➥ CASE SUMMARY OF:
Olumide Agbi V. Federal Republic of Nigeria (CA/A/873C/2019, 25 March 2020)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
➥ CASE FACT/HISTORY
The appellant was arraigned on a one count charge of offence of cheating on 18th July 2019 at the High Court of Federal Capital Territory. The one count charge reads thus: Charge: “That you Olumide Agbi (a.k.a. Seam William Streak/James Brown) sometimes in 2018, at Abuja within the jurisdiction of this honourable court, committed the offence of cheating by fraudulently obtaining the sum of $1000 from the trio of Susan Ross and Tammy Joanna and Rita (all citizen of the United States of America) when you represented yourself as William Streak a Caucasian which representation you know to be false and thereby committed an offence contrary to section 320(b) and punishable under section 322 of the same Act.”
The charge was accompanied with summary of evidence of witnesses and plea bargain agreement entered into and executed by the parties to this appeal.
The sentence upon the appellant was deferred to 29th July, 2019. In sentencing the appellant the lower court said: “Learned counsel for the convict urge the court to tamper justice with mercy. I have read the plea bargain agreement, parties agreed on ridiculous terms of one month imprisonment. Let me say that it is not incumbent on the court to adopt the agreement in toto. Court have a duty to enforce the provisions of the Act under which an accused is charged. It is not in doubt that cyber crimes dent the image and affect the integrity of our dear country and I must say that the appropriate law/act to charge the convict is the Cyber Crimes (Protection and Prohibition) Act that has laudable provisions aimed at redeeming the image and integrity of this nation. It has harsh and appropriate punishment that can deter young persons from engaging in cybercrimes. My Lord Hon. Justice Hannatu Jummai Sankey, JCA made a striking comment in the case of Jubril v. F.R.N. (2018) LPELR-43993 (CA). “It must be disheartening to all right thinking Nigerian that the rampant, atrocious and egocentric crime has unleashed dire consequences on the integrity and image of the country. This has both short and long term effects on the society and the nation as a whole. Therefore although the punishment prescribed by law may be appear harsh and draconian, it is hoped that it will deter likeminded persons from embarking on such criminal ventures.” Cybercrimes are flourishing amongst our youth to the extent that even secondary school students engage in it. As a result of cybercrimes many have become hypertensive or mentally unstable with no resources to attend to their health. It is most appropriate that our prosecution agencies arraign accused persons under the provisions of the right law, before the court that has jurisdictional competence to try the case, I say no more. S. 270(11)(c) ACJA 2015 gives the court the power to imposed a heavier punishment other that the one agreed by the parties and I intend to go by that provision. It is my humbly view that by charging the convict under the penal code law, the convict had reaped the benefit of the bargain. Consequently, the convict is hereby sentenced to a term of 3 years imprisonment on the one count charge.”
The appellant was aggrieved and has by his notice of appeal dated 9th August 2019 and filed on 16th August, 2019 appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
↪️ I. Whether having regard to the Plea Bargain Agreement of the parties filed before the trial court, the sentence of the appellant to a maximum term of 3 years’ imprisonment is according to the law? AND Whether having regard to the provisions of section 270(11)(c) and (15)(b) of the Administration of Criminal Justice Act, 2015, the appellant is not entitled to be informed of the heavier sentence of 3 years imprisonment before being sentenced by the trial court and to thereafter withdrew his plea of guilt?
RESOLUTION: IN APPELLANT’S FAVOUR.
[JUDGE MAY IMPOSE HEAVIER SENTENCE THAN THAT AGREED IN THE PLEA BARGAIN
‘The Presiding Judge or Magistrate is also entitled to examine, consider and evaluate the sentence agreed upon by the prosecutor and the defendant and where it appears to the Presiding Judge or Magistrate that the sentence agreed upon is not commensurate with the gravity of the offence committed, the Presiding Justice or Magistrate could impose heavier punishment subject to the condition prescribed or laid down in section 270(11)(c) of the Administration of Criminal Justice Act, which states: “270(11)(c) Where a defendant has been convicted under subsection 9(a) the Presiding Judge or Magistrate shall consider the sentence as agreed upon and where he is – (c) of the view that the offence requires a heavier sentence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.”’
HOWEVER BEFORE IMPOSING A HEAVIER SENTENCE, THE ATTENTION OF THE DEFENDANT MUST BE DRAWN
‘It is however important to stress that no matter the enormity of disturbance or concern a court may feel concerning sentence agreed to be imposed upon a defendant upon plea of guilty and conviction as contained in the plea bargain agreement, the Presiding Judge or Magistrate must act at all times within the confines of the Administration of Criminal Justice Act, 2015 particularly the procedure laid down and pre-condition put in place to the effect that a defendant must be informed before a heavier punishment or sentence could be meted upon the defendant. The Presiding Justice is under a statutory and constitutional duty to first draw or call attention of the defendant or his learned counsel to the trial court’s resolve to impose heavier punishment over and above the sentence agreed upon by the parties in the plea bargain agreement. The defendant must be informed as provided in section 270(11)(c) of the ACJA supra.’
THE LEARNED TRIAL JUDGE DID NOT INFORM THE APPELLANT/DEFENDANT OF THE HEAVIER SENTENCE THE COURT INTENDS TO IMPOSE
‘There is nothing in the record of appeal to show that the learned trial Judge complied with section 270(11)(c) of the Administration of Criminal Justice Act, 2015 which mandatorily enjoined the Presiding Judge or Magistrate to inform the defendant of such heavier sentence he considers to be appropriate. The provision is not enacted for the fun of it. It is designed to protect and enable the defendant to be heard if such heavier punishment will be convenient or alright by him. The condition is also put in place to afford the defendant the opportunity of changing his plea of guilty or to completely bow out of the plea bargain, bearing in mind that it is the lesser punishment offered by the prosecution for his plea of guilty and conviction that goaded the defendant to voluntarily agree to plead guilty. That was the understanding that made the parties consummated the plea bargain agreement.’
‘The trial Judge cannot out of his abhorrence or shock that a one month sentence was agreed between the parties jump the gun in gross violation of the defendant’s right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 as amended section 36(1) thereof which provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” The decision to sentence the defendant to three years heavier punishment as opposed to the plea bargain agreement is clearly a breach of appellant’s right to fair hearing. Little wonder the respondent was arguing front and back and at the end urged this court to reduce the sentence in accordance with provision of section 416(2)(c) of the ACJA 2015.’]
‘In its stead I hereby sentence the appellant to a term of one month imprisonment as agreed by the parties to this appeal in the Plea Bargain Agreement executed or entered into by them on 27thday of June, 2019. The one month imprisonment term shall run from 27th day of June, 2019.’
➥ FURTHER DICTA:
⦿ STATUTE SHOULD NOT BE INTERPRETED THAT IT DEFEATS ITS PURPOSE
The settled position of the law is that provisions of a statute must not be constructed in a way as would defeat the intendment of the statute and the desire of the legislature. The court should not interpret the provisions of the statute to defeat the obvious end it was meant to serve otherwise it will entail injustice. Where the words of the statute are plain and unambiguous the literal interpretation should be followed. — Ige JCA.
⦿ INCENTIVE FOR A PLEA BARGAIN
The incentive for a plea bargain as can be gathered from calm reading and interpretation of section 270 of the Administration of Criminal Justice Act, 2015 enables the prosecutor and the defendant to enter into a plea bargain agreement that is mutually beneficial to the interest of the Prosecutor and the defendant in a criminal trial to which the Administration of Criminal Justice Act is applicable. The bottom line is that the defendant must be ready and willing to plead guilty to the offence or offences for which he is charged and arraigned. The agreement must evince legal intention to accommodate the defendant to obtain lesser punishment in terms of sentence to imprisonment or a fine against the defendant. Some of the essential ingredients of plea bargain are that defendant must acknowledge commission of the crime charged, plead guilty to it and must be convicted by the presiding judge whether at magisterial level or a High Court. — Ige JCA.
⦿ THE TRIAL JUDGE HAS POWER TO CRITICALLY EXAMINE THE PLEA BARGAIN AGREEMENT
It must be stated that notwithstanding that the trial Court is not a party to a plea bargain agreement, the Administration of Criminal Justice Act, 2015 nonetheless empowers and endowed a trial Court with limited jurisdiction and powers to examine critically the plea bargain agreement pursuant to Section 270(10) of the Administration of Criminal Justice Act, 2015 in order to ascertain whether the Defendant admits the allegation contained in the charge to which he has pleaded guilty and whether the Defendants entered into the agreement voluntarily and without undue influence. The Presiding Judge or Magistrate in addition to his power to convict the defendant also has authority to award compensation to the victim as per the terms of the plea bargain agreement. All these are to ensure that there is no collusion between the prosecutor and defendant to defeat the purpose and intendment of section 270 of Administration of Criminal Justice Act. It is also to ensure that the parties do not enter into unconscionable bargain that will be in injurious or inimical to the interest of the victim of the offence and must ensure there is provision in the agreement for restitution. It is also designed to forestall any bargain that is illegal or against public policy. — Ige JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT(S)
Dr. Kayode Ajulo.
⦿ FOR THE RESPONDENT(S)
Ayodeji Fadahunsi, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
⦿ ESSENCE OF PLEA BARGAIN
The whole essence of a plea bargain has been defined and explained in Black’s Law Dictionary, 10th Edition page 1338 as follows: “Plea bargain, (1963) A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty or no contest to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a dismissal of the other charges. – Also termed plead agreement; negotiated plea; sentence bargain. – plea bargain, vb. – plea-bargaining.”