Legal Nuggets (90):PLEA BARGAIN:Nature, Essence and Condition for the Existence of a Plea Bargain Agreement- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

PML (SECURITIES) CO. LTD v. FRN (2018) LPELR-47993(SC)

ISSUE

PLEA BARGAIN: Nature, essence and condition for the existence of a plea bargain agreement and when it can be rightly held that there was no plea bargain agreement between the prosecution and an accused person.

PRINCIPLE
"...the first question that must be resolved is whether there was a plea bargain agreement between the appellant and the respondent at the Federal High Court, Enugu. Plea bargain is an imported concept, and as the Court of Appeal per Lokulo-Shodipe JCA, who wrote the lead judgment, observed- "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 therein as it is an emerging phenomenon." The first legislation to bring in plea bargain into our criminal jurisprudence is the Administration of Criminal Justice Law of Lagos State (ACJL), 2011. The second is the Administration of Criminal Justice Act, 2015, (ACJA) which provides in its Section 270 (1) that "notwithstanding anything in this Act or in any other law, the prosecutor may receive and consider a plea bargain from a defendant charged with an offence directly from that defendant or on his behalf, (b) Offer a plea bargain to a defendant charged with an offence." As the respondent rightly submitted, the application of the said ACJL is limited to Lagos State and is therefore not applicable in this case, and the said ACJA was not in existence at the time of the facts of this case. However, this appeal is not concerned with the legality or otherwise of the plea bargain rather it is based on the application challenging the jurisdiction of the Federal High Court, Benin to try, hear and determine the offences in the Benin charge filed in 2011. The appellant's complaint against the decision is that he is covered by the plea bargain arrangement at the Federal High Court, Enugu, and once Lucky Igbinedion was held to suffer double jeopardy, the same must also go for him, since they were all taken into consideration before the Enugu charge was terminated. In resolving whether the plea bargain agreement/arrangement covered the appellant, the Court of Appeal per Lokulo-Sodipo JCA, held as follows - "The concept of plea bargain 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 Federal High Court, 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, 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 prosecuting counsel in the charge before the Federal High Court, 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 Federal High Court, Enugu was between the prosecution and Lucky Igbinedion and Kiva Corporation." ?The appellant's contention is that the Court of Appeal is wrong because as a corporate entity, it can only act through human medium or agency, and if Lucky Igbinedion is let off the hook, other persons connected to the charge through him as agent or accomplice, must also be let off the hook - Idiok v. State (2008) All FWLR (Pt. 421) 797, (2008) 13 NWLR (Pt. 1104) 225; Ebri v. State (2004) All FWLR (Pt. 216) 420, (2004)11 NWLR (Pt. 885) 589; Okoro v. State (2012) All FWLR (Pt. 621) 1471, (2012) 4 NWLR (Pt. 1290) 351; Adele v. State (1995) 2 NWLR (Pt. 377) 269; Kalu v. State (1988) 4 NWLR (Pt. 90) 503. It further argued that the Enugu charge was amended after parties reached a compromise, and once parties have agreed and it is given effect, none of them should be allowed to renege or go back on the promise made - Attorney-General, Rivers State v. Attorney-General, Akwa Ibom State (2011) All FWLR (Pt. 579) 1023, (2011) 8 NWLR (Pt. 1248) 31; Ude v. Osuji (1998) 10 SCNJ 75; Military Gov. of Lagos State v. Adeyiga (2012) All FWLR (Pt. 616) 396, (2012) 5 NWLR (Pt. 1293) 291; Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1; Attorney-General, Nasarawa v. Attorney-General, Plateau State (2012) All FWLR (Pt. 630) 1262, (2012) 10 NWLR (Pt. 1309) 419; BFI Group Corporation v. BPE (2012) 18 NWLR (Pt. 1332) 209 and Maiyegun v. The Gov., Lagos State (2011) 2 NWLR (Pt. 1230) 154 cited. Furthermore, that the proceedings of 17 December, 2008 at the Federal High Court, Enugu covered all accused persons because they were represented by counsel, who has authority to compromise any aspect of his client's case; and that the counsel to both parties decided to compromise on certain issues -Ogboru v. Uduaghan (2013) 13 NWLR (Pt. 1370) 33 and 5 other cases cited by him. The respondent proffered explanations/arguments on the facts leading up to the Enugu charge; and its appeal against the decision of Federal High Court, Enugu. However, this appeal is against the decision of the Federal High Court, Benin and this issue questions whether there was a plea bargain agreement between both parties. As it is, the respondent argued that appellant has not adduced strong, compelling and special reasons that would make this Court interfere with the concurrent findings of the two lower Courts that there was no plea bargain agreement between the parties; that the attitude of this Court is that it would not interfere with such findings, unless it is shown to be perverse -Sobakin v. State (1981) 5 SC 375; Abirifon v. State (2013) All FWLR (Pt. 707) 665, (2013) 13 NWLR (Pt. 1372) 619 and Egunjobi v. F.R.N. (2013) All FWLR (Pt. 670) 1195, (2013) 3 NWLR (Pt. 1342) 534; and that no evidence of any plea bargain agreement was placed before the Court by the appellant. The appellant argued in its reply brief that the evidence identifying parties to the plea bargain is the record of proceedings of the Federal High Court, Enugu on 17 December, 2008; that the only evidence available to the Court in terms of the plea bargain is the "respondent's sudden move to amending the amended charge by a further amended charge, by when (its) name was deleted, based on the plea bargain"; and that a Court of law can draw inference based on circumstantial evidence in the absence of direct evidence. However, that the Court is not allowed to speculate, which is what the two lower Courts did when they made the findings that it was not a party to the plea bargain. Furthermore, that had the Court noted this Court's decisions that where parties have acquiesced to an irregular procedure, they cannot turn around to complain, it would have arrived at a different conclusion - Enterprise Bank Ltd v. Amao (2014) All FWLR (Pt. 738) 994 (2014) 3 NWLR (Pt. 1394) 256; Sonuga v. Anadein (1967) ANLR 98; Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1, (2005) 13 NWLR (Pt. 941) 1; Borishade v. FRN (2012) 18 NWLR (Pt. 1332) 347; Ugba v. Suswam (2014) All FWLR (Pt. 748) 825, (2014) 14 NWLR (Pt. 1427) 264; and that this Court can interfere with concurrent findings of the lower Courts where they are perverse - Matanmi v. Dada (2013) All FWLR (Pt. 682) 1638, (2013) 7 NWLR (Pt. 1353) 319. It is settled that an appellate Court is bound by the record of appeal, and cannot venture outside the perimeter of its contents - see Orugbo v. Una (2002) FWLR (Pt. 127) 1024, (2002) (Pt. 792) 175 at 206 -207, where Tobi JSC, observed - "An appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate Court ... An appellate Court must read the record in its exact content and interpret it." In this case, the proceedings of the Federal High Court, Enugu on 17 December, 2008 reads thus - "BETWEEN FEDERAL REPUBLIC OF NIGERIA } COMPLAINANT AND 1. LUCKY N. IGBINEDION } 2. MICHAEL IGBINEDION } 3. KIVA CORPORATION LIMITED} 4. GAVA CORPORATION LIMITED} ACCUSED 5. ROMRIG NIGERIA LIMITED } 6. PML SECURITIES COMPANY LIMITED} 7. PML (NIGERIA) LIMITED } Accused person present. Mr. Rotimi Jacobs for the prosecution (with him, J. O. Uzor Esq.) Mr. Adetunji Oyeyipo SAN (with him, N. O. O. Oke SAN, Ebenezer Obeya Esq., and Anselem Ojezua Esq.) for the 1st accused. Mr. Richard Ahonamogho (sic) (with him Mrs. O. H. Adewunmi and Cyril Okoro Esq.), for the 2nd - 7th accused persons. Mr. Jacobs: The accused persons approached us for settlement and we are about to conclude the term and also amend the charge accordingly. We need a date to report back. We have agreed on tomorrow,18 December 2008. Mr. Oyeyipo SAN: That is the position. Mr. Ahonamogho (sic): That is the position. Court: Case adjourned to 18 December, 2008 at10. 00a.m for plea. (Signed) A. Abdu-Kafarati, Judge, 17 December, 2008. The proceedings of the FHC Enugu the next day - 18 December 2008 reads: BETWEEN FEDERAL REPUBLIC OF NIGERIA COMPLAINANT AND 1. LUCKY NOSAKHARE IGBINEDION ACCUSED 2. KIVA CORPORATION LIMITED Accused persons present. Mr. Rotimi Jacobs (with him, J. O. Uzor Esq.) for the Prosecution. Mr. Adetunji Oyeyipo SAN (with him, N. O. O. Oke SAN, E. Obeya Esq., and Anslem Ojizua (sic) and C. Ude-Kalu) for the 1st accused. Mr Richard Oma Ahonaruogho (with him, O. H. Adewunmi Mrs.) (sic) the 2nd accused person. Mr Jacobs: We filed an amended charge dated 17 December, 2008 and filed on 18 December, 2008. I pray the Court to accept the amended charge. Mr. Oyeyipo SAN: We have been served and we have been served (sic). Mr. Ahonoruogbo: We have no objection. We have been served. Court: Amended charge dated 17 December, 2008 accepted. Amended charge to be read to the accused for their plea. (Signed) A. Abdu-Kafarati, Judge, 18 December, 2008. ?Obviously, the appellant's arguments lack merit. First of all, the number of accused persons listed on the record for the proceedings of 17 December, 2008 and 18 December, 2008 are different. The seven accused persons, including the appellant as 6th accused, may have been "covered" by the proceedings of 17 December, 2008, however, it is clear from the proceedings of the Federal High Court, Enugu on 18 December, 2008 that only two out of the seven (7) accused persons were "covered" that day. Also, the amended charge dated 17 December, 2008 was filed on 18 December, 2008; and the material date is date of filing, not the date a Party or legal practitioner appended on it. See Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 505 SC. In this case, "Richard Oma Ahonaruogho"; whose name was misspelt on the record of 17 December, 2008, appeared for the 2nd - 7th accused persons that day. On 18 December, 2008, the same "Richard Oma Ahonaruogho" appeared for KIVA Corporation Limited, who was the 3rd accused on 17 December, 2008. There is no mention of other accused persons he represented on 17 December, 2008 in the proceedings of 18 December, 2008, and it cannot, therefore, be argued that since they were all represented by counsel, they are also covered by the plea bargain arrangement, which resulted in the said further amended charge. Finally, and more importantly, the Federal High Court, Benin stated clearly that "where a charge is amended, the former one seizes to govern the proceedings and remains a nullity and of no useful purpose"; and Court of Appeal observed - The position of the law remains the same in the instant situation where the amended charge accepted on 14 October 2008 was not formally withdrawn but was by force of law no longer in existence consequent to the filing of another charge by the prosecutor on 18 December, 2008. The respondent, citing Section 164(4) of the Criminal Procedure Act (CPA),Attah v. State (1993) 7 NWLR (Pt. 305) 257 and Federal Republic of Nigeria v. Adewunmi (2007) All FWLR (Pt. 368) 978, (2007) 10 NWLR (Pt. 1042) 399, submitted as follows at pages 17-18 of its brief - "The effect of the amendment or the substitution of the charge of 18 December, 2008 by Federal High Court, Enugu in charge No. FHC/EN/6C/2008 was to relate back to the date that the first charge was filed and the original charge of 22 November 2008 and that of 13 October, 2008 are deemed not to be in existence. The appellant herein and the other accused persons cannot, therefore, claim that they were charged under those original charges and the amended charge of 13 October, 2008. The effect of the amendment of 18 December, 2008 is to render all previous charges irrelevant." I agree entirely; Section 163 of the Criminal Procedure Act empowers a Court to alter, amend or add to any charge in a criminal case at any time before judgment is given, and Section 164 (1) and (4) of the same Criminal Procedure Act further stipulates as follows - "(1) If a new charge is framed or alteration made to a charge under the provisions of Sections 162 and 163 of this Act, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form." As Karibi-Whyte JSC, observed in Attah v. State, Sub-section (4) of Section 164 of the CPC renders an amendment retrospective to the date of filing of a charge. Essentially, "the amended charge shall replace the original charge and shall be read and explained to the accused as the new charge" - see Uguru v. State (2002) FWLR (Pt. 103) 330, (2002) 9 NWLR (Pt. 771) 90 SC, per Kalgo JSC. This, in effect means that whenever the prosecution decides to amend a charge before a Court, it can proceed to do so, it then applies to the Court to accept the amendment pursuant to Section 163 of the Criminal Procedure Act, and the Court after hearing the parties, may or may not accept or allow the amendment. If it allows the amendment, the amended charge replaces the original charge, which shall be read and explained to the accused as the new charge. If the Court rejects the charge, then the original charge remains. This is what obtains in criminal matters pertaining to amendment of charges generally - see Uguru v. State, where this Court also explained that Section 163 does not give any condition precedent to its application but ensures that the amended charge shall be read out and explained to the accused person. In this case, the appellant did not plead to the amended charge before respondent applied to Federal High Court, Enugu to accept the further amended charge, with only two out of the five (5) accused persons listed on the original charge, and out of the seven (7) accused persons listed on the first amended charge of 14 October, 2008. Learned counsel for the two accused persons had no objection, and the Federal High Court, Enugu "accepted" the further amended charge, and ordered - "Amended charge to be read to the accused for their plea." ?The appellant's contention, as argued in its reply brief, is as follows - "It should be borne in mind that the essence of plea bargain is to conclude the trial. Here, all parties were represented during the plea bargain by counsel and it was agreed that since Lucky Nosakhare Igbinedion was the principal, he should take the fall and plead guilty to count 1 of the further amended charge, and for one of the companies associated with him (Kiva Corporation Limited) to plead guilty to the remaining counts in the further amended charge, pay the sum of N500,000,000.00 (Five Hundred Million Naira), forfeit three (3) properties and have its business wound-up, thus, leading to the final charge (further amended charge dated 17 November, 2008 but filed on 18 December 2008) in which the appellant's name was removed by the respondent together with other accused, who were not to be convicted in the Enugu trial." But the essence of a plea bargain agreement is not just to conclude a trial. There has to 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 Edition. In this case, prosecution counsel told the Federal High Court, Enugu on 17 December, 2008 that "the accused persons approached us for settlement". But there is no evidence on record to indicate that the appellant was one of the "accused persons", who approached the prosecution, for "settlement" on 17 December, 2008. The proceedings of the next day - 18 December, 2008 reinforces the fact that there was no plea bargain agreement between the prosecution and appellant because its name had been removed from the further amended charge, and there was no mention of the appellant in the proceedings. The appellant says its name was removed because they agreed that Lucky Igbinedion "should take the fall"; and that Kiva Corporation should plead guilty to some counts. However, "agreement" to plead guilty is the essence of a plea bargain, and even if there was an agreement for one of the accused "to take the fall", as the appellant argued, the Court of Appeal was absolutely right that - "A plea bargain must be a deliberate and conscious act taken by the prosecutor and a particular accused ... wherein the accused ... must suffer a conviction ... no matter how insignificant or trivial the offence to which the conviction relates ...The appellant personally never suffered a conviction of any kind in respect of any of the charges ... This condition is sine qua non for a plea bargain to be in place between the prosecutor and an accused relying on plea bargain." I need say no more; the decision of the Court of Appeal on this issue cannot be faulted, thus, the concurrent findings of the two lower Courts remain intact." Per AUGIE, J.S.C. (Pp. 10-28, Paras. E-B)