Plea Bargain and Guidelines For Plea Bargaining in Nigeria
Plea Bargain and Guidelines For Plea Bargaining in Nigeria
Plea Bargain and Guidelines For Plea Bargaining in Nigeria
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variable is the minimum sentence that the prosecutor is willing to offer
compared with the monetary losses, such as lost income, lost work
experience, and lost job seniority while imprisoned, compounded by non-
monetary losses, such as time away from family and friends, association.3
Put differently, the equation reads thus: ‘a plea bargain occurs if the value
of the plea, less the costs associated with transacting the plea bargain and
serving the offered sentence, is worth more to the defendant than what he
or she might gain at trial’.4 On the part of the prosecution, the
Implementation Guidelines for Plea Bargain made pursuant to s 270
ACJA provided in article 4 (f) that the prosecution shall balance the risks
posed by the crime, the interest of the public and ends of justice in
undertaking a plea bargain.
2
b. Charge bargaining whereby prosecutors agree to drop some charges or
reduce a charge to a less serious offence in exchange for a plea by
the defendant. Subsumed in this is Counts bargaining whereby counts
charged may be reduced in number.
c. Fact bargaining which involves promises concerning the facts that the
prosecution may bring to the attention of the trial judge.
d. A ‘no contest plea’ (nolo contendere), in place of a guilty plea. It is a
plea in which the defendant chose not to contest the charges against
him but should the victim sue the defendant later in a civil court,
the ‘no contest plea’ cannot be put in evidence against the
defendant as an admission of guilt in proof of the civil claim.
Section 494(1) of the ACJA has defined ‘Plea bargain’ to mean the
process in criminal proceedings whereby the defendant and the
prosecution work out a mutually acceptable disposition of the case,
including the plea of the defendant to a lesser offence than that charged
in the complaint or information and in conformity with other conditions
imposed by the prosecution, in return for a lighter sentence than that for
the higher charge subject to the Court’s approval. The above description
appears to contemplate only a sentence and charge bargaining under the
ACJA. It is our submission that reliance can be placed on s 492(3) of the
Act which provides that where there are no express provisions, the Court
may apply any provision that will meet the justice of the case.
3
and their capacity. In a similar vein vitiating elements of contracts apply
to a plea bargain more or less. Thus, while courts are not involved at the
agreement stage, to avoid the pitfalls of possible rejection or invalidation,
parties must pay attention in the making of the contract; for instance, in
settling the terms of the agreement, the prosecution must reckon that
separate fines imposed on different counts at the same trial are to be
cumulative and the aggregate must be within the Court’s jurisdiction.5
Similarly, it must be borne in mind that where mandatory sentence or a
minimum sentence is prescribed by law, in settling plea bargain, those
requirements must be put into account.6 It is helpful the following points
must be further emphasized:
5
Fashusi v. Police (1953) 2 NLR 126. We must also advert our mind to the provisions of s 418(2) ACJA whereby ‘where
two or more sentences passed by a Magistrate Court are ordered to run consecutively, the aggregate term of
imprisonment shall not exceed 4 years of the limit of jurisdiction of the adjudicating Magistrate’.
6
Amoshima v The State (2011) 6 - 7 SC (Pt. 111) 1 and Kayode v State (2008) 1 NWLR (Pt. 1068) 281CA
7
55 F.3d 9, 12 (1st Cir. 1995)
8
Eze, loc. cit.
4
in Murphy v. Waterfront Comm’n,9 by dicta, that the federal
government could, under the Supremacy Clause, can grant
immunity from state prosecution even without the consent of the
state. However, if the defendant was misled as to who the agreement
binds, the agreement may be vitiated. Thus, it was held in Montoya
v. Johnson,10 that, if, in the course of state proceedings, the defendant
was misled into believing that his state plea would bind the federal
court, the defendant’s plea was entered involuntarily. Similarly, plea
agreements generally do not bind governmental bodies in the same
jurisdiction if they are not parties to the agreement. Two examples
from the US illustrate this. In United States v. Flemmi,11 it was noted
that if the rules were otherwise, a minor government functionary
would have the power to prevent prosecution of a defendant.
Similarly, in United States v. Igbonwa,12 it was held that a prosecutor
cannot bind the Immigration and Naturalisation Service by making
promises regarding deportation without explicit authority of the
Service. This situations can be overcome by either making such
other jurisdiction or agency a party to the agreement or expressly
stating that such agreement is not intended (or is intended, as the
case may be) to bind other agencies of government not parties to it.
The Implementation Guidelines had specifically provided for such
clauses under the title ‘approval and signatures’ and ‘exclusion of
other terms’.13 In this wise, consistent with the principles of
construction of contracts, where there are ambiguities for failure to
specify who the agreement binds, if it subsequently becomes an issue
whether it binds other agencies of government, it may be construed
9
378 U.S. 52, 71 (1964)
10
226 F.3d 399, 406 (5th Cir. 2000)
11
225 F.3d 78, 87 (1st Cir. 2000)
12
120 F.3d 437, 443 (3d Cir. 1997)
13
Article 10 (r) and (s)
5
in favour of the defendant on the principle that when government
could have taken steps to avoid imprecision, ambiguities would be
construed against the government: United States v. Fitch,14 and United
States v. Clark.15 The case of Romrig Nigeria Limited v. Federal Republic
of Nigeria16 also illustrates that only parties to a plea bargain can
subsequently rely on it to plead autre fois convict. In the case the
appellant was 6th defendant in a criminal charge which was
subsequently amended, removing the appellant and four other
defendants, leaving only the 1st and 5th defendants. It was held that
the plea bargain agreement on the amended charge can be relied on
only by the two defendants on the amended charge.
5. Unless the prosecutor in the plea agreement specifically agree not to
subsequently prosecute for other offences factually sustainable by
the same evidence but requiring different elements, the plea of
double jeopardy do not avail the defendant in such subsequent trial.
This was the decision of the Court of Appeal in in FRN v. Lucky
Nosakhare Igbinedion & Ors.17
6. Based on the contractual analysis, a breach may attract usual
consequences known in common-law. The party claiming breach
must prove the breach by a preponderance of the evidence. If the
defendant breaches a plea agreement, the government may choose
to re-prosecute the defendant and bring more serious charges. If a
guilty plea to a lesser charge is vacated, withdrawn, or overturned on
appeal, the government may reinstate charges dismissed as part of
14
282 F.3d 364, 368 (6th Cir. 2002)
15
218 F.3d 1092, 1095 (9th Cir. 2000)
16
(2014) LPELR-22759(CA). Sister cases to the above in which the issues are the same, having arisen from the same case,
include Gava Corporation Limited v. FRN (2014) LPELR-22749(CA), ROMRIG Nigeria Ltd v. FRN (2014) LPELR-
22759(CA); PML (Nigeria) Limited v. FRN (2014) LPELR-22767(CA) and PML Securities Company Limited v. FRN (2014)
LPELR-22768(CA).
17
(2014) LPELR-22760(CA)
6
the plea agreement. It was thus held in United States v. Swint,18 that
the defendant has the burden of proving by a preponderance of the
evidence that the government breached the plea agreement while in
United States v. Moulder,19 it was held that, under frustration of
purpose doctrine, the government’s plea obligations are
dischargeable upon breach but they may reinstate charges.
7. Where the state defaults on its promises in a plea bargain, the
reviewing court has discretion to either order specific performance
of the plea bargain or to provide the opportunity for the defendant
to withdraw his guilty plea. Any re-sentencing at the trial level
should be before a different judge.20
8. The process can be initiated by either the prosecution or the
defendant. Where initiated by the prosecution, it may be orally or in
writing but the offer shall be accompanied with a form containing
the rights, obligations and consequences of the defendant accepting
or rejecting the offer. On the part of the defendant, such offer shall
be accepted by deposition in an affidavit stating record of previous
convictions and an undertaking ‘to be a good and productive citizen
henceforth and adhere to the terms of the plea bargain when agreed
upon’.21 The offer may also ensue from the defendant either in
person or through his representative in writing or orally but shall be
accompanied by an affidavit of disclosure deposed to by the
defendant stating record of previous convictions and an
undertaking to be a good and productive citizen thenceforth and to
adhere to the terms of the plea bargain when agreed upon.22
18
223 F.3d 249, 253 (3d Cir. 2000)
19
141 F.3d 568, 572 (5th Cir. 1998)
20
Proctor v. State 809 S.W.2d 32 (Mo. Ct. App. 1991)
21
Article 5
22
Article 7
7
SOURCES OF LAWS ON PLEA BARGAIN IN NIGERIA
23
The ‘sum of money’ consideration must exceed the amount of possible fine imposable if the defendant were
convicted.
8
While compounding of an offence is not defined in the EFCC Act,
it was defined by the Court of Appeal in FRN v. Igbinedion & Ors.24 as ‘to
settle a matter (especially a debt) by a money payment in lieu of other
liability or to agree for a consideration not to prosecute a crime’. What to
be noted is that, under the EFCC Act, in every plea bargain there must be
money flowing from the defendant as part of the agreement, as no other
kind of consideration is contemplated from the defendant. On the part of
the Commission, their agreement would be ‘not to prosecute’. It also
appears from the above provision that a court need not give its seal to the
validity of such compounding for it to be effective.
Given that, the money recovered under s 14(3) is to be paid into the
Consolidated Revenue Fund of the Federation, it is presumable it would
be unwise to resort to these provisions where the offence committed by
the defendant was against an entity other than the federal government.25
However, the Commission may, under the ACJA, enter into plea bargains
with defendants for considerations otherwise than the payment of money
or not prosecuting.
9
defendant was already convicted or with the consent of the committing
Magistrate or the Judge of the Court the defendant was committed to
trial.26
26
There is some confusion as to whether the CPC has been repealed. Our submission is that it has not been repealed
and can apply concurrently with the ACJA. See Samuel E. Idhiarhi, ‘A Synoptic Appraisal of the Practice and
Procedure for Plea Bargaining Under the Administration of Criminal Justice Act 2015’, (2016) 6(1) AJLC 12-24
<http://www.sachajournals.com/documents/image/ajlc2016v01sam002.pdf> accessed April 12, 2016
27
Chidolue v. EFCC (supra).
10
employed attorney or a layperson rather than by the public
prosecution agency.28
The ethical requirements from a prosecutor in plea bargain are
no different from what is expected of him in his general duty as a
lawyer and prosecutor i.e. to act as an officer of the court and that
he should not pursue securing conviction at all costs, the most
important interest being ‘that only factually guilty defendants plead
guilty’.29 The Implementation Guidelines has set out some of the
expected ethical standards in articles 8 and 9(a). In précis, apart
from the usual considerations that must inform the decision
whether or not to plea bargain, below are some specific obligations
imposed on the prosecutor:
i. Charges are not to be bargained away or dropped, unless
the prosecutor has a good faith doubt as to the
government’s ability readily to prove a charge for legal or
evidentiary reasons;
ii. Make timely disclosure to the defence of all evidence or
information known to the him that tends to negate the
guilt of the accused or mitigates the offence;30
iii. Similarly, in connection with possible sentence, disclose
to the defence and to the court all unprivileged
mitigating information known to him;
iv. Bring only charges supported by ‘probable cause’ i.e. that
which is such that there are “reasonable ground to
suspect that a person has committed a crime” and the
28
The ACJA did not define a private prosecutor but rather described who is not a private prosecutor, namely that it
‘does not include a person prosecuting on behalf of the State or a public officer prosecuting in his official capacity’.
29
Erica Hashimoto, ‘Toward Ethical Plea Bargaining’ (2008) 30(3) Cardozo Law Review 950
<http://cardozolawreview.com/Joomla1.5/content/30-3/HASHIMOTO.30-3.pdf> accessed December 26, 2017
30
The case of Brady v. Maryland, 373 U.S. 83 (1963) is the locus classicus for the disclosure of exculpatory evidence.
Brady and its progeny require that the prosecution timely disclose exculpatory and impeachment evidence, relevant
to both guilt and punishment, whether or not it has been requested for by the defence.
11
evidence reasonably support the number and degree of
the charges filed.
v. Avoid overcharging as a means to coerce submission to a
plea bargain.
vi. Do not simulate evidence where none exist.
vii. Do not knowingly take advantage of an unrepresented
defendant; if expedient, the prosecutor may refer the
defendant for advice to bodies like the Legal Aid
Council before concluding the terms of the agreement.
viii. The prosecutor shall ensure effect is given to the
judgment upon the plea of the defendant. Thus, he shall
take reasonable steps to ensure that any money, asset or
property agreed to be forfeited or returned by the
offender under a plea bargain are transferred to or vested
in the victim, his representative or other person lawfully
entitled to it.31
ix. Involve and consult the person who investigated the
case.32
x. He should carry every interested party along and act
transparently towards the victim(s) of the crime,
complainants (where different from the victim), the
witnesses and even the general public.33
31
s 270(12)
32
s 270(5)(a)
33
Article 4(f)
12
agreement may become effectual. Similarly, the subsection is also not clear
as to whether the referral to the Attorney-General shall be before or after
the court entertains the agreement. Since there is a presumption of
regularity, we think that the prosecution is to be taken as having sent a
copy and obtained the consent of the Attorney-General in all plea
bargains until the contrary is proved.
13
was established to be deficient and not in the best interest of the
defendant, it might be cause to find that there was no fair hearing.37
As an incident of contract, the defendant must have the
capacity, both in age and mentally, to enter into the plea bargain
before he can be bound.38 In other words, the plea must be entered
by the defendant knowingly and voluntarily, with the advice of
competent counsel. Thus, in one case, it was held that there was
harmful error when a secondary competency hearing was not held
when the defendant was previously hospitalized for a mental
defect.39 However, the question of competency may generally be
settled if, before a court enter the plea of guilt, it affirmatively held a
hearing on competency; colloquy was held inadequate when judge
had reason to suspect that defendant might not be acting with
adequate capacity.40
Where defendant is not represented by counsel or, in the case
of defendant minors who lack full capacity, it might be helpful to
ensure that, before accepting the plea, the court must obtain a
written ‘waiver of counsel’ from the defendant, besides reflecting in
the court’s record that the defendant understands his right to an
attorney and is waiving that right. For a minor, pursuant to s 216 of
the Child Rights Act a parent or guardian or someone in loco
parentis should be able to make or accept the offer of a plea bargain
on behalf of the defendant.
THE ROLE OF THE VICTIM AND HIS RIGHTS
37
In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court held that defendant, Padilla, was entitled
to post-conviction relief because he entered a plea based on his counsel’s erroneous advice regarding the immigration
consequences of conviction. The Court found that Mr. Padilla’s counsel’s representation was constitutionally deficient
and that he had been denied effective assistance of counsel.
38
The age of majority in Nigeria is 18 years but under the Child’s Right Act, it might be sufficient if a guardian acts on
behalf of a child. In France, only adults are allowed to plea bargain.
39
United States v. Giron-Reyes, 234 F.3d 78, 80 (1st Cir. 2000)
40
United States v. Timbana, 222 F.3d 688, 717 (9th Cir. 2000)
14
Who may be considered a victim is not defined in the ACJA.
The Black’s Law Dictionary simply defined a victim as ‘a person
harmed by a crime, tort, or other wrong’.41 Expansively construed,
therefore, victim can mean direct victims, immediate family
members, and tertiary victims such as law enforcement agents who
suffered collateral injuries arising from the criminal conduct of the
defendant. It will cover both juristic and natural persons. While
conceptually the two parties to a crime are the State and the
defendant, the victim’s interest is accommodated as follows:
i. The UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985, specifically
imposed a duty upon prosecutors to provide specific
information to victims about various aspects of the criminal
trial process – including plea bargains and sentencing.
ii. Under s 270(2) ACJA, the prosecution may enter into plea
bargaining with the defendant, with the consent of the victim
or his representative during or after the presentation of the
evidence of the prosecution, but before the presentation of
the evidence of the defence.
iii. Under s 270(5) ACJA, the prosecution may enter into an
agreement in the circumstances contemplated under sub-s
(3) only after consultation with the victim or his
representative.
iv. The prosecution shall afford the victim or his representative
the opportunity to make representations to the prosecutor
regarding the content of the agreement and the inclusion in
the agreement of a compensation or restitution order.42
41
Black's Law Dictionary (10th edn., 2014) 832
42
s 270(6) ACJA
15
The use of the phrases ‘the consent’ in sub-s (2), ‘consultation with’
in sub-s (5) and ‘shall afford’ in sub-s (6) gives the impression that there
are different circumstances for the involvement of the victim and the
force of that involvement. We submit that the said provisions should be
read communally and liberally interpreted; having regard to the nature of
the offence, in some cases the victim’s consent shall be obtained but in
others, the victim might merely be consulted. In any event, the
Implementation Guidelines requires that the victim or complainant shall
not withhold consent unreasonably where such consent is required to
initiate the plea bargain process.43
43
Article 9 (b)
44
Article 11 of the Implementation Guidelines generally reproduced s 270 (2) and (4) ACJA.
45
s 270(4) ACJA
46
s 270(2) ACJA
16
From the above provisions, it will seem that the opportunity to plea
bargain would be lost after the defence has opened its case.47 However,
the prosecution may still consider a plea bargain even after the defence
has opened its case, relying on s 355 of the ACJA.48
At whatever stage, the requirement of the law is that when the plea
agreement is presented to the court, the defendant shall be present in
court throughout.50 We submit that, if, by reason of the misconduct of
the defendant which renders his continuing presence impracticable or
undesirable, and so he cannot be present in court when the plea
agreement is presented to the court, it may be reason for the court to
reject the plea agreement. An exception to the compulsory presence of the
defendant is where the matter is before a Magistrate court which had
issued summons; here the plea agreement may be presented to the court
even with the absence of the defendant where the offence in respect of
which the summons was issued is punishable by a fine of not more than
N10,000.00 or a term of imprisonment not exceeding six months or both
provided the defendant applied for his presence to be dispensed with, and
47
Article 11 (d)
48
Since the order would be acquittal, the court cannot impose any penalty as part of the acquittal presumably except
for compensation under ss 314 and 319 ACJA
49
Article 12
50
s 266 ACJA
17
he has in writing pleaded guilty to the charge (which the agreement
represents) or he so pleads guilty through his lawyer.51
To avoid abuse, the ACJA had specifically set out some factors that
may be taken into account in deciding whether or not to go into plea
bargain. These are more like a checklist for prosecutors and may be
divided into two stages; the first before the defendant has taken his plea
to the charge while the second stage is during or after the presentation of
the evidence of the prosecution, but before the presentation of the
evidence of the defence.52 It needs to be stressed that the prosecution
must always take into account whether the objective in any particular case
is to exact retribution or restoration or forfeiture.53
Before the defendant has taken his plea, the overriding motivation
for agreeing to a plea bargain should be public interests, public policy, the
need to prevent abuse of legal process, severity of the penalty, personal
characteristic of the defendant, and the written consent of the defendant.
Public interest would be indicated by the following:54
18
7. The probable sentence or other consequences if the defendant is
convicted;
8. The expense of trial and appeal;
9. The need to avoid delay in the disposition of other pending
cases;
10. The defendant’s willingness to make restitution or pay
compensation to the victim where appropriate.
11. The nature and circumstances of the offence or offences
charged.
1. The nature and severity or gravity of the offence(s) charged and the
degree of harm or loss suffered by the victim;
55
s 270 (2)(a), (b) and (c)
19
2. The defendant’s willingness and readiness to return proceeds and
benefits of crime;
3. The defendant’s willingness and readiness to return proceeds and
benefits of crime;
4. Public morality and public safety;
5. Age of the victim or the offender;
6. Vulnerable status of the victim or the offender;
7. The effect upon the victim’s right to restitution; and
8. Such other factors as the circumstances of the particular case may
require.56
1. Be in writing.
2. Shall contain an affirmation that, before the conclusion of the
agreement, the defendant has been informed:
i. Of his right to remain silent;
ii. Of the consequences of not remaining silent; and
iii. That he is not obliged to make any confession or admission
that could be used in evidence against him.
3. Fully state the terms of the agreement and any admission made;
4. Be signed by the prosecutor, the defendant, the legal practitioner
and the interpreter, if any.
56
Other factors the prosecution may also consider include the lapse of time between when the crime was committed
and when the prosecution was being initiated, a fact that may have diluted the potency of relevant evidence, and
where the victim was not identified.
20
consent of both the prosecution and the defence and it reflects their
agreement. In principle, it should have been enough that the facts of the
agreement are taken down by the court after being stated orally to the it
in the course of proceedings, especially at the Magistrate court level.
The key phrases here are the ‘sentence recommended’, ‘within the
appropriate range of punishment stipulated’, and ‘plea of guilty by the
defendant for the offence’. The use of the word recommended would imply
that the Judge is not under obligation to give effect to the sentence as
agreed by the prosecutor and defendant, a point of view supported by sub-
s (11) and indeed the definition of plea bargain which made the plea
agreement subject to court’s approval.
21
a minimum and maximum sentence, already specified in a statute, within
which the recommended sentence will fall. The problem is that many
offences simply have a term of sentence, not a minimum and maximum
sentence. Presumably, the prosecution would just have to agree to a term
of imprisonment not too disproportionately far off from what is stated in
the statute book. To avoid confusion, the recommended sentence should be
the same as the appropriate sentence.
57
s 494 (1)
22
between a felony, an indictable offence and a misdemeanour.58 This may
be compared with the Law in Anambra State which made a fine
distinction when it provided that plea bargaining shall not apply to
persons charged with capital offences or any offence involving the use of
violence or persons who had in the last ten years been convicted and
sentenced for any such similar offence or any offence involving grievous
violence or sexual assault.59
What can be affirmatively said here is that plea bargain under the
ACJA does not apply to capital offences. This conclusion is inescapable
given the provisions of s 274(3) ACJA that ‘where the defendant pleads
guilty to a capital offence, a plea of not guilty shall be recorded for him’.
While the court is not party to plea bargain agreements, the court is
vested with power to approve same before it becomes operational.60 The
presiding judge or magistrate before whom the criminal proceedings are
pending shall not participate in the discussion leading up to the
agreement;61 the reason for this prohibition is that to allow judicial
participation ‘could be taken to be undue pressure on the accused, thus
depriving him of that complete freedom of choice which is essential’.62 In
the US case of United States v. Rodriguez,63 it was held that a judge
improperly participated in plea negotiations and thereby invalidated it.
58
ibid
59
See s 167(4).
60
See the definition of plea bargain in s 494 (1)
61
s 270 (8).
62
R. v Turner (1970) 2 All ER 281 at 283. See also Philip A. Thomas, ‘Plea Bargaining in England’, (1978) 69(2) J. Crim. L.
& Criminology 170 <http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6067&context=jclc>
accessed September 17, 2015
63
197 F.3d 156, 159 (5th Cir. 1999)
23
The area of involvement of the presiding Judge is only upon presentation
of the agreement for his approval and it may take the following forms:
64
s 270(9)
65
141 F.3d 784, 788 (7th Cir. 1998)
66
s 270(10)(b)
24
plea of guilt to that offence, and the court shall proceed to award
such compensation to the victim agreed in the terms of agreement.67
In a similar vein, the judge shall, where appropriate, further make
an order that any money, asset or property agreed to be forfeited
under the plea bargain shall be transferred to and vest in the victim
or his representative or any other person as may be appropriate or
reasonably feasible.68
6. Under s 270(11), upon conviction of the defendant on his plea of
guilt, the judge must consider the sentence as agreed upon and take
one of three courses:
i. Where the judge is satisfied that such sentence is an
appropriate sentence, he will impose the sentence as
agreed.
ii. Alternatively, where the judge is of the view that he would
have imposed a lesser sentence than the sentence agreed,
he may impose the lesser sentence.
iii. Or, further alternatively, if the judge is of the view that the
offence requires a heavier sentence than the sentence
agreed upon, the judge shall inform the defendant of such
heavier sentence he considers to be appropriate and the
procedure specified in section 270(15) ACJA shall then
apply.
Thus, where the judge has indicated that the offence requires a
sentence heavier than that agreed, the defendant may either abide by his
plea of guilt as agreed and submit to such heavier sentence or the
defendant may withdraw from the his plea agreement, in which case the
trial shall proceed de novo before another presiding judge where no
67
s 270(10)(a)
68
s 270(12)
25
reference shall be made to the aborted agreement or any admission earlier
made and the possibility of another plea bargain is foreclosed.69
To avoid the awkwardness71 that may arise where the defendant may
withdraw from the agreement because of the heavier sentence the court
proposed to impose, it was held to be a good practice to advice defendant
of the sentence prior to acceptance of plea and or his conviction by the
court.72
RIGHT OF APPEAL
The ACJA was categorical that the judgment of the court convicting
a defendant consequent on a plea bargain agreement shall be final and
not liable to appeal except where fraud is alleged.73 The concept of plea
bargain is akin to a court entering a consent judgment in a civil suit.
Thus, the provision in the ACJA can be contrasted with s 241(2)(c) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
which provides that no right of appeal inheres without the leave of the
69
s 270(15) and (16)
70
Article 12
71
Technically, the court is functus officio on the question of liability after accepting the plea and convicting the
defendant.
72
See United States v. Fernandez, 877 F.2d 1138, 1144 (2d Cir. 1989) where it was noted that while not required, it may be
good practice for the court to assure itself that the defendant has been advised about the applicability of the
Guidelines.
73
sub-s (18)
26
Federal High Court or a High Court or of the Court of Appeal, from a
decision of the Federal High Court or High Court made with the consent
of the parties or as to costs only. The point is also to be made that s
241(2)(c) of the Constitution did not directly apply to Magistrate Courts;
therefore, for Magistrate Courts, s 485 ACJA, particularly sub-s (9)(c) will
apply. What is obvious is that whenever an appeal is contemplated against
a plea agreement on account of fraud, it can only be with leave.
CONCLUSION
The practice and procedure of plea bargaining is still evolving and several
of the provisions of the law still needs to tested before the highest judicial
authorities in Nigeria before the law will become crystallized. We hope
our thoughts on the subject would inspire further discussion. Thank you.
27