ABDULMUMIN v. FRN (2020)

ABDULMUMIN v. FRN

(2020)LCN/14562(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 04, 2020

CA/A/72C/2020

RATIO

PLEADINGS: INTERPRETATION OF STATUTE.

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. HON. HENRY SERIAKE DICKSON VS. 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 at 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 an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
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.ALHAJI ATIKU ABUBAKAR & ORS VS 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 interpret a statute or provision thereof by giving them their plain, ordinary and literal meaning except where such an interpretation will lead to manifest absurdity.”
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. Per PETER OLABISI IGE, J.C.A.

RATIO

PLEADINGS: PLEA BARGAIN

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 Section 270 of the Administration of Criminal Justice Act, 2015 which provide:
“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 defendant’s 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) the presiding judge or magistrate shall consider the sentence as agreed upon and 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 upon, 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 under 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 reasonable steps to ensure that any money, asset or property agreed’ to be forfeited or returned by the offender under 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 under this Act commits an offence and is liable on conviction to imprisonment for 7 years without an option of fine.
(15) Where the defendant has been informed of the heavier sentence as contemplated in Subsection (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) (b)- (a) no references shall be made 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 greater 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.”
(underlined mine)
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. HON. HENRY SERIAKE DICKSON VS. 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 at 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 an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
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.ALHAJI ATIKU ABUBAKAR & ORS VS 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 interpret a statute or provision thereof by giving them their plain, ordinary and literal meaning except where such an interpretation will lead to manifest absurdity.”
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 BLACK’S 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 VS. 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 (ACJA), 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 Black’s Law Dictionary, 9th Ed.”
2.ROMRIG (NIGERIA) LIMITED VS. 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 plea bargain was made under Section 75 of that Law in which it also insisted in Section 76 (4) that agreement between the parties must be in writing and shall be agreed upon by the parties.” (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. Per PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

SAIDU ABDULMUMIN APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned on a one count charge of offence of cheating on 23rd July, 2019 at the High Court of Federal Capital Territory. The one count charge reads thus:-
“CHARGE
That you Saidu Abdulmumin alias Dominik Jones & Michael Havey sometime in 2018, at Abuja within the jurisdiction of this Honorable Court, by deceiving did attempt to cheat Kristine H. Graunke by representing yourself to be Dominik Jones a male Caucasian, in order to facilitate your attempt to obtain financial gains, through the means of Gmail account dominikjones14@gmail.com which representation you know to be false and that you thereby committed an offence contrary to Section 95 and punishable under Section 322 of the Penal Code Act, Laws of the Federation (Abuja), 1990.

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 23rd July, 2019 and the proceedings of the day reads:-
“RECORD OF PROCEEDINGS
23/07/2019
Defendant in Court. He speaks English

language.
H.M Mohammed Esq. with Fatima M. Mustapha Esq. and S.N Robert Esq. for the prosecution.
David Agbane Amano Esq. for the defendant
Mohammed: Before the Court is a charge dated 28/6/19 and filed on 7/19. It is accompanied with a plea bargain agreement.
We pray the Court to read the charge to the defendant.
Court: Registrar read the charge.
Count 1
Court: Do you understand the charge.
Defendant: Yes
Court: Are you guilty
Defendant: Yes I am
Mohammed: We adopt the plea bargain agreement dated 28/6/19
We urge the Court to convict and sentence the defendant in accordance with plea bargain.
Amano: We adopt the plea bargain.
In the sentence we urge the Court to temper justice with mercy.
The Defendant has not benefited directly or indirectly from the said offence. The defendant is a first time offender. He has cooperated with the agents of the complainant while in detention. The defendant is remorseful and has actually turned a new leaf. He has forfeited his phone to the complainant willingly.
As the 1st child, the defendant is the bread winner of the family, the mother of the

defendant is on sick bed as we speak.
We urge the Court to temper justice with mercy.
Court: Defendant having pleaded guilty to the Charge and pursuant to the plea bargain Agreement is hereby convicted as charged.
The case is adjourned to 30/7/19 for sentencing. The convict shall be remanded in prison custody.
Hon. Judge 23/7/19

The sentence upon the Appellant was deferred to 30th July, 2019.
In sentencing the Appellant the lower Court said:-
“Learned Counsel for the convict urged the Court to temper justice with mercy.
I have read the plea bargain agreement, 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 an accused is charged.
It is not in doubt that cyber crimes dent the image and affect the integrity of our dear nation. I must say that the appropriate law/act to charge the convict is the cyber crimes (protection and prohibition, etc) 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 VS 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. It is most appropriate that our prosecution agencies arraign accused persons under the provisions of the relevant law, before the Court that has jurisdictional competence to try the case, I say no more.
S. 270(11)(c) ACJA 2015 gives the Court the power to imposed a heavier punishment other that the one agreed by the parties and I intend to go by that provision. 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 30th August 2019 and filed on 2nd September, 2019 appealed to this Court on four (4) grounds as follows:-
“NOTICE OF APPEAL
I, SAIDU ABDULMUMIN, having been convicted of the offence of attempted cheating in the High Court of the Federal Capital Territory, Abuja on the 23rd day of July, 2019 and sentenced on the 30th day of July, 2019 AND NOW BEING a prisoner at Nigeria Prison, Kuje, Federal Capital Territory, Abuja or Whose Address for Service is C/O his counsel, Friday Omakoji Abu, Esq of Refuge Chambers, Suite 03 (3rd Floor) Nusaiba Towers, close to Next Cash and Carry, 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
ERROR OF LAW
The learned trial Judge erred in law when he refused the application of the Appellant to have his plea changed from ‘guilty’ to ‘not guilty’ before delivery of judgment on the 30th July, 2019.

PARTICULARS OF ERROR
1. The Appellant applied to have his plea changed from ‘guilty’ to ‘not guilty’ when it became obvious that the learned trial judge would jettison the intention of a lesser sentence in the plea bargain agreement before the Court in accordance with his right under Section 270(15)(b) of the Administration of Criminal Justice Act, 2015 but his application was turned down by the learned trial judge.
2. The application to have the appellant’s plea changed was made before the delivery of the judgment of the Court.
GROUND TWO
ERROR OF LAW
The Learned Trial Judge erred in law when he imposed a heavier sentence on the Appellant than the sentence contemplated by the parties by virtue of the Plea Bargain agreement entered into between the Prosecution and the Appellant.
PARTICULARS OF ERROR
i. The condition(s) under which a Court or judge can go outside a plea bargain agreement to impose a heavier sentence as contemplated under the relevant provisions of the Administration of Criminal Justice Act, 2015 was/were not present in the present case.
ii. The trial Judge breached and/or ignored the provisions of the Administration of

Criminal Justice Act, 2015 (particularly Section 270 (11)(c) thereof) by not informing the Appellant of his intention to impose a heavier sentence than the sentence contemplated under the Plea Bargain Agreement thereby denying the Appellant his right under Section 270(15)(b) Administration of Criminal Justice Act, 2015.
GROUND THREE
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 hereof by 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 FOUR
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).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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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 the most liberal term of 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. 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.
vi. That the act of the trial Judge has occasioned a miscarriage of justice to the Appellant.
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 30th day of July, 2019 sentencing the Appellant to a term of three (3) years imprisonment contrary to the Plea Bargain Agreement.
ii. AN ORDER setting aside the conviction of the Appellant by the lower Court on the 23rd day of July, 2019 and directing that the trial commences de novo before another Judge of the High Court of Federal Capital Territory, Abuja where the Appellant can take his plea.
iii. Any other Orders(s) this Honourable Court may make in the interest of justice.”

Appellant’s Briefs of Argument was dated and filed on 6th March, 2020 but deemed filed on 28th April, 2020. The Respondent’s Brief of Argument dated 3rd June, 2020 was filed on 4th

June, 2020. It was deemed filed on 24th June 2020.

The learned Counsel to the Appellant, FRIDAY OMAKOJI ABU, ESQ distilled three issues for determination as follows:-
“a) Whether the trial Court was right in refusing the application of the Appellant to change his plea before sentencing. (Distilled from Grounds 1).
b) Whether the learned trial Judge was right and whether he followed the procedure laid down by law in imposing a heavier sentence than the one agreed in the plea bargain agreement before the Court. (Distilled from Grounds 2 & 3)
c) Whether the imposition of three years imprisonment for cheating on the Appellant and failure of the learned trial Judge to afford the Appellant the opportunity to lead evidence and proffer argument before imposing a heavier sentence than that contemplated under the plea bargain agreement does not amount to denial of fair hearing and miscarriage of justice.

The Respondent’s learned Counsel FARUK ABDULLAH, 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 three issues raised by the Appellant and they will be taken together.
“a) Whether the trial Court was right in refusing the application of the Appellant to change his plea before sentencing. (Distilled from Grounds 1).
b) Whether the learned trial Judge was right and whether he followed the procedure laid down by law in imposing a heavier sentence than the one agreed in the plea bargain agreement before the Court. (Distilled from Grounds 2 & 3)
c) Whether the imposition of three years imprisonment for cheating on the Appellant and failure of the learned trial Judge to afford the Appellant the opportunity to lead evidence and proffer argument before imposing a heavier sentence than that contemplated under the plea bargain agreement does not amount to denial of fair hearing and miscarriage of justice.

The Learned Counsel to the Appellant stated that the learned trial judge was wrong to have refused Appellant’s application to change the plea of the

Appellant from ‘guilty’ to ‘not guilty’ before sentencing. That in the instant case as in any criminal trial, any doubt should be resolved in favour of the defendant. Learned counsel drew attention to the Court proceedings dated 30/07/2019 contained in page 38 of the record where he applied to the Court to change the plea of the appellant relying on Section 270 (15) of the Administration of Criminal Justice Act. That the prosecution counsel had no objection to the application.

It is the submission of the Appellant’s Learned Counsel that pursuant to Section 270 (11)(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 imposed 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 there was no trial and there was no indication that the prosecution would have been able to prove the ingredients of the offence of attempt to

cheat. That the conviction and sentencing of the accused/appellant by the learned trial Judge is in breach of Section 270 of the Administration of Criminal Justice Act.
The learned Counsel to the Appellant opined that the learned trial Judge erred in law in failing to pass judgment in accordance with the plea bargain Agreement of the parties as adopted and in breach of Section 270(11)(c) of Administration of Criminal Justice Act which requires the Presiding Judge or Magistrate to inform the Defendant of his intention to impose heavier sentence he considers to be appropriate as required by Section 270(11)(c) of the Administration of Criminal Justice Act 2015.

That the provision of Section 270(11)(c) of ACJA is very clear and must be given its ordinary meaning. He relied on the following cases:
(1) AMASIKE VS REG.-GEN. C.A.C (2010) 13 NWLR (PT.1211) 337 AT 392 Paras D-G
(2) BERLIET (NIG.) LTD VS. KACHALLA (1995) 9 NWLR (PT. 420) 478
(3) OWENA BANK (NIG.) PLC VS. NIGERIAN STOCK EXCHANGE LTD (1997) 8 NWLR (PT.515)

That Section 270(15) of ACJA gives the defendant the opportunity to either abide by his earlier plea of guilty despite the

intention of the presiding judge to impose a heavier sentence or change his plea from ‘guilty’ to ’not-guilty’ in which case the trial shall proceed de novo before another Judge.

That the decision of the learned trial judge occasioned miscarriage of Justice on the appellant by failing to inform the appellant of his intention to impose a heavier punishment despite the lesser sentence agreed in the plea bargain agreement and by declining the application of the appellant to change his plea before sentencing.

He submitted that the 3 years sentence passed on the Appellant by the learned trial Judge was in error because the entire statement made by the appellant (as defendant) and upon which the plea bargain agreement was reached does not disclose the offence of cheating. That the learned trial Judge found at page 39 of the record that the ‘The convict did not succeed in defrauding his victim’.

That Section 322 of the Penal Code Law, under which the appellant was sentenced, provides for up to three (3) years imprisonment for the offence of cheating. Section 95 of the Penal Code Law provides for half of the punishment for the offence of

attempt to cheat.

That the learned trial Judge having found that the appellant did not succeed in defrauding his victim still went ahead to impose the maximum punishment for cheating.

That this Court should disregard the finding of the trial Court because the evidence in support of that finding does not prove the ingredients of the offence of cheating. There was no evidence before the trial Court that the appellant collected any amount of money or any property from anyone as a result of his action. That the statement of the appellant contained on pages 5-7 of the record and all the documents attached to the proof of evidence (including extracts from e-mail correspondences and chats) do not contain any single evidence nor point to the fact that the appellant ever succeeded in defrauding anybody. That the appellant’s statement basically states that he is into dating chats on internet and that he used aliases or false names to chat and attempt to date third parties who are mostly women.

He defined cheating in accordance with Section 320 of the Penal Code Law and relied on the case of BODUNRIN VS. STATE (APPEAL NO. CA/L/183/93 – Unreported), in

urging this Court to disregard the finding. That the fact that the appellant applied to have his plea changed pre-supposes that he intends to put up a defence and the presiding trial judge ought to have obliged him. He relied on the following cases:
(1) UCHE WILLIAMS VS. STATE (1992) 8 NWLR (PT. 261) 515 at 522;
(2) R. VS FADINA (1958) SCNLR 250;
(3) UDOFIA VS STATE (1984) 12 SC 139;
He urged this Court to resolve the issues in favour of the Appellant.

In response to the above submissions, learned counsel for the Respondent submitted that the proceedings before the lower Court was in accordance with the law. He argued that a Judge has discretion to impose punishment provided by the law on a convict but the discretion must be judiciously exercised. That the appellant attempted to commit the offence of cheating and the learned trial judge rightly convicted the appellant upon his guilty plea of an attempt to cheat. He relied on Section 95 of the Penal Code Law.

That the plea bargain agreement dated the 28th day of June, 2019 executed by the prosecution and the appellant clearly provided ‘that upon conviction, the punishment to be

imposed on the defendant shall be at the discretion of this Honourable Court in line with the (Sentencing Guidelines) Practice Direction, 2016′. That the learned trial judge in his well-considered reasoning while stating the reasons for his decision exercised his discretion stated in the plea bargain agreement and sentenced the appellant in accordance with the provisions of the law under which he was charged. That this does not contravene the provision of Section 270 of the Administration of Criminal Justice Act, 2015.

That the provision of Section 270(4) of ACJA, 2015 allows the prosecutor and the defendant or his legal practitioner to enter into agreement in respect of amongst other things the sentence to be recommended and appropriate sentence to be imposed by the Court where the defendant is convicted. He relied on the case ofNWUDE VS FRN & ORS. (2015) LPELR-25858 (CA) to submit 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.
That the provision of Section 270(11) (a) & (c) and (15) of ACJA and case laws relied upon by the appellant counsel in his

argument are not applicable and quite distinguishable from this case. That there is no sentence agreed upon as can be seen from the plea bargain agreement, rather the sentence was left at the discretion of the Court which exercised same judicially and judiciously and in accordance with the law.

That the learned trial judge in exercising his discretion and reaching a decision put into consideration the Federal Capital Territory Courts (Sentencing Guidelines) Practice Direction, 2016 as well as the seriousness and prevalence of the offence which has dented the image of the nation. He relied on Section 416 (1) of ACJA, 2015 and Section 1 (2) (b) of the Federal Capital Territory Courts (Sentencing Guidelines) Practice Direction, 2016

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 stated that the sentence imposed by the Learned trial Judge did not occasion a miscarriage of justice.

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 of 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.

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 Section 270 of the Administration of Criminal Justice Act, 2015 which provide:
“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.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendant’s 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) the presiding judge or magistrate shall consider the sentence as agreed upon and 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 upon, 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 under 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 reasonable steps to ensure that any money, asset or property agreed’ to be forfeited or returned by the offender under 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 under this Act commits an offence and is liable on conviction to imprisonment for 7 years without an option of fine.
(15) Where the defendant has been informed of the heavier sentence as contemplated in Subsection (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) (b)- (a) no references shall be made 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 greater 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.”
(underlined mine)
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. HON. HENRY SERIAKE DICKSON VS. 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 at 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 an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
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.ALHAJI ATIKU ABUBAKAR & ORS VS 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 interpret a statute or provision thereof by giving them their plain, ordinary and literal meaning except where such an interpretation will lead to manifest absurdity.”
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 BLACK’S 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 VS. 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 (ACJA), 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 Black’s Law Dictionary, 9th Ed.”
2.ROMRIG (NIGERIA) LIMITED VS. 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 plea bargain was made under Section 75 of that Law in which it also insisted in Section 76 (4) that agreement between the parties must be in writing and shall be agreed upon by the parties.” (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 33 – 35 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
SAIDU ABDULMUMIN – DEFENDANT
PLEA BARGAIN AGREEMENT
This plea bargain is made pursuant to Section 270 of the Administration of Criminal Justice Act, 2015, this 28th day of June 2019 between Federal Republic of Nigeria (represented by the Economic and Financial Crimes Commission) and Saidu Abdulmumin.
WHEREAS
1. The Defendant, Saidu Abdulmumin is presently standing trial before this Honourable Court in respect of offence of attempt to cheat filed by the complainant.
2. The Defendant has agreed to forfeit the tecno smart phone used as instrumentalities of the crime.
3. The Defendant has shown remorse for his actions and investigation has not revealed any financial benefits or gains that accrued to him from the offence which gave rise to the charge before this Honourable Court.

The Defendant by their letter dated 30th May, 2019 applied to the Prosecution for a plea bargain and the prosecution has agreed to the request stated herein.
5. The Defendant has also from the inception of the investigation up to the filing in Court cooperated with the Operatives of the EFCC (Nominal Complainant)
6. That there is also the need to avoid wastage of the precious judiciary machinery, time and manpower.
7. And whereas the foregoing seeks to achieve the justice desired.
8. The terms of this agreement shall form and constitute the judgment of this Honourable Court.
9. No further charge shall arise against the Defendant in respect of this offence.
IT IS HEREBY agreed as follows:
1. That before the conclusion of this agreement the Defendant was informed:
i. That he has a right to remain silent and of the consequences of not remaining silent, and
ii. That he is not obliged to make any confession or admission that would be used in evidence against him.
2. That the Defendant shall plead guilty to the charge before this Honourable Court.
3. That upon conviction, the punishment to be imposed on the

Defendant shall be at the discretion of this Honourable Court in line with the Sentencing Guidelines of the Federal Capital Territory Courts (Sentencing Guidelines) Practice Direction, 2016.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seal the day and year first above written.
DEFENDANT
NAME: SAIDU ABDULMUMIN
DESIGNATION DEFENDANT
SIGNATURE: … 28/06/19
DEFENDANT’S COUNSEL
NAME: DAVID AGBANE AMANA
SIGNATURE: …
DATE: 28/06/19″
PROSECUTOR
NAME: H. M. MOHAMMED
SIGNATURE: …
DATE: 28/06/2019
The charge was read to the Appellant on 23-7-2019 and he pleaded guilty to the one count charge.
Ruling on sentence was passed on the Appellant on 30/07/2019. 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.

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) otherwise it will be a breach of the law.
See MOBIL PRODUCING NIGERIA UNLIMITED VS. 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 unless 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); MPPP 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.1) 094) 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 consummate the plea

bargain Agreement.
The trial Judge cannot out of his abhorrence jump 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 agreement by the Plea Bargain Agreement is clearly a breach of Appellant’s 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.
I fully agree with submissions of Learned Counsel to the Appellant which include the fact that there was no evidence to prove the ingredients of the offence of cheating. The appeal has merit. The

three issues distilled by the Appellant are resolved in his favour. The Appellant’s 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 nine (9) months imprisonment with effect from 30th July, 2019. The Appellant shall be released from Correctional Centre/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.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in total agreement with the reasoning and conclusion therein.
I have nothing more to add and I also allow the appeal and abide by the orders made therein the lead the Judgment.

Appearances:

FRIDAY OMAKOJI ABU, ESQ.For Appellant(s)

FARUK ABDULLAH, ESQ.For Respondent(s)