013.
The issues for determination as identified by the Appellant’s counsel, adopted by the Respondent’s counsel and my humble self are as follows:
1. Whether charge No. FHC/B/11C/2011 between FRN v. Lucky Nosakhare Igbinedion & 6 Ors is caught by the pleas of autre fois convict and double jeopardy regard being had to the Respondent’s earlier conviction in charge No. FHC/EN/6C/2008 by the Federal High Court, Enugu Division. (See Grounds 5 and 6).
2. Whether the pleas of condonation and Abuse of Process of Court are available to the Respondent on the ground of the alleged existence of a plea bargaining agreement in charge No. FHC/EN/6C/2008 which barred further prosecution of the Respondent. (See Grounds 1, 2, 3, 4 and 7).
Allow me to deal with the preliminary objection first. The Respondent objected to the hearing of the appeal on the basis that the notice of appeal as filed was incompetent. Counsel argued that the prosecutors viz Rotimi Jacobs, Esq and Aliyu Yusuf had signed the notice of appeal. It was argued that only parties to a proceeding at the lower court have the right to appeal against any ruling or judgment of the trial court and any interested party seeking to appeal against the same ruling must seek the leave of the court to do so. It was argued that the prosecutors cannot usurp the right of the Federal Republic of Nigeria to appeal against the ruling of the trial court. The Respondent insisted that S. 241(1)(a) of the 1999 Constitution does not confer any right of appeal on the prosecutors. Senior Counsel submitted that the case of Amadi v. FRN (2008) 15 NWLR Pt. 1119 Pg. 259 does not support the filing of the notice of appeal by the prosecutors, and that there being no competent notice of appeal on which the appeal is founded, the appeal must be struck out. Senior Counsel cited Baido v. INEC (2008) 12 NWLR Pt. 1101 Pg.379 at 400 and Iyen v. FRN (2010) 2 NWIR Pt 1177 Pg. 1 at Pg. 8.
In the Appellant’s reply brief where this issue was traversed by the Appellant, the argument of the Appellant is that a combined reading of S. 243(a) of the 1999 Constitution with Order 17 Rule 3 of the Court of Appeal Rules 2011 will show that the prescribed manner of exercising the right of appeal in a criminal matter under Order 17 rules 3 of the Court of Appeal Rules is for the prosecutor to sign the notice of appeal.
Counsel argued that S. 30 of the Court of Appeal Act, CAP C36 LFN 2004 defines “Appellant” to also include a legal practitioner representing such a person in that behalf; in which case a prosecutor representing another can be classified as a legal practitioner representing another in that behalf.
Counsel submitted that the rules of the Court of Appeal, 2011 particularly its Order 17 rule 3 has the full force, backing and the authority of the 1999 Constitution and that the right of appeal is only exercisable in criminal matters by the rules of this Court and the laws made by the National Assembly. Aliyu v. Adewunmi (1995) 3 NWLR (Pt. 381) 116 at 124, Re: Eke (1993) 4 NWLR Pt. 286, 176 at 190 – 191 were cited as supporting this argument.
Counsel submitted that there is no argument about the fact that Rotimi Jacobs and Aliyu Yusuf were prosecutors and with their compliance with the prescribed manner in Order 17 rule 3 of the Court of Appeal Rules which is supported by the S. 243(b) of the 1999 Constitution, the notice of appeal is competent and the notice of objection should be overruled.
Let us look at the relevant provisions of the Constitution, Court of Appeal Rules etc. S.243(a) of the 1999 Constitution defines those who can exercise the right of appeal from the Federal High Court or High Court of a State in both civil and criminal matters. S. 243 of the Constitution provides as follows:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
It is thus clear that the right of appeal can be exercised by an accused person and conversely by the prosecutorial agency on whom powers are conferred by the Attorney-General of the Federation or the State. Such other persons or authorities as are authorized by the Attorney-General of the Federation or State at their instance, or other persons or authorities as prescribed by an Act of the National Assembly are also empowered to initiate or discontinue criminal appeals subject to the overriding powers of the relevant Attorney-General. It only stands to reason in my humble view, that the power to prosecute or the power to initiate criminate prosecution must afortiori carry the power to complain against any decision in that regard.
Let us look at the persons and authorities as prescribed by the Court of Appeal Rules 2011 made pursuant to the Court of Appeal Act – which is an Act of the National Assembly. Order 17 rule 3 of the 2011 Rules provides as follows:
“A person desiring to appeal to the court against any judgment, sentence or order of the court below, whether in the exercise of original or of its appellate jurisdiction, shall commence his appeal by sending to the Registrar of the court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules”
Permit me to set out the terms of Criminal Form 5 of the Rules made pursuant to Order 17 rule 3 –
CRIMINAL FORM 5
IN THE COURT OF APPEAL
NOTICE OF APPEAL (OR APPLICATION FOR LEAVE TO APPEAL) BY PROSECUTOR
ORDER 17 RULE 3
The State
vs………..
To the Registrar of the
…………………………………………..
I, ……………………………..
The prosecutor in the above case and being desirous of appealing against the decision under section…………..DO HEREBY GIVE NOTICE OF APPEAL (or application for leave to appeal) on the following grounds:
DATED at …………… this …… day of …………20………………….
*Refer to the provision of the law which gives to the prosecutor a right of appeal or the right to apply for leave.
Thus the rules of this court envisage that the prosecutor would file and sign the notice of appeal.
Learned senior counsel for the Appellant tried to make a distinction between this appeal and Mike Amadi v. FRN (supra). Counsel wants us to read Amadi v. FRN within the confines of S. 174 of the 1999 Constitution. In that case, the court held that other persons so delegated by the Attorney General of the Federation or State apart from officers in his department have the legal capacity to sign a charge in that behalf. See also Matthew Oluese v. FRN CA/L/821/2012 delivered by the Court of Appeal on 22/7/2013.
Let me reiterate that the Attorney-General of the Federation or of a State has power to delegate his powers of prosecution and appeal in respect of criminal matters. This is made possible by S. 174(1)(b)(c) and S. 211(1)(b)(c) of the 1999 Constitution. To hold otherwise would be to imply that the Federal Government of Nigeria cannot appeal against any judgment in a criminal proceedings which is felt to be against its interest. That position would be both legally wrong and against public policy. I am of the firm view that the power to prosecute would of necessity include the power to go further to appeal against the result or determination of that prosecution. The preliminary objection to the competence of this appeal as postulated by learned Respondent’s senior counsel is misconceived and hereby overruled.
ISSUE ONE
Whether charge No. FHC/B/11C/2011 between FRN v. Lucky Nosakhare Igbinedion & 6 Ors is caught by the pleas of autre fois convict and double jeopardy regard being had to the Respondent’s earlier conviction in charge No. FHN/EN/6C/2008 by the Federal High Court, Enugu High Court, Enugu Division.
Learned counsel for the Appellant argued that it was wrong of the trial court to treat the plea of double jeopardy as if it is different from the plea of autre fois convict whereas they are the same thing. Counsel urged the view that the plea is enshrined in S. 181 – 182 of the Criminal Procedure Act, Cap. C41, Laws of the Federation of Nigeria, 2004 and the provision of S. 36(9) of the 1999 Constitution and that the doctrine of double jeopardy as stated above is also statutorily provided for in Sections 181 – 185 of the Criminal Procedure Act.
Counsel argued further that S. 182-185 of the CPA also created exemptions to the provision of S. 181 and of particular relevance to the appellant is S. 182 of the CPA which provides that a person acquitted or convicted for any offence may afterwards be tried for any distinct offence for which a separate charge might have been made against him on the previous trial under the provision of S. 158 of the Act.
Counsel insisted that for the Respondent to come under S. 181 of the CPA or take advantage of its provisions, he must show that he has been previously convicted or acquitted for the same offence. Therefore, even if the Respondent had been acquitted or convicted in the previous charge, the provision of S. 182 read along with S. 158 of the CPA would have made the Respondent liable to be afterwards triable for the distinct offence for which a separate charge might be made against him at the previous trial.
Counsel cited Chief of Air Staff v. Iyen (2005) 6 NWLR Pt. 922 Pg. 496 at 535; Connelly v. D.P.P. (1964) 2 All ER 401 at 433; D.P.P. v. C.O.P., 14 WACA 163; R v. Jinadu (1948) 12 WACA 368. The thrust of the argument of learned Appellant’s counsel is that S. 39(9) of the Constitution which provides against double jeopardy emphasizes that the criminal offences charged in the two indictments must be the same. Counsel insisted stridently that Charge No. FHC/EN/6C/2008 filed on 18/12/2008 for neglect to declare his interest in Account No. 4124013983110 in Guaranty Trust Bank in the Declarations of Assets Form of the Economic and Financial Crimes Commission contrary to S. 27(3) of the EFCC Act 2004 is quite different from the charges of money laundering filed on 31/01/2011 in Charge No. FHC/B/11C/2011. Counsel contended that the Appellant has never been acquitted or convicted of money laundering charges. Only Kiva Corporation which is not a party to the present proceedings was convicted of money laundering charges. Counsel argued that a plea in bar of double jeopardy or autre fois convict cannot arise when the appellant had never been convicted of the offences covered by the present charges.
Learned senior counsel for the Respondent encapsulates their own arguments as follows:
The plea bargain agreement between the Respondent and the Appellant resulted in the condonation by the Respondent of all the offences disclosed in the withdrawn amended charge dated 13th October, 2008. Counsel claimed that the agreement thereby entitled the Respondent to a plea of autre fois convict as a result of the eventual conviction upon his substitution of a plea of “guilty” for his earlier plea of “not guilty” to the amended charge of 17th December 2008. Learned senior counsel argued that as a result of the arrangement, the Respondent is shielded by the defence provided by the doctrine of double jeopardy. Learned senior counsel insisted that any attempt by the Appellant/Respondent to prosecute the Respondent/Applicant in respect of the offences for which a plea bargain had been entered amounts to an abuse of court process.
Learned Senior counsel urged the view that S. 36(9) of the 1999 Constitution relate to the plea of autre fois acquit and autre fois convict, and does not cover the principle of double jeopardy or double punishment. Counsel argued that S. 182 and S. 158 of the CPA are and must be subject to S. 36(9) of the Constitution. Counsel cited the case of DPP v. Connelly (1964) A – C 1254 where the law lords ruled that a defendant could not be tried for any offence arising out of substantially the same set of facts relied upon in a previous charge for which he had been acquitted.
He cited Rabiu v. The State (1980) 12 NSCC 291 at 306 – 307; Okoh v. The State (1984) 15 NSCC 705 at 710. Counsel argued that a combined reading of S. 181 and S. 221 of the Criminal Code Act clearly reveals the elements of the plea of autre fois convict to be –
1. That the Accused/Applicant had previously been tried on a criminal charge.
2. That the trial must have been conducted before a court of competent jurisdiction.
3. That the trial must end with an acquittal or a conviction.
4. That the Accused person has obtained a pardon for his offence.
5. That the criminal charge for which the Accused person was tried should be the same as the new charge against him or the new charge is one in respect of which the accused could have been convicted at the former trial, although not charged with it.
Learned senior counsel further argued that the present Appellant and Respondent in the Amended Charge No. FHC/EN/6C/2008 – FRN v. Lucky Nosakhare Igbinedion & 6 Ors. dated 13th October, 2008 agreed to a plea bargain in the said charge and based on which the parties agreed to further amend Charge No. FHC/EN/6C/2008 – FRN v. Lucky Nosakhare Igbinedion & Ors. dated 17th December, 2008 and filed on 18th December, 2008.
Learned senior counsel insisted that as part of the plea bargain agreed upon by the parties all the charges against the 2nd accused persons (Michael Igbinedion) 4th accused (Gava Corporation Limited), 5th accused (Romrig Nigeria Ltd), 6th accused (PML Securities Co. Ltd) and 7th accused (PML (Nig) Ltd) in the amended charges dated 13th October, 2008 would be dropped and condoned. In keeping faith with the said plea bargain arrangement, the Respondent and Kiva Corporation Ltd pleaded guilty to the amended charge dated 17th December, 2008 and filed on 18th December, 2008 and were subsequently convicted and sentenced by Honourable Justice A. Abdul-Kafarati of the Federal High Court, Enugu Judicial Division on 18th December, 2008. Apart from the fact that the alleged offence against the Respondent in Charge No. FHC/EN/6C/2008 are the same, the list of witnesses and substantially the documents to be relied on by the Appellant in charge no: FHC/B/11C/2011 are virtually the same. An accused person cannot be tried for any offence arising out of substantially the same set of facts relied upon in a previous charge of which he had been acquitted and or convicted. He referred to the case of Connelly v. DPP [supra). A person who had been acquitted of a lesser offence could not be tried for an aggravated form even if new evidence becomes available. Counsel referred the court to the case of R v. Beedie (1998) QB 356.
Learned senior counsel submitted that from the conduct of the appellant and the subsequent amendment of Charge No. FHC/EN/6C/2008 which led to the conviction and sentence of the Respondent, the Appellant is therefore estopped from bringing any charge against the Respondent.
Senior counsel insisted that despite the fact that in the counts of the present Charge No. FHC/B/11C/2011 FRN v. Lucky Nosakhare Igbinedion & 6 Ors., only counts 1, 2, 57 and 58 are new counts, the alleged offences contained in the said counts were all in existence as at the time the Appellant concluded its investigations in the year 2007 and subsequently charged the Respondent to court and he was convicted on the Amended Charge No. FHC/EN/6C/2008 – FRN v. Lucky Nosakhare Igbinedion & Anor on 18th December, 2008 and that the Appellant cannot charge the Respondent in piecemeal when all these offences and evidence leading up to the same charge were all within the knowledge of the Appellant and also available to them as at 2007 when the investigations were concluded.
Senior counsel also argued that the witnesses in the present charge are the same as the former charge except the statements of Eriyo Amadi David taken in January, 2011.
Senior counsel argued that a person who had been acquitted of a lesser offence could not be tried for an aggravated form even if new evidence became available. Counsel cited Sosan v. Ademuyiwa (1986) 3 NWLR Pt. 27 Pg. 241 at 242.
Senior counsel urged this court to ignore the cases of Chief of Air Staff v. Iyen (supra), Edu v. COP (supra) and R v. Jinadu (supra) and to consider the fact that the charges dropped on 17/12/2008 which gave rise to the ones filed on 18/12/2008 are the same as those later filed as Charge No. FHC/B/11C/2011.
In the reply brief, learned Appellant’s counsel opposed the view of the Senior counsel to the Respondent in respect of the applicability of S. 152 and 158 of the CPA and the irrelevance of S. 181 and 221 of the CPA in view of the provisions of S. 36(9) of the Constitution. Counsel insisted that the argument of the Respondent in paragraphs 5, 20-5, 29 to the effect that the court should apply the provisions of S. 181(1)(b) and (c) to the old and abandoned amended charge by the prosecution in the case before the Federal High Court Enugu Division in charge No. FHC/EB/6C/2008 is a total misconception of the provisions of S. 181 of the CPA. Once a charge is amended, it no longer governs the proceedings and is of no useful purpose. It is deemed not to be in existence. Counsel cited Attah v. State (1993) 7 NWLR Pt. 305, 257 at 286.
Counsel insisted that S. 182 and 158 of the Criminal Procedure Act did not derogate from the provisions of S. 36(9) of the 1999 Constitution as to make the provisions to be in conflict with the Constitution.
Resolution
I will start with the issue of the plea of double jeopardy and autrefois convict the alternative of which is autrefois acquit. Both pleas are the same. In fact the rule of law against double jeopardy entrenched in S. 36(9) of the Constitution originated from the ancient remedies of autre fois acquit or autre fois convict. They are known as pleas in bar as an alternative to a plea of Guilty or Not Guilty. Apart from the ultimate protection of the Constitution, S. 181-185 of the C.P.A. also provides against double jeopardy. S. 36(9) of the Constitution provides as follows:
“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredient as that offence save upon the order of a Superior Court.”
S. 181 and 182 of the CPA 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 therefore 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 he 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.
(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 retrial.
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 made against him on the previous trial under the provisions of Section 158 of this Act.
S.158 and 161- of the CPA provides as follows:
158. If in one series of acts or omissions so connected together as to form the same transaction or which form or are part of a series of offences of the same or a similar character more offences than one committed by the same person charges for such offences, whether felonies, misdemeanours or simple offence, any be joined and the person accused tried therefore at one trial.
161. If a single act or omission or series of facts or omissions is of such nature that is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any member of such charges may be tried at once or he may be charged in the alternative with having committed some or one of the said offences.
S.173 – 179 of the CPA also provides as follows:
173. Where a person is charged with any of the following offences, that is to say-
(a) Stealing any property, contrary to Section 390 of the Criminal Code;
(b) obtaining or inducing the delivery of any property by a false pretense, and with intent to defraud, contrary to Section 419 of the Criminal Code;
(c) obtaining or inducing the delivery or payment of any property or money by means of fraudulent trick or device, contrary to Section 419 of the Criminal Code;
(d) receiving any property obtained by means of any act constituting a felony or misdemeanor, contrary to Section 427 of the Criminal Code Act, and the evidence establishes the commission by him with respect to the same property of any other of those offences, he may be convicted of that other although he was not charged therewith.
174(1) if on any trial for any of the offences mentioned in Chapter 37 of the Criminal Code Act the facts proved in evidence justify a conviction for some other of the said offences and not the offence wherewith the defendant is charged he may be found guilty of the said other offence and thereupon he shall be punished as if he had been convicted on a charged or an information charging him with such offence.
(2) Deleted by 1966 No.84
(3)
175. If on any trial for rape or for defilement of a girl under the age of thirteen years the facts proved in evidence authorized a conviction under Section 221 of the Criminal Code or for an indecent assault and not the offence wherewith the accused is charged, he may be convicted on an offence under Section 221 of the Criminal Code or of indecent assault, as the case may be, and thereupon he shall be punished as if he had been convicted on a charge or an information charging him with such offence or indecent assault.
176. If on any trial for an offence under Section 221 of the Criminal Code the facts proved in evidence warrant a conviction for an indecent assault and not the offence wherewith the accused is charged the accused may be convicted of indecent assault although he was not charged with that offence.
177. Where upon the trial of any person for the murder of any child or for infanticide it appears upon the evidence that such person was not guilty of murder or of infanticide, as the case may be, but was guilty of the offence specified in Section 329 of the Criminal Code, such person may be found guilty of that offence.
178(1) Where upon the trial of a woman for the murder of her newly born child it appears upon the evidence that having regard to the provisions of Section 327A of the Criminal Code she was not guilty of murder but was guilty of infanticide she may be found guilty of infanticide.
(2) Noting in subsection (1) of this section shall prevent a woman who is tried for the murder of her newly-born child from –
(a) being convicted of manslaughter; or
(b) being found guilty of concealment of birth in pursuance of Section 177 of this Act; or
(c) being acquitted upon the ground that by virtue of Section 28 or 29 of the Criminal Code she was not criminally responsible, and being dealt with under S.230 of this Act.
179.(1) In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.
S.181 of the CPA has created a bar to subsequent prosecution particularly where the subsequent charge is for an offence for which the accused had in law been convicted in the first trial. These exceptions to this instance are listed in S. 173 – 179 set out above. I agree with the learned appellant’s counsel that a community reading of S. 182 and 158 of the CPA will reveal that the prosecution may file different charges even where the accused had been previously tried and convicted or acquitted in instances where;
(a) the acts or omissions are so connected as to form the same transaction or
(b) the acts or omissions formed or are part of series of offences of the same or similar character.
There is no doubt that for the plea of double jeopardy under S. 36(9) of the Constitution to be sustained, the accused must have been previously acquitted or convicted by a court of competent jurisdiction of the same offence both in fact and in law. See Chief of Air Staff v. Iyen (2005) 6 NWLR Pt. 922 Pg. 496 at 535.
The issue of the competence of the previous court to convict or acquit was settled by the Supreme Court in Sunday Okoh v. The State (1984) 15 NSCC 705 at 710 wherein it was held that a person can be tried a second time for the same conduct where the offence charged is different from that charged at the earlier trial.
Let us examine English and local case law on this issue. In Connelly v. DPP [supra), an armed robbery took place in South London during which an employee in the diary where the robbery took place was shot and killed by the robbers. Connelly was charged with murder and was convicted but on appeal, his conviction was set aside and he was acquitted. The prosecution then went back to the lower court to lay the second indictment against Connelly alleging that he had committed robbery at the diary since the charge of murder could not be combined then with charge of armed robbery. His plea in bar for double jeopardy was rejected. It was stated by the House of Lords that it is immaterial that the facts under examination or the witnesses being called in the subsequent proceedings are the same as those in the earlier proceedings. Instead, what matters was whether the offence charged in the latter indictment was the same as that offence charged in the earlier indictment. Thus, the House of Lords unanimously held that the coincidences of factual evidence in the two trials did not form the basis of a successful plea of autrefois acquit.
In Edu v. COP 14 WACA 163, the accused was charged with the offence of stealing a postal package and was acquitted at the end of trial. He was subsequently charged with the offence of negligently losing the same parcel. His counsel raised a preliminary objection to the second charge contending that having been tried and acquitted of stealing the postal package, he could not be tried again for negligently losing the same package and that the two offences ought to have been charged together at the trial court in accordance with S. 161 of the Criminal Procedure Act. The Privy Council rejected the plea and held that the fact to be proved in support of the ingredients or elements of the two offences were not the same despite the fact that the offences arose out of the same set of facts. At Pg. 167 of the report, it was held that:
“Stealing involves a fraudulent taking and in a case of stealing, the prosecutor must prove such a taking as a fact, while under the charge of negligently losing there is no question of any taking at all; thus, a fact to be proved in the one case are not the same as the fact to be proved in the other case. There is no similarity between the ingredients of the two offences and it would be an abuse of language to say that these were alternative offences of the same facts.”
At Pg. 168 of the report, the court continued that:
“The mistaken assumption made by counsel arises perhaps from the fact that both charges may lead to the same parcel but apart from that they do not consist of the same elements.”
Also in R. v. Jinadu (1984) 12 WACA 368, the accused who was a police officer was initially tried in a police orderly room trial for use of unnecessary violence on persons in his custody. He was acquitted but was downgraded in rank on the orders of the police orderly room. Subsequently, he was charged with assault on the same facts under the Criminal Code and he raised the plea of autrefois acquit which was rejected both by the trial court and the Appellate Court.
In Amos O. Aro v. Salami Fabolude (1983) All NLR 67 a civil matter, the Justices of the Supreme Court took the pains to explain this issue. Aniagolu JSC stated emphatically at Pg 71 that:
“public policy demands that there should be an end to litigation once a court of competent jurisdiction has settled, by a final decision, the matters in contention between the parties not only must the court not encourage prolongation of a dispute, it must also discourage proliferation of litigation. And so the maxim INTEREST REIPUBLICA UT SIT FINIS LITIUM has for long been accepted as one of the established principles of our law”
A reading of the ruling of the trial court would show that his Lordship had an excellent grasp of the law relating to autrefois convict and double jeopardy. His Lordship in a display of erudition stated at Pg. 994 Vol. lll of the records as follows:
“For the purpose of avoidance of doubt the test for the plea of autrefois convict or acquit under S. 36(9) of Constitution the offence with which accused is charged on the second occasion must be the same offence or practically the same offence as that with which he was charged and convicted or acquitted on the first occasion.
It is not enough to say that the evidence tendered on the second charge was the same evidence as that offered to prove the first charge.
It is not the evidence which is material to the charge that grounds the plea. But the offence charged and conviction or acquittal followed upon. See Supreme Court in:
1. R. v. Jinadu (supra) at 370
2. Chief of Air Staff v. Iyen (supra) at 535
3. Okoh v. The State (supra) at 710.”
The charges against the Respondent in FHC/B/11C/2011 are offences of money laundering created by the money laundering Prohibition Acts 2003 and 2004. The only offence that the present respondent was tried and convicted upon is as contained in count 1 of the said amended charge of 17/12/2008 and it reads:
That you LUCKY NOSAKHARE IGBINEDION (former Governor of Edo State) on or about 21st January, 2008 within the jurisdiction of this Honourable Court neglected to make a declaration of your interest in the Account No. 4124013983110 with Guaranty Trust Bank (GTB) in the declaration of Assets Fund of the Economic and Financial Crimes Commission and you thereby committed an offence punishable under S. 27(3) of the Economic and Financial Crimes Commission Act, 2004″
See Pg. 812 of Vol. II of the Record of appeal.
The ingredients of the offence of failure to declare assets for which the Respondent was earlier tried under S. 27(3) of the EFCC Acts are that:
(a) The accused filled the assets declaration form
(b) The accused must have failed to make full disclosure of its assets and liabilities in the Assets Declaration Form.
(c) That the failure is intentional or premeditated.
The Respondent was actually tried and convicted of a one count charge of failure to declare his interest in Account No. 4124013983110 with GTB. None of the ingredients of failure to declare assets are similar to the ingredients of money laundering through various companies. Strictly speaking there is no doubt that after a look at the bald law alone in relation to this issue, one can only arrive at the conclusion that the Respondent is not being tried in FHC/B/11C/2011 for the same offence for which he was convicted in FHC/EN/6c/2008.
The various arguments of learned silk in relation to the first issue dovetail into the arguments in respect of the second issue which are mainly about the existence of the plea bargain agreement between the parties. As for the issue of whether the information in the new charge was available to the prosecution at the time the old charge was filed, to be relevant, it must be in relation to failure of the accused to declare his interest in probably another account with GTB which fact was well known to the prosecution at the material time when the old charge was filed. I would have supported the position of the Respondent on this issue that the Respondent cannot be charged piece meal if the new charges related exclusively to counts of instances of failure to declare his assets and interest in various accounts and which facts were within the knowledge of the prosecution before the first charge was preferred.
My own humble opinion in relation to the direct and simple question posed by this issue is that the Respondent, who was only convicted for failure to declare his assets which offence was committed in 2008 cannot successfully rely on the plea of autrefois convict or double jeopardy when he had not been tried, convicted or acquitted of any of the offences covered by the present charge.
The first issue is resolved in favour of the Appellant.
ISSUE TWO
Whether the pleas of condonation and abuse of process of court are available to the Respondent on the ground of the alleged existence of plea bargain agreement in charge No. FHC/EN/6C/2008 which barred further prosecution of the respondent. (See Grounds 1, 2, 3, 4 and 7)
On this issue, learned appellant’s counsel argued that the trial court found that the plea of condonation, abuse of court process are available to the Respondent because there was a plea bargain agreement in the previous charge. The issue of abuse is tied down to the finding that the offences charged with the latter case had been condoned in the earlier charge in Enugu. In other words, abuse would only arise if the offences charged in the Federal High Court, Benin is found to have been condoned at the Federal High Court, Enugu.
Learned Appellant’s counsel relied on the definition of condonationn by the Supreme Court in Nigerian Army v. Aminu Kano (2010) 5 NWLR Pt. 1188 Pg. 429 at 453-454. Counsel insisted that the case established the principle that condonation is strictly used in matrimonial causes and that the application of the term “condonation” to a criminal case is always prescribed by statute. Counsel argued that examples of such special provisions are as contained in S. 171(1)(c) and (2)(c) of the Armed Forces Act Cap. A20, Laws of the Federation construed in Nigerian Army v. Aminu Kano’s case and S. 119 of the Nigerian Army Act, Cap. 294 LFN 1990 construed in Asake v. Nigerian Army (2007) 1 NWLR Pt. 1015, 407 at 427.
Counsel submitted that only the following laws regulate the proceedings before the Federal High Court (i) The Federal High Court Act (ii) Criminal Procedure Act (iii) Money Laundering Act (iv) Economic and Financial Crimes Commission (Establishment) Act (v) The Evidence Act (vi) Constitution of the Federal Republic of Nigeria. None of the above listed Acts and the Constitution provides for any form of condonation of crime in a charge of Money Laundering pending before the Federal High Court.
Counsel insisted further that the Appellant never at any time compounded the offences in terms of S. 14(2) of the EFCC Act. He argued that the respondent in the instant case has not claimed that the offence in respect of which he is being tried has been compounded by the EFCC by returning the funds exceeding the maximum amount that he would have been liable to pay if convicted. In the instant case, there is no scintilla of evidence from the entire record of appeal that the Respondent has paid any money in respect of the various charges contained in the present proceedings. In fact, he was only sentenced to a fine of N3,579,524.16 which was equal to the amount contained in count 1 of the amended charge dated 17th December, 2008.
Counsel argued that the provision of S. 14(2) of the EFCC Act envisages compounding an offence punishable under the EFCC Act and that the present charges are not offences punishable under the EFCC Act but under the Money Laundering Act. Counsel insisted that the fact that Money Laundering Act is referred to in S. 7(2) of the EFCC Act, does not make Money Laundering offences punishable under the EFCC Act to come within the purview of S. 14(4) of the EFCC Act.
Learned counsel argued strongly that there is nothing on the face of the charges and even the proceedings of the court at the Federal High Court, Enugu to show any agreement that the offences withdrawn through the process of amendment had been pardoned or that there is in existence, any agreement or decision not to prosecute further.
In a voltre face, counsel for the appellant also argued that it cannot be correctly held that the prosecuting counsel denied any plea bargain agreement with the Respondent. What the prosecuting counsel is denying is the existence of any global settlement or agreement that all the counts withdrawn in the earlier charges of 13th October, 2008 and 28th February, 2008 would no longer be pursued by the prosecution.
Counsel argued that the Respondent gave conflicting accounts of the agreement with the prosecution in his various affidavit before the trial court. Learned counsel argued that the Respondent had facilitated the escape of the 2nd and 3rd Accused persons who were the alter ego of the 4th, 5th and 7th accused companies. The Respondent had denied his involvement in money laundering activities with the other accused companies and in the absence of any evidence of his involvement, he was not charged until the evidence of David Amadin Eriyo showed the extent of the participation of the Respondent in the money laundering activities of the accused companies.
Learned counsel argued that the fact of correspondence between the parties at some point and the statement of Appellant’s counsel (Rotimi Jacobs) on 17/12/2008 that the charge would be amended to reflect the terms does not amount to evidence of condonationn or agreement not to further prosecute. He insisted that there is nothing on the face of the record of the court or on any of the correspondences between the parties to show clearly what was agreed upon. Counsel cited Akinpelu v. Adegbore (2008) 10 NWLR Pt. 1096 Pg. 531 at 558; O.O.M.F. LTD v. N.A.C.B LTD (2008) 12 NWLR Pt. 1098 Pg. 412 at 427.
Counsel argued that after a charge is amended or withdrawn, the former one is no longer of any use in the proceedings. He cited IGP v. Marke (1957) SCNLR 53 at 56-58; Abacha v. FRN (2006) 4 NWLR Pt. 970, 239 at 300-301 and 303-306; Attah v. State (1993) 7 NWLR Pt. 305, 257 at 286 paras G-H; FRN v. Adewunmi (2007) 10 NWLR Pt. 1042, 399. Counsel insisted that the issue of abuse will also not arise at all because the existence of abuse was predicated by the learned trial judge on the existence of a global settlement agreement or condonation. Once this Court finds that there is no condonation or global settlement, the bottom will be removed from the issue of abuse of process. There is no evidence whatsoever before the trial court to show any abuse of process and the trial court failed to consider the various affidavit evidence placed before it before holding that there was an agreement that the Respondent will no longer be prosecuted for any offence committed during the tenure of his office.
Learned senior counsel for the Respondent on this issue, reminded us that the learned counsel for the Appellant who was also the learned prosecutor in respect of the said charge did not deny any of these conducts attributed to him and made out by the affidavit evidence and records of proceedings of the Enugu trial. What the learned counsel appears to be contending is whether those admitted conducts amounted to condonation or not.
Senior counsel argued that the appellant is not the victim of the crime but a complainant. The victims being the people of Edo State who are not in a position to condone the crime. Counsel argued that there is nothing in the definition of condonation in the Black’s Law Dictionary and Nigerian Army v. Aminu Kano supra that categorically precludes the appellant from exercising his power to condone the criminal acts of the offender.
Learned senior counsel referred us pointedly to the proceedings of 17/12/2008 wherein the 196 count charge of 13/10/2008 had been allegedly compromised and abandoned. Senior counsel argued that the only reasonable conclusion this Honourable Court can come to, is that the amended charge dated 17th December, 2008 was filed upon the agreement reached by the parties that all other offences disclosed by the investigations during the tenure of the Respondent as the Governor of Edo State between 1999 to 2007 are deemed condoned, or pardoned for the plea of guilty by the Respondent and Kiva Corporation Ltd.
Senior counsel argued vehemently that the respondent herein has not only paid the fine imposed by the court but carries with him the stigma of conviction arising from the plea bargain arrangement. The convicted 2nd accused in the said charge (Kiva Corporation Ltd) who has the same directors as Gava Corporation Ltd, the 4th accused person in charge No. FHC/B/11C/2011 also carries the said conviction apart from having forfeited properties to the appellant.
Counsel argued that the dissatisfaction of the appellant with the option of fine given to the respondent cannot be a basis for any other trial of the respondent. Senior counsel insisted that this court should give full weight and effect to S.167(d) of the Evidence Act 2011 against the appellant in favour of the respondent because the failure of the appellant who organized and presided over the general meetings to produce any minutes of the meetings in their custody should be resolved against the said appellant. Senior counsel cited Framo Nig. Ltd. v. Daodu (1993) 3 NWLR Pt. 281 Pg. 372. Learned senior counsel to the Respondent is of the view that the doctrine of condonation as enforced by the court in Asake v. Nigerian Army Council (supra) and Nigerian Army v. Aminu Kano is applicable to this case. Moreover, senior counsel argued that the substitution of the previous charge on 18/12/2008 with a fresh one and the Respondent changing his plea thereto leads to the irresistible conclusion that the offences withdrawn or abandoned in consequence of the plea bargain arrangement have been condoned. Counsel called in aid the provisions of S. 169 of the Evidence Act 2011, S. 36(9) and 36(10) of the 1999 Constitution.
Counsel submitted that there were overt actions of the appellant which point irresistibly to the conclusion that the appellant intended and did condone the alleged offences. He cited Attah v. State (1993) 7 NWLR Pt. 305 Pg 257 at Pg. 286. Senior counsel insisted that the appellant is estopped in law and cannot be allowed to renege from the agreement to treat those offences as condoned and or pardoned as the respondent will be prejudiced by the same. He cited Sosan v. Ademuyiwa (1986) 3 NWLR Pt. 27 Pg. 241 at 242.
Senior counsel commended the case of Barmo v. State (2000) 1 NWLR Pt. 641 Pg. 424 to our consideration to support the view that after a person has been pardoned by the appropriate authority for a criminal offence, then he cannot be subjected to any further trial by any court or tribunal for the same offence.
Counsel also urged this court not to neglect its duty to ensure that there is no abuse of judicial process. He cited Abacha v. The State (2007) 11 NWLR Pt. 779 Pg. 437 at 457. Counsel protested that the issue of compounding of offences raised by the Appellant’s counsel is not born out of the ratio decidendi of the judgment of the trial court nor was it a matter on which a complaint was raised.
Senior counsel also argued that there is nothing in S. 14(2) EFCC Act which relates to pre-trial or pre-charge agreement to compound an offence. The EFCC cannot in compounding any offence extract more than the maximum amount to which the accused may be convicted, the EFCC can extract a lesser amount in compounding the offence. Nothing in the said S. 14(2) requires each accused person to return moneys or funds in respect of offences being tried. What the section envisages is for the Commission to compound offences not offenders. The contention of the Respondent has always been that all investigations were concluded as at 2007 before the appellant filed the charge at the Enugu Federal High Court on which a plea bargain was entered leading to the subsequent conviction and sentence of the Respondent. Learned senior counsel argued that the Respondent concedes that counts 1, 2, 57 and 58 and not 1, 2, 15, 16, 57 and 58 are new but that the witness’ statement which culminated into those counts were available and part of the proof of evidence in the charge before the Enugu Federal High Court and as a result of which the Respondent ought to have been charged then and that by virtue of S. 181 of the Criminal Procedure Act, he cannot be charged again on a new charge which is one in respect of which he could have been convicted at the former trial although not charged with it.
In the reply brief, learned counsel argued that the Respondent never cross appealed against the finding by the learned trial judge that the plea of pardon is not available to the Respondent. Counsel also argued that the finding of a plea bargain agreement and consequent estoppel was wrongly made by the trial judge. Learned counsel argued that an agreement not to prosecute an accused person must be clear and unequivocal and not one to be deduced from conflicting claims of the Respondent. What was agreed upon was deposed to in the counter affidavit of the Appellant and the circumstances in which the previous charge was dropped and particularly the sudden appearances of Amadin David Eriyo and Patrick Eboigbodin after the conviction of the Respondent by the Federal High Court, Enugu. Their statements were also obtained after the conviction. Thereafter the nexus between the Respondent and the offences charged in this latter proceedings became manifest. Since there is no issue of agreement not to charge the Respondent, the issue of estoppel becomes irrelevant.
Counsel denied the existence of any plea agreement or holding any meeting with the Respondent and his lawyers.
Resolution:
It is my humble view that this is the issue on which this appeal turns. A lot of dust was raised by both counsel in respect of the previous issue which may tend to becloud the real question in controversy here. The basis of the contention by the Respondent that he is entitled to plead autrefois convict and double jeopardy as a bar to prosecution was the purported plea bargain agreement between the parties. The basis of the Respondent’s argument is that the circumstances of his plea of guilty, and conviction in respect of charge FHC/EN/6C/2008 are such that he can plead that he had been implicitly convicted of these new charges when the old charge was laid and he pleaded guilty to it. To my mind, the real question in controversy here is whether there was a valid plea bargain agreement between the parties and whether the appellant in filing charge No. FHC/B/11C/2011 is in breach of the agreement which would make the charge an abuse of court process. Before I answer the question in controversy, let me try to sweep away some of the legal issues raised to becloud a simple question of fact.
The Respondent at the trial court had raised as a plea in bar the claim that all his offences inclusive of the new charges had been condoned by the prosecution.
Condonation according to Blacks Law Dictionary 8th Edition at page 315 is defined as:
1. A victim’s express or implied forgiveness of an offence, especially by treating the offender as if there had been no offence.
2. Condonation is not usually a valid defence to crime.
3. One’s spouse’s express or implied forgiveness of a marital offence by resuming marital life and sexual intimacy.
Also, Itse Sagay in his book – Nigerian Family Law at page 393 defined 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 on the condition that the spouse whose wrong is so condoned does not hence, forth commit any further matrimonial offence. Condonation has two essential ingredients:
1. Forgiveness by the wronged spouse, and
2. Reinstatement of the offending spouse to his former position”
I cannot shut my eyes to the cases of Asake v. Nigerian Army (Supra) and Nigerian Army v. Aminu Kano (Supra) cited by both parties on condonation. Let us look at the two cases and their relevance to the matter at hand. S.171(1)(c) and 2(c) of the Armed Forces Act provides as follows:
“Where a person subject 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 and 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.”
The appellant in Asake’s case was a military officer who on November 1991 had borrowed $300 from Lt. Col. Yau Suleiman at Liberia but failed to repay the loan. This conduct was regarded as prejudicial to good order and military discipline. He was duly arraigned by the Military Court for violation of Section 71 of the Nigerian Army Act. Appellant during the trial first denied that he borrowed the money but later said the money was for a transaction which later turned out to be a failure. The commanding officer related to the Military Court how he investigated the alleged loan and agreed to repay the aggrieved soldier with his pay. The Military Court found the appellant guilty and ordered that he be demoted to the rank of lieutenant, which was three years loss in rank. Appellant appealed to the Court of Appeal arguing among others, that his act had been condoned by the commanding officer who undertook to repay the loan and as such his subsequent sentence still on the loan, was improper. The Court of appeal Fabiyi JCA (as he then was), held that the offence of the appellant in that case had been condoned.
In Nigerian Army v. Aminu Kano (Supra), Maude Aminu Kano, a Brigadier-General in the Nigerian Army was the Commandant of the Nigerian Army School of Finance and Administration [NASFA). In September 2005, a covering order for the Court Martial to try him was issued. He was charged under Section 90(a), 94(a) 62(b) and 103(1) of the Armed Forces Act which offences are sending of false information in respect of the grades of one Col. P. A. Toun to the University of Nigeria Nsukka, negligence in performance of duty and prejudice of service discipline. During the trial, the respondent made a plea in bar of trial on the ground that by virtue of a document in which the charges against the respondent were withdrawn and substituted with a “final warning letter”, the respondent could not have been subjected to trial anymore as that letter amounted to condonation by the respondent’s commanding officer as provided by Section 171 of the Armed Forces Act. The no-case submission was overruled and he was ordered to enter his defence.
Of important note is the fact that both cases reported above are premised on the violation of the Armed Forces Act and as such only applicable to service men. The Respondent in this case is not subject to service law. We must also not be unmindful of the essence and meaning of condonation. Muhammed JSC in Asake v. Nigerian Army (Supra) defined condonation as “a victim’s express or implied forgiveness of an offence by treating the offender as if there has been no offence”. In the instant case which involved money laundering offences, the victims are the people of Edo State. Thus, if at all there will be condonation of the Respondent’s offences, it can only be by the people of Edo State and not the prosecution cum respondent. The above-adumbrated cases are also distinguishable from the instant case as condonation is provided for under S. 171 of the Armed Forces Act and there is no such provision under the EFCC Act or the CPA. The term “condonation” as has been shown above, is also applicable to matrimonial causes. For condonation to be applicable to any offence, the law creating the offence must clearly indicate that it can be condoned by the victim or the complainant.
In the circumstances of this case, the fact of the Appellant’s amendment of the charge on 17/12/2008 which charge did not contain the old counts is being used by the Respondent as evidence that the old charges have been condoned as part of a plea bargain arrangement. Even if there was a plea bargain in agreement between the parties, it cannot amount to condonation in law. I will expatiate on that point anon.
From the foregoing, I am of the humble opinion that a serious crime can only be condoned by the victim. This is due to the fact that even though the crime is committed against individuals and the State, it is the State that prosecutes the offender and not the victim of the offence. Of course condonation can apply to any civil matter as may be deduced from the conduct of the parties and in situations where the statute specifically provides for it. I agree with learned appellant’s counsel that by virtue of the provision of S. 33 of the Federal High Court Act, criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act and the Federal High Court Act. See Alamieyeseigha v. FRN (2006) 16 NWLR Pt. 1004 Pg.1 at 60 – 62, 65, 92 and 96. There is no provision in the CPA or the Federal High Court Act empowering the court to apply the doctrine of condonation. I am of the humble view that condonation is NOT and CANNOT apply as a principle, to criminal acts and trials except when the statute allows it.
Even though in the motion filed by the Respondent which gave rise to this appeal, the Respondent only claimed that the appellant had condoned the offences and that the doctrine of double jeopardy should be activated on their behalf to make the fresh charges an abuse of court process, both parties raised and argued extensively the issue of whether or not the EFCC had compounded the offences in the first charge. The appellant is claiming that the present charges not being punishable under the EFCC Act but under the Money Laundering Act cannot be compounded in accordance with the provisions of the EFCC Act. That is a misconceived notion. The EFCC can compound any offence in accordance with S. 14(2) of the EFCC Act so long as it is an offence which the EFCC is empowered to prosecute. S. 14(2) of the EFCC Act 2004 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 above provision is the nearest provision that conceives of a plea bargain arrangement. The protocols for the compounding of the offence are clearly spelt out in the above section.
There is no evidence on record from the affidavit filed at the trial court that the Respondent has paid any money to EFCC in accordance with S. 14(2) which money must be in excess of the maximum amount he could be fined if convicted of the offences. The 8th Edition of Black’s Law Dictionary defines “compound” to mean:
“to settle a matter (especially a debt) by a money payment in lieu of other liability or to agree for a consideration not to prosecute a crime”.
It is clear to me that the circumstances being relied on by the Respondent as amounting to a compounding of all his total offences by the appellant cannot amount to the situation contemplated by S. 14(2) of the EFCC Act. This court in Chief Patrick Chidolue v. EFCC Appeal No. CA/A/122/2010 delivered on 7/3/2011 had this to say:
“The same dictionary gives three elements at common law and under the typical compounding statue that must be present before an offence can be compounded. These elements are (1) An agreement not to prosecute (2) Knowledge of the actual commission of crime (3) The receipt of some consideration. It is clear from the proceedings at the lower court that the appellant had knowledge of the crime for which he was arrested and detained. This is so because all the statements he made were so made after he had been 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 S.14(2) of the Act and they must be established conjunctively… From the provisions of S. 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 S. 14(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.”
In fact a reading of that judgment of this court has shown us how flawed the provision of S. 14(2) of the EFCC Act is. Suffice it to say that the Respondent cannot find solace in the provisions of S. 14(2) of the EFCC Act.
Now, to the gritt of this appeal – that is whether there was a plea bargain agreement and whether the terms of said agreement have been breached by the appellant by the filing of the new charges against the Respondent. It is clear from the affidavit evidence before the trial court and the argument of Appellant’s counsel that while the Appellant concedes that there was an agreement, he does not agree with the scope of the agreement as being claimed by the Respondent.
The learned trial judge on the issue of plea bargain agreement between the parties had this to say at Pg. 997 Vol. III of the record.
“The only natural conclusion left open, upon the totality of evidence, is that there was in fact a plea bargain agreement between the Commission (EFCC) and the 1st accused person.
Upon which all previous charges against him were dropped and condoned and the 1st accused cannot now be called upon to answer or stand trial in respect of the same charges of which he would have been tried and convicted but for the plea bargain agreement and condonation. Doing otherwise will amount to putting the 1st accused person-Applicant in double jeopardy.”
At Pg. 996 of the record, His Lordship had stated stridently that for the prosecution counsel to turn round now and deny any plea bargain agreement with the 1st accused Applicant and condonation in the face of express admission and evidence is in fact both morally and legally wrong and irretrievably bad and untenable in law.
I am not unaware of what Mr. Rotimi Jacobs expressly stated on 17/12/2008 in open court before Abdu-Kafarati J. and the subsequent actions by the prosecution on 18/12/2008 which is the basis of the conclusion of the learned trial judge. Let me set out the instructive communication between the parties.
Letter 1
‘LUCKY NOSAKHARE IGBINEDION
No. 14 Ugbor Road,
Benin City.
The Acting Chairman
Economic and Financial Crimes Commission
Headquarters,
Abuja.
Dear Sir,
RE: ISSUES WITH YOUR ORGANIZATION
Please recall our previous conversation in your office wherein I mentioned the need to resolve the issues relating to my matter amicably.
I would appreciate if you will kindly approve for my representatives to meet with your officials on a date and venue of your convenience.
Please be assured of my highest esteem.
(Sgd)
Lucky N. Igbinedion
Letter 2
ECONOMIC & FINANCIAL CRIMES COMMISSION
11th April, 2008
Mr. Lucky Nosakhare Igbinedion
14 Ugbor Road,
Benin City
Edo State.
Dear Sir,
Re: Issues with the Commission
I write to acknowledge and thank you for your letter of 11th April, 2008 to the Acting Executive Chairman of the Commission regarding your case currently under prosecution.
The Acting Executive Chairman has taken full view of the appeal in your letter and has passed instructions accordingly. To that extent, therefore, our legal department will contact you presently.
Please accept the warm regards of the Acting Executive Chairman.
Yours truly,
(Sgd)
Dapo Olorunyomi
Chief of Staff to the Executive Chairman”
There is however a problem with the conclusions of the learned trial judge. The conclusions were reached by inference or presumption from the actions of the prosecution now Appellant. There is no direct evidence of the plea bargain agreement. Let us assume that indeed there was an oral agreement between the parties. There are conflicting evidence of the scope of the oral agreement. The EFCC as an organization and all officers including prosecutors acting under the Commission are performing official acts with the fiat of the Attorney General of the Federation. Any agreement reached at meetings between the parties which resulted in the purported plea bargain agreement must have been made in the course of official duties and proceedings envisaged under S. 128(1) of the Evidence Act and must perforce be committed into writing. Prayers 4 and 5 in the motion filed on 4/2/2011 asked for a perpetual injunction restraining the EFCC, the AGF, ICPC and the IGP from instituting or maintaining any criminal proceedings against the Respondent. Any plea bargain agreement made by an officer or prosecutor would thus be binding on the people of Nigeria. I do not think the terms of such an important agreement binding on all prosecutorial agencies involving billions of Naira can be inferred from the conduct of the parties.
Even though the prosecution/appellant has shied away from this obvious fact, the truth of the matter is that plea bargain is as at now generally unknown to our criminal justice administration and indeed our criminal jurisprudence.
At this point I must clarify by way of obiter the historical background and the commonly used protocols of a plea bargain arrangement.
What is a plea bargain arrangement? Bryan Garner’s Blacks Law Dictionary 8th Edition at Pg. 1190 defines plea bargain as:
“A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange of some concession by the prosecutor usually a more lenient sentence or a dismissal of the other charges.”
The concept of plea bargain 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.1463,25 L.Ed 2d 747). Below are the brief facts of the case:
In 1959, the accused/petitioner was charged with kidnapping and faced a maximum penalty of death. He was represented by competent counsel and at first, elected to plead not guilty. Upon hearing that his co-accused had confessed to the authorities, would plead guilty and be available to testify against him, he changed his plea to guilty. His plea was accepted after he was twice questioned as to the voluntariness of the plea and he was subsequently 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. He claimed 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 in affirming the decision of the Court of Appeal had this to say:
“The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to the Judge or Jury a range of choices in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious. His exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages. The more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is substantial issue of the defendant’s guilt or in which there is a substantial doubt that the State can sustain its burden of proof.”
The Supreme Court of the United States stated further that:
“Of course, that the prevalence of guilty pleas is explainable does not necessarily invalidate those pleas or the system which produces them. But we cannot hold that it is unconstitutional 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 otherwise be necessary.”
Subsequently and with this seal of approval by the US Supreme Court, the courts in the United States treated plea bargain as contracts between the prosecutors and defendants. If the defendant breaks a plea bargain, the prosecutor is no longer bound by his or her side of the deal. If a prosecutor reneges on plea bargains, defendants may seek relief from the court. The court might let them withdraw their guilty pleas, or may force the prosecutor to follow the plea bargain or may apply some other remedy. There can be either sentence bargain or charge bargain. A sentence bargain is where the prosecution agrees to a lesser punishment for the accused if he can plead guilty to the charge. A charge bargain involves the agreement to drop some charge(s) against the accused if he pleads guilty.
The advantages of plea bargain include:
(1) Accused can avoid the time and cost of defending himself at trial, the risk of harsher punishment, and the publicity the trial will involve.
(2) The prosecution saves time and expense of a lengthy trial.
(3) Both sides are spared the uncertainty of going to trial.
(4) The court system is saved the burden of conducting a trial on every crime charged.
It is noteworthy that S. 75 of the Administration of Criminal Justice Law of Lagos State, the first legislation to localize and import plea bargain into Nigeria’s criminal jurisprudence provides as follows:
“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.”
The Administration of Criminal Justice Law of Lagos also has other copious provisions on the arrangement. The arrangement usually involves the prosecutor, the accused and the court. The parties negotiate, subject to the approval of the court. Other countries that have formally adopted plea bargain include India and Germany. S. 76 of the Administration of Criminal Justice Law of Lagos State provides as follows:
“76.(1) The prosecutor and a defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of-
(a) A plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge.
(b) An appropriate sentence to be imposed by the Court if the defendant is convicted of the offence to which he intends to plead guilty.
(2) The prosecutor may only enter into an agreement contemplated in subsection (1) of this Section-
(a) after consultation with the Police Officer responsible for the investigation of the case and if reasonably feasible, the victim and
(b) with due regard to the nature of and circumstances relating to the offence, the defendant and the interests of the community.
(3) The prosecutor, if reasonably feasible shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding-
(a) the contents of the agreement, and
(b) the inclusion in the agreement of a compensation or restitution order
(4) An agreement between the parties contemplated in subsection (1) shall be in writing and shall be signed.
(5) The presiding Judge, or Magistrate before whom criminal proceedings are pending shall not participate in the discourse contemplated in subsection (1):
Provided that he may be approached by the counsel regarding the contents of the discussions and he may inform them in general terms of the possible advantages of the discussions, possible sentencing options or the acceptability of a proposed agreement.
(6) Where a plea agreement is reached by the prosecution and 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 correctness of the agreement.”
However, even though the arrangement has been used in the resolution of a handful of cases in Nigeria, there still remains a big lacuna in the laid down procedure to be followed by parties in a plea bargain arrangement. In the instant case, there has been so much ado about the purported plea bargain agreement. However, parties have only been able to give oral account of what should have been a written agreement. The EFCC have in principle used and found the concept of plea bargain expedient but the EFCC Act and the CPA has not set out any protocol for its application. There must be certainty and clarity in the applicability of the plea bargain protocol. It is not enough for counsel on both sides to bandy about the concept.
As earlier mentioned, a plea bargain agreement is a contract between the prosecution and an accused person. The law has placed on a party, who has asserted the existence of a contract, the onus to prove it. The words which go to make the alleged contract, be it oral or written must be clearly stated and proved by the claimant to the letter. See S.131, 132 and 136 Evidence Act 2011; Jolasun v. Bamgboye (2010) 18 NWLR Pt. 1225 Pg. 285; Haske v. Magaji (2009) All FWLR Pt. 461 Pg. 887.
The learned senior counsel for the respondent urged this Court to make a presumption under S. 167(d) of the Evidence Act 2011 that the evidence of the contract being withheld by the appellant would if produced be unfavourable to the appellant.
In the first instance, I have gone through the records and all the affidavit evidence, I cannot find any deposition relating to the when and where parties agreed to the terms of the plea bargain. No one referred to when or where a document which stated the terms of the contract was signed by any of the parties. Therefore the issue of invoking S. 167(d) against the appellant cannot arise since no one has referred to any specific document in the custody of the appellant which he has failed to produce.
The parties in the affidavit in support and in opposition to the motion at the trial court swore to contradictory affidavits. It is trite that the only way to resolve contradictions in affidavit evidence is by calling oral evidence to resolve same. That is the way the affidavit evidence of each party can be tested by cross examination and the trial court can make a finding of who is stating the truth by determining the credibility of the witnesses by their demeanour under the fire of cross examination. See Eze v. Okweremuo (2010) 17 NWLR Pt. 1221 Pg. 53; G.M.O.N & S Co. Ltd v. Akputa (2010) 9 NWLR Pt. 1200 Pg. 443; Onyejekwe v. Enweonu (2010) 4 NWLR Pt. 1185 Pg. 477.
The learned trial judge cannot by inference make findings of fact in respect of the terms of the agreement between the parties armed only with conflicting affidavit evidence.
In the instant case, the Respondent had only alleged the existence of a contract between himself and the Appellant, but had failed to adduce cogent evidence by way of documentary evidence of the terms of the contract. Thus, I am of the view that the Respondent has failed to establish the existence of the contract.
The resolution of this case, I must say gave me some anxious moments. From the concession of the Appellant’s counsel, it is clear that some sort of agreement was made by the parties, which terms unfortunately the law cannot allow the court to infer. It would amount to making a finding based on speculation. The deliberately vague way the purported agreement was offered to the Respondent I find particularly disingenuous. On record the prosecutor never stated the terms of the “settlement” in order to keep everything uncertain. Obviously, the Respondent was inveigled into pleading Guilty to the charge in FHC/EN/6C/2008. The Respondent’s counsel cannot escape a share of the blame in allowing his client to walk blindly into such a cloudy and nebulous transaction. At the very least the terms of the agreement should have been specifically agreed and formalized by the parties. Even though the concept of plea bargain is unknown to our procedural law, if the parties had set their agreement down in certain terms and the EFCC Act has empowered the prosecution to enter into such terms, the courts would have been obliged to insist that the prosecution is estopped from reneging on the agreement. It would have been inequitable and unconscionable to hold otherwise. 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. 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. Appeal Allowed
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the Judgment just delivered by my learned brother, the Hon. Justice H. M. Ogunwumiju, JCA, I cannot but concur with the far-reaching reasoning and conclusion reached therein, to the effect that the instant appeal is meritorious. Hence, having adopted the reasoning and conclusion in question as mine, I too hereby allow the appeal.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. My brother has stated the law in clear and unambiguous terms. The issues have been eloquently and completely dealt with to the extent that I have nothing useful to add.
In the circumstances, I cannot but find the appeal to be meritorious and allow the same. Consequently, the ruling of the lower court in Charge No: FHC/B/11C/2011 as it relates to the Respondent must be and is hereby set aside. The Respondent is to take his plea to the charge as filed.
Appearances
ROTIMI JACOBS (SAN)For Appellant
AND
RICKEY M. TARFA (SAN)For Respondent
