COURT OF APPEAL RESCUES A FRAUDSTER WHOSE PLEA BARGAIN AGREEMENT WAS “BETRAYED” BY THE HIGH COURT

Plea Bargain – Meaning and Essential Principles

Plea Bargain is an interesting invention by the law for the benefit of a person accused of committing an offence, the prosecutor and the society in general. Contrary to the assumption by many at inception in Nigeria particularly, a plea bargain does not operate to set a criminal free absolutely. Rather, a criminal defendant can use a plea bargain to secure some form of soft landing when faced with certain allegation(s) of crime. Black’s Law Dictionary defines a plea bargain as:

A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty or no contest to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges.

Clearly, the essence of a plea bargain is an agreement to plead guilty, and quickly too, in order to save time and resources that would have been wasted on a full trial. The reward given to the defendant for pleading guilty comes in different forms. The defendant may receive a lighter punishment or a dismissal of other charges (where there are multiple charges). Other terms of the bargain might include forfeiture by the defendant of the proceeds of the crime.

The first criminal law statute in Nigeria to recognize plea bargain is the Administration of Criminal Justice Law of Lagos State, 2011. Plea bargain is now provided for in the Administration of Criminal Justice Act, 2015 (ACJA). The prosecutor is empowered to consider the nature of the offence, public interest and the interest of justice in deciding whether to enter into a plea bargain arrangement.

The law requires that a plea bargain agreement must be reduced into writing and duly executed. Once executed, it becomes binding as a legal contract. The prosecutor has a duty to bring the plea bargain agreement to the attention of the court. Generally, the court is to abide by the terms of the agreement. For instance, if by the agreement, the defendant agrees to plead guilty in order to receive a one month sentence upon conviction, the court is expected to hand the defendant a one month sentence and nothing more.

However, the law provides an exception and gives the court power to examine the plea bargain agreement before acting on it. For instance, Section 270 of the ACJA contains elaborate provisions. Thus, the court has the discretion to award a heavier sentence where the court is of the view that it is necessary to do so. Also, the court has the power to examine the agreement to ensure there is a provision for restitution, for the benefit of the victim of a crime.

Before a court can overlook the light sentence agreed in the plea bargain to award a heavier one, the law provides for a special procedure in the interest of justice and fair hearing. This procedure requires that the court must inform the defendant of the much heavier sentence the court considers more appropriate and thereby give the defendant the opportunity to change his plea or back out of the plea bargain agreement, in order to set the stage for full trial. Where the court fails to do so, any award of a heavier sentence without prior notice to the defendant would be invalid and the lighter sentence agreed in the plea bargain would be upheld.

In the case of Olumide Agbi v. Federal Republic of Nigeria [2020] 15 NWLR (Pt. 1748) 416, the trial Court failed to follow due process in awarding a heavier sentence. The Court of Appeal struck it down. The story is quite interesting.

The Case of the Fraudster, Olumide Agbi (AKA William Streak and James Brown)

The Appellant, Olumide Agbi (pretending to be William Streak and James Brown) fraudulently obtained the sum of $1,000 from three US citizens. He was eventually apprehended by the Economic and Financial Crimes Commission (EFCC). He executed a plea bargain agreement that saw him arraigned at the High Court of the Federal Capital Territory on a one-count charge of the offence of cheating. A plea bargain agreement accompanied the Charge. In the agreement, the Appellant admitted committing the offence and agreed to return all the proceeds of the crime. He was said to have been remorseful too. In return, it was agreed that the Appellant shall upon conviction be sentenced to one-month imprisonment or given an option of fine.

The plea bargain agreement was brought to the attention of the Court. The Appellant pleaded guilty to the Charge and was convicted. While his ears looked forward to hear a sentencing of one-month imprisonment or an option of fine in line with the agreement, the learned trial Judge, Hon. Justice Idris, played a different tune, an unpleasant one at that. The Judge sentenced him to three years imprisonment on the ground that cybercrimes dent the image and affect the integrity of Nigeria. The Judge did this without any prior notification to the Appellant to enable him decide whether or not to opt out of the plea bargain agreement entirely and prepare for full trial before another judge.

Aggrieved, the Appellant appealed to the Court of Appeal. The EFCC honourably backed the Appellant by admitting that the learned trial Judge erred in law. The Court of Appeal rightly held that the decision of the trial Court to award a heavier sentence contrary to the plea bargain agreement without prior notification to the Appellant or his counsel was a breach of the Appellant’s right to fair hearing. The duty of the Court to so inform the Appellant is a constitutional and a statutory duty as contained under Section 270(11)(c) of ACJA. Ige, JCA clearly explained that “The provision is not enacted for the fun of it.” His Lordship had earlier stressed:

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 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 above decision of the Court of Appeal emphasizes the level of importance attached to plea bargain arrangements as provided for by the ACJA. The decision further shows that the rule of law is supreme. The Court upheld the principle that where a statute prescribes the method of doing anything, it must be done accordingly. Thus, any overzealousness in enforcing the law that runs contrary to the law itself must be struck down. 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.

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09079024002 stephenlegalblog@gmail.com info@stephenlegal.ng

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