MICHAEL IGBINEDION v. FEDERAL REPUBLIC OF NIGERIA (2014)

MICHAEL IGBINEDION v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7102(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of April, 2014

CA/B/329CG/2011

RATIO

WORDS AND PHRASES: PLEA BARGAIN

Before the resolution of this issue, it is pertinent to note that the crux of the parties’ squabble in this case is founded on the purported plea bargain between the parties.
What is plea bargain arrangement? Bryan Garner’s Blacks Law dictionary (8th edition) at page 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”

It is also essential to note that plea bargain was alien to criminal justice administration in Nigeria but was imported into our justice system by the implication of Section 14(2) of the EFCC Act. S.14(2) 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 not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence”
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 fudge or fury a range of choice 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 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, 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 Section 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 thus:
“Notwithstanding anything in this law or in any other law, the Attorney-General of the State shall have the power to consider and accept a plea bargain from a person charged with any offence where the Attorney-general is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process”
The Administration of Criminal Justice Law of Lagos also has other copious proviso 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 fudge, 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.”
PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

MICHAEL IGBINEDION Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.:(Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Benin Division delivered by Hon. Justice Adamu Hobon on 31/05/2011, wherein His Lordship dismissed the preliminary objection raised by the appellant to the charge against him, and consequently ordered that the appellant enter his plea to the charge. Below are the facts that resulted in this appeal:
The respondent, on 22/01/2008 at the Federal High Court Enugu, proferred Charge No: FHC/EN/6C/2008- FRN V. LUCKY NOSAKHARE IGBINEDION & 4 ORS. The appellant was the 5th accused in the said charge. During the course of the trial, the 1st accused in the charge approached the prosecution for a plea bargain arrangement. Only the 1st and the 2nd accused were physically present at the plea bargain meeting.
Consequent to the plea bargain agreement the prosecution on 18/12/2008 filed an amended Charge with Charge No FHC/EN/6C/2008 FEDERAL REPUBLIC OF NIGERIA V. 1. LUCKY NOSAKHARE IGBINEDION 2. KIVA CORPORATION LIMITED and containing 24 counts as in page 812 – 819 of the record.
The Court sat on the same 18/12/2008, the parties gave the Court a report of the plea bargain agreement and the Court accepted the amended Charge. The Charge was read to both the 1st and 2nd accused persons and they both pleaded guilty. A. Abdu-Kafarati J. subsequently convicted the accused persons guilty as charged as in pages 820-824 of the record. The 1st accused was liable to pay fine while the 2nd accused was liable to fine, forfeiture of assets and winding-up.
On 31/01/2011, the respondent filed Charge No FHC/B/11C/2001 at the Federal High Court Benin headed FRN V. LUCKY IGBINEDION & 6 ORS. The appellant herein was one of the accused persons in the new charge before the Federal High Court, Benin.
On 4/02/2011, the appellant and the six other accused persons jointly filed a motion on notice praying the Court to set aside the charge against them on the grounds of double jeopardy and condonation amongst other reliefs. They filed a further affidavit to the said motion on 14/02/11 and the respondent filed a counter-affidavit on 18/02/11. Briefs of arguments were later exchanged between parties. On 31/05/2011, the Court in delivering its ruling, discharged and acquitted only the 1st accused person and ordered the other accused person, (including the appellant herein) to take their plea.
Aggrieved, appellant filed a notice of appeal against the ruling on 29/11/2011 which was deemed filed on 23/4/2013. Appellant filed its brief of argument on 21/05/2013 deemed filed on 27/06/2013. Respondent’s brief of argument was filed on 10/06/2013 while the reply brief was filed on 24/06/2013.
Appellant, in the brief settled by Rickey Tarfa SAN, Abubakar Shamsudeen, Winifred Enyinnaya (Mrs) and Grant Onwuka raised only one issue for determination thus:
Whether in the circumstances of Charge No. FHC/EN/6C/2008- FEDERAL REPUBLIC OF NIGERIA VS. LUCKY NOSAKHARE IGBINEDION & ORS, the Learned Trial judge was right when he held that the defences of plea bargain agreement, condonation, plea of autrefois convict, the doctrine of double jeopardy and abuse of Court process are not available to the appellant in respect of Charge No. FHC/B/11C/2008- FRN V. LUCKY NOSAKHARE IGBINEDION & 6 ORS.
The respondent, in the brief settled by Rotimi Jacobs SAN, Adebisi Adeniyi, Tayo Olukotun, Oladipupo Yeye and Joy Onyekwena also raised a sole issue for determination thus:
Whether the learned trial Judge was wrong to have held that none of the doctrines or pleas of autrefois convict, double jeopardy, plea bargain agreement and abuse of Court process was available to the Appellant herein as to entitle it to an order of discharge in respect of Charge No: FHC/B/11C/2008 between FRN V. LUCKY NOSAKHARE IGBINEDION & 6 ORS.
The issues as couched by both parties are similar. However, the issue couched by the learned appellant’s counsel encapsulates the appellant’s grouse and is more lucid.
SOLE ISSUE
Whether in the circumstances of Charge No. FHC/EN/6C/2008- FEDERAL REPUBLIC OF NIGERIA VS. LUCKY NOSAKHARE IGBINEDION & ORS, the Learned Trial Judge was right when he held that the defences of plea bargain agreement, condonation, plea of autrefois convict, the doctrine of double jeopardy and abuse of Court process are not available to the appellant in respect of Charge No. FHC/B/11C/2008- FRN V. LUCKY NOSAKHARE IGBINEDION & 6 ORS.
Learned appellant’s counsel on this issue restated the double jeopardy rule and argued that the gravamen of the appellant’s case was to the effect that that the plea bargain agreement which led to the amended charge served as a bar to second trial against the offences in question. Counsel, in reference to Exhibits 1, 2, 9A, 9B, 9C, 9D and 10 argued that the respondent did not deny the fact that all accused persons in the new charge were connected with the original charge in FHC/EN/6C/2008. Learned counsel forcefully argued that the learned trial judge held otherwise without recourse to proceedings of 17/12/2008.
Counsel in quoting a portion of the address of the prosecution’s counsel directed at the trial judge as contained at page 1816 of the record, emphasized that the prosecution cum respondent’s counsel mention of “accused persons” amounted to an admission that the appellant in this case had been covered by the plea bargain agreement. Learned appellant’s counsel admitted that the Charge filed on 18/12/2008 contained only the names of Lucky Igbinedion and Kiva Corporation Ltd as accused persons but faulted the trial judge’s ruling against the appellant.
Counsel submitted that evidence of condonation of the 196 counts could be deduced from the amended charge dated 13/10/2008 and the Court proceedings of 18/12/2008. Counsel argued that the reasonable conclusion was that since the amended Charge dated was filed upon the agreement between the parties, all offences disclosed by investigations during the tenure of Lucky Igbinedion as Governor of Edo State are deemed condoned and pardoned.
Learned counsel on the effect of condonation cited Section 36(10) of the Constitution, Section 171(c) of the Armed Forces Act Cap A20, LFN 2004, Nigerian Army v. Aminu Kano (2010) 1 MJSC Pt. 1 Pg. 151 and Asake v. Nigerian Army (2007) 1 NWLR Pt. 1015 Pg.408 at 425-426 and submitted that respondent had condoned appellant’s crimes. Counsel further argued that the respondent was estopped by law from reneging from the plea bargain agreement. Counsel also cited Sosan v. Ademuyiwa (1986) 3 NWLR Pt 27 Pg.241 at 242.
Appellant’s counsel further contended that the ingredients of the offences in Charge No: FHC/B/11C/2011 and the ingredients of the offences in FHC/EN/6C/2008 were similar and insisted that this Court has the duty to ensure that her processes are not used to annoy the other parties. Counsel cited Mohammed Sani Abacha v. State (2007) 11 NWIR Pt. 729 Pg. 437 at 457, Connelly v. DPP (1964) 2 ALL ER Pg. 400 at 412, Rabiu v. State (1980) 12 NSCC 291 at 306-307, Okoh v. State (1984) 15 NSCC 705 at 710, Section 181 CPA, Section 221 CPA.
Counsel reproduced the provision of Sec 14(2) EFCC Act and in citing Black’s law Dictionary stated what it means to compound and submitted the judgment of the lower Court delivered on 18/12/2008 evidenced that there was consideration furnished by the accused persons. Counsel further argued that there was no provision under the EFCC Act requiring that a compounded offence should be written.
Learned appellant’s counsel made a chart of counts in FHC/EN/6C/2008 and FHC/B/11C/2011 and submitted that the offences for which the appellant was charged in the former were duplicated in the latter charge and amounted to an abuse of court process. Counsel cited Agwasim v. Ojichie (2004) 10 NWLR Pt. 882 Pg. 613 at 624, Chief of Air Staff v. Iyen (2005) 6 NWLR Pt.922 Pg.496 at 561 – 562.
Senior learned counsel for the respondent on this issue submitted that contrary to the appellant’s contention, the learned trial Judge considered all the defences and pleas as enumerated by the appellant. Senior counsel in quoting portion of the trial judge’s ruling argued that the trial judge painstakingly considered all the grounds before reaching a conclusion.
On the issue of condonation, though senior counsel agreed that once a person had been pardoned or condoned, such person shall not again be tried for the same offence but pointed out that before a person can be pardoned, such person must have been convicted for the said offence. Senior counsel in citing Falae v. Obasanjo (1999) 4 NWLR Pt. 599 Pg.476 at 495 and R v. Foster (1984) 2 ALL ER 679 submitted that the essence of pardon is to distance an offender from penalties and punishment from a conviction.
Senior counsel argued that application of condonation as a doctrine is usually prescribed by Statutes. Senior counsel gave examples of condonation under the Section 26 of the Matrimonial Causes Act. Cap M7, LFN 2004 and Section 171(1) and (2) of the Armed Forces Act Cap A20 LFN 1990. Senior learned counsel argued that the doctrine applies to marital forgiveness and those subject to service laws. He forcefully countered the appellant’s reliance on the cases of Nigerian Army v. Aminu Kano (Supra) and Asake v. Nigerian Army (Supra) arguing that the matter at hand being a criminal matter and the dearth of any criminal statutory provision on condonation makes it impossible for it to constitute bar to criminal prosecution. Senior counsel further argued that criminal proceedings are regulated by the Criminal procedure Act and cited Alamieyeseigha v. FRN (2006) 16 NWLR Pt. 1004 Pg. 1.
Senior counsel in quoting the dictum of Muhammed JSC in Asake v. Nigerian Army (Supra) wherein the learned Justice defined condonation as “a victim’s express or implied forgiveness of an offence by treating the offender as if there has been no offence”, argued that the prosecution not being the victim in the case against the appellant, cannot condone its crimes. Senior counsel further quoted copious parts of the judgments in Asake v. Nigerian Army (Supra) and Nigerian Army v. Aminu Kano (supra) and submitted that since the cases were decided based on the Nigerian Army Act, the cases are inapplicable to the present case and as such, the condonation upon which the cases were premised, cannot stand.
On the issue of compounding of offence under Section 14(2) of the EFCC Act 2004, Senior counsel for the respondent submitted that the Act is inapplicable to the instant case. Senior counsel after quoting the provision of Sec 14(2) EFCC Act listed the following as points to be noted under the Section:
A. That EFCC has the power to compound an offence.
B. That the offence to be compounded must be punishable under the EFCC Act.
C. That the EFCC can accept money in compounding the offence.
D. That the sum of money the EFCC can accept must be that which must exceed the maximum amount to which that person would have been convicted of that offence.
Senior counsel then submitted on this point that there was no evidence that the EFCC agreed to compound or even collected any sum of money in furtherance of compounding of offences against the appellant. On the requirements of compounding, senior counsel cited Chidolue v. EFCC (2012) 5 NWLR Pt.1292 Pg.160 at 177 where the Court listed the requirements as follows:
1. An agreement not to prosecute.
2. Knowledge of actual commission of crime.
3. The receipt of some consideration of some consideration.
Senior counsel submitted that there is no scintilla of evidence from the entire record of appeal that the EFCC accepted any sum of money from the appellant in respect of the crimes alleged against it. Senior counsel further argued that assuming the offences were compounded under Section 14(2) of the EFCC Act, it is without prejudice to the powers of the Attorney-General to still institute criminal proceedings against the accused as he is empowered under Section 174 of the Constitution. Senior counsel on this sub-issue, argued that the power to compound offences seemed to be available to the Commission for offences not yet brought before the Court and that the Section cannot be applied to a pending proceeding.
On the plea bargain agreement senior counsel for the respondent argued that though the prosecution never denied the efforts made at settling dispute with Lucky Igbinedion and Kiva Corporation Limited but that it never entered any agreement with the appellant herein. Counsel referred to the respondent’s counter affidavit at pages 783-786 of the record and pages 832-834 of same. Counsel stressed the fact that the appellant herein had escaped from the jurisdiction at the time of filing Charge No: FHC /EN/6C/2008 and that there was no evidence that the trio of Micheal Igbinedion, Patrick Eigbodin and Amadi David Eriyo were anywhere to be found.
Senior counsel also pointed out that Lucky Igbinedion pleaded guilty and was convicted for money failure to declare interest in the account No: 4124013983110 while Kiva Corporation was convicted for money laundering offences and the Charge against the appellant in Charge No: FHC/B/11C/2011 were in respect of entirely different offences. Finally, counsel submitted that the appellant herein has not, till date, returned any fund covered by the transactions referred to in the 2011
Charge. Counsel also pointed out that the appellant has failed to produce the purported plea bargain agreement that it is relying on and that since this is the case, Senior counsel urged this Court to hold that the agreement never existed ab initio.
On the effect of an amended charge, counsel submitted that when a Charge is amended, it shall be treated as having being filed in the amended form. Counsel reproduced the ruling of the Court at page 987 of the record and cited Attah v. State (1993) 7 NWLR Pt. 305 Pg.257 at 286 and FRN v. Adewunmi (2007) 10 NWLR Pt 1042 Pg.399.
Arguing on autrefois convict, Senior Counsel in citing Rabiu v. State (Supra) submitted that the defence is not available to the appellant since the appellant was neither convicted or acquitted for the Charges against him. Counsel in citing Section 74 of the Criminal Procedure Act argued that the prosecution’s exercise of his power of withdrawal does not operate as a bar to subsequent Charge (s) and that even though the Charge was withdrawn against the appellant by the amendment of Charge, it did not and does not operate as acquittal. Counsel cited IGP v. Marke (1975) SCNLR 53 at 56-58, Abacha v. FRN (2006) 4 NWLR Pt.970 Pg.239.
On double jeopardy, senior counsel submitted that it would be against the doctrine for the appellant to claim double jeopardy when he had not been convicted or acquitted in respect of the offence. Counsel cited Section 36(9) of the Constitution, sections 181 and 221 of the Criminal Procedure Act, Kalu v. Nigerian Army (2010) 4 NWLR Pt. 118S Pg. 433 at 451, Chief of Air Staff v. Iyen (2005) 6 NWLR Pt.922 Pg.496 at 535, Connelly v. DPP (1964) 2 ALL ER 401 at 433.
Finally, senior counsel on abuse of Court process submitted that the issue does not arise at all. Counsel argued that the argument of the appellant on this issue cannot help it because it had not been convicted or acquitted on the old charge. Counsel cited Sections 211 and 174 of the Constitution in emphasizing the power of the Attorney General to institute criminal proceedings and submitted that Charge No: FHC/B/11C/2011 does not constitute an abuse of Court process.
The appellant’s reply brief was a mere re-hash of the arguments already contained in its brief of argument.
Before the resolution of this issue, it is pertinent to note that the crux of the parties’ squabble in this case is founded on the purported plea bargain between the parties.
What is plea bargain arrangement? Bryan Garner’s Blacks Law dictionary (8th edition) at page 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”

Letter One
11th April, 2008

WITHOUT PREJUDICE
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 our officials on a date and venue of your convenience.
Be assured of my highest esteem.
SIGNED
Lucky N. Igbinedion.

Letter two
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,
Signed
Dapo Olorunyomi
Chief of Staff to the Executive Chairman”
It is clear from the above letters that parties exchanged, that there were attempts at settlement between Mr. Lucky Igbinedion and the EFCC and no other persons. The use of the phrase “my matter” in Igbinedion’s letter to EFCC is instructive. What then happened after the exchange of letters? Let us look at the court proceedings in Charge FHC/EN/6C/2008 on 17th December 2008 before Abdu-Kafarati J.

“BETWEEN:

FEDERAL REPUBLIC OF NIGERIA COMPLAINANT

AND

1. LUCKY N. IGBINEDION
2. MICHEAL IGBINEDION
3. KIVA CORPORATION LIMITED
4. GAVA CORPORATION LIMITED ACCUSED
5. ROMRIG NIGERTA
6. PML SECURITIES COMPANY LIMITED
7. PML (NIGERIA) LIMITED

Accused person present.
Mr. Rotimi Jacobs for the prosecution (with him J.O Uzor Esq.)
Mr. Adetunji Oyeyipo (SAN) (with him N.O.O. Oke SAN, Ebenezer Obeya Esq and Anselem Ojezua Esq) for the 1st accused.
Mr. Richard Ahonamogbo (with him Mrs O.H. Adewunmi and Cyril Okoro Esq. for the 2nd-7th accused persons.
Mr. Jacobs: The accused persons approached us for settlement and we are about to conclude the term and also amend the charge accordingly. We need a date to report back. We have agreed on tomorrow, 18th day of December 2008.
Mr Oyeyipo SAN: That is the position.
Mr Ahonamogho: That is the position.
Court: case adjourned to 18/12/08 at 10.00 am for plea.
SIGNED
ABDU.KAFARATI
JUDGE
17/12/2008″
The proceedings of the Court on 18/12/2008 show a drastic amendment of the Charge. The new Charge on 18/12/2008 was headed differently and below is what transpired at the Court that day before Abdu-Kafarati J:
CHARGE NO: FHC/EN/6C/2008

BETWEEN

FEDERAL REPUBLIC OF NIGERIA .. COMPIAINANT

AND

1. LUCKY NOSAKHARE IGBINEDION
2. KIVA CORPORATION LIMITED …….. ACCUSED
Accused persons present.

Mr Rotimi Jacobs (with him I.O Uzor Esq) for the prosecution
Mr Adetunji Oyeyipo SAN (with him N.O.O Oke SAN, E. Obeya Esq, and Anselem Ojizua and C. Ude-Kalu) for the 1st accused.
Mr Richard Oma Ahonaruogho (with him O.H. Adewunmi Mrs) the 2nd accused person.
Mr. Jacobs: We filed an amended charge dated 17/12/08 and filed on 18/12/08. I pray the Court to accept the amended charge.
Mr Oyeyipo SAN: We have been served. We have been served.
Mr. Ahonaruogho: We have no objection. We have also been served.
Court: amended Charge dated 17/12/08 accepted. Amended charge to be read to the accused for their plea.
SIGNED
Abdu-Kafarati
Judge
18/02/08”
What any reasonable person would decipher from the proceedings of the Court on 17th and 18th December 2008 is that there were attempts at settling the matter and it was the settlement that resulted in the amended charge. From the face of the proceedings only Lucky Igbinedion and Kiva Corporation were arraigned and represented by legal counsel. The “accused persons” referred to by Mr Jacobs on 17/12/2008 were the 1st and 2nd accused when we read the events of the 17/12/2008 and 18/12/2008 together, we will observe that on 18/12/2008, while a set of counsel appeared for the first accused, another set of counsel appeared only for the second accused. The main problem here is that both parties have failed to produce the terms of the said settlement cum plea bargain agreement. Appellant and the other accused persons in Charge FHC/B/11C/2011 in the affidavit in support of their preliminary objection sworn to by Azeez Ramoni particularly at page 706 of the record stated at paragraph (xi)- (xiv) as follows:
“(xi) That as part of the plea bargain agreement, it was agreed that all charges against the 2nd accused person (MICHEAI IGBINEDION), 4th accused (GAVA CORPORATION LIMITED), 5th accused (ROMRIG NIGERIA LIMITED), 6th accused (PML SECURITIES COMPANY LIMITED) and 7th accused (PML (NIGERIA) LTD) in the said amended charges dated 13th October, 2008 would be dropped and condoned.
(xii) That also as part of the said plea bargain agreement it was agreed that 1st accused person would plead guilty to only one count i.e Count 1 of the amended charge dated 17th December 2008 filed on the 18th December 2008.
(xiii) That also as part of the plea bargain agreement it was argued that 2nd accused would plead guilty to 23 counts i.e. counts 2 to 24 of the amended charge dated 17th December, 2008 and filed on 18th December 2008.
(xiv) That based upon and in keeping faith with the said plea bargain agreement, the accused persons pleaded guilty to the said Amended charge dated 17th December 2008 and filed on the 18th December 2008 and were consequently found guilty, convicted and sentenced by Honourable Justice A. Abdu Kafarati in the Judgment dated 18th December, 2008. It is shown to me and marked as “EXHIBIT 4’a copy of the within mentioned Judgment.”
The respondent, in the counter affidavit filed on 18th February 2011 sworn to by Lawal Abdullahi at paragraphs 32-36 page 786 of the record affirmed that:
“32. That the 2nd -J 7th Accused Persons were never parties to any meeting for settlement and the EFCC never settled any matter with any of those accused persons. In fact, none of the directors or officers of the 4th-6th Accused persons attended any meeting with the prosecution as stated above at all,
33. That the prosecution never agreed to withdraw any case against the 2nd,4th, 5th, 6th and 7th accused persons as the circumstances upon which their names were removed from the charges have been stated above.
34. That the 1st Accused/Applicant was never convicted for any money laundering offence and there was no agreement not to prosecute him for any money laundered or stolen through any of the 2nd – 7th Accused persons.
35. There was never a representation or agreement between the prosecution and any of the Accused persons that they would not be prosecuted for the funds of Edo State Government and/or Edo State Local Governments which they allegedly laundered and as covered by the charge pending before this Honourable Court.”
We cannot shut our eyes to the fact that the appellant and Patrick Eboigbodin were not in Nigeria all through the trial of Charge FHC/EN/6C/2008. “Exhibit E” which is the newspaper notice declaring them wanted at page 834 of the record is instructive on this. Paragraph 6 (a)-(d) of the respondent’s counter-affidavit at page 831 of the record also states that:
“6(a) The 2nd and 3rd accused persons who were on record operated and managed the affairs of the 4th, 5th, 6th and 7th accused companies and were never around to face the trial in the earlier proceedings and could not be arraigned before the Enugu Federal High Court. In fact, Patrick Eboigbodin and David Eriyo were declared wanted by the commission. Attached and marked Exhibit E is a copy of the notice declaring them wanted.
(b) That on several occasions, I went to the house of Patrick Eboigbodin and that of Michael Igbinedion in Benin with the aim of effecting, their arrest and bringing them to Justice but I was on such several occasions informed that they had left the country. My attempt to arrest them in Lagos also failed because they were nowhere to be found in their respective houses in Lagos.
(c) That it was only the 2nd Accused/Applicant, who made a written statement to the Commission, subsequently disappeared from the country when it became clearer that he would be prosecuted.
(d) That in the previous charges amended before Federal High Court Enugu, it was clearly stated therein that Patrick Eboigbodin and one David Eriyo were both at large. The 2nd and 3rd accused persons could not be served in that count and no bench warrant could then be issued against any of them”.
The trial Court at page 998 vol. 3 of the record held that:
“Infact there is uncontroverted evidence that some of the Accused-Applicants escaped from jurisdiction while the case at Enugu was going on. How can such Accused-Applicant turn around now and raise the defence of double jeopardy”.
The lower court further held at page 981 vol. 3 of the record that:
“…2nd – 7th Accused persons were never parties to any meeting for settlement and the EFCC never settled any matter with any of those Accused persons. Infact, none of the directors or officers of the 4th -6th Accused persons attended any meeting with the prosecution at all. Prosecution never agreed to withdraw any case against the 2nd, 4th – 7th Accused persons as the circumstances upon which their names were removed from the charges were stated above”.
I agree with the learned trial judge’s well reasoned decision. It is clear that there is nothing in the record to show that the appellant herein or any of the other accused persons except Lucky Igbinedion approached the EFCC for plea bargain. There is no evidence or documentation of any plea bargain agreement. The fact that the appellant herein was not present or represented to arrange a plea bargain meeting is material as it was established that the appellant was even at large during the period Lucky Igbinedion entered agreement with the EFCC and all through trial.
I am of the humble view that a plea bargain agreement is a post-arraignment agreement of some sort since it may result in a situation where the accused may plead guilty to some charges against him, so that others may be dropped. In the same vein, a plea bargain cannot be done in absentia or by representatives of the accused person. Since the accused must personally make his plea in Court, an accused person must also be present personally to negotiate his plea bargain agreement.
Parties cannot expect the Court to act on an imaginary agreement. Even though there was, at that time no procedural law of the Federal High Court or the Criminal Procedure Act regulating plea bargain agreement, I am of the humble opinion that the procedure employed by parties was too casual. Even in ordinary Out of Court Settlement issues, parties reduce their settlement terms into writing and present it to the Court. The documentation of a plea bargain agreement is not only desirable, it is most logical as it would prevent the inconsistencies that trail oral evidence such as distortion of agreement terms by parties at will.
Now, what happens when a party relies on a document but fails to produce it. The Appellant has urged this Court to invoke the provisions of Section 167 of the Evidence Act 2011 in its favor. Section 167 provides as follows:
“The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case and in particular the Court
Contrary to the appellant’s contention, this Section does not aid the appellant’s case. The appellant has, several times from the trial court to this appellate Court premised its case on a plea bargain agreement.
I am of the view that if any party is to be under the duty to produce the said agreement, it is the appellant and not the respondent. The basic principle of evidence is that he who asserts must prove. The onus is squarely on the appellant to prove the existence and terms of the plea bargain agreement. There is no doubt that this burden of proof has not been discharged by the appellant. See S.131, 132 and 136 of Evidence Act 2011; Jolasun v. Bamgboye (2010) 18 NWLR Pt.1225 Pg.285; Haske v. Magaji (2009) All FWLR Pt. 461 Pg.887.

Appellant has expended a great deal of energy on arguing that its offence had been condoned by the respondent due to the exclusion of its name in the amended charge dated 18/12/2008. How could this be when the matter at hand was a criminal proceeding?
What exactly is condonation? Condonation according to Blacks Law Dictionary 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 thence, 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 the appellant on condonation. Let us look at the two cases and their relevance to the matter at hand.
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 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 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 senior 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 Armed Forces Act and as such only applicable to service men. The appellant 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) wherein the learned Justice 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 victim are the people of Edo State. Thus, if at all there will be condonation of the appellant’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 Section 171 of the Armed Forces Act and there is no such provision under the EFCC Act or the Criminal Procedure Act. 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.
From the foregoing, I am of the humble opinion that a crime cannot be condoned by the State. 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 therefore hold that condonation is NOT and CANNOT apply as a principle, to criminal acts and trials except when the statute allows it.
On the plea of autrefois convict raised by the appellant, let us examine the meaning of the dictum in relation to the facts of this case.
Autrefois convict is defined by the Blacks Law Dictionary 8th Edition at page 145 as:
“A plea in bar of arraignment against the defendant has been convicted of the offence”

On 18/12/2008, the amended charge was read to the 1st and 2nd accused only. The 1st accused in the charge pleaded guilty to only count 1. The second accused person then proceeded to plead guilty to counts 2-24 of the charge.
The lower Court at page 997 vol.3 of the record held that:
“However, regrettably enough, none of the 2nd-7th accused persons-applicants has shown or adduced evidence to show that he went through or was under any trial and was convicted or acquitted or pardoned”.
It can be deduced from the judgment and the ruling of the lower court that only Lucky Igbinedion and Kiva Corporation were the two accused persons charged, arraigned and convicted on the said day. The appellant has argued that it had a plea bargain agreement with the respondent and that was the reason for its exclusion in the charge filed on 17/12/2008. Whether or not there was a plea bargain agreement between the parties, the fact remains that the appellant herein was never arraigned.
Thus, even if there was a valid plea bargain agreement between the parties, the amendment of the Charge on 17/12/2008 before the appellant was arraigned only amounted to a withdrawal of Charges against the appellant and not a conviction. See Section 75(1)(b)(ii) Criminal Procedure Act. There can never be a conviction without an arraignment by the Court of law.
I am inclined to agree with the well-reasoned decision of the lower court on this point at page 993 vol. 3 of the record, where the trial Court held that:
“It has already been ruled that the original charge of 22-01-2008 to which the amended one of 13-10-2008 to which no plea of accused persons were taken cannot ground a plea of autrefois convict or autrefois acquit under section 36(9) Constitution by any of the accused persons-applicants in any case against them arising from the same case or having the same ingredients in the absence of any trial and conviction or acquttal of any of the accused persons upon such charges.
It is therefore wrong for the learned S.A.N to hold that all the accused persons in the amended charge of 13-10-2008 are deemed to have been arraigned, tried and convicted for all the offences therein. None of the accused persons was in fact and in law arraigned, tried and convicted for any of the offences in that charge”.
It seems to me that the argument of the appellant is that the plea bargain entered by Lucky Igbinedion covered the appellant’s offences. As I mentioned earlier, apart from the fact that a plea bargain agreement cannot be made on behalf of an accused, the non-arraignment of the appellant only amounted to the prosecution’s exercise of his power of withdrawal. A withdrawal of Charge before the accused enters his defence can never amount to an acquittal. It operates only as a mere discharge. Thus, I agree with the learned respondent’s counsel that the plea of autrefois convict is not available to the appellant.
On the plea of double jeopardy, the plea presupposes that no man shall be vexed twice on the same facts and for the same offence. This implies that once a man has faced the court of law for an offence and has been convicted or acquitted by the court, such a man cannot be charged to court on the same facts and offence on a later date. This is guaranteed by S.36(9) of the constitution which 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 ingredients as that offence save upon the order of a superior court”

Was the appellant herein convicted or acquitted by FHC/EN/6C/2008 the court in or any other charge? There is no iota of evidence from the records of the trial Court that the appellant was ever charged, arraigned or convicted of any of the offences he allegedly committed. The only charge, which ever contained the appellant’s name as an accused person is extinct having been overtaken by amendment and withdrawal by the prosecution. The argument of the appellant that the new charge was connected to the initial charge FHC/EN/6C/2008 is baseless since
it is trite law that upon the amendment of a charge, the new charge is deemed as the original charge before the Court. See Sec. 164(4) CPA; Attah v. State (1993) 7 NWLR Pt.305 Pg.257.

The lower court at page 993 vol. 3 of the record rightly held that:
“It has already been ruled above that the original charge of 22-01-2008 to which plea was taken and the amended one of 13-10-2008 to which no plea of Accused persons was taken cannot ground a plea of autrefois convict or autrefois acquit under section 36(9) Constitution by any of the Accused persons- Applicants in any case against them arising from the same case or having the same ingredients in the absence of any trial and conviction or acquittal of any of the Accused persons upon such charges”.
The requirements to be met by a party before he can claim double jeopardy are:
a) He must have been earlier tried by a competent Court of law.
b) The facts of the earlier matter and the new one must be same.
c) The earlier trial must have resulted either in the discharge, acquittal, or some other form of punishment of the accused person.

However, having earlier settled that the appellant in this case, was never arraigned, discharged or acquitted for the offences it allegedly committed, it is impossible for it to shield itself under the umbrella of double jeopardy. There was no initial jeopardy on its side that was about to be doubled by the new charge in FHC/B/11C/2011.
I am of the humble view that this plea in bar to prosecution, being claimed by the appellant is baseless, without any scintilla of evidence to support it and as such, is not available to the appellant.
On abuse of Court process, could it be said that the respondent had abused Court process by the filing of Charge FHC/B/11C/2011? Before going into the details of the records, let us examine what exactly amounts to an abuse of Court process.
An abuse of Court process is the use of the machinery of the Court for illegal, malicious and vexacious purposes. The apex Court in Commissioner for Education v. Amadi (unreported) Suit No SC.2/2004 delivered on 1st February 2013 defined abuse of Court process as follows:
“It is a situation where a party improperly uses Judicial process to the irritation, annoyance and harassment of his opponent, not only in the same subject matter but also where the issues are same in the other action or actions.”
See also ACB PLC v. Nwaigwe (2011) 7 NWLR Pt. 380, Dingyadi v. INEC (Unreported) Suit No SC.32/2010 delivered on 8th April, 2011, Society Bic S.A v. Charzin Industries Ltd (Unreported) Suit No SC.79/2005 delivered on 14th February 2014, Ogboru v. Uduaghan (Unreported) Suit No SC.18/2012(R) delivered on 21st June 2013.

The trial Court on abuse of court process held at page 982 vol. 3 of the record that:
“The facts and ingredients of the offences in the present charge are different from those upon which the 1st accused and KIVA were convicted in Enugu. The present charge is not an abuse of process”
Let us do a bit of flashback into the events that trailed this matter:
a) Appellant and 6 others were charged together in Charge FHC/EN/6C/2008 on 22/01/2008
b) The charge was later amended on 17/12/2008 to exclude the appellant as an accused person.
c) The new accused persons excluding the appellant were convicted.
d) A new charge was proferred against the appellant in Charge FHC/B/ 11C/2011 on 31/01/2011.
Without much ado, there is nothing to suggest an abuse of court process on the part of the respondent. The respondent was only carrying out its constitutional duties. There is also no scintilla of evidence to show that the respondent intended to irritate or vex the appellant herein with the new charge. These claims by the appellant are unfounded since the appellant not only failed in proving the plea bargain, but was never arraigned or convicted in the said earlier charge.
For the reasons proffered above, all the reasons for a bar to the prosecution being agitated by the appellant are completely misconceived. The sole issue submitted for determination by the parties and so considered by my humble self is resolved against the appellant. That part of the decision of Hobon J. delivered on 31/05/2011 in respect of the appellant is hereby affirmed. The appellant is to answer the charges before the trial court. Appeal dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.

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 issue for determination in the appeal has been eloquently and exhaustively dealt with to the extent that I have nothing useful to add.
In the circumstances, I too, affirm the ruling of the lower court in Charge No. FHC/B/11C/2011 as it relates to the Appellant. The Appellant is to take his plea to the Charge as filed.

Appearances

Ricky Tarfa SANFor Appellant

AND

Adebisi AdeniyiFor Respondent