CORAM

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UZO I. NDUKWE-ANYANWU, JUSTICE COURT OF APPEAL

THANI ABUBAKAR, JUSTICE COURT OF APPEAL

JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL

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PARTIES

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ATAINE HELEN BANDO

APPELLANTS 

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FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

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AREA(S) OF LAW

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COURT, CRIMINAL LAW AND PROCEDURE, STATUTE

 

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SUMMARY OF FACTS

This is an appeal against the judgment of the High Court of Lagos delivered on the 3rd day of November, 2014 by Hon. Justice O. A. Ipaye wherein the Learned Trial Judge sentenced the Appellant to one year imprisonment without option of fine for the offence of conspiracy to present false documents for visa application. The Appellant together with two others were arraigned at the trial court on 16 counts information dated the 15th November, 2013 to which the Appellant pleaded “not guilty” to all the counts. Before the commencement of trial, the Appellant with his co-accused persons entered into a Plea Bargain and Sentence Agreement with the Respondent wherein it was agreed as follows:

That the charges against the Defendants should be reduced to single count information.

That the Defendants shall plead guilty to the said count

That each Defendants shall be sentenced to a term of imprisonment not exceeding 6 months and a fine to the sum of N50,000.00 only.

That the above terms shall be entered as judgment of the Honourable Court in this matter.

In accordance with the Plea Bargain and Sentence Agreement, the Prosecutor filed on the 31st of October, 2014, an amended information containing one count of (conspiracy to present false documents for Visa application contrary to Section 26(1) (c) of the Corrupt Practices and other Related Offences Act, 2000 and punishable under Section 13 and 68 of the same Act. The Appellant on her part together with the co-accused persons pleaded “guilty” to the amended information. In delivering its judgment, the trial Court sentenced the Appellant to one year imprisonment without option of fine contrary to the Plea Bargain and Sentence agreement and without informing the Appellant of its intention to impose a heavier sentence.

Being dissatisfied with the decision of the lower court, the Appellant lodged this appeal on the 12th November, 2014 via a Notice of Appeal dated 10th November, 2014

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether the heavier sentence of one year term of imprisonment imposed on the Appellant by the trial judge can stand or is not vitiated by the non-compliance by the learned judge with the provision of Section 76(8)(c) and 76(9)(b) of the Administration of Criminal justice Law of Lagos 2011.

 

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RATIONES DECIDENDI

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PLEA BARGAIN – ON WHETHER A PLEA BARGAIN AGREEMENT IS BINDING ON PARTIES

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“A Plea Bargain reached by the prosecution, defence and indeed the Court is a contract per se. Each party is to be bound by all the clauses contained therein.” – Per NDUKWE-ANYANWU, JCA

 

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PLEA BARGAIN – WHETHER A TRIAL COURT IS REQUIRED TO INFORM THE DEFENDANT OF A HEAVIER SENTENCE IT CONSIDERS TO BE APPROPRIATE OTHER THAN THE ONE AGREED BY THE PARTIES IN THE PLEA BARGAIN AGREEMENT

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“Section 76(8) of the Administration of Criminal Justice Law provides as follows:-

(8) ‘Where a defendant has been convicted in terms of jurisdiction (7) (a), the Presiding judge or Magistrate shall consider the sentence agreed upon in the agreement and if he is:

Satisfied that such sentence is an appropriate sentence impose the sentence; or

Of the view that he would have imposed a lesser sentence than the sentence agreed upon in the agreement, impose the lesser sentence; or

Of the view that the offence requires a heavier sentence than the sentence agreed upon in the agreement, he shall inform the defender of such heavier sentence he considers to be appropriate”

Section 76(9) also provides:

(9) “Where the defendant has been informed of the heavier sentence as contemplated in subsection (8) above, the defendant may:-

Abide by his plea of guilty as agreed upon in the agreement and agree that, subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the Presiding judge, or Magistrate proceed with the sentencing: or

Withdraw from his plea agreement, in which event the trial shall proceed de novo before another Presiding Judge, or Magistrate; as the case may be”

The Learned Trial Judge exercised its right under Section 76 (8) (c) which provides: –

Of the view that the offence requires a heavier sentence than the sentence agreed upon in the agreement, he shall inform the defender of such heavier sentence he considers to be appropriate”

However, there is a Rider to the exercise of that right donated by Section 76 (8) (c). The Trial Judge shall inform the defender of such heavier sentence he considers to be appropriate.

This the Trial Judge failed to do i.e. inform the defender of his decision to impose a heavier sentence than what was agreed on, in the Plea Bargain. …

… Paragraph 3 of the Plea Bargain states:

“each defendant shall be sentenced to a term of imprisonment not exceeding 6 months and a fine to the sum of N50,000.00 only”.

The terms of this plea bargain is clear and unambiguous and must be given its ordinary meaning. See Dalek Nig Ltd vs OMPADEC (2007) 2 S.C 305, (2007) 7 NWLR pt 1033 Pg 402 Ogbuagu JSC (as he then was) held as follows.

“If parties enter into an agreement, they are bound by its terms”.

The Plea Bargaining and Sentence Agreement can be found on pages 93 and 94 of the Record of Appeal. Paragraph (iv) of the document provides:

“That the Complainant hereby undertakes and the Defendants accepts the undertaking that each of the Defendants shall be sentenced to a term of imprisonment not exceeding 6 months on count number 1 with an option to pay a fine the sum of N50,000 only”

It states that the defendant shall be sentenced to a term of imprisonment not exceeding 6 months on count No 1 with an option of fine. The wordings are quite explicit and does not give room to any other interpretation.

The Learned Trial Judge in its wisdom thought that the offence deserved a heavier sentence. I cannot fault the discretion of the Trial Judge in sentencing the defendant to a heavier sentence more than what is contained in the Plea Bargain and Sentencing Agreement drawn up by the parties.

Before the trial Judge can impose a heavier sentence other than that which was bargained for, the Trial Judge must inform the defendant of his intention, See Section 76 (8) (c) ADCJL. After the Trial Judge has informed the defendant of his intention to impose a heavier sentence, the defendant has his own options. He would either opt for the following options as in Section 76 (9) (a & b). The Trial Judge did not give the Appellant an opportunity to exercise his options as in Section 76 (9) (a & b).

Section 76(8) (c) is mandatory that the Trial Judge must inform the Defendant/Appellant of his intention to impose a heavier sentence higher than what was agreed by the parties.” – Per NDUKWE-ANYANWU, JCA

 

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PLEA BARGAIN – EFFECT OF FAILURE OF A COURT TO INFORM THE DEFENDANT OF ITS DECISION TO IMPOSE A HIGHER SENTENCE OTHER THAN THAT BARGAINED FOR IN THE PLEA BARGAIN AGREEMENT

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“Having failed to inform the Appellant of this heavier sentence, breached the terms of the plea bargaining and sentencing see pages 93 – 94 of Record of Appeal. … The Trial Judge failed to adopt the procedure stated in Section 76 (8) and (9) of the ADCJL and therefore infringed on the Appellant’s fundamental right of fair hearing.” – Per NDUKWE-ANYANWU, JCA

 

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PLEA BARGAIN – SENTENCING PROCEDURE WHERE A PLEA BARGAIN AGREEMENT PRESCRIBES FOR IMPRISONMENT WITH AN OPTION OF FINE

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It is trite law that where the terms have prescribed imprisonment of 6 months with an option of fine in sentencing procedure, the fine comes first and in default, the imprisonment takes effect and not the other way round. See Ogunbayo vs State (2007) 8 NWLR (Pt. l035) pg. 157.” – Per NDUKWE-ANYANWU, JCA

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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1999 Constitution of the federal Republic of Nigeria (as amended)

Corrupt Practices and other Related Offences Act, 2000

Administration of Criminal Justice Law of Lagos State 2011

 

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