➥ CASE SUMMARY OF:
Romrig Nigeria Limited V. Federal Republic of Nigeria (SC.254/2014, 15 Dec 2017)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Plea bargain;
Double jeopardy.
➥ CASE FACT/HISTORY
The background facts which gave rise to this appeal as gathered from the Record are summarised below. The prosecution preferred 66 count charge against the appellant and 6 other accused persons before the trial Court. The appellant herein, was the 5th accused person and he and his co-accused were alleged to be involved in the laundering of the funds belonging to the Edo State Government and Local Government, of the State. On being served with the charge, the accused persons filed an application dated 4th February, 2011 challenging the jurisdiction of the Federal High Court Benin to entertain the charge. The application was predicated on the doctrines of double jeopardy and condonation. They complained that they have been charged at the Federal High Court, Enugu in charge No FHC/EN/6C/2008 between FRN v. LUCKY NOSAAKHARE IGBINEDION and Others and that Judgment was entered after a plea bargain arrangement between the accused persons and the prosecution. In opposing the motion, the prosecution filed a counter affidavit, wherein it was stated that neither the appellant herein, nor any of the accused persons was convicted in the charge filed at Enugu Federal High Court for the offence of money laundering and that it was only the 1st accused person (Lucky Igbinedion) who was charged and convicted for the offence bordering on non-disclosure of assets (Money in GTB Account) before the trial Court.
In its ruling dated 31st May, 2011, the trial Court dismissed the application and held that the doctrine of double jeopardy and abuse of Court process were not available to the appellant as well as 2nd, 3rd, 4th and 7th accused persons. Dissatisfied with the Ruling, the appellant unsuccessfully appealed to the Court of Appeal (lower Court), hence the present appeal to the Supreme Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Court of Appeal was right in affirming the decision of the trial High Court that there was no plea bargain agreement between the appellant and the respondent in respect of the charge before the Federal High Court Enugu?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THERE IS NO EVIDENCE OF ANY PLEA BARGAIN AGREEMENT
‘Now in the present scenario, one must in the first place consider whether there was actually any agreement on plea bargain between the appellant and the present respondent in the case before the Enugu Federal High Court. It is worthy of note that the appellant herein, being a company was not represented by any of its directors who took part in the supposed or alleged plea bargain at the Federal High Court, Enugu. Similarly, at Enugu, there was no evidence showing that the appellant was ever tried or was either convicted or acquitted as would constitute or put a bar on the EFCC from arraigning it before the Benin Federal High Court for prosecution on the new charges or counts. There is also no agreement whatsoever, to establish that some charges were to be condoned, especially the charges on which it was arraigned before Federal High Court Benin. My lords, permit me to even observe at this stage, that none of the parties at both the trial Court and the lower Court produced any term of agreement relating to the “Plea Bargain Arraigned” or “settlement”. This Observation was validly made page 2426 of volume v. of the Record of Appeal. Therefore, it is also my opinion that by presenting or canvassing the issue of Plea Bargain which was not backed by any written term/agreement, the appellant only wanted to call upon the two lower Courts to act within the realm of conjecture or to speculate which is not the duty or function of a Court of law.’
‘Thus consequent upon all that I have posited above, I am inclined to agree with the finding of lower Court when it stated at page 2-26 vol v. of the Record as below:- “There is no evidence or documentation of any plea bargain agreement. The fact that the Appellant’s company herein was not represented by any of its directors either to arrange a plea bargain meeting is also fatal to its case as it has been established that directors of the Appellant’s company were even at large during the period Lucky Igbinedion entered in to agreement with the EFCC and all through trial I am of the view that a plea bargain agreement is a post arrangement 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 abstantia or by representation of the accused person. Only directors to an accused corporate entity can represent such a company in a plea bargain arrangement. Since the accused must personally make his plea in Court, an accused person must also be present personally to negotiate his plea bargain agreement Parties cannot expect the Court to act on an imaginary agreement.”’]
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↪️ II. Whether the Court of Appeal was not right in affirming the decision of the High Court that the Appellant is not entitled to any of the defences of condonation, Plea of autrefois convict, doctrine of double jeopardy and abuse of Court process?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THERE WAS NO COMPROMISE THAT WOULD BENEFIT THE APPELLANT
‘Considering the antecedents of this instant case, I am not convinced that all these pre-requisites mentioned above were met or fulfilled by the appellant for it to benefit from the above provisions which was relied on by the appellant’s learned counsel and Section 14(2) is therefore not applicable to this instant case. Similarly, no evidence was adduced by the appellant to show that a sum exceeding the amount involved in the offence was paid by it to the present respondent. In the light of my discourse above, I endorse the finding of the lower Court that plea bargain did not inure to the appellant herein and also there was not any compromise that had existed between Lucky Igbinedion on one hand and the EFCC on the other hand, as would inure in favour of the appellant.’
APPELLANT CANNOT BE CONDONED AS HE ARGUED
‘On condonation, my understanding of the word “condone”, is that it means to pardon or to over look (an offence), to forgive or to show act of forgiveness. I do not think such term or terminology fits well in the instant scenario. It is in the light of what I have highlighted above, that I hold the firm view that the crime on which the appellant was accused of committing can not be condoned, as rightly held by the lower Court.’
DOUBLE JEOPARDY DOES NOT AVAIL THE APPELLANT IN THIS CASE
‘In the result, a person who has been duly tried by a Court which has Jurisdiction of any offence and in the end acquitted or convicted can not later be arraigned before that Court or any other Court for the same offence, for to do so, will amount to double jeopardy and will thus run riot and violent to the above provisions and Section 36(9) of the 1999 Constitution as amended. It must however be emphasised that for the above provisions to operate, the offence tried and the fresh one to be tried must be the same. In the present case, as rightly found by the trial Court and endorsed by the lower Court, evidence was not adduced to show that the appellant was in fact convicted or acquitted by any Court on the offence, contained in charge No FHC/B/11C/2011. Therefore, it is my humble view, that the doctrine of double Jeopardy could not avail the present appellant, as correctly found by the two Courts below.’
THERE IS NO ABUSE OF PROCESS – THE CHARGES AT THE DIFFERENT COURTS ARE NOT THE SAME
‘A quick answer to this poser, is that it had not been shown by him that there was any conviction or acquittal by any Court with regard to the transaction for which the appellant was arraigned on a charge before the Benin Federal High Court and there was no evidence adduced to show that the charge before the Federal High Court Enugu covered the latter charge filed before Federal High Court Benin. Closely looking at the charges filed before Benin Federal High Court (the trial Court) they are at wide variance with those filed earlier before the Enugu Federal High Court. I therefore hold that the filing of the charge before Benin Federal High Court which did not relate to the same transaction covered in the charge filed before the Enugu Federal High Court, such did not amount to abuse of Court process. The Attorney General of the Federation therefore has unfettered right to institute the charge before the trial Court.’]
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.
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✓ DECISION:
‘The Judgment of the lower Court which had earlier affirmed the Ruling of the trial Federal High Court Benin is hereby further affirmed. The appeal being lacking in merit is hereby dismissed by me. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ THREE CONDITIONS BEFORE AN OFFENCE CAN BE COMPOUNDED
Let us now examine the provisions of Section 14(2) of that Act which reads thus:- “Subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney General of the Federation to institute, continue, take over or discontinue criminal proceedings against any person in any Court of law) the Commission may compound any offence punishable under this Act by accepting such sum of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.” From the wordings of the above quoted provisions, there are three conditions which must be met or satisfied before an offence can be compounded; namely (a) The offence to be compounded must be one that is punishable under the EFCC Act (b) the sum of money that EFCC can accept must exceed the maximum amount to which person would have been liable to pay if he had been convicted. (c) the EFCC can accept money in compounding the offence. In addition, there must be a written agreement between the appellant and the Respondent on the issue of compounding of the crime for which the appellant was charged and also the amount to be accepted by the respondent must be explicitly stated in the written agreement for compounding the offence no more no less. —A. Sanusi JSC.
⦿ MEANING OF CONDONATION
On condonation, my understanding of the word “condone”, is that it means to pardon or to over look (an offence), to forgive or to show act of forgiveness. —A. Sanusi JSC.
⦿ WITHDRAWAL OF CHARGE DOES NOT EQUATE ACQUITTAL
The next point canvassed by parties learned counsel, is whether withdrawal of a charge amounted to an “acquittal”. Here I do not think much energy should be exerted in answering this question. The issue of acquittal only arises in a situation where there is a full-blown trial in which evidence was led by the prosecution and the defence or that the latter had admitted committing of the offence charged. Where a Court having jurisdiction, had taken evidence and finally acquitted or convicted an accused person, in that case such acquitted or convicted person can not later be taken or arraigned before another Court or any Court for the trial on the same offence or offences because to do so would certainly amount to double jeopardy. See Section 182 of the Criminal Procedure Act, which is in pari materia with Sections 238 and 239 of the Administration of Criminal Justice Act of 2015. For this provisions to apply, it must be shown through credible evidence that there was a previous conviction or acquittal made by a Court that had jurisdiction to try that person. See Section 36(9) of the 1999 Constitution. See also Chief of Air Staff v. Iyen (2005) 6 NWLR (Pt. 924) 496 at 535. —A. Sanusi JSC.
⦿ WITHDRAWAL OF CHARGE CAN BE DONE AT ANY TIME BY THE PROSECUTION
On the other hand, withdrawal of charge, does not amount to acquittal as rightly held by the lower Court. The prosecution always has the power to withdraw any charge it had filed earlier before a Court against an accused person. That withdrawal may be done for purpose of abandonment of the charge or for whatever reason the prosecution decides to do so without necessarily informing the trial Court the reason for such withdrawal. Withdrawal can also be done at any stage of the trial before conclusion or before Judgment is delivered either convicting or acquitting the accused person. In some of our laws however, “withdrawal” does not amount to dismissal of the case, in which case a bar to further prosecution could avail the appellant, depending on the circumstance of a given case. —A. Sanusi JSC.
⦿ ORIGINATION OF PLEA BARGAIN
Suffice it to say at this point that the concept of plea bargain agreement itself originated from the American jurisprudence and became established in the case of Robert M. Brady v. United States 397 U.S. 742 (90 S. Ct. 1563, 25 L. Ed 2d 747). It dated as far back as 1959 wherein the accused was charged with kidnapping and faced maximum penalty of death. He pleaded guilty to the charge and was sentenced to 50 years imprisonment. In 1967, he sought for relief under 28 U.S.C 2255 claiming that his plea of guilty was not voluntary but that his counsel mounted impermissible pressure on him to plead guilty. The District Court for the District of New Mexico denied him the relief. The Court of Appeal affirmed the decision of the District Court. The Supreme Court of the United States also affirmed the decision of the Court of Appeal. Since the seal of approval by the US Supreme Court therefore the Courts have treated plea bargain as contracts between the prosecutors and defendants. — C.B. Ogunbiyi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Amiru Sanusi, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Richard Oma Ahonarruogho.
⦿ FOR THE RESPONDENT(S)
Rotimi Jacobs SAN
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
