Legalpedia Citation: (2014) Legalpedia (CA) 11161
In the Court of Appeal
HOLDEN AT BENIN
Tue Apr 8, 2014
Suit Number: CA/B/329CE/2011
CORAM
PARTIES
GAVA CORPORATION LIMITED
FEDERAL REPUBLIC OF NIGERIA
AREA(S) OF LAW
SUMMARY OF FACTS
The Federal High Court Benin Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice Adamu Hobon being seised of charge No. FHC/B/11C/2011 – Federal Republic Of Nigeria v. Lucky Nosakhare Igbinedion & 6 Ors; on 31/5/2011 delivered a ruling in a motion on notice dated 4/2/2011 and filed on the same date brought jointly by all the accused persons in the said Charge, as Applicants. The said ruling was against all the Applicants therein save the 1st Accused/1st Applicant – Lucky Nosakhare Igbinedion. He was discharged from the proceedings, i.e. Charge No. FHC/B/11C/2011 – Federal Republic Of Nigeria v. Lucky Nosakhare Igbinedion & 6 Ors (hereafter simply referred to as “the FHC, Benin Charge or “instant Charge”) while the lower court having dismissed the motion on notice as it relates to the other Accused Persons/Applicants in the said Charge called on them to enter their respective pleas. The instant appeal is against the ruling of the lower court as it relates to the 4th accused/4th Applicant in the instant Charge.
HELD
Appeal Dismissed.
ISSUES
Whether the plea bargain upon which the FHC, Enugu entered judgment in the Charge before it is available to the Appellant?
RATIONES DECIDENDI
DOCUMENT – MODE OF PROVING THE CONTENTS OF A DOCUMENT
“The content of a document can only be proved by tendering the original document or secondary evidence thereof after laying the proper foundation. See Goodwill & Trust Investment Ltd v. Witt & Bush Ltd (2011) ALL FWLR (Pt. 576) 517, (2011) 34 WRN 1. Hence the content of a document cannot ordinarily be established viva voce. See Ogundele v. Agiri (2010) 9 WRN 1″.
PRESUMPTION OF “WITHOLDING OF EVIDENCE” – BASIS ON WHICH THE PRESUMPTION OF “WITHOLDING OF EVIDENCE” CAN BE INVOKED
“I cannot but observe that the position of the law concerning “withholding of evidence” requires the Appellant to discharge the onus of proof on him regarding the existence of the document containing the conclusion/agreement of a plea bargain, before the inference under Section 162(d) of the Evidence Act (supra) can be drawn that the prosecuting counsel has failed to challenge the Appellant’s evidence by the non-production of a particular piece of evidence would be unfavourable to the prosecution. Section 162(d) of the Evidence Act (supra) pertains to refusal to tender what is in the possession of the said party. Hence presumption of withholding evidence cannot be invoked on the basis “that evidence of what has never been in his possession would be unfavourable to such a party”. See A-G Adamawa State v. Ware (2006) All FWLR (Pt. 306) 860; Texaco Nigeria Plc v. Kehinde (2002) FWLR (Pt. 94) 143; Mobil Producing Nig. Unltd v. ASUAH (2002) FWLR (Pt. 107) 1196 at 1213; and Lawson v. Afani Continental Co. Nig. Ltd & Anor (2002) FWLR (Pt. 1736) at 1767″.
WITHDRAWAL OF CHARGE – WHETHER A CHARGE WITHDRAWN CONSEQUENT TO A SETTLEMENT WITH THE PROSECUTOR IS TANTAMOUNT TO ONE OF DISCHARGE OF THE ACCUSED IN THE CHARGE IN QUESTION
“The purport of the difference being drawn by learned lead counsel in my considered view is simply to make this Court make a finding that the consequence or effect of a charge withdrawn consequent to a settlement with the prosecutor cannot be one of discharge of the accused in the charge in question as generally put in place by the law, but should be one barring the further prosecution of the accused on the strength of the settlement. In other words, that the discharge of accused in a charge withdrawn or deemed to have struck out consequent to the filing of another charge upon settlement, should tantamount to an acquittal of the accused in respect of the offences charged in the withdrawn charge”.
PLEA BARGAIN – MEANING OF “PLEA BARGAIN” “CHARGE BARGAIN” “SENTENCE BARGAIN” AND “NO CONTEST”
“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 thereon as it is an emerging phenomenon. However, Black’s Law Dictionary (Ninth Edition) on page 1270 provides the meanings of some of the concepts which aid or designed for the quick or expeditious disposal of criminal cases such as plea bargain, in my considered view is. The concepts are: –
1. “plea bargain” – A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty 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 plea bargain agreement; negotiated plea; sentence bargain.”
2. “charge bargain” – A plea bargain in which a prosecutor agrees to drop some of the counts or reduce the charge to a less serious offense in exchange for a plea of guilty or no contest from the defendant.”
3. “Sentence bargain” – A plea bargain in which a prosecutor agrees to recommend a lighter sentence in exchange for a plea of guilty or no contest from the defendant.”
The term “no contest” mentioned in the definitions of “charge bargain” and “sentence bargain” is defined on page 1146 thus:-
“No contest” – A criminal defendant’s plea that while not admitting guilt, the defendant will not dispute the charge.”
No contest plea is said to be often preferable to a guilty plea, which can be used against the defendant in a later civil law suit. It is in my considered view obvious from the definitions re-produced above, that plea bargain must be a conscious and deliberate act between the prosecution and an accused with a plea of guilty being an overt act on the part of the accused in evidence of the plea bargain”.
PLEA BARGAIN – WHETHER PLEA BARGAIN OPERATES BY PRIVY OR PROXY
“The concept of plea bargain in my considered view 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”.
PLEA BARGAIN – EFFECT OF PLEA BARGAIN ON AN ACCUSED PERSON
“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”.
CRIMINAL TRIAL – MAIN PURPOSE OF A CRIMINAL TRIAL
“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 “.
PLEA BARGAIN –APPLICABILITY OF THE CONCEPT OF PLEA BARGAIN
“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”.
CASES CITED
Not Available
STATUTES REFERRED TO
Evidence Act|