PML SECURITIES COMPANY LIMITED v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7103(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of April, 2014
CA/B/329CC/2011
RATIO
EVIDENCE: WHETHER THE CONTENT OF A DOCUMENT MAY BE PROVEN BY TENDERING SECONDARY EVIDENCE
The content of a document can only be proved by tendering the original document or secondary evidence thereof after laying the proper foundation. See GOODWILL & TRUST INVESTMENT LTD v. WITT & BUSH LTD (2011) All FWLR (Pt. 576) 517, (2011) 34 WRN 1. Hence the content of a document cannot ordinarily be established viva voce. See OGUNDELE v. AGIRI (2010) 9 WRN 1. PER AYOBODE OLUJIMI LOKULO- SODIPE, J.C.A.
JUSTICE
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
Between
PML SECURITIES COMPANY LIMITEDAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The Federal High Court Benin Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice Adamu Hobon being seised of Charge No. FHC/B/11C/2011 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY NOSAKHARE IGBINEDION & 6 ORS; on 31/5/2011 delivered a ruling in a motion on notice dated 4/2/2011 and filed on the same date brought jointly by all the accused persons in the said Charge, as Applicants. The said ruling was against all the Applicants therein save the 1st Accused/1st Applicant – Lucky Nosakhare Igbinedion. He was discharged from the proceedings, i.e. Charge No. FHC/B/11C/2011 – FEDERAL REPUBLIC 0F NIGERIA v. LUCKY NOSAKHARE IGBINEDION & 6 ORS (hereafter simply referred to as “the FHC, Benin Charge or “instant Charge”) while the lower court having dismissed the motion on notice as it relates to the other accused persons/Applicants in the said Charge called on them to enter their respective pleas. The instant appeal is against the ruling of the lower court as it relates to the 6th accused/6th Applicant in the instant Charge. The 6th accused/Applicant will hereafter be simply referred to as “the Appellant”
The motion in respect of which the lower court delivered its ruling is on pages 701-703 in Vol. II of the records. Therein, the Applicants prayed for the orders re-produced hereunder upon the grounds also re-produced hereunder: –
“1. A DECLARATION that this Honourable Court lacks jurisdiction to and competence to arraign the Accused Persons/Applicants and to try, hear and determine the offences contained in these proceedings.
2. AN ORDER setting aside CHARGE NO: – FHC/B/11C/2011 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY NOSAKHARE IGBENEDION & OTHERS in these proceedings on the grounds of double jeopardy and condonation arising from CHARGE NO: – FHC/EN/6C/2008 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY NOSAKHARE IGBENEDION & OTHERS in respect of which Judgment was entered on 18th day of December by the Honourable Justice A. Abdu-Kafarati sitting at the Federal High Court, Enugu Judicial division and in respect of which an appeal was filed by the Respondent herein in APPEAL NO: – CA/E/207M/2010 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY IGBENEDION.
3. AN ORDER OF PERPETUAL INJUNCTION against the Federal Republic of Nigeria (Complainant/Respondent), herein or any of her agencies, including but not limited to the Honorable Attorney-General of the Federation (HAGF); the Economic and Financial Crimes Commission (EFCC); the Independent Corrupt Practices Commission (ICPC); and the Inspector General of Police (IGP) from instituting and or maintaining any criminal proceedings or charge relating to any of the Charges contained either in its original or amended form in CHARGE NO: – FHC/EN/6C/2008 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY IGBENEDION & OTHERS or any other offences having the same ingredients as the offences contained either in its original or amended form in CHARGE NO: – FHC/EN/6C/2008 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY IGBENEDION & OTHERS.
4. AN ORDER OF PERPETUAL INJUNCTION against the Federal Republic of Nigeria (Complainant/Respondent herein), or any of her agencies, including but not limited to the Honourable Attorney-General of the Federation (HAGF); the Economic and Financial Crimes Commission (EFCC); the Independent Corrupt Practices Commission (ICPC); and the Inspector General of Police (IGP) from arresting and or detaining the Accused Persons/Applicants in respect of any matter contained in CHARGE NO: – FHC/EN/6C/2008 – FEDERAL REPUBLIC OF NIGERA v. LUCKY IGBENEDION & OTHERS either in its original or amended Charge except upon Orders of a Court superior to this Honourable Court.
5. AN ORDER staying the arraignment of the Accused Persons/Applicants in these proceedings (CHARGE NO:- FHC/B/11C/2011), PENDING THE DETERMINATION OF THIS APPLICATION.
6. AND FOR SUCH FURTHER ORDER or other Orders as this Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application is brought or predicated are as follows: –
(i) The Applicants herein participated as Accused Persons in CHARGE NO: FHC/EN/6C/2008 which said Charge originated on 22nd January, 2008 between the FEDERAL REPUBLIC OF NIGERIA as Complainant and (1) LUCKY IGBENEDION, (2) KIVA CORPORATION LIMITED, (3) GAVA CORPORATION LIMITED, (4) EKPEN & SONS COMPANY and (5) ROMRIG NIGERIA LIMITED as Accused Persons.
(ii) The said CHARGE NO: – FHC/EN/6C/2008 was subsequently amended vide the Amended Charge dated 13th October, 2008 to read FEDERAL REPUBLIC OF NIGERIA v. (1) LUCKY IGBENEDION, (2) MICHAEL IGBENEDION, (3) KIVA CORPORATION LIMITED, (4) GAVA CORPORATION LIMITED, (5) ROMRIG NIGERIA LIMITED, (6) PML SECURITIES COMPANY LIMITED and (7) PML (NIGERA) LIMITED.
(iii) The said CHARGE NO: – FHC/EN/6C/2008 culminated in a plea bargain in the Amended Charge dated 17th December, 2008 and filed on 18th December, 2008 leaving the parties thereto as FEDERAL REPUBLIC OF NIGERIA v. (1) LUCKY IGBENEDION, (2) KIVA CORPORATION LIMITED in keeping faith with the said plea bargain.
(iv) The ingredients of the offences in these proceedings i.e. CHARGE NO:- FHC/B/11C/2011 – (1) LUCKY IGBENEDION, (2) PATRTCK EBOIGBODIN, (3) MICHAEL IGBENEDION, (4) GAVA CORPORATION LIMITED, (5) ROMRIG NIGERIA LIMITED, (6) PML SECURITIES COMPANY LIMITED and (7) PML (NIGERIA) LIMITED are the same with that in CHARGE NO: – FHC/EN/6C/2008 in respect of which the Honourable Justice A. Abdu-Kafarati of the Enugu Division of this Honourable Court delivered the Judgment on 18th December, 2008 following a plea bargain.
(v) The Complainant/Respondent herein curiously lodged an appeal against the said Judgment delivered by the Honourable Justice A. Abdu Kafarati to the Court of Appeal in APPEAL NO: – CA/E/207M/2010 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY IGBENEDION which said appeal is pending before the Enugu Division of the Court of Appeal and in respect of which the appeal has been entered with both the Appellant’s and Respondent’s Briefs having been filed.
(vi) The present CHARGE NO: – FHC/B/11C/20011 is caught by the doctrine of double jeopardy and condonation.
(vii) The present CHARGE NO: – FHC/B/11C/2011 is incurably bad and it is a violent abuse of the processes of the Honourable Court by reason of which the Honorable Court is deprived of its jurisdiction and competence to arraign, try, hear and determine same.”
Being dissatisfied with the decision of the lower court dismissing the motion on notice (supra) as it relates to it, the Appellant lodged the instant appeal by a Notice of Appeal dated 20/12/2011 and filed on 23/12/2011 but deemed to have been properly filed and served on 23/4/2011. I cannot but observe that in the Brief of Argument of the Appellant it is stated at paragraph 2.17 on page 6 to the effect that the Appellant’s Notice of Appeal is on pages 1000-1007 of Vol. III of the Records of Appeal. This cannot be correct. What is contained on those pages of the records is the Notice of Appeal lodged by the prosecutors against the decision of the lower court discharging the 1st accused person in the instant Charge. The Appellant’s Notice of Appeal dated 20/12/2011 (supra) contains eight grounds of appeal with the appellant seeking from this Court “An Order discharging and acquitting the Appellant in respect of Charge No. FHC/B/11C/2011 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY NOSAKHARE IGBINEDION & ORS, wherein the Appellant is named as the 6th Accused.”.
Parties to the instant appeal filed and exchanged Briefs of Argument. Learned lead counsel for the Appellant regularised the positions of both the Appellant’s Brief of Argument and Appellant’s Reply Brief of Argument filed in the appeal in the course of the hearing of the appeal on 6/2/2014. Suffice it to say also, that at the hearing of the appeal, learned lead counsel for the Appellant, Chief Richard Oma Ahonaruogho as well as Adebisi Adeniyi of counsel for the Respondent adopted and relied on the Briefs of Arguments filed on behalf of their respective clients in the aid of their different positions in the appeal.
Learned lead counsel for the Appellant formulated a sole Issue as arising for determination in the appeal, The Issue reads thus: –
“Whether in all the circumstances of Charge No. FHC/EN/6C/2008 – FEDERAL REPUBLIC OF NIGERIA v. LUCKY NOSAKHARE IGBINEDION & ORS in its original form and as amended on 13th October, 2008 and 17th December, 2008 the Learned Trial Judge was right when he held that the defences of plea bargain agreement, condonation, plea of autre fois 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 (Distilled from Grounds 1, 2, 3, 4, 6, 7 and 8).”
A lone Issue was equally formulated by the Respondent for determination in the appeal, It reads thus: –
“Whether the learned trial judge was wrong to have held that none of the doctrines or pleas of autre fois 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 (See grounds 1, 2, 3, 4, 6, 7 and 8)”
The sole Issue for the determination of the appeal though differently couched in the Briefs of Argument of the parties is of the same purport. It questions the correctness of the decision of the lower court calling on the Appellant to enter its plea in the ruling in the motion on notice (supra) brought by the accused persons in the instant Charge against the backdrop of the defences the Appellant claims to avail it therein.
Learned lead counsel for the Appellant in the main argued in the Appellant’s Briefs of Argument, that the lower court was wrong in not upholding the orders sought by the Appellant regarding the FHC, Benin Charge on the grounds upon which the same was predicated. In this regard, learned lead counsel based his arguments on Charge No. FHC/EN/6C/2008 which was entertained by the Enugu Division of the lower court as originally filed and as later amended; and the various facts relating to the said Charge and the accused persons in the FHC, Benin Charge as elaborately deposed to in the supporting affidavit as well as further affidavit filed in support of the motion that was dismissed by the lower court as it relates to the Appellant. It is the stance of learned lead counsel that the lower court was wrong to have held that the defence of plea bargain agreement, condonation and/or pardon, plea of autre fois convict, the doctrine of double jeopardy and abuse of court process were not available to the Appellant in FHC, Benin Charge. Learned counsel marshaled copious arguments to show that the aforementioned defences are available to the Appellant and in doing this, accused the lower court of adopting a wrong approach by considering the defences as separate defences. That the lower court, ought to have treated the defence and pleas, as a continuous or connected series of events having regard to the sequence in which they were canvassed vis-a-vis the peculiarity of their respective cases. That this is why the lower court despite its finding that the “defence or plea for autre fois convict” is available to the 1st accused person (hereafter simply referred to as “Lucky Igbinedion”) as a bar against prosecution for offences relating to Money Laundering on account of the plea bargain agreement despite the fact that Lucky Igbinedion’s plea of guilty in Charge No. FHC/EN/2008 was only in respect of a one count charge of neglect to make a declaration of interest in an account, did not find the Appellant who was jointly charged with Lucky Igbinedion and whose case was clearly interwoven with and inseparable from that of Lucky Igbinedion automatically entitled to the benefits of the plea bargain and consequently the plea of autre fois convict. Learned lead counsel against this backdrop further submitted that the conclusion of the lower court that the doctrine of double jeopardy and abuse of court process are not available and open to the Appellant, was equally wrong. This Court was urged to uphold the objection the lower court ruled upon and consequently to allow the appeal and discharge and acquit the Appellant in respect of the instant Charge.
Learned counsel for the Respondent equally elaborately argued to the contrary of the position of the Appellant in the appeal. Having highlighted the decision and reasoning of the lower court regarding the dismissal of the challenge to the jurisdiction of the lower court to entertain the instant Charge, learned counsel proffered copious argument in justification or support of the finding of the lower court that the defences relied upon by the Appellant were not available to it.
Having painstakingly read the Briefs of Argument of the Appellant, it is glaring that it is the applicability to the Appellant of the plea bargain upon which the FHC, Enugu, entered judgment on 18/12/2008 in Charge No. FHC/EN/6C/2008 preferred by the prosecution jointly against Lucky Igbinedion and Kiva Corporation Ltd only, that formed the core, centre or foundation of the position of learned lead counsel to the Appellant, that the Appellant is entitled to the defences and plea elaborately taken up in the appeal. Learned lead counsel for the Appellant had accused the lower court of considering the defences and plea as separate defences. It is my considered view, that whether or not the defences and plea are continuous or connected series of events as contended, the lower court ought to have considered them separately as they related to each of the applicants in the motion it entertained in the light of the facts presented before it, in order to determine whether or not the defences and plea were available to each of the Applicants. Against the backdrop of this position, and particularly as this is not a joint appeal, the same approach as adopted by the lower court would be adopted by this Court in considering the correctness or otherwise of the decision of the lower court appealed against as it relates to the Appellant. This is despite the fact that learned lead counsel for the Appellant has rolled together all the defences and plea in arguing the appeal.
In my considered view, the first or primary aspect of the Issue for determination of the appeal as formulated by the parties that this Court must necessarily consider and resolve in the light of the arguments in their respective Briefs of Argument, is whether the plea bargain upon which the FHC, Enugu entered judgment in the Charge before it, is available to the Appellant.
The accused persons in the FHC, Enugu Charge filed on 22/1/2008 upon its inception as clearly shown on pages 1263-1313 in Vol. III of the records were (i) Lucky Igbinedion (ii) Kiva Corporation Limited (iii) Gava Corporation Limited (iv) Ekpen & Sons Company and (v) Romrig Nigeria Ltd. The proof of evidence in relation to the Charge spans pages 1314-1689 in Vol. III of the records. On 23/1/2008 the pleas of the 1st, 2nd, 3rd and 5th accused therein were taken. The plea of the 4th accused could not be taken as it had not been served with the Charge as at 23/1/2008. Each of the accused persons whose plea was taken pleaded not guilty in respect of the offences with which he/it was charged. The Charge was specifically withdrawn against the 4th accused person and the name of the said party was not only struck out from the Charge but also counts 148-56 therein. See pages 1692-1702 in Vol. IV of the records, particularly page 1695 thereof. It is therefore glaring that the Appellant was not a party to the FHC Enugu, Charge at its inception. Despite the striking out of the 4th accused from the Charge on 23/1/2008, the said 4th accused continued to feature in the Charge to the extent that it still enjoyed the representation of learned lead counsel herein when it came up on 4/2/2008; 11/2/2008; 18/2/2008; 26/2/2008; 17/3/2008; 18/3/2008; 20/3/2008; and 2/4/2008 without its having been re-introduced into the Charge by any restorative order having been made by the FHC Enugu, which struck out the party’s name from the Charge in the first place. See pages 1703-1781 in both Vols. IV and V of the records.
The learned trial Judge presiding over FHC, Enugu seised of Charge changed and consequently the pleas of the accused persons in the Charge filed on 22/1/2008 were taken afresh on 21/4/2008. For what it is worth, I cannot but observe that the plea of the 4th accused whose name had been struck out from the Charge on 23/1/2008 together with counts 148-156 therein, was also taken on 21/4/2008 without the said party being re-introduced into the Charge after its name had been struck out from the Charge on 23/1/2008. See pages 1782-1790 in Vol. V of the records. The Charge filed on 22/1/2008 and pleaded to afresh on 21/4/2008 was on the said date adjourned to 12/6/2008 for trial. Again, it is glaring from the proceedings of 21/4/2008 that the Appellant herein was not a party in the FHC Enugu, Charge inasmuch as it was the Charge filed on 22/1/2008 that was still before the court. It was on 14/10/2008 that the Appellant first featured before the FHC Enugu, in the Charge before it. This was sequel to an amended Charge filed on 13/10/2008 which the court accepted on the said 14/10/2008. See pages 1810-1815 in Vol. V of the records for the notes of proceedings as well as pages 1839-2253 in the same Volume for the amended Charge and additional proof of evidence filed by the prosecution. The Appellant featured as the 6th accused in the amended Charge in question. The case was on 14/10/2008 adjourned to 1/12/2008 for plea in respect of the amended Charge and later adjourned till 12/12/2008 and 17/12/2008 for plea and pending application. The records do not show that the case came up on 12/12/2008 but show that it came up on 15/12/2008.
The case came up again on 17/12/2008. What transpired on the said 17/12/2008 in relation to the amended Charge which the accused persons therein (including the Appellant) were yet to plead to, is contained on page 1816 in Vol. V of the records. The proceedings in question disclose that the prosecuting counsel Mr. Jacobs informed the court thus: –
“The Accused Person approached us for settlement and we are about to conclude the terms and also to amend the charge accordingly. We need a date to report back. We have agreed on tomorrow, 18th day of December, 2008”
(Underlining provided by me).
The case was on 17/12/2008 adjourned till the next day i.e. 18/12/2008 with the court noting to the effect that learned senior lead counsel for the 1st accused – Lucky Igbinedion and learned lead counsel herein who represented the Appellant and the other accused persons set out in the amended Charge confirmed the position as stated by the prosecuting counsel, to be the true position in the case. Pages 1821-1830 in Vol. V of the records contain what transpired before the court on 18/12/2008. Going by page 1821, it is indisputable that by the time the case was called on 18/12/2008, the prosecution had placed before the court an amended Charge in which two parties featured as accused persons. They were Lucky Igbinedion and Kiva Corporation Ltd. They featured as 1st and 3rd accused respectively, in the amended Charge accepted by the FHC Enugu on 14/10/2008. The proceedings for that day in part read thus: –
“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 and we have been served (sic).
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 plea.”
Each accused in the Charge duly pleaded guilty to the offence(s) that related to him and the court passed its sentence on each of them as it considered appropriate.
Having read the affidavits in support of the motion which the lower court ruled upon, and also the Briefs of Argument of the parties it is very clear that the Appellant never established the existence of any document that ought to have been placed before the FHC Enugu, containing or setting out the terms agreed upon by the parties sequel to the settlement which the prosecuting counsel informed the court that the accused persons approached the prosecution for. This being the position, I find it somehow difficult to comprehend the propriety of the submission of learned lead counsel at paragraph 4.19 on page 11 of the Appellant’s Brief which reads thus: –
“…..The Respondent has a duty to produce before this Honourable Court the conclusion/agreement reached at the settlement between the parties which the Respondent’s Counsel openly admitted in Court on 17th December, 2008 in Charge No. FHC/EN/6C/2008. We urge your Lordships to invoke the provisions of Section 167(d) of the Evidence Act, 2011 against the Respondent as the agreement/conclusion which they failed to produce is unfavourable to them.”
The content of a document can only be proved by tendering the original document or secondary evidence thereof after laying the proper foundation. See GOODWILL & TRUST INVESTMENT LTD v. WITT & BUSH LTD (2011) All FWLR (Pt. 576) 517, (2011) 34 WRN 1. Hence the content of a document cannot ordinarily be established viva voce. See OGUNDELE v. AGIRI (2010) 9 WRN 1.
I cannot but observe that the position of the law concerning “withholding of evidence” requires the Appellant to discharge the onus of proof on him regarding the existence of the document containing the conclusion/agreement of a plea bargain, before the inference under Section 162(d) of the Evidence Act (supra) can be drawn that the prosecuting counsel has failed to challenge the Appellant’s evidence by the non-production of a particular piece of evidence would be unfavourable to the prosecution. Section 162(d) of the Evidence Act (supra) pertains to refusal to tender what is in the possession of the said party. Hence presumption of withholding evidence cannot be invoked on the basis “that evidence of what has never been in his possession would be unfavourable to such a party”. See A-G ADAMAWA STATE v. WARE (2006) All FWLR (Pt. 306) 860; TEXACO NIGERIA PLC v. KEHINDE (2002) FWLR (Pt. 94) 143; MOBIL PRODUCING NIG. UNLTD v. ASUAH (2002) FWLR (Pt. 107) 1196 at 1218; and LAWSON v. AFANI CONTINENTAL CO. NIG. LTD & ANOR (2002) FWLR (Pt. 1736) at 1767.
It would appear that learned counsel for the Respondent comprehended the situation when the presumption of withholding of evidence would be invoked when he stated at paragraph 4.38 of the Respondent’s Brief of Argument to the effect that it was clear that the prosecution did not at any time hold any meeting with the Appellant or entered into any agreement with her that she would not be prosecuted in respect of the offences allegedly committed by her.
Undoubtedly, the portion of the proceedings of 17/12/2008 before the FHC Enugu, re-produced hereinbefore, readily admits of the fact that learned lead counsel who represented the 2nd-7th accused (the Appellant being amongst them) must have come together with the prosecuting counsel as well as learned senior counsel for Lucky Igbinedion on 17/12/2008 for the purpose of settling the case against his clients. The portion of the proceedings in question in my considered view also clearly disclosed that the manner in which parties intended to reflect the extent to which they were in agreement and the conditions upon which they have agreed, was by the filing of an amended charge. It is in my considered view not inferable from what the record of proceedings disclosed, that there was to be some other document evidencing the settlement reached by the parties. In other words, it is from the record of the court that the ambit of the settlement reached by the prosecuting counsel and learned lead counsel for the 1st and 2nd-7th accused respectively is to be inferred.
When the disclosure by the prosecuting counsel to the court on 17/12/2008 that “the accused persons approached us for settlement and we are about to conclude the terms and also to amend the charge accordingly” is juxtaposed with the filing of an amended charge dated 17/12/2008, before the court on 18/12/2008, consequent to the settlement meeting which they apparently concluded on 17/12/2008, the only inference is that it was in respect of the two accused persons in the amended charge that the prosecuting counsel on the first part, learned senior counsel to Lucky Igbinedion on the second part and learned lead counsel for the 2nd-7th accused on the third part, reached an agreement and consequently filed the amended charge which related to the said two accused only and who both pleaded guilty to the amended charge. In other words, while it would appear not to be in dispute that learned lead counsel acting for the 2nd-7th accused persons (inclusive of the Appellant who was the 6th accused) engaged in the settlement of the case with the prosecuting counsel, the overt or obvious act of filing the amended Charge showed that it was only in respect of one of the clients of learned lead counsel (i.e. 3rd accused – Kiva Corporation Ltd), that settlement fell through.
The prosecuting counsel would appear to have created some confusion in this matter and which the Appellant would appear to want to cash in on by not filing a new Charge in contradiction to an amended Charge against the two accused persons he decided to proceed against consequent to the settlement he reached with them and to have formally withdrawn the amended Charge accepted on 14/10/2008 with the court striking out the same and discharging all the accused persons therein. This is because the filing of the amended Charge on 18/12/2008 implies that the offences charged therein were not in the amended Charge accepted on 14/10/2008. Otherwise what could have been simpler than for the parties to have been arraigned on the amended charge accepted on 14/10/2008 and the pleas of the accused persons taken with Lucky Igbinedion and Kiva Corporation who were 1st and 3rd accused therein, simply pleading guilty to the counts that they agreed for them to so plead? I must however quickly add that the fact that a new Charge was not filed, does not offer the Appellant any succour inasmuch as the Appellant was clearly not one of the parties with which the prosecuting counsel reached a settlement agreement as the Appellant name’s never featured in the amended Charge the filing of which the prosecuting counsel clearly indicated would be the outcome of their settlement exercise.
Filing of a new charge consequent to the settlement reached by the prosecuting counsel with Lucky Igbinedion and Kiva Corporation Ltd and applying for the striking out of the amended Charge accepted on 14/10/2008 would have undoubtedly led to or resulted in the discharge of all the accused persons therein inasmuch as they had not at any time before 18/12/2008 pleaded to the said amended Charge talk less of opening their respective defences to the same. In other words, no aspect of trial had taken place in the amended Charge accepted on 14/10/2008 prior to the filing of the amended Charge of 18/12/2008. The position of the law in my considered view remains the same in the instant situation where the amended Charge accepted on 14/10/2008 was not formally withdrawn but was by force of law no longer in existence consequent to the filing of another amended Charge by the prosecutor on 18/12/2008. Indeed I cannot but observe that both learned lead counsel for the Appellant and learned counsel for the Respondent in their Briefs of Argument do not dispute the fact that the amended Charge accepted on 14/10/2008 no longer existed, consequent to the filing of the amended Charge of 18/12/2008. It is however the stance of learned lead counsel for the Appellant that different consideration ought to be given by this Court to a situation where the Respondent was exercising its powers to amend a charge pending before a court from a situation where it is shown from the records of the court that an amendment to a charge was made as a result of an agreement between the parties to amend the charge and as pronounced in open court by no other person than the learned prosecutor. The purport of the difference being drawn by learned lead counsel in my considered view is simply to make this Court make a finding that the consequence or effect of a charge withdrawn consequent to a settlement with the prosecutor cannot be one of discharge of the accused in the charge in question as generally put in place by the law, but should be one barring the further prosecution of the accused on the strength of the settlement. In other words, that the discharge of accused in a charge withdrawn or deemed to have struck out consequent to the filing of another charge upon settlement, should tantamount to an acquittal of the accused in respect of the offences charged in the withdrawn charge. The stance in this regard was in furtherance of the plea bargain which learned lead counsel for the Appellant claimed to have been made between the prosecuting counsel and the Appellant amongst others. Suffice it to say that it is my considered view that the stance of learned lead counsel can only be found to be well grounded if the fact of a plea bargain agreement is established to have been reached between the prosecution and the accused relying on the said plea bargain agreement. And it also my considered view that it has been sufficiently demonstrated that the prosecuting counsel before the FHC Enugu, cannot be said to have made any plea bargain with the Appellant having regard to the amended charge filed on 18/12/2008 vis-a-vis the proceedings of the court on both 17/12/2008 and 18/12/2008. It is my firm view that the plea bargain agreement made in the Charge before the FHC Enugu was between the prosecution and Lucky Igbinedion and Kiva Corporation Ltd.
It is my considered view that “plea bargain” in the con that learned lead counsel for the Appellant has portrayed it in the instant case is obviously not derived from any criminal legislation. Learned counsel for the Respondent in any event has not argued that the Respondent did not make a plea bargain in the Charge before the FHC Enugu. All that I understand the position of the Respondent to be (and which is not different from the view I have expressed before now), is that it was with Lucky Igbinedion and Kiva Corporation Ltd, that the Respondent made a plea bargain.
In the Appellant’s Brief of Argument, learned lead counsel for the Appellant referred to Black’s Law Dictionary in relation to the defences of “condonation” and “compounding of offences” which were predicated upon the plea bargain between the Appellant and the Respondent. Regrettably, learned lead counsel did not refer to any standard work in respect of plea bargain. It is however noted that in paragraphs 3.01-3.05 on pages 12-13 of the Reply Brief of the Appellant, learned lead counsel stated to the effect that “plea bargain agreement” or “plea agreement” occurs when an accused person agrees to plead guilty to a particular charge in return for some concession from the prosecutor. That it may mean the accused person will plead guilty to a less serious charge or to one of several charges in return for the dismissal of other charges; or it may mean that the accused will plead guilty to the original charge in return for a more lenient sentence. He also stated the rationale of plea bargain agreement to be that it allows parties to a charge avoid lengthy trials and abrogates the huge task on the part of the prosecutor to prove the alleged offences beyond reasonable doubt on transactions which have assumed a complex dimension. Though conceding that logic is not law, learned counsel however said that it is only logical that the plea bargain agreement which led to the conviction of Lucky Igbinedion and Kiva Corporation in Charge No: FHC/EN/6C/2008 was made in respect of all the accused persons in the amended Charge No: FHC/EN/6C/2008 dated 13/10/2008.
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 thereon as it is an emerging phenomenon, However, Black’s Law Dictionary (Ninth Edition) on page 1270 provides the meanings of some of the concepts which aid or designed for the quick or expeditious disposal of criminal cases such as plea bargain, in my considered view is. The concepts are: –
1. “plea bargain” – A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty 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 plea bargain agreement; negotiated plea; sentence bargain.”
2. “charge bargain” – A plea bargain in which a prosecutor agrees to drop some of the counts or reduce the charge to a less serious offense in exchange for a plea of guilty or no contest from the defendant.”
3. “sentence bargain” – A plea bargain in which a prosecutor agrees to recommend a lighter sentence in exchange for a plea of guilty or no contest from the defendant.”
The term “no contest” mentioned in the definitions of “charge bargain” and “sentence bargain” is defined on page 1146 thus: –
“no contest” – A criminal defendant’s plea that while not admitting guilt, the defendant will not dispute the charge.”
No contest plea is said to be often preferable to a guilty plea, which can be used against the defendant in a later civil law suit.
It is in my considered view obvious from the definitions re-produced above, that plea bargain must be a conscious and deliberate act between the prosecution and an accused with a plea of guilty being an overt act on the part of the accused in evidence of the plea bargain. The offence or offences to which the accused must enter a plea of guilty is/are for them to decide or agree upon. Learned lead counsel for the Appellant would also appear to share this view in the portion of the Appellant’s Reply Brief I earlier referred to. The concept of plea bargain in my considered view clearly operates in personam, so to say, and not by privy or proxy. By this I mean that a plea bargain must be a deliberate and conscious act taken by the prosecutor and a particular accused person or specific accused persons in a charge wherein the accused person or each of the specified accused persons must suffer a conviction (I have advisedly not used the word sentence) no matter how insignificant or trivial the offence to which the conviction relates. Undisputedly, the Appellant personally never suffered a conviction of any kind in respect of any of the charges that came up before the FHC Enugu. This condition is sine qua non for a plea bargain to be in place between the prosecutor and an accused relying on plea bargain. An accused person who alleges that he had a plea bargain with the prosecutor cannot emerge from the matter unscarred or without blemish or stigmatization of conviction.
Going by all the arguments or submissions of learned lead counsel relating to the plea bargain which the Appellant wants to take advantage of, the said Appellant has not been shown to have come out worse than when it came before the court. Indeed, if the position of learned lead counsel for the Appellant that there was a plea bargain between the Appellant and the prosecuting counsel in the Charge before the FHC Enugu is correct the Appellant would appear to have emerged from its situation much better than when it was brought before the court. This is because without having undergone any trial talk less of suffering any form of conviction, it would not want to be tried at all for the matter in respect of which he was initially brought to court or any offences related thereto. The main purpose of criminal trial is to ensure that a person, who has chosen to break any aspect of the criminal law, is not left to go scot free and for this reason the prosecution has to establish the guilt of an accused person beyond reasonable doubt to pave the way for his punishment by law. The concept of plea bargain has in no way derogated from the purpose or objective of criminal prosecution given the fact that before an accused can benefit from the arrangement the accused in question must plead guilty to some form of offence and of course be convicted for what he has pleaded guilty to. It would therefore appear indisputable that to the extent that it is the pleas of guilty of Lucky Igbinedion and Kiva Corporation Ltd, that the Appellant relies upon in respect of its plea bargain, no plea bargain can be said to have been made between the Appellant and the prosecution. And that the plea bargain in the Charge entertained by the FHC Enugu was between the prosecution and Lucky Igbinedion and Kiva Corporation Ltd.
As earlier stated learned lead counsel predicated the entitlement of the Appellant to all or any of the defences and plea the Appellant is said to be entitled to (and all of which the lower court found the Appellant not to be entitled to) on the plea bargain between the prosecution and the Appellant in the FHC Enugu Charge. Needless to say and having found that there was never a plea bargain agreement between the Appellant and the prosecution in any respect in the FHC Enugu Charge, it follows that the Appellant ipso facto cannot be entitled to all or any of the defences of condonation, plea of autre fois convict, doctrine of double jeopardy and abuse of court process which were predicated on a non-existent plea bargain between the prosecution and the Appellant.
Flowing from all that has been said is that the issue for determination of the appeal is resolved against the Appellant.
In the final analysis, the instant appeal, is unmeritorious and is hereby dismissed. The decision of the lower court as it relates to the Appellant in the ruling delivered in Charge No. FHC/B/11C/2011 is affirmed. The lower court is very correct in calling on the Appellant to enter its plea to the instant charge.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE. My brother has stated the law in clear and unambiguous terms. All the issues adumbrated have been exhaustively dealt with and I have nothing useful to add.
I too affirm the ruling of Hon. Justice Adamu Hobon in Charge No. FHC/B/11C/2011. The appellant is to take his plea to the charges as filed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had the privilege of perusing the draft of the Judgment prepared and just delivered by my learned brother, the Hon. Justice A. O. Lokulo-Sodipe, JCA. Having equally perused the briefs of argument of the respective learned counsel vis-a-vis the record of appeal, I cannot but concur with the reasoning and conclusion therein reached by His Lordship, to the effect that the present appeal is unmeritorious. Thus, the said appeal is hereby equally dismissed by me. The ruling of the High Court of Edo State, delivered on 31/5/11 in Charge No. FHC/B/11C/2011 by Adamu Hobon, J; is hereby affirmed.
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Appearances
Chief Richard Oma Ahonaruogho with
Bamidele Abina;
Emilia Enemuoh (Mrs.);
Oluyemi Shoyoye; and
Israel O. IdahosaFor Appellant
AND
Adebisi AdeniyiFor Respondent
