PROMISE v. FRN
(2020)LCN/15253(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 22, 2020
CA/A/767C/2019
Before Our Lordships:
Abdu Aboki Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
CHINAKA CHIJIOKE PROMISE APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE LAW TO CHARGE AND CONVICT PERSONS ENGAGING IN CYBER CRIMES IN NIGERIA
I must say that the appropriate law/act to charge the convict is the Cyber crimes (protection and prohibition etc) Act that has laudable provisions aimed at redeeming the image and integrity of this nation. It has appropriate punishment that can deter young persons from engaging in cybercrimes. My Lord Hon. Justice Sankey JCA made a striking comment in the case of JUBRIL VS. F.R.N (2018) LPELR – 43993 (CA) thus:
“It must be disheartening to all right thinking Nigerian that the rampant, atrocious and egocentric crime has unleashed dire consequences on the integrity and image of the country. This has both short and long term effects on the society and the nation as a whole. Therefore although the punishment prescribed by law …may be appear harsh and draconian, it is hoped that it will deter like-minded persons from embarking on such criminal ventures.” PER AGIM, J.C.A.
THE ESSENCE OF PLEA BARGAIN
Obviously, the essence of plea bargain is not just to conclude a trial. There must be a negotiated agreement between the Prosecution and the person accused of a crime, whereby the accused agrees to plead guilty to a lesser offence or to one of multiple charges in exchange for some concession by the Prosecution, which is usually in the form of a more lenient sentence or a dismissal of the other charges – see Black’s Law Dictionary, 9th Ed. See PML (NIG) LTD v. FRN (2017) LPELR 43480 (SC). PER ABOKI, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/767C/2019 was commenced on 15-8-2019 when the appellant herein filed a notice of appeal against the decisions of the High Court of Federal Capital Territory in criminal case No. FCT/HC/CR/422/2019 delivered on 22nd and 25th July, 2019 by Muawiyah Baba Idris J. The notice of appeal contains three grounds for the appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief.
The respondent’s brief raised and argued a preliminary objection contending that since the decisions appealed against arose from or are based on a plea agreement, no appeal can be brought against them since no issue of fraud had been raised against the plea agreement, that this is so by virtue of S.270(18) of the Administration of Criminal Justice Act (ACJA) and that this appeal therefore is incompetent and should be struck out.
Learned Counsel for the appellant argued replicando that S.270(18) of Administration of Criminal Justice Act (ACJA) that provides that a judgment pursuant to a plea agreement is final and that no appeal shall lie against it except where fraud is alleged conflict with Ss. 240 and 241(1) of the 1999 Constitution, that this appeal is competent by virtue of S.241(1) of the 1999 Constitution, that S.270(18) of Administration of Criminal Justice Act (ACJA) takes away the constitutional right to appeal vested on the appellant by Ss. 240 and 241(1) of the 1999 Constitution, that by virtue of S.246 (2) of the 1999 Constitution, the National Assembly can only legislate to vest additional appellate jurisdiction on the Court of Appeal and cannot make an Act to oust or reduce existing appellate jurisdiction and that sentencing Guidelines made pursuant to Ss 311 and 416 of Administration of Criminal Justice Act (ACJA) do not apply to sentencing following conviction on plea agreements and applies only to sentencing following conviction after a full trial.
Let me determine the merits of the above arguments of both sides.
The trial Court’s decision of 25-7-2019 sentencing the appellant, following his conviction by the same Court on a plea agreement, is a final decision and the appeal filed against it by the appellant is on grounds of law alone.
S.241(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) vests on the appellant the right to appeal as of right from the said decision of the trial Court. The exact text of the said S.241(1)(a) and (b) reads thusly-
“241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.“
S.270(18) of the Administration of Criminal Justice Act (ACJA) provides that- “The judgment of the Court contemplated in subsection 10(a) of this section shall be final and no appeal shall lie in any Court against such judgment, except where fraud is alleged”.
S.270(10)(a) of the Administration of Criminal Justice Act (ACJA) provides that-
“(10) The presiding Judge or magistrate shall ascertain whether the defendant admits the allegation in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence and may where:
(a) He is satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the defendant on his plea of guilty to that offence, and shall award the compensation to the victim in accordance with the term of the agreement which shall be delivered by the Court in accordance with Section 308 of this Act;”
I agree with the submission of Learned Counsel for the appellant that S.270(18) of Administration of Criminal Justice Act (ACJA) takes away the right of appeal given by S.241(1)(a) and (b) of the 1999 Constitution to the appellant to appeal as right against the judgment convicting him consequent upon a plea agreement being a final decision in a criminal proceedings before the trial High Court sitting at first instance. By so doing, S.270(18) of Administration of Criminal Justice Act (ACJA) conflicts with S.241(1)(a) and (b) of the 1999 Constitution and is for that reason unconstitutional, and void by virtue of S.1(3) of the 1999 Constitution which provides that-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.“
By providing that no appeal shall lie in any Court against such judgment except where fraud is alleged, S.270(18) of Administration of Criminal Justice Act (ACJA) also ousts the general jurisdiction vested in this Court by S.240 of the 1999 Constitution to hear and determine appeals from the trial Court. The exact text of S.240 of the 1999 Constitution reads thusly-
“240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.“
So to the extent that it bars appeals to this Court against a decision convicting an accused upon a plea bargain, it is in conflict with S.240 of the 1999 Constitution and is therefore unconstitutional, null and void.
In the light of the foregoing I declare that S.270(18) of the Administration of Criminal Justice Act (ACJA) is unconstitutional and void for being in conflict with Ss.240 and 241(1)(a) and (b) of the 1999 Constitution.
Therefore grounds 1 and 2 which complain against the 22-7-2019 conviction of the appellant on question of law alone on the plea agreement are competent and valid appeals against the conviction.
S.270(18) of the Administration of Criminal Justice Act (ACJA) by limiting itself to the judgment convicting the accused on the plea agreement, as the judgment of the Court contemplated by S.270(18)(a), excludes its application to the part of the judgment sentencing the accused following such conviction on the principle that the express mention of a thing in the provision of a legislation excludes those not mentioned. Restating this inveterate principle of hallowed antiquity, the Supreme Court in Ehuwa v. Ondo State Independent Electoral Commission & Ors (2006) LPELR 1056 (SC) held that “It is now firmly established that in the construction of a Statutory Provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The Latin maxim is “Expressio unius est exclusion alterius” – i.e. the expression of one thing is the exclusion of another. It is also termed “inclusion unius est exclusion alterius” or “enumeration unius exclusion alterius”. See the Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition pages 1635… In other words, the express mention of one thing in a Statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue.” See also Udoh & Ors v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt 304) 139 (SC).
While S.270(10)(a) provides for the conviction of the accused upon the plea agreement, the decision sentencing him following that conviction is provided for in S.270(11) of the Administration of Criminal Justice Act (ACJA) as follows-
“(11) Where a defendant has been convicted in terms of subsection (9)(a), the presiding Judge or magistrate shall consider the sentence as agreed upon and where he is:
(a) Satisfied that such sentence is an appropriate sentence, impose the sentence; or
(b) Of the view that he would have imposed a lesser sentence than the sentence agreed upon, impose the lesser sentence; or
(c) Of the view that the offence requires a heavier sentence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.”
Grounds 2 and 3 of this appeal which complain against the sentence and involve questions of law alone are competent and valid appeals.
For the above reasons, I hold that the preliminary objection of the respondent fails as it lacks merit. It is accordingly dismissed.
Let me now proceed to deal with the merits of this appeal.
The appellant’s brief raised one issue for determination as follows- “Whether or not the trial Court acted without jurisdiction and breached the Appellant’s right to fair hearing as enshrined in the amended 1999 Constitution when it failed to allow the Appellant exercise his right under Section 270 (11) & (15) of the Administration of Criminal Justice Act, 2015? (Distilled from Ground 3 of the Grounds of Appeal.”
The respondent’s brief also raised one issue for determination as follows- “Whether or not the Honourable Court acted within the confine of the law.”
I will determine this appeal on the basis of the sole issue raised for determination in the appellant’s brief which asks “Whether or not the trial Court acted without jurisdiction and breached the Appellant’s right to fair hearing as enshrined in the amended 1999 Constitution when it failed to allow the Appellant exercise his right under Section 270 (11) & (15) of the Administration of Criminal Justice Act, 2015?”
I have considered all the arguments of both sides on this issue.
The appellant was charged with-
“Count 1
That you Chinaka Chijioke Promise sometimes in 2019 in Abuja within the Jurisdiction of this Honourable Court, did cheat by personation and obtained property to wit: the sum of ($500) Five Hundred United States Dollars from Dente S.A a company in Romania by intersecting her business transaction online and assuming her identity and thereby committed an offence contrary to Section 321 of the Penal Code, Laws of the Federation of Nigeria 1990 and Punishable under Section 324 of the same Act.
Count 2
That you Chinaka Chijioke Promise sometimes in 2019 in Abuja within the Jurisdiction of the Honourable Court, did cheat by personation and obtained property to wit: the sum of ($1000) One Thousand United States Dollars from Hamas Co (S.R.L) Co. Ltd a company in Vietnam by intersecting her business transaction online and assuming her identity and thereby committed an offence contrary to Section 321 of the Penal Code, Laws of the Federation of Nigeria 1990 and Punishable under Section 324 of the same Act.
Count 3
That you Chinaka Chijioke Promise sometimes in 2019 in Abuja within the Jurisdiction of the Honourable Court, did cheat by personation and obtained property to wit: the sum of ($3000) Three Thousand United States Dollars from Tempo Cycling a company in Columbia by intersecting her business transaction online and assuming her identity and thereby committed an offence contrary to Section 321 of the Penal Code, Laws of the Federation of Nigeria 1990 and Punishable under Section 324 of the same Act.
Count 4
That you Chinaka Chijioke Promise sometimes in 2019 in Abuja within the Jurisdiction of this Honourable Court, did cheat by personation and obtained property to wit: the sum of ($3000) Three Thousand United States Dollars from K.M.C W.L.L a company in Afghanistan by intersecting her business transaction online and assuming her identity and thereby committed an offence contrary to Section 321 of the Penal Code, Laws of the Federation of Nigeria 1990 and Punishable under Section 324 of the same Act.”
On 22-7-2019, he was arraigned on the above counts of offences. The appellant pleaded guilty to all of the above counts of offences. Following his said plea of guilty, the prosecution informed the Court of a plea agreement with the appellant and adopted the plea bargain dated and filed on 19-7-2019 and urged the trial Court to convict and sentence the appellant based on the terms of the agreement. The defence also adopted the plea agreement and inter alia urged the Court to temper justice with mercy. The trial Court on that same 22-7-2019 convicted the appellant pursuant to his plea of guilty and the plea agreement and adjourned the case to 25-7-2019 for sentence. The exact text of the proceedings of the trial Court on 22-7-2019 concerning the plea agreement reads thusly-
“Agu – We adopt the plea bargain dated and filed on 19/7/19. We urge the Court to convict and sentence the defendant based on terms of the agreement especially paragraphs 6 & 7.
Omotayo – We adopt the plea Bargain. We urge the Court to tamper justice. The defendant is a 1st offender he has also refunded back every single kobo.
He is a youth corp member. He has been in custody since his arrest. He has been helping the commission to arrest other people in the act.
We urge the Court to leave the defendant in the custody of the commission pending sentencing
Court- Pursuant to the plea of the guilty by the defendant and the plea bargain agreement, the defendant is convicted as charged.
The case is adjourned to 25/7/19 for sentence.
The defendant shall be remanded in prison custody pending the sentence.”
On 25-7-2019, the trial Court rendered its decision on the sentence of the convict thusly- “The convict pursuant to the plea bargain agreement on 19/7/19 and the plea of guilty of the 4 count charge was convicted on 22/7/19. The prosecution counsel urged the Court to sentence the convict in accordance with the plea bargain agreement.
In accordance with the plea bargain agreement an order of forfeiture of the convict properties, to wit:
1. Ash colour 2014 Toyota Camry Car.
2. One Apple I phone
3. One Apple Laptop
4. One Dell laptop
The items are considered to be proceeds of crime hereby made. The properties are forfeited to Federal Government of Nigeria. The forfeited properties shall be sold and proceed derived from shall be paid to the victim as restitution.
The convict pleaded guilty to the 4 count charge punishable under S.324 of the Penal Code.
Section 324 provides:
“Whoever cheats by personation shall be punished with imprisonment for a term which may extend to 5 years or with fine or with both.”
In the case of ZACHEOUS VS PEOPLES OF LAGOS STATE (2015) LPELR- 24531 (CA) it was held that in sentencing a convict “the Judge is bound to consider factors, such as the seriousness or other wise of the offence, the prevalence of the offence, whether the convict is a first time offender, and prevailing attitude of the populace to the offence.”
Learned Counsel for the convict urged the Court to tamper justice with mercy. That the convict has been helping EFCC to arrest other persons in the act. The learned counsel for the prosecution pleaded with the Court to consider paragraphs 6 & 7 of the plea bargain agreement.
Having read the terms of the plea bargain agreement, I have noted that there is no mention of sentence therein either for a term of imprisonment or a fine. It seems to me that the purport of the agreement is to allow the convict to go home without any form of punishment, simply because he agreed to report to the commission every Wednesday on weekly basis for a period of one year, to assist in investigation.
Let me say here, that it is not incumbent on the Court to adopt the agreement of the parties. Courts have a duty to enforce the provisions of the Act under which an accused is charged.
It is not in doubt that cyber crimes dent the image and affect the integrity of our dear country. I must say that the appropriate law/act to charge the convict is the Cyber crimes (protection and prohibition etc) Act that has laudable provisions aimed at redeeming the image and integrity of this nation. It has appropriate punishment that can deter young persons from engaging in cybercrimes. My Lord Hon. Justice Sankey JCA made a striking comment in the case of JUBRIL VS. F.R.N (2018) LPELR – 43993 (CA) thus:
“It must be disheartening to all right thinking Nigerian that the rampant, atrocious and egocentric crime has unleashed dire consequences on the integrity and image of the country. This has both short and long term effects on the society and the nation as a whole. Therefore although the punishment prescribed by law …may be appear harsh and draconian, it is hoped that it will deter like-minded persons from embarking on such criminal ventures.”
Cybercrimes are flourishing amongst our youth to the extent that even secondary school students engage in it.
It is most appropriate that our prosecution agencies arraign accused persons under the provisions of the right law, before the Court that has jurisdictional competence to try the case. I say no more.
Though the ACJA, 2015 has codified plea bargain, I do not think the intention of the law makers is to give an accused or a defendant a pat on the back by the prosecution agencies in a form of an agreement for a ridiculous sentence of terms of imprisonment or no sentence at all.
S.270 (11) (C) ACJA gives the Court the power to impose a heavier punishment other that the one agreed by the parties and I intend to go by the provision.
Consequently, the convict is hereby sentenced to a terms of 4 years imprisonment on each of the 4 counts to run concurrently.”
Learned counsel for the appellant has argued that the trial Court having decided to deviate or depart from the plea agreement in levying sentence on the appellant was bound by S.270(11) and (15) of the Administration of Criminal Justice Act (ACJA) to inform the appellant that the offence requires a sentience than as contained in the plea agreement and thereby give him the opportunity to elect to abide by his plea of guilty or withdraw from his plea of guilty, that the trial Court lacked the power to proceed to impose the sentence of 4 years on the appellant without informing him as prescribed in S.270(11) and without giving him the opportunity to elect to abide or withdraw from his plea of guilty as prescribed in S.270(15), that the sentence so imposed is in violation of the appellant’s right to fair hearing and is therefore a nullity and that this Court should therefore nullify the conviction and sentence.
Learned Counsel for the respondent argued in reply that the maximum punishment for the offence under S.324 of the Penal Code is five years, that the trial Court exercised its discretion and imposed 4 years imprisonment, that the trial Court, exercised its discretion under Part 1 Paragraph 2(2)(a) and (b) of the Federal Capital Territory Courts (Sentencing Guidelines) Practice Direction 2016 which is akin to S.416 of Administration of Criminal Justice Act (ACJA) which gives the trial Court sentencing discretion, that paragraph 3 of the plea agreement left the sentence to be imposed to the discretion of the trial Court and that the trial Court exercised its discretion judicially and judiciously.
Let me now determine the merits of the above arguments of both sides.
The exact text of the plea agreement entered into by the parties herein and relied on by the trial Court to convict the appellant reads thusly-
“PLEA BARGAIN AGREEMENT
This Plea Bargain agreement is made pursuant to Section 270 of the Administration of Criminal Justice Act, 2015 this 19th day of July, 2019 between Federal Republic of Nigeria (represented by the Economic and Financial Crimes Commission) and Chinaka Chijioke Promise.
WEAREAS:
1. The Defendant, Chinaka Chijioke Promise was arrested on the 11th day of June, 2019 at his residence in Gwarimpa, Abuja, FCT based on an intelligence report received by the Economic and Financial Crimes Commission about the activities of internet fraudsters.
2. During the course of investigation carried out it was revealed that:
a. The defendant dishonestly made use of the email and password of Dente S.A a company in Romania and fraudulently obtained the sum of Five Hundred US Dollars ($500).
b. The defendant dishonestly made use of the email and password of Hamas Co. (S.R.L) Co. Ltd a company in Vietnam and fraudulently obtained the sum of One Thousand US Dollars ($1000)
c. The defendant dishonestly made use of email and password of Tempo Cycling a company in Columbia and fraudulently obtained the sum of Three Thousand US Dollars ($3000).
d. The defendant dishonestly made use of the email and password of K.M.C. W.L.L a company in Afghanistan and fraudulently obtained the sum of Three Thousand US Dollars ($3000).
3. Upon the discoveries described aforesaid, the defendant made a confessional statement admitting his wrong doings and applied through his counsel Olarenwaju Omatayo-Ojo to the Commission for a plea bargain.
4. The Prosecution after due consultation with the investigating offer has agreed to the request as stated hereunder.
IT IS HEREBY AGREED AS FOLLOWS:
1. That before the conclusion of this agreement, the Defendant was informed:
a. That he has right to remain silent.
b. Of the consequences of not remaining silence.
c. That he is not obliged to make any confession that could be used in evidence against him:
2. That the Defendant shall plead guilty to the four (4) counts charge of cheating by personation dated and filed 12th July, 2019 before this Honourable Court.
3. That upon conviction, sentencing of the convict shall be predicated on the Sentencing Guidelines of this Honourable Court.
4. That the defendant shall forfeit to the Federal Government of Nigeria the following:
a. One Ash Color 2014 Toyota Camry Car
b. One Apple Iphone
c. One Apple Laptop and;
d. One Dell Laptop
Which were purchased with the proceeds from the crime and recovered during the course of investigation.
5. That monies derived from the sale of the above mentioned items shall be paid by the Economic and Financial Crimes Commission to the victims through their various embassies as restitution.
6. That the defendant hereby undertakes and agrees to assist the Economic and Financial Crimes Commission with investigation into internet and cyber crime issues pertaining to hacking of emails and websites and to provide the Commission with any other useful information regarding internet intersection and to that effect shall report at the EFCC office every Wednesday, weekly for a period of one (1) year.
7. That if the defendant fails to honour the aforementioned, he shall be rearrested and prosecuted for the appropriate criminal offences.
IN WITNESS WHEREOF the parties hereto have set their hands the day and year first written above.”
The trial Court rightly held that the plea agreement did not mention that a term of imprisonment or fine was to be imposed on the appellant upon conviction and that the purport of the agreement is to allow the convict to go home without any form of punishment in addition to the forfeiture of the proceeds of the crimes as consideration for his agreement to assist in investigation. I agree with the holding of the trial Court that it is not mandatory that the trial Court must adopt the agreement of the parties. But if it chooses to depart from the terms of the agreement to levy sentence on the convict, then it must comply with the provisions of S.270(11) and (15) of the Administration of Criminal Justice Act (ACJA) which provides that-
“270(11) Where a defendant has been convicted under subsection (9) (a), the presiding judge or magistrate shall consider the sentence as agreed upon and where he is: (a) satisfied that such sentence is an appropriate sentence, impose the sentence; (b) of the view that he would have imposed a lesser sentence that the sentence agreed, impose the lesser sentence; or (c) of the view that the offence requires a heavier sentence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.
270 (15) Where the defendant has been informed of the heavier sentence as contemplated in subsection (11) (c) of this section, the defendant may: (a) abide by his plea of guilty as agreed upon and agree that, subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the presiding judge or magistrate proceed with the sentencing; or (b) withdraw from his plea agreement, in which event the trial shall proceed de novo before another presiding judge or magistrate, as the case may be.”
The trial Court was bound to comply with the above provisions after directing itself that- “Though the ACJA, 2015 has codified plea bargain, I do not think the intention of the law makers is to give an accused or a defendant a pat on the back by the prosecution agencies in a form of an agreement for a ridiculous sentence of terms of imprisonment or no sentence at all.
S.270 (11) (C) ACJA gives the Court the power to impose a heavier punishment other that the one agreed by the parties and intend to go by that provision.”
The appellant admitted his guilt and entered into a plea agreement that did not provide that any specific sentence would be imposed on him. It is obvious that the terms of that agreement is his consideration for readily admitting guilt and entering the plea agreement. The requirement of S.270(11) and (15) of Administration of Criminal Justice Act (ACJA) that the trial Court inform the accused of its decision to deviate from the plea agreement and give him an opportunity to elect to withdraw from or abide by the plea agreement, since the basis for the agreement has changed, is one of fairness and good faith to avoid the perception that the accused’s admission of guilt and his entering into the plea agreement was obtained by means of a false promise or deception. The admission of guilt and plea agreement was in return for some concessions from the prosecution. If the concessions or any of them has changed, then it is fair that the accused be so informed and given an opportunity to elect to withdraw from or abide by his plea agreement. S.270(15) protects the voluntariness of his guilty plea, his freedom to plea deal or bargain and his fundamental right to be presumed innocent until his guilt is proven beyond reasonable doubt or he voluntary admits his guilt. Therefore the failure of the trial Court to inform the appellant that a sentence would be imposed on him and the terms of the sentence and to put him to elect to withdraw from or abide by the plea of guilty as agreed upon, violates the voluntariness of his guilty plea, his fundamental right to be presumed innocent and his fundamental right to a fair trial.
The 4 years sentence imposed by the trial Court is one year less than the maximum of 5 years prescribed by S.324 of the Penal Code Law under which the appellant was tried and punished. It provides that “whoever cheats by personation shall be punished with imprisonment for a term which may extend to five years or fine or with both.” The trial Court in levying the said sentence, did not show regard for paragraph 6 of the plea agreement in which the appellant had undertaken to assist the Economic and Financial Crimes Commission with investigation into the internet and cyber crime issues pertaining to hacking of emails and websites and to provide the commission with any other useful information regarding internet intersection and to that effect shall report at the Economic and Financial Crimes Commission office every Wednesday, weekly for a period of 1 year and the agreement of both parties in paragraph 7 that should the appellant fail to discharge his obligation in paragraph 6, he shall be rearrested and prosecuted for the appropriate criminal offence.
The trial Court in its decision expressed its lack of regard for such an agreement when it said that the purport of the agreement is to allow the convict to go home without any form of punishment, simply because he agreed to assist the investigation of internet and crimes, that it is not mandatory for the trial Court to accept the plea agreement, that the Court has a duty to enforce the provisions of the Act under which an accused is charged, that though the Administration of Criminal Justice Act (ACJA) provides for plea bargain, its purpose is not to give an accused a pat on the back by an agreement for a ridiculous sentence of imprisonment or no sentence at all and that the Administration of Criminal Justice Act (ACJA) gives the Court the power to impose a heavier punishment other than the one agreed by the parties. The trial Court clearly disregarded the plea agreement and proceeded to consider only the nature of the crime and its impact on the society in exercising its discretion to sentence as if the appellant was convicted upon a full trial and not as a result of a plea agreement.
A plea agreement (bargain or deal) is a legal process of our criminal justice administration. Therefore a trial Court is legally obligated not to reject it unless it is contrary to public interest and the sentence recommended in the agreement would bring the administration of Justice to disrepute. It is desirable that the plea agreement obtained in return for a plea of guilty be respected by the trial Court. Where the trial Court refuses to accept the term of the plea agreement concerning the punishment of the accused on the ground that the term is ridiculous, disreputes administration of justice, is unlawful or is contrary to public policy, it must give reasons for such conclusions. It is not enough to simply refuse to accept the plea agreement because it purports to allow the convict to go home without punishment. The decision of the trial Court ought to show a consideration of why such agreement is ridiculous or show that it disreputes administration of justice, or that it is unlawful within the context of the peculiar facts of the case. There is nothing in the decision that shows that the trial Court considered the wisdom of the prosecution accepting no sentence of the appellant in return for his guilty plea and undertaking to assist in the investigation of internet and cyber crimes and in pursuance of this undertaking report once every week to Economic and Financial Crimes Commission for one year. Can such an agreement be said to be contrary to public interest or ridiculous considering that the fact is common knowledge that in our country the prevention, control, investigation and prosecution of internet and cyber-crimes have proven very difficult because of the specialized scientific and technical knowledge involved in the commission of such a crime with a global network. The refusal of the agreement because it allows the appellant to go unpunished without more is perverse and unreasonable. The trial Court has not shown that it judicially and judiciously discharged its role of ensuring that proper administration of criminal justice is not sacrificed in the interest of expediency. The delays in criminal trials make impossible trials within a reasonable time as required by S.36(1) of the 1999 Constitution and the resulting huge costs of such trials both for the state and the accused, the pervading lack of capacity to efficiently and effectively investigate crimes and the rampant failure of criminal investigations and trials that has created a tick climate of impunity for crimes and erosion of public confidence in the machinery of administration of criminal justice make plea bargaining and or agreement a necessity. Plea agreement would result in expeditious and economic disposal of majority of criminal cases within a reasonably short time, reduce the cost of criminal litigation, secure more convictions through pleas of guilty and make the administration of criminal justice more efficient and effective.
In the light of the foregoing, I resolve the sole issue raised for determination in the appellant’s brief in favour of the appellant.
On the whole, this appeal succeeds as it has merit. It is hereby allowed. The entire ruling of the High Court of the Federal Capital Territory delivered on 25-7-2019 in criminal case No. FCT/HC/CR/422/2019 by Muawiyah Baba Idris J is hereby set aside.
Consequently the sentence of the appellant to 4 years imprisonment on each count of offence is hereby set aside.
Having set aside the ruling of 25-7-2019 on sentence and the sentence ordered therein, the case should be remitted back to the trial Court for a de novo hearing on sentence in accordance with S.270(11) and (15) of Administration of Criminal Justice Act (ACJA). But such a remission would not be in the interest of substantial justice because the appellant having been sentenced since 25-7-2019 has served about 10 months of the 4 years term of imprisonment and thereby rendered a rehearing on sentence in accordance with S.270(11) and (15) Administration of Criminal Justice Act (ACJA) illusory. Yet the violation of the legal right given to him by S.270(11) and (15) Administration of Criminal Justice Act (ACJA) and his fundamental right to a fair hearing must be remedied to meet the demands of justice in the case.
I think that a sentence of 9 months would serve the demands of justice in this case. The accused is hereby sentenced to a term of imprisonment of 9 months. Since he has been in prison custody for 10 months, it follows that he has already served the 9 months prison term. Therefore it is hereby ordered that he be released from prison forthwith unconditionally.
ABDU ABOKI, J.C.A.: My learned brother, EMMANUEL AKOMAYE AGIM, JCA obliged me with a copy of the judgment just delivered. His Lordship has exhaustively considered and ably resolved the sole issue in contention in this appeal. I agree with the reasoning and conclusion that the appeal is meritorious and should be allowed. It is accordingly allowed by me.
I will just add in reiteration that plea bargain boils down to a negotiation between an Accused and the Prosecution, in which the Accused agrees to plead “guilty to some crimes in return for reduction of the severity of the charges, dismissal of some of the charges, and the Prosecutor’s willingness to recommend a particular sentence or other benefit to the accused.
Obviously, the essence of plea bargain is not just to conclude a trial. There must be a negotiated agreement between the Prosecution and the person accused of a crime, whereby the accused agrees to plead guilty to a lesser offence or to one of multiple charges in exchange for some concession by the Prosecution, which is usually in the form of a more lenient sentence or a dismissal of the other charges – see Black’s Law Dictionary, 9th Ed. See PML (NIG) LTD v. FRN (2017) LPELR 43480 (SC)
In this case, the Appellant admitted his guilt and entered into a plea agreement that did not provide that any specific sentence would be imposed on him. The requirement of Section 270(11) and (15) of the Administration of Criminal Justice Act (ACJA) is that the Trial Court informed the accused of its decision to deviate from the plea agreement and give him an opportunity to elect to withdraw from or abide by the agreement. The admission of guilt and plea agreement was in return for some concession from the Prosecution. If the concessions or any of them has changed, then it is only fair that the Appellant be so informed and given an opportunity to elect to withdraw from or abide by his plea agreement. Therefore, the failure of the Trial Court to inform the Appellant that a sentence would be imposed on him and the terms of the sentence and to put him to elect to withdraw from or abide by the plea of guilty as agreed upon; violates the voluntariness of his guilty plea, his fundamental right to be presumed innocent and his fundamental right to a fair trial.
It is for this and the fuller reasons contained in the lead judgment of my learned Brother EMMANUEL AKOMAYE AGIM, JCA that I also adjudge this appeal to be meritorious. I therefore allow same.
I also abide by the orders made in the lead judgment.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned Brother, EMMANUEL AKOMAYE AGIM, JCA and I agree with the reasoning and conclusion of the sole issue distilled for determination. I have nothing more to add.
I also abide by the orders made therein.
Appearances:
Ojukwu Chikaosolu Esq., with him, Mrs Ebere Nwanya Esq. For Appellant(s)
Aminu Ahmed Esq. For Respondent(s)
