ANOTHER LOOK AT PLEA BARGAIN IN NIGERIA’S CRIMINAL

JUSTICE ADMINISTRATION

https://guardian.ng/features/law/another-look-at-plea-bargain-in-nigerias-
criminal-justice-administration/
Former accountant general of the federation, Jonah Otunla, reportedly returned
N6.3billion to the federal government, following an agreement he allegedly
reached with the suspended acting chairman of the Economic and Financial Crimes
Commission (EFCC), Ibrahim Magu. Accused of money laundering, he decided to
make a pact with the understanding that he would not be prosecuted anymore. But
that seems not to be the case. The EFCC is prosecuting him on five counts of
money laundering involving the diversion of about N2billion from the account of
the office of the National Security Adviser.
   
He was to be arraigned on December 7, 2017, along with one Ade Adelakun, and
seven other companies – Gold Reef Industries Limited; Lambster Nigeria Limited;
G.C. Electronic Limited; Sinmilak Nigeria Limited; Wehsac Farms Limited;
Shepherded Field Global Resources Limited and Stellavera Development
Company Limited – but his absence stalled his arraignment. He has still not been
arraigned. He is allegedly challenging his arraignment, having reached an
understanding that he would not be arraigned on account of the money already
returned.
   
Also, former Comptroller-General of Customs, Dikko Inde Abdullahi entered into
an agreement with the Federal Government to refund $8 million, believed to have
been misappropriated during his tenure. He reportedly did. However, the EFCC
still went ahead to file charges against him. But he insisted that he could no longer
be prosecuted, having returned the money.

Consequently, a Federal High Court in Abuja stopped the EFCC from prosecuting
Dikko for financial infraction while in office. Justice Nnamdi Dimgba, in a
judgment upheld Dikko’s argument that he can no longer be prosecuted by an
agency of the Federal Government after an agreement he entered with the Attorney
General of the Federation (AGF) and the Director-General of the Department of
State Services (DSS) to refund $8 million to the government.
   
Justice Dimgba held that since it was proved that such an agreement exists, and
Dikko has kept his side of the bargain by paying N1.576 billion ($5.12 million) to
the Federal Government through the EFCC funds recovery account in the Central
1
Bank of Nigeria (CBN), it was wrong for the EFCC or any other agency of
government to seek to prosecute him on the same crime.  
   
Justice Dimgba held that by virtue of the provisions of Section 174 of the
Constitution, the AGF, being the chief law officer of the federation, was imbued
with wide powers and discretion on prosecution matters.
   
The judge said the claim by the anti-graft agency that it acted on an anonymous
petition to commence its investigations “cannot override the discretionary powers
conferred on the Attorney-General of the Federation by virtue of Section 174 of the
Constitution.” Justice Dimgba also noted that since Attorney-General did not
oppose the suit by Dikko, the AGF had subscribed to Dikko’s case.
  
 These developments have once again resurrected the debate about the pros and
cons of plea bargain and when the doctrine should apply in law.

For Bar Elias Offor, plea bargain introduces restitution in the criminal
jurisprudence in a very awkward way. “Due to the way it is being practiced in
Nigeria, it encourages graft even more. A case of gross misappropriation that
warrants death penalty in some countries will be accorded remission by plea
bargain where after, the culprit walks the road unperturbed. Plea bargain in the
manner it is being practiced in Nigeria makes mockery of the country’s laws,” he
declared.

The national welfare secretary of the Nigerian Bar Association (NBA), Bar Kunle
Edu described plea bargain as a signed agreement between the prosecution and the
defendants in a criminal trial. According to him, it is akin to filing terms of
settlement in a civil case.

“The introduction of plea bargain into Nigeria’s criminal jurisprudence by the

Administration of Criminal Justice Act and the domesticated versions in various
States, is a welcome development,” he said, adding that it fast-tracks criminal trials
and ensure that justice is done from a social obligation perspective.

His words: “It also reduces the cost of criminal prosecution. So, I see plea bargain
as a win-win arrangement amongst the prosecutor, the defendant, the court and
also the general public.” 

Edu however, pointed out that it is the court’s approval of the terms of the bargain
that gives it legal effect before it is made judgment of the court. “The trial court
2
still has the power to consider if the terms of the bargain are reasonable, not
against any law and public policy. There must also be free will of the parties in
making it. Therefore, fraud, misrepresentation and undue influence once proven
may vitiate a plea bargain already made judgment of a court and can be challenged
on those grounds,” he explained.

Lagos lawyer, Osita Enwe believes that to effectively use plea bargain as a shield
against prosecution, the plea and the bargain must have to occur after an
arraignment in court. He added that any of such agreement was acceptable to the
court. This, he said, is consistent with the public interest dimension in every plea
bargain.

Citing section 14(2) of the EFCC Act, Enwe argued that the section allows the
Commission to enter into a plea bargain with only an accused person and not a
mere suspect. “For Otunla to return N6.3billion after an agreement with Magu,
does not seem to fulfill the conditions for a plea bargain. Neither does Dikko’s
return of N1.9billion to the AGF upon an agreement without fulfilling the
conditions of a plea bargain.

Former accountant general of the federation, Jonah Otunla, reportedly returned

N6.3billion to the federal government, following an agreement he allegedly
reached with the suspended acting chairman of the Economic and Financial Crimes
Commission (EFCC), Ibrahim Magu. Accused of money laundering, he decided to
make a pact with the understanding that he would not be prosecuted anymore. But
that seems not to be the case. The EFCC is prosecuting him on five counts of
money laundering involving the diversion of about N2billion from the account of
the office of the National Security Adviser.
   
He was to be arraigned on December 7, 2017, along with one Ade Adelakun, and
seven other companies – Gold Reef Industries Limited; Lambster Nigeria Limited;
G.C. Electronic Limited; Sinmilak Nigeria Limited; Wehsac Farms Limited;
Shepherded Field Global Resources Limited and Stellavera Development
Company Limited – but his absence stalled his arraignment. He has still not been
arraigned. He is allegedly challenging his arraignment, having reached an
understanding that he would not be arraigned on account of the money already
returned.
   
Also, former Comptroller-General of Customs, Dikko Inde Abdullahi entered into
an agreement with the Federal Government to refund $8 million, believed to have
been misappropriated during his tenure. He reportedly did. However, the EFCC

3
still went ahead to file charges against him. But he insisted that he could no longer
be prosecuted, having returned the money.
x
   
Consequently, a Federal High Court in Abuja stopped the EFCC from prosecuting
Dikko for financial infraction while in office. Justice Nnamdi Dimgba, in a
judgment upheld Dikko’s argument that he can no longer be prosecuted by an
agency of the Federal Government after an agreement he entered with the Attorney
General of the Federation (AGF) and the Director-General of the Department of
State Services (DSS) to refund $8 million to the government.
   
Justice Dimgba held that since it was proved that such an agreement exists, and
Dikko has kept his side of the bargain by paying N1.576 billion ($5.12 million) to
the Federal Government through the EFCC funds recovery account in the Central
Bank of Nigeria (CBN), it was wrong for the EFCC or any other agency of
government to seek to prosecute him on the same crime.  
   
Justice Dimgba held that by virtue of the provisions of Section 174 of the
Constitution, the AGF, being the chief law officer of the federation, was imbued
with wide powers and discretion on prosecution matters.
   
The judge said the claim by the anti-graft agency that it acted on an anonymous
petition to commence its investigations “cannot override the discretionary powers
conferred on the Attorney-General of the Federation by virtue of Section 174 of the
Constitution.” Justice Dimgba also noted that since Attorney-General did not
oppose the suit by Dikko, the AGF had subscribed to Dikko’s case.
  
 These developments have once again resurrected the debate about the pros and
cons of plea bargain and when the doctrine should apply in law.
For Bar Elias Offor, plea bargain introduces restitution in the criminal
jurisprudence in a very awkward way. “Due to the way it is being practiced in
Nigeria, it encourages graft even more. A case of gross misappropriation that
warrants death penalty in some countries will be accorded remission by plea
bargain where after, the culprit walks the road unperturbed. Plea bargain in the
manner it is being practiced in Nigeria makes mockery of the country’s laws,” he
declared.

The national welfare secretary of the Nigerian Bar Association (NBA), Bar Kunle
Edu described plea bargain as a signed agreement between the prosecution and the

4
defendants in a criminal trial. According to him, it is akin to filing terms of
settlement in a civil case.

“The introduction of plea bargain into Nigeria’s criminal jurisprudence by the

Administration of Criminal Justice Act and the domesticated versions in various
States, is a welcome development,” he said, adding that it fast-tracks criminal trials
and ensure that justice is done from a social obligation perspective.

His words: “It also reduces the cost of criminal prosecution. So, I see plea bargain
as a win-win arrangement amongst the prosecutor, the defendant, the court and
also the general public.” 

Edu however, pointed out that it is the court’s approval of the terms of the bargain
that gives it legal effect before it is made judgment of the court. “The trial court
still has the power to consider if the terms of the bargain are reasonable, not
against any law and public policy. There must also be free will of the parties in
making it. Therefore, fraud, misrepresentation and undue influence once proven
may vitiate a plea bargain already made judgment of a court and can be challenged
on those grounds,” he explained.

Lagos lawyer, Osita Enwe believes that to effectively use plea bargain as a shield
against prosecution, the plea and the bargain must have to occur after an
arraignment in court. He added that any of such agreement was acceptable to the
court. This, he said, is consistent with the public interest dimension in every plea
bargain.

Citing section 14(2) of the EFCC Act, Enwe argued that the section allows the
Commission to enter into a plea bargain with only an accused person and not a
mere suspect. “For Otunla to return N6.3billion after an agreement with Magu,
does not seem to fulfill the conditions for a plea bargain. Neither does Dikko’s
return of N1.9billion to the AGF upon an agreement without fulfilling the
conditions of a plea bargain.

“In any case and in view of the commitment of the Federal Government to fight
corruption, the State ought to respect such agreement and ratify it in court by way
of plea bargain. To successfully prosecute them at this time, in view of their
seeming mutual agreement, may amount to undue utilisation of tax payers’ funds,”
he stated.

5
He added that the circumstances serve as material lesson for anyone who wants to
enter into such agreement to seek proper legal advice and an occasion for the
courts to affirm the conditions of a plea bargain in Nigeria. 

Describing plea bargain as a win-win situation, activist lawyer, Dr. George Uboh
said it is a “dream come through from the prosecution’s end point and the delight
of the criminal defendant, if the fellow is able to negotiate a good deal.”

Uboh explained that instead of spending years and years, the criminal defendant
would be able to cut it down, citing the case of Lucky Igbinedion, who was only
fined N5 million. Such deal, he said, would be fine for such defendant because the
government cannot appeal the plea bargain decision.

“The bad thing is that regardless of the amount of time the criminal defendant
spends, the criminal record remains. So, that is the bad news for any criminal
defendant who hopes to plead guilty,” he stated.

He explained that when the Attorney General of the Federation engaged him to
trace funds trapped in financial institutions, he handled that of the defunct Oceanic
bank, whose erstwhile managing director, Cecilia Ibru pleaded guilty on such plea
bargain arrangement. Uboh said as at that time, the government was not aware of
the UK branch of the bank, but because the MD then pleaded guilty on a blanket
basis to forfeit all Oceanic bank assets to the federal government, it was easy for
him to fly to UK and recover those funds without any resistance. According to
him, 23.4 million Pounds was recovered as at 2015.

Former accountant general of the federation, Jonah Otunla, reportedly returned

N6.3billion to the federal government, following an agreement he allegedly
reached with the suspended acting chairman of the Economic and Financial Crimes
Commission (EFCC), Ibrahim Magu. Accused of money laundering, he decided to
make a pact with the understanding that he would not be prosecuted anymore. But
that seems not to be the case. The EFCC is prosecuting him on five counts of
money laundering involving the diversion of about N2billion from the account of
the office of the National Security Adviser.
   
He was to be arraigned on December 7, 2017, along with one Ade Adelakun, and
seven other companies – Gold Reef Industries Limited; Lambster Nigeria Limited;
G.C. Electronic Limited; Sinmilak Nigeria Limited; Wehsac Farms Limited;
Shepherded Field Global Resources Limited and Stellavera Development

6
Company Limited – but his absence stalled his arraignment. He has still not been
arraigned. He is allegedly challenging his arraignment, having reached an
understanding that he would not be arraigned on account of the money already
returned.
   
Also, former Comptroller-General of Customs, Dikko Inde Abdullahi entered into
an agreement with the Federal Government to refund $8 million, believed to have
been misappropriated during his tenure. He reportedly did. However, the EFCC
still went ahead to file charges against him. But he insisted that he could no longer
be prosecuted, having returned the money.
   
Consequently, a Federal High Court in Abuja stopped the EFCC from prosecuting
Dikko for financial infraction while in office. Justice Nnamdi Dimgba, in a
judgment upheld Dikko’s argument that he can no longer be prosecuted by an
agency of the Federal Government after an agreement he entered with the Attorney
General of the Federation (AGF) and the Director-General of the Department of
State Services (DSS) to refund $8 million to the government.
   
Justice Dimgba held that since it was proved that such an agreement exists, and
Dikko has kept his side of the bargain by paying N1.576 billion ($5.12 million) to
the Federal Government through the EFCC funds recovery account in the Central
Bank of Nigeria (CBN), it was wrong for the EFCC or any other agency of
government to seek to prosecute him on the same crime.  
   
Justice Dimgba held that by virtue of the provisions of Section 174 of the
Constitution, the AGF, being the chief law officer of the federation, was imbued
with wide powers and discretion on prosecution matters.
   
The judge said the claim by the anti-graft agency that it acted on an anonymous
petition to commence its investigations “cannot override the discretionary powers
conferred on the Attorney-General of the Federation by virtue of Section 174 of the
Constitution.” Justice Dimgba also noted that since Attorney-General did not
oppose the suit by Dikko, the AGF had subscribed to Dikko’s case.
  
 These developments have once again resurrected the debate about the pros and
cons of plea bargain and when the doctrine should apply in law.
x
For Bar Elias Offor, plea bargain introduces restitution in the criminal
jurisprudence in a very awkward way. “Due to the way it is being practiced in

7
Nigeria, it encourages graft even more. A case of gross misappropriation that
warrants death penalty in some countries will be accorded remission by plea
bargain where after, the culprit walks the road unperturbed. Plea bargain in the
manner it is being practiced in Nigeria makes mockery of the country’s laws,” he
declared.

The national welfare secretary of the Nigerian Bar Association (NBA), Bar Kunle
Edu described plea bargain as a signed agreement between the prosecution and the
defendants in a criminal trial. According to him, it is akin to filing terms of
settlement in a civil case.

“The introduction of plea bargain into Nigeria’s criminal jurisprudence by the

Administration of Criminal Justice Act and the domesticated versions in various
States, is a welcome development,” he said, adding that it fast-tracks criminal trials
and ensure that justice is done from a social obligation perspective.

His words: “It also reduces the cost of criminal prosecution. So, I see plea bargain
as a win-win arrangement amongst the prosecutor, the defendant, the court and
also the general public.” 

Edu however, pointed out that it is the court’s approval of the terms of the bargain
that gives it legal effect before it is made judgment of the court. “The trial court
still has the power to consider if the terms of the bargain are reasonable, not
against any law and public policy. There must also be free will of the parties in
making it. Therefore, fraud, misrepresentation and undue influence once proven
may vitiate a plea bargain already made judgment of a court and can be challenged
on those grounds,” he explained.

Lagos lawyer, Osita Enwe believes that to effectively use plea bargain as a shield
against prosecution, the plea and the bargain must have to occur after an
arraignment in court. He added that any of such agreement was acceptable to the
court. This, he said, is consistent with the public interest dimension in every plea
bargain.

Citing section 14(2) of the EFCC Act, Enwe argued that the section allows the
Commission to enter into a plea bargain with only an accused person and not a
mere suspect. “For Otunla to return N6.3billion after an agreement with Magu,
does not seem to fulfill the conditions for a plea bargain. Neither does Dikko’s
return of N1.9billion to the AGF upon an agreement without fulfilling the
conditions of a plea bargain.

8
x
“In any case and in view of the commitment of the Federal Government to fight
corruption, the State ought to respect such agreement and ratify it in court by way
of plea bargain. To successfully prosecute them at this time, in view of their
seeming mutual agreement, may amount to undue utilisation of tax payers’ funds,”
he stated.

He added that the circumstances serve as material lesson for anyone who wants to
enter into such agreement to seek proper legal advice and an occasion for the
courts to affirm the conditions of a plea bargain in Nigeria. 

Describing plea bargain as a win-win situation, activist lawyer, Dr. George Uboh
said it is a “dream come through from the prosecution’s end point and the delight
of the criminal defendant, if the fellow is able to negotiate a good deal.”

Uboh explained that instead of spending years and years, the criminal defendant
would be able to cut it down, citing the case of Lucky Igbinedion, who was only
fined N5 million. Such deal, he said, would be fine for such defendant because the
government cannot appeal the plea bargain decision.

“The bad thing is that regardless of the amount of time the criminal defendant
spends, the criminal record remains. So, that is the bad news for any criminal
defendant who hopes to plead guilty,” he stated.

He explained that when the Attorney General of the Federation engaged him to
trace funds trapped in financial institutions, he handled that of the defunct Oceanic
bank, whose erstwhile managing director, Cecilia Ibru pleaded guilty on such plea
bargain arrangement. Uboh said as at that time, the government was not aware of
the UK branch of the bank, but because the MD then pleaded guilty on a blanket
basis to forfeit all Oceanic bank assets to the federal government, it was easy for
him to fly to UK and recover those funds without any resistance. According to
him, 23.4 million Pounds was recovered as at 2015.

“So, if a criminal defendant enters into a plea bargain to forfeit money in lieu of
serving jail term, and they signed, crossed all the T’s and dot all the I’s and the
government reneges on it, it can be the avenue to either annul the agreement in
whole or have the court compel the government to fulfill its part of the agreement,”
Uboh maintained.

9
When the office of the Attorney General of the Federation, Abubakar Malami
(SAN) was contacted for reaction through his Special Assistant, Media, Dr Umar
Gwandu, they kept mum over the matter. Also, effort to get the EFCC to react was
unsuccessful. Calls to its spokesman, Wilson Wujaren did not go through and text
message sent to his mobile phone was not acknowledged or replied.

10