Legal Nuggets (89):PLEA BARGAIN- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

MUHAMMED v. FRN (2019) LPELR-48107(CA)

ISSUE

PLEA BARGAIN : Statutory provisions as regards perspectives of plea bargain and the duty of an appellant whose appeal is founded on plea bargain on the issue of sentencing

PRINCIPLE
"Talking about the existence of a plea bargain as found by the trial Court brings to mind, provisions of Section 270 of the Administration of Criminal Justice Act, 2015. Plea bargain as a concept established under this provision of the Act, can be understood and applied from 3 (three) different perspectives, namely: (i) The plea bargain from the perspectives of Section 270(2) of ACJA, 2015; (ii) The plea bargain as understood from the perspectives of Section 270(3) and (5) of the ACJA, 2015; (iii) The plea bargain as understood from the perspectives of Section 270(4) of the ACJA, 2015. From the facts placed before us in this appeal, I think we are more concerned with the plea bargain covered by provisions of Section 270 (4) of the Administration of Criminal Justice Act, 2015, and the proper application of those provisions to the situation on hand. S. 270(4) provides thus:- "(4) The Prosecutor and the defendant or his legal practitioner may, before the plea to the charge, enter into an agreement in respect of:- (a) The term of the plea bargain which may include the sentence recommended within the appropriate range of punishment stipulated for the offence or a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge; and (b) An appropriate sentence to be imposed by the Court where the defendant is convicted of the offence to which he intends to plead guilty." On the 24th October, 2016, when the appellant first appeared at the Court below, his plea of "not guilty" to the charge was taken and recorded. See pages 65-60 of the record of appeal. Subsequent to that i.e on the 16th December, 2016, the appellant having also reviewed his position, now changed that plea of "not guilty" to one of "guilty". See proceedings of the 16th December, 2016 at pages 70-71 of the record. This change of plea, no doubt informed the 2(two) proposals made by him of his willingness to enter a "plea bargain" with the respondent upon the conditions given by him, to include, for the first proposal, as follows:- "(i) The accused shall plead guilty to the charge filed against him as contained in charge No. FHC/KN/CR/166/2016. (ii) The accused shall forfeit 30% of the entire undeclared sum (representing the grand sum of $156,210 One Hundred and Fifty Six Thousand Two Hundred and Ten US Dollars). (iii) The accused shall be given an option of fine." In the 2nd proposal dated 9th December, 2016 and filed on the 13th December, 2016 (Pages 38-39 of the record), the appellant gave conditions similar to those in the first proposal except for his willingness to forfeit up to 50% of the entire undeclared sum as against 30% on the previous offer made to the Federal Government. The trial Court, sitting on the 16th December, 2016 convicted and sentenced the appellant upon his own plea of "guilt", to the charge framed against him. As indicated elsewhere in this judgment, this appeal thus, is against sentence only. Appellant's grudges are mainly two (2), namely:- (i) The trial Court ordered forfeiture of 50% of the undeclared sum as against the 30% agreed and negotiated by parties in the plea bargain. (ii) The order of forfeiture of 50% of the undeclared sum, far exceed the minimum statutory requirement of the law. ?The law under which the appellant was tried, convicted and sentenced is Section 2(3) (5) of the Money Laundering (Prohibition) Act, 2011 (as amended) in 2012. Sub-sections 3 and 5 of Section 2 of the Money Laundering (Prohibition) Act, 2011 (as amended) in 2012 provide thus:- "(3) Transportation of cash or negotiable instruments in excess of US$10,000 or its equivalent by individuals in or out of the country shall be declared to the Nigerian Customs services. (5) Any person who falsely declares or fails to make a declaration to the Nigerian Customs Service pursuant to Section 12 of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, commits an offence and shall be liable on conviction to forfeit the undeclared funds or negotiable instrument or to imprisonment of not less than 2 years or to both. (As amended by Money Laundering (Prohibition) (amended) Act, 2012." The punishment on conviction under Section 2(5) of the Money Laundering (Prohibition) Act, is the forfeiture of all the undeclared funds or a term of imprisonment of not more than 2 years or both. It follows therefore that the appellant or the person whose appeal was founded on plea bargain, to succeed, must be able to establish that the terms of the plea bargain as it relates to sentence, were terms consistent and in conformity with the stipulations contained in the statute under which the defendant/appellant was punished. Where therefore the terms and conditions under which the negotiated agreement were reached, were not in conformity with the relevant penal laws or statutes, an appeal on that account against conviction and sentence cannot succeed. It is not being suggested in this appeal that the appellant pleaded to a lesser charge as a condition in the negotiated agreement. Rather, on the facts and evidence presented at the trial Court, the charge to which the appellant gave his plea is still the same charge framed under S. 2(5) of the Money Laundering Act. For the plea bargain on the issue of sentencing to be relevant, it must in all cases be in conformity with the provisions of the penal law under which the appellant was charged. It is not so with the appellant in this appeal case, hence the claim or contention that the Court below ordered forfeiture of a sum other than the sum agreed upon in the negotiated arrangement, is not the law. The law provides for order of forfeiture of all the undeclared funds or sums of money in the event of conviction and sentence hence the order of forfeiture of 50% of the undeclared sum made at the trial Court is adjusted accordingly." Per HUSSAINI, J.C.A. (Pp. 12-18, Paras. F-A