➥ CASE SUMMARY OF:
Patrick Eboiegbodin v. Federal Republic of Nigeria (CA/B/329CF/2011, 9 April 2014)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Plea bargain.
➥ CASE FACT/HISTORY
The respondent, on 22 January 2008 at the Federal High Court Enugu, proferred charge No: FHC/EN/6C/2008 – F.R.N. v. Lucky Nosakhare Igbinedion. 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 December 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 pages 812-819 of the record. The court sat on the same 18 December 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 January 2011, the respondent filed charge No. FHC/B/ 11 C/ 2011 at the Federal High Court, Benin headed FRN. v. Lucky Igbinedion. The appellant herein was one of the accused persons in the new charge before the Federal High Court, Benin. On 4 February 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 on14 December 2011 and the respondent filed a counter-affidavit on 18 February 2011. Briefs of arguments were later exchanged between parties. On 31 May 2011, the court in delivering its ruling, discharged and acquitted only the 1st accused person and ordered the other accused persons (including the appellant herein) to take their plea.
This is an appeal against the ruling of the Federal High Court, Benin Division, delivered by Hon. Justice Adamu Hobon on 31 May 2011, wherein his lordship dismissed the reliefs claimed by the appellant in the motion on notice dated 4 February 2011 and consequently ordered that the appellant enter its plea to the charge dated 21 January 2011 against him.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether in the circumstances of charge No. FHC/EN/6C/ 2008 – Federal Republic of Nigeria v. Lucky Nosakhare Igbinedion, in its original form and as amended on 13 October 2008 and 17 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. FHCB/11C/2008 – F.R.N. v. Lucky Nosakhare Igbinedion and 6 Ors. ?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[APPELLANT IS NOT A PARTY TO THE PLEA BARGAIN
‘What any reasonable person would decipher from the proceedings of the court on 17 and 18 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 bylegal counsel. The “accused persons” referred to by Mr. Jacobs on 17 December 2008 were the 1st and 2nd accused when we read the events of the 17 December 2008 and 18 December 2008 together, we will observe that on 18 December 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.’
‘I agree with the learned trial Judge’s well reasoned decision. It is clear that there is nothingin the record to show that the appellant herein orany of the other accused persons except Lucky Igbinedion approached the E.F.C.C. for a plea bargain. There is no evidence or documentation of any plea bargain agreement. The fact that the appellant was not present to arrange a plea bargain meeting is material as he was even at large during the period that Lucky Igbinedion entered agreement with the E.F.C.C. and all through trial.’
A CRIME CANNOT BE CONDONED BY THE STATE
‘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 autre fois convict raised by the appellant, let us examine the meaning of the dictum in relation to the facts of this case.’
THE APPELLANT WAS NEVER ARRAIGNED
‘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 December A 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 December 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) of the Criminal Procedure Act. There can never be a conviction without an arraignment by the court of law.’
DOUBLE JEOPARDY IS NOT AVAILABLE TO THE APPELLANT
‘Was the appellant herein convicted or acquitted bythe court in charge No. FHC/EN/6C/2008 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 No. 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 section 164(4) Criminal Procedure Act; Attah v. State (1993) 7 NWLR (Pt. 305) 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 January 2008 to which a plea was taken and the amended one of 13 October 2008 to which no plea of the accused persons were taken cannot ground a plea of autre fois convict or autre fois acquit under section 36(9) of the 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 the same. (c) The earlier trial must have resulted either in the discharge , acquital, 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.’
NO COMMITTAL OF ABUSE OF COURT PROCESS BY THE RESPONDENT
‘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 inprovingthe plea bargain,but wasnever arraignedor convicted in the said earlier charge.’]
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✓ DECISION:
‘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 May 2011 in respect of the appellant is hereby affirmed. The appellant is to answer the charges before the trial court. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ MEANING OF PLEA BARGAIN
What is plea bargain arrangement? Bryan Garner’s Black’s 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.” — Ogunwumiju JCA.
⦿ SENTENCE BARGAIN VS CHARGE BARGAIN
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. — Ogunwumiju JCA.
⦿ ORIGINATION OF PLEA BARGAIN
The concept of plea bargain itself, originated from the American jurisprudence and became established in the case of 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 fast, elected to plead guilty. Upon hearing that his co-accused had confessed to the authorities, would plead guilty and be available to testify against him, he changed his plea to guilty. His plea was accepted after he was twice questioned as to the voluntariness of the plea and he was subsequently sentenced to 50 years imprisonment. In 1967, he sought for relief under 28 U.S.C 2255 claiming that his plea of guilty was not voluntary. He claimed that his counsel mounted impermissible pressure on him to plead guilty. The district court for the District of New Mexico denied him the relief. The Court of Appeal affirmed the decision of the District Court. The Supreme Court of the United States in affirming the decision of the Court of Appeal had this to say: “The issue we deal with is inherent in the criminal law and its administration because, guilty pleas are not constitutionally forbidden because the criminal law characteristically extends to the Judge or jury a range of 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 a shorter period of time than might otherwise be necessary.” Subsequently and with this seal of approval by the US Supreme Court, the courts treated a 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 a plea bargain, the defendants may seek relief from the court. — Ogunwumiju JCA.
⦿ ADVANTAGES OF PLEA BARGAIN
The advantages of plea bargain includes: (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. — Ogunwumiju JCA.
⦿ PLEA BARGAIN CANNOT BE MADE IN ABSENTIA; ONLY DIRECTORS CAN REPRESENT CORPORATE ENTITIES
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. Only Directors to an accused corporate entity can represent such a company in a plea bargain arrangement. — Ogunwumiju JCA.
⦿ PLEA BARGAIN SHOULD BE IN WRITING
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 the 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. — Ogunwumiju JCA.
⦿ MEANING OF CONDONATION
Condonation according to Black’s 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 textbook – 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, re-instates 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 thenceforth 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.” — Ogunwumiju JCA.
⦿ PLEA OF DOUBLE JEOPARDY
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 section 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.” — Ogunwumiju JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ogunwumiju JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Mike Ozekhome, (SAN).
⦿ FOR THE RESPONDENT(S)
Rotimi Jacobs, (SAN), Adebisi Adeniyi, Tayo Olukotun, Oladipupo Yeye and Joy Onyekwena.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ MEANING OF CONDONATION
Muhammed, JSC in Asake v. Nigerian Army 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 victims 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 E.F.C.C. 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.’
➥ REFERENCED (OTHERS)
