Romrig Nigeria Limited V. Federal Republic Of Nigeria (2017)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
This is an appeal against the Judgment of the Court of Appeal, Benin Division (the lower Court) delivered on the 9th of April, 2014 which affirmed the decision of the Federal High Court, Benin division (the trial Court)
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
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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.
The prosecution stated that it is not in dispute that charge no. FHC/EN/6c/2008 was filed by the respondent herein, at Enugu Division of the Federal High Court and that it is also not in dispute that the name of appellant featured as one of the accused persons in the charge filed at Enugu While the charge was pending, Lucky Igbinedion approached the prosecution for a plea bargain arrangement which was strictly between the EFCC on one part and Lucky Igbinedion and KIVA corporation on the other part and one of the conditions for the plea bargain was for Lucky Igbinedion to make full disclosure of his interests in the appellant
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herein and his relationship with Patrick Eboigbodim (the 2nd accused in the charge before the trial Court and one Amadim David Eriyo.
Lucky Igbinedion denied knowing the appellant herein and he also denied ever instructing the duo of Patrick Eboigbodim and Amadim David Eriyo to pay money into the account of the appellant and other companies including the 4th, 6th and 7th accused persons.
The prosecution also pointed out that Michael Igbinedion and Patrick Eboigbodin were major persons who deposited the various proceeds of crime into the accounts of the appellant herein and that contrary to the contention of the appellant, there was no agreement between it and the prosecution that it will not be prosecuted for various sums of money laundered through the appellant. The prosecution further stated that the appellant was never a party to the settlement arrangement in the charge preferred at Enugu Federal High Court because Michael Igbinedion (the alter ego of the company). Patrick Eboigbodin and Amadi Erigo who paid several sums of money in to the account of the appellant company were not available to explain the circumstances under which they made various
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lodgments.
At the trial Court, parties filed and exchanged written addresses in support and opposition to the joint motion filed by the accused persons before the trial Court and oral arguments were also taken (pages 713 – 748 of Vol II for the accused/applicant written address and pages 848-891 of Vol II of the record for the complainants/respondents written address. 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. Parties filed and exchanged their respective briefs of argument. The appellant in its brief of argument formulated five (5) Issues for determination out of the thirteen grounds of appeal. The issues raised by the appellant are set out below: –
- Whether the Court of Appeal was right when it held that the Plea Bargain Agreement/Arrangement entered into in Enugu with the Economic and Financial Crimes
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Commission (Respondent) does not inure to the benefit of the Appellant (Grounds 1, 2 & 3).
- Whether the Court of Appeal was right when it held that a crime cannot be condoned by the State (Ground 4).
- Whether the Court of Appeal was right when it held that the withdrawal of the charge in the circumstance of this case can never amount to an acquittal (Grounds 5 and 6).
- Whether the Court of Appeal was right when it held that the Plea of Double Jeopardy was not available to the appellant.
- Whether the Court of Appeal was right when it held that the charge preferred against the accused person leading up to the appeal did not constitute abuse of Court process (Grounds 10 & 1 1).
On its part, the respondent which filed its brief of argument on 26/2/16 settled by Rotimi Jacobs SAN in which only two issues were proposed for the determination of this appeal of course, out of the thirteen rounds of appeal. The two issues for determination are set out hereunder:
A. 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
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respondent in respect of the charge before the Federal High Court Enugu (See Grounds 1, 2, 3 and 5)
B. 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 (See Grounds 4, 6, 7, 8, 9, 10, 11, 12 and 13).
In its brief of argument, the learned appellant’s counsel, argued the first issue for determination separately and then argued Issues Nos. 2, 3, 4 and 5 together. I will therefore treat the appeal in the way the appellant argued his issues for determination as stated supra.
SUBMISSION OF COUNSEL ON ISSUES FOR DETERMINATION (BY APPELLANT)
ISSUE NO 1
This issue deals with whether the Court below was right when it held that the plea bargain agreement does not inure to the benefit of the appellant.
The learned, counsel to the appellant contended that the appellant was only charged in counts Nos. 129, 130, 131, 132 and, 134 (pages 1304-1305) of the record. He stated also, that the appellant in this appeal is a corporate entity which can only act through
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human medium agency. He argued that each count against the appellant herein, has been replicated in the counts preferred against LUCKY IGBINIEDION in counts 1-61, 125, 126, 127, 128 and 133 when he was accused of procuring the appellant herein, and others to commit the alleged offences. He cited several cases and submitted that, in this case, it is beyond dispute that the need to amend the charge arose after an agreement had been reached between parties for a compromise and that once parties have agreed to reach a compromise on an issue, effect is given to their agreement and none of the parties should be allowed to renege or go back on the promise made. He cited the case of AG Rivers State v. AG Akwa Ibom State (2011) 8 NWLR (pt. 1248) 31. He submitted further, that as long as the appellant herein, was charged as an agent or privy of the said LUCKY IGBINIEDION, any right or privileges which should ordinarily inure to the said LUCKY IGBINIEDION should also inure in favour of the appellant herein. He argued that as at 17/12/200, the charge leading to plea bargain and conviction on 18/12/2008, had not been filed and that the amended, charge leading to plea
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bargain and conviction was done on 18/12/2008 and that reference to the accused persons on 17/12/2008 in Court by the prosecution could only have been reference to all the persons contained in the charge as it was on 17/12/2008, wherein the appellant was the 5th accused person as per the amended charge dated 13/10/08 (pages 1839-1902) of the record and not what the charge metamorphosed into on 18/12/08, when the amended charged dated 17/12/08 was filed.
He argued that at no point in time, was it shown that the plea bargain arrangement did not cover every person charged in FHC/EN/6c/08 before the FHC Enugu as at 17/12/2008. He argued further, that the law does not allow any party to benefit from his wrong doing by failing to find judicial recognition to the agreement which led LUCKY IGBINIEDION to change his plea from NOT GUILTY to GUILTY and to take undue advantage of them when it is the same prosecutor ROTIMI JACOBS SAN, who was the same person who attended on behalf of the respondent at Enugu, when the plea bargain arrangement was entered, into. He then urged the Court to resolve this issue in favour of the appellant and strike out charge No
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FHC/B/NC/2011 or on in the alternative, strike out the name of the appellant herein, from that charge.
ISSUES NO. 2, 3, 4 and 5
The learned counsel to the appellant argued that where an offence has been compromised by EFCC, it is only the Attorney General of the Federation that can prosecute any person further and that EFCC cannot subsequently re-arraign such accused person in view of Section 14 (2) of the EFCC Act, 2010. He submitted that an Act of National Assembly have made provision, for condonation of certain crimes and these provisions have received judicial backing of the Supreme Court in the case of NIGERIA ARMY V. AMINU KANO (2010) 5 NWLR (pt. 1188) 429 and ASAKE V. NIGERIA ARMY (2007) 1 NWLR (pt. 1015) 408. He referred to the decision of the trial Court where it was held that LUCKY IGBINIEDION whose is under scrating in all counts charge cannot be tried again for the offences contained in the new charge which no doubt recognised that a compromise was reached along the line with the said LUCKY IGBINIEDION with EFCC. He submitted further, that if law treats agent and principal as one person, the plea bargain agreement entered into with LUCKY
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IGBINIEDION must therefore be accepted as protecting his agent and all persons who acted under him, as to do otherwise, will put the said LUCKY through another criminal trial. He quoted the Judgment of the trial Court in respect of charge no FHC/B/HC/2011. He then urged the Court to resolve these issues in favour of the appellant and allow this appeal.
SUBMISSION ON ISSUES FOR DETERMINATION MADE BY RESPONDENT’S SENIOR COUNSEL
The respondent in its own part formulated two issues for determination.
The respondent’s issue no 1 deals with whether the Court below was right in affirming the decision of the trial Court that there was no plea bargain agreement between the appellant and the respondent in respect of the charge before the FHC Enugu.
The learned senior counsel for the respondents referred to the Judgment of the Court below at page 2426 of Vol. V of the record and argued that contrary to argument of the appellants counsel that LUCKY IGBINIEDION has been left off the hook (in paragraphs 2. 15 and 2. 22 of its brief), he submitted that, that argument is misleading and that LUCKY IGBINIEDION has not been left off the hook at all. He pointed
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out that the correct position of things in relation to the said LUCKY, is that the joint application filed by the accused persons before the FHC Benin was granted only in relation to the said LUCKY IGBINIEDION while the 2nd – 7th accused were directed to take pleas. He stated further, that prosecution appealed against the decision discharging the said LUCKY while the 2nd-7th accused persons also appealed against the decision of the trial Court and the Court of Appeal set aside the decision of the trial Court when it discharged LUCKY IGBINIEDION on the basis of doctrine of plea bargain agreement, double Jeopardy condonation and abuse of Court process. See FRN v. IGBINEDION (2015) 2 NWLR (pt. 1441) 475. He submitted that by virtue of the Court of Appeal decision in FRN v. IGBINEDION, the impression being created by the appellant is that LUCKY IGBINIEDION has been set free and hence should be excluded to the appellant, is clearly misleading. He argued further, that the Court of Appeal held that it could not infer any legal mandates of a plea bargain agreement between EFCC and the said Lucky IGBINIEDION. He urged the Court to discountenance any argument that
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tends to suggest that LUCKY IGBINIEDION has been left off the hook.
On whether there was a plea bargain agreement, he referred to the Judgment of the Court below at page 2414 of Vol. V of the record, where the Court held that it is alien to the Nigeria Criminal Justice but imported to our Judicial system by implication of Section 14 (2) of the EFCC Act and also reference of the Court of Appeal to the Administration of Criminal Justice Law of Lagos State, 2011, which can be said to be the first legislation in Nigeria to expressly localise and import plea bargain into Nigeria’s criminal jurisprudence. He referred to Section 26 of the ACJL which prescribes the modality for the plea bargain arrangement. He also pointed out that sometimes in 2015, the National Assembly enacted Administration of Criminal Justice Act and part 28 thereof, is on plea bargain. He Submitted that Section 270 (7) of Act provides that the plea bargain agreement must be in writing and that the Act was not in existence as at the time of the facts of the case leading to the instant appeal.
Learned counsel also submitted further, that the appellant’s contention that there was a plea
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bargain is unfounded. He conceded that there were attempts at settling some issues involving LUCKY IGBINIEDION and KIVA Corporation Ltd, but that there were disagreements in the scope and extent of the settlement agreement. He therefore submitted that the appellant having failed to establish that it ever held any meeting with the prosecution in an attempt to enter into plea bargain, renders the contention of the appellant that there was a plea bargain, unfounded.
On circumstances under which the charge was amended, he submitted that the circumstances under which the charge was amended were well illustrated in the counter affidavit filed by the prosecution in opposition to the joint application filed by the appellant and other accused persons at the trial Court as contained in pages 783-786 of the record and Further Counter Affidavit at page 833 of vol II of the Record. He argued that Michael Igbiniedion, who is the alter ego of the appellant herein, had escaped from the jurisdiction of the Court as at the time of filing charge No FHC/EN/6C/2008, including Patrick Ejboigbodin and David Amadin Eriyo who were the main persons who laundered funds using the
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account of the appellant and those of the 4th, 6th and 7th accused persons. He pointed out that Lucky Igbiniedion was convicted for failure to declare his interest in the account no 4124013983110 with GTB, while KIVA Corporation was convicted for money laundering in the amended charge of 18th December, 2008 before the FHC, Enugu. He submitted that none of the transactions covered by charge no FHC/C/B/UC/2011 leading to the instant appeal featured in the amended charge filed at the FHC Enugu in charge no FHC/EN/6c/2008 on the 18th December, 2008. He therefore submitted that there was no agreement undertaking not to prosecute the appellant and he therefore urged the Court to so hold.
On the effect of the amendment, he submitted that charge no FHC/EN/6C/2008 will be deemed to have been filed, in the same as the amended charge dated 17 December, 2008, See ATTAH v. STATE (1993) 7 NWLR (pt. 305) 257 at 286. He urged the Court to resolve this issue in favour of the respondent.
Issue No 2 of Respondent
Issue no. 2 deals with whether the Court below was right in affirming the decision of the trial Court that the appellant is not entitled to any of the
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defences of condonation, plea of autrefios convict or doctrine of double jeopardy.
The learned senior counsel for the respondent referred to Section 14(2) of the EFCC Act and submitted that it is inapplicable to the instant situation and stated that the following must be borne in mind in construing the provisions: –
(a) that EFCC has the power to compound an offence
(b) that offence to be compounded is punishable under the EFCC Act
(c) that EFCC can accept money in compound of the offence
(d) that the sum of money the EFCC can accept must be that which must exceed the maximum amount to which that person would have been able to pay if he had been convicted of that offence.
He submitted that no scintilla of evidence have been produced before the Court to show that EFCC had at any time accepted or agreed to accept any sum of money from the appellant ie Lucky Igbinedion. He cited, the case of CHIDOLUE V. EFCC (2012) 5 NWLR (pt. 1292) 160 where it was held that the amount must exceed the maximum amount. He submitted that none of the three elements listed above by the Court is present in the instant case and therefore Section 14 (2) of
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the EFCC Act is not applicable. He again argued that even if the offences were compoundable under Section 14 (2) of the EFCC Act, it is without prejudice to the power of the Attorney General of the Federation to still initiate criminal proceedings in view of the provisions of Section 174 of the 1999 Constitution as amended. He therefore urged the Court to discountenance the appellant’s submission and hold that the EFCC did not at any time compound the offences as alleged by the appellant.
On the issue of condonation, he responded by saying that it is surprising that the appellant can still reproduce that part of the trial Court’s ruling to buttress his arguments on same, when he knows that the ruling has been set aside by the Court. He urged the Court to discountenance the appellant’s submission on the issue of condonation. He stressed that condonation has its own intuition when it comes to the application in criminal ease and that the application of the doctrine is usually presented by statutes. He referred to Section 26 of the Matrimonial Causes Act Cap M7 LFN 2004 and Section 171 (1) & (2) of the Armed Forces Act, Cap A20 LFN 2004 and Section 119
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of the Nigeria Army Forces Act Cap 291 LFN 1990 which specifically provide for condonation. He also cited the case of Nigeria Army vs Aminu Kano (supra) and submitted that apart from Matrimonial Causes offences, the other categories of persons to when the doctrine applies are persons subjected to service laws.
He therefore submitted that condonation is not applicable in criminal cases.
On whether Agency is a valid defence to criminal responsibility, the learned Senior counsel for the respondent argued that criminal liability is personal and that it will not serve as a valid defence in law for any person who is alleged to have committed an offence hence he can not argue that he was acting as an agent while committing the offence. He urged the Court to discountenance all the cases cited by the appellant in paragraphs 2. 43 of its brief as they are not applicable.
On the alleged double jeopardy, he submitted that having regard to Section 36 (9) of the 1999 Constitution as amended, the issue of double jeopardy will only answer where a person is able to show that he had earlier been convicted or acquitted in respect of the matter for which he is being
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prosecuted again. He argued that in the instant case, there is no evidence that the appellant had been convicted or acquitted by any Court of law on account of the offences alleged in charge no FHC/B/11C/2011 and that it was only LUCKY IGBINIEDION and KIVA Corporation Ltd who were convicted in charge no FHC/EN/6C/2008. He argued that none of the counts in charge no FHC/B/11C/2011 is similar to the offences alleged in charge filed before the FHC Enugu. He then urged this Court to resolve this issue in favour of the respondent and to dismiss the appeal.
The Reply brief of the appellant simply contain argument on issues of facts, or at best can be regarded as re-arguments of what has been argued in its main brief. I will therefore bother not to consider it.
ISSUE NO 1
On this issue, the appellant’s contention is that the lower Court was wrong in its finding that the Plea Bargain agreement entered did not inure the appellants. Learned appellant’s counsel emphasized that the present appellant’s name featured in some of the named charges filed before the Enugu Federal High Court even though it is not a natural person but a corporate body. His further
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contention is that since each of the counts framed against the appellant was replicated and preferred to Lucky Nosakhere Igbinedion and that the latter procured the appellant and others to commit the alleged offences and since the said Lucky Igbinedion was let off the hook, then it (i.e the appellant) being an agent or accomplice must be let off the hook too. The learned appellant’s counsel cited some decided authorities to buttress the point that since they were charged together and that Lucky was let off the hook, it must also have to benefit from the Lucky’s exoneration.
His other contention is that there was even no need to amend the charge, since there had already been a standing and subsisting agreement which was reached between the parties arriving at a compromise. It was argued that where there is such compromise, none of the parties should be allowed to opt out of the already consented agreement. In other words, the respondent is estopped from bolting out of the agreement in which the plea of “Not Guilty” was changed to plea of “Guilty”.
Now in the present scenario, one must in the first place consider whether there was actually any agreement
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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
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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.
It is even instructive to note that the concept of Plea Bargain become part of the Federal law only in 2015 when the National Assembly enacted the Administration of Criminal Justice Act in which in part 28 of that Act, Section 270 (7) made provision for plea bargain agreement which it even had emphasised that such agreement must be reduced into writing. Only Lagos State Government had earlier in 2011 enacted, Administration of Criminal Justice Law in which provision of Plea Bargain was made under Section 75 of that Law in which it also insisted in Section 76 (4) that agreement between the parties must be in writing and shall be agreed upon by the parties.
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
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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.”
This lower Court’s funding above cannot be faulted at all.
In the result, it is my view that the plea bargain did not inure to the appellant herein. This issue is therefore resolved against the appellant herein.
Issues 2, 3, 4 and 5
With
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regard to the second issue for determination which deal with the power of the EFCC to compound the offences under the Economic and Financial Crimes Commission (Establishment) Act of 2004, it is the stance of the learned counsel for the appellant that the EFCC has power under Section 14 (2) of the Act to compound, compromise, condone or compromise such offences and if that is done by the Attorney General of the Federation, as in this instant case, the EFCC can not later re-arraign such person on the same charge. To the appellant’s learned counsel, the prosecutor i.e EFCC had reached a compromise and collected from Lucky Igbinedion (the principal offender) some amount following the Enugu FHC plea bargain agreement and the offences before Federal High Court Benin (the trial Court) had been duly compromised. The above stance of the appellant’s counsel were anchored an the provisions of Section 14 (2) of the EFCC Act.
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
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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.” (Emphasis supplied by me)
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.<br< p=””
</br<
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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.
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
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condoned, as rightly held by the lower Court.
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
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of Air Staff vs. Iyen (2005) 6 NWLR (pt. 924) 496 at 535.
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.
As regards the issue of double jeopardy, an accused person can always plead the doctrine of autrefios convict or autre acquit. It will however be pertinent to examine Sections 181 and 182 of the Criminal Procedure Act which are reproduced hereunder for ease of reference.
Section 181 reads: –
“Without
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prejudice to Section 171 of this Act, a person charged with an offence (in this section referred to as “the offence charged”) shall not be liable to be tried thereafter if it is shown
(a) that he has previously been convicted or acquitted of the seine offence by a competent Court, or
(b) that he has previously been convicted or acquitted by a competent Court on a charge on which he ought to have been convicted of the offence charged; or
(c) that he has been previously convicted or acquitted by a competent Court of an offence other then the offence charged, being an offence of which a part from this section, he ought to be convicted by virtue of being charged with the offence charged
- Nothing in Subsection (1) of the Section shall prejudice the operation of any law giving power to any Court, on an appeal to set aside a verdict or finding of any other Court and order a retrial.
Section 182 states: –
“A person acquitted or convicted of any offence may afterword be tried for any distinct offence for which a separate charge ought to have been made against him in the previous trial under the provisions of Section 158 of this Act”.
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The above two sections are in pari materia with Sections 238 and 239 of the Administration of Criminal Justice Act of 2015.
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.
The last issue raised by the appellant pertains to alleged abuse of Court process.
Although the appellant did not
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specifically canvass what he really perceived to be an abuse of Court process on this last issue, it can be gathered from his submissions generally, that his grouse is that the lower Court was wrong in holding that the charge framed against the appellant culminating into the present appeal, constituted abuse of Court process. In otherwords, the appellant seems to be insinuating that the latter charge No FHC/B/11C/2011 constitutes an abuse of Court process in view of the existence of an earlier charge No FHC/EN/8C/2008 which was earlier filed before the Enugu FHC. 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
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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. Consequently, all the five issues for determination have been resolved against the appellant herein.
In the result, I am unable to find any merit with this appeal. It is hereby accordingly dismissed by me
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.
SC.254/2014
