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Advances in Social Sciences Research Journal – Vol. 9, No. 6
Publication Date: June 25, 2022
DOI:10.14738/assrj.96.12343. San, I. A. (2022). Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua Dariye and 157 Others: Delimiting the
Confluence Between Morality and Legality. Advances in Social Sciences Research Journal, 9(6). 58-67.
Services for Science and Education – United Kingdom
Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua
Dariye and 157 Others: Delimiting the Confluence Between
Morality and Legality
Ibrahim Abdullahi, SAN
Associate Professor
ABSTRACT
The President of the Federal Republic of Nigeria while acting within his
constitutional powers as enshrined under section 175 of the Constitution of the
Federal Republic of Nigeria 1999 (as amended) and with the approval of the Council
of State, pardoned the erstwhile governors of Taraba and Plateau States; Rev. Jolly
Nyame, Joshua Dariye and 157 others with respect to the various offences for which
they were convicted and serving various terms of imprisonment. There exists genre
of mixed reactions arising from the grant of the pardon largely based on the
morality involved. This paper using the doctrinal research methodology appraised
the presidential pardon granted by delimiting the confluence between morality and
legality and observed that it is very vivid from section 175(1), (2) & (3) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended), there is no
criterion fixed before the discretion is exercised by the President in consultation
with the Council of State. The paper concludes that it will serve no good to an
accused/defendant to spend a life incarcerated when he can still be useful to himself
and the society and recommended that the wide discretionary powers of the
President as well as those of the governors need to be checked by constitutional
amendments by providing and or listing the factors/criteria that the President in
consultation with the Council of State, would have to take into consideration before
the exercise of the said pardon.
Keywords: Pardon, Council of State, Morality, Legality, Constitution and imprisonment.
INTRODUCTION
Rev. Jolly Nyame1 was convicted by Adebukola Banjoko, Judge of a Federal Capital Territory
High Court Gudu on the 30th of May 2018 and sentenced to 14 years imprisonment. His appeal
to the Court of Appeal of Nigeria had his jail term reduced to 12 years. Further miffed by the
said decision, he appealed to the Supreme Court of Nigeria2 challenging the jurisdiction of the
*Senior Advocate of Nigeria, Associate Professor of Law and Lecturer, Department of Private and Business Law, Usmanu
Danfodiyo University, Sokoto.
1 The erstwhile governor of Taraba State of Nigeria. 2 The Supreme Court of Nigeria like other Superior Courts of record in the land is a creature of the Constitution and in
that vein it also limits its power. In this regard, the 1999 Constitution and the Supreme Court Act Cap. 424, Laws of the
Federation of Nigeria, 1990 as amended, confer jurisdiction on the Supreme Court. To this effect the Supreme Court is
conferred with both appellate and original jurisdictions. See also the cases of Attorney General Ondo State v. Attorney
General of the Federation & Ors. (1983) 2 SCNLR 269; Attorney General of the Federation vs. Attorney General of Abia
State & Ors. (2001) 11 FWLR (Pt. 725) 689, (2001) 11 NWLR (Pt. 725) 689; Onuaguluchi vs. Ndu (2001) 7 NWLR (Pt.
712) 309 and Awuse vs. Odili (2003) 18 NWLR (Pt. 851) 116.
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San, I. A. (2022). Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua Dariye and 157 Others: Delimiting the Confluence Between
Morality and Legality. Advances in Social Sciences Research Journal, 9(6). 58-67.
URL: http://dx.doi.org/10.14738/assrj.96.12343
Federal Capital Territory High Court Gudu to have entertained the case, craved for the further
reduction of the 12 years sentence as well as the 100 Million fine imposed on him by the Court
of Appeal of Nigeria. At the Supreme Court, the appeal against the imposition of fine succeeded
but the Supreme Court affirmed the 12 years jail term. Hon. Justice Amina Augie JSC held that
the Court of Appeal of Nigeria was gracious enough to have reduced it to 12 years as a first time
offender.
On his part, Joshua Dariye3 was convicted by Adebukola Banjoko, Judge of a Federal Capital
Territory High Court Gudu on the 12th of June 2018 and sentenced to 14 years imprisonment
for the offence of in relation to the diversion of Billion of naira from the Plateau State Ecological
Fund while he was the governor and two years imprisonment for the offence of Criminal
Misappropriation. On appeal to the Court of Appeal of Nigeria, the Court reduced the 14-years
sentence for the offence of Criminal Breach of Trust to 10 years and reduced the two years
sentence for Criminal Misappropriation to one year. On further appeal to the Supreme Court of
Nigeria, the apex court however, upheld Dariye’s concurrent conviction and sentence by the
trial court and the Court of Appeal for the offence of Criminal Breach of Trust but proceeded to
quash his conviction and sentence in relation to the offence of Criminal Misappropriation.
The President of the Federal Republic of Nigeria4 while acting within his constitutional powers5
and with the approval of the Council of State6 pardoned the erstwhile governors of Taraba and
Plateau States; Rev. Jolly Nyame, Joshua Dariye and 157 others with respect to the various
offences for which they were convicted and serving various terms of imprisonment. In all, 159
convicts were granted presidential pardon by the President for diverse offences.
There exists genre of mixed reactions arising from the grant of the Presidential pardon. Some
(majority) questioned the morality in the grant while others argued that the exercise of the
powers by the President was ill advised, an abuse of power that has embolden political thieves
and unrepentant pilferers of the country’s national wealth. Yet others see it as a disservice to
the Judiciary and the like of Dr Emeka Obegolu, SAN vehemently argued that it is unfair to
demonize the Nigerian authorities for pardoning people who have spent considerable period
of time detention (prison custody) and have shown remorse.
This article attempts to analyze whether moral argument against the exercise of the
Presidential powers to grant a pardon can affect the legality of such exercise? An attempt would
similarly be made to delimit the confluence between morality and legality in the exercise of
Presidential pardon in Nigeria.
CLARIFICATION
This article should not be seen as a support for those who engage in the perpetration of
corruption or corrupt practices. The writer recognizes the fact and endorses the need to
implement and apply public policy against corruption and financial crimes which have turned
3 The erstwhile governor of Plateau State of Nigeria.
4 General Muhammadu Buhari (Rtd).
5 As enshrined under section 175 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). 6 The Council of State is established by section 153(1) of the Constitution and under paragraph 5, Part 1 of the Third
Schedule of the Constitution, it comprises of high profile personalities who have excelled in their respective fields of
human endeavour.
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out to be 'deadly snakes' and financial hooliganism daily killing Nigeria and Nigerians. But at
the same time, it becomes imperative to put the records straight and clarify issues in matters
relating to law to ensure that justice is not only done, but manifestly seen to have been done.
Scope of the Research
The scope of the research is restricted to the consideration of presidential pardon in Nigeria as
it only relates to those granted to the erstwhile governors of Taraba and Plateau States; Rev.
Jolly Nyame, Joshua Dariye and 157 others by the President of the Federal Republic of Nigeria.
Objective of the Research
The objective of this research is to analyze whether moral argument against the exercise of the
Presidential powers to grant a pardon can affect the legality of such exercise? Efforts would be
made to delimit the confluence between morality and legality in the exercise of Presidential
pardon in Nigeria.
METHODOLOGY
The research methodology employed in the writing of this article is the doctrinal research
method for the purposes of identification and analysis. The primary data are obtained through
the adoption of doctrinal methodology. Doctrinal research method is to a large extent library
oriented with reliance fully placed on relevant literatures. Reliance was equally placed on
primary sources of data which involved a consideration of various types of legislation and court
decisions in relation to the subject matter under consideration. Finally, originality is exhibited
in making analysis and recommendations.
Morality and Law
Morals are standards of life adopted in any given society. It equally denotes the character or
conduct considered as good or descent, ethical, virtuous and therefore considered as a
persuasive system. Law is quite distinct from and its validity is no way dependent on morals or
morality. The validity of a legal rule depends solely on legal criteria. There is therefore not only
the legal duty to obey law but also a moral duty to obey the same law. It is the view of Prof. H.
L. A. Hart that; “Law as it is, should be kept distinct from law as it should be”. Law therefore can
be a public expression of morality which codifies in a public way the basic principles of conduct
which a society accepts. The public expression of the Constitution which is in fact the "tons juris"
is reflected in Constitution which posits thus;
WE THE PEOPLE of the Federal Republic of Nigeria:
HAVING firmly and solemnly resolved:
TO LIVE in unity and harmony as one indivisible and indissoluble Sovereign nation under God
dedicated to the promotion of inter – African solidarity, world peace, international co-operation
and understanding:
AND TO PROVIDE for a Constitution for the purpose of promoting the good government and
welfare of all persons in our country on the principles of Freedom, Equality and Justice and for
the purpose of consolidating the Unity of our people:
DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES THE FOLLOWING Constitution7:
7 See the preamble to the Constitution of the Federal Republic of Nigeria1999 (as amended).
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San, I. A. (2022). Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua Dariye and 157 Others: Delimiting the Confluence Between
Morality and Legality. Advances in Social Sciences Research Journal, 9(6). 58-67.
URL: http://dx.doi.org/10.14738/assrj.96.12343
The above preamble is in agreement with the view of Prof. R. N. Gilchrist who opined thus; “the
State is founded on the minds of its citizens who are moral agents”. Morality when taken too far
can conflict with the law but can never override the law itself. For instant in ancient China, some
people rob properties from the rich and give to the poor and it was considered morally right
but illegal in the eyes of the law. Likewise an action can be legal but morally wrong. An epitome
of this is where some people spend thousands of Dollars on pets while others are on the street
hungry without food.
In jurisprudence, law and morality are not synonymous. The case of ATTORNEY GENERAL,
FEDERATION VS ABUBAKAR8 establishes the fact that an act that is morally reprehensible may
not be legally punishable. Arguments founded on moral obligations are only valid and binding
in conscience and according to natural justice, but it is not recognized by the law as adequate
to set in motion the machinery of justice. In the case of KABO AIR LTD v. MOHAMMED9,
HABEEB ADEWALE OLUMUYIWA ABIRU, JCA posited thus;
"Moral obligation on the other hand is "a duty which is valid and binding in
conscience and according to natural justice, but it is not recognized by the law as
adequate to set in motion the machinery of justice; that is one which rests upon
ethical considerations alone, and is not imposed or enforced by positive law”10
MEANING AND CONSEQUENCES OF PARDON
The word "pardon" has a wide connotation and it has been defined as an official decision not to
punish somebody for a crime of to say that somebody is not guilty of a crime; the action of
forgiving somebody for something; to officially allow somebody who has been found guilty of a
crime to leave prison and/or to avoid punishment; to forgive someone for something they have
said or done. It also means the act of officially nullifying punishment or other legal
consequences of a crime.
11
A pardon is an act of grace by an appropriate authority which mitigates or obliterates the
punishment the law demands for the offence and restores the rights and the privileges forfeited
on account of the offence. The effect of a pardon is to make the offender a new man (novus
homo), to acquit him of all of corporal penalties and forfeitures annexed to the offence
pardoned. In the case of FALAE v. OBASANJO & ORS (NO. 2)12, MUSDAPHER, J.C.A, held thus;
A pardon is an act of grace by the appropriate authority which mitigates or
obliterates the punishment the law demands for the offence and restores the rights
and the privileges forfeited on account of the offence. See Verneco Inc. v. Fidelity &
Cas C. at New York 253 LA 721,219 SO 2D 508,511. The effect of a pardon is to make
the offender a new man (novus homo), to acquit him of all of corporal penalties and
forfeitures annexed to the offence pardoned. I am of the view, that by virtue of the
pardon contained in Exhibit 11, the disqualification of the 1st respondent was to
suffer because of his conviction, has been wiped out. His full civil rights and liberties
8 (2007) 10 NWLR (PT.1041) 1.
9 (2014) LPELR-23614(CA). 10 Ibid at Pp 41 - 41 paras C – E. 11 See Adeola Vs State (2017) LPELR 42327 (CA). 12 (1999) LPELR-6585(CA).
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are fully restored and accordingly he has not been caught by the provisions of
Section 13(1) (h) of the Decree.13
Whichever way the word is used, it presupposes that the person to be pardoned has done
something which the law presumes to be criminal or has committed an offence or is guilty of a
crime.
Settled Law: The Scope of Presidential Pardon in Nigeria and the United States of America
The exercise of Presidential pardon on the 159 convicts by the President of the Federal Republic
of Nigeria attracted unprecedented attention as it relates not to all the convicts granted the
pardon but the duo of erstwhile governors of Taraba and Plateau States; Rev. Jolly Nyame and
Joshua Dariye. The exact dimension of Presidential pardon is decoded in the Constitution and
these aspects are so well established that it is unlikely that any court, conservative or liberal
will renounce them. For emphasis, the power of the President to exercise a Presidential pardon
is extremely broad. It is vested in the President acting in consultation with the Council of State.
It is a discretionary powers vested on the President. A discretion is a liberty or privilege to
decide and act in accordance with what is fair and equitable under the peculiar circumstances
of the particular case, guided by the spirit and principles of law. In the case of THE OWNERS OF
THE M. V.LUPEX V. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD,14 Mohammed J
.S.C. stated thus;
"An exercise of discretion is a liberty or privilege to decide and act in accordance
with what is fair and equitable under the peculiar circumstances of the particular
case, guided by the spirit and principles of law... "15
The powers of a President to grant a pardon in Nigeria are provided for under Section 175 of
the Constitution of the Federal Republic of Nigeria 1999, as follows:
1. The President may:-
a. grant any person concerned with or convicted of any offence created by an Act of the National
Assembly a pardon, either free or subject to lawful conditions;
b. grant to any person a respite, either for an indefinite or for a specified period, of the execution
of any punishment imposed on that person for such an offence;
c. substitute a less severe form of punishment for any punishment imposed on that person for
such an offence; or
d. remit the whole or any part of any punishment imposed on that person for such an offence
or of any penalty or forfeiture otherwise due to the State on account of such an offence.
By Section 175 of the Constitution supra, it is clear that the President can exercise the right of
pardon of persons before (‘concerned with’) or after conviction of an offence. Under section
175(2) of the Constitution, the powers of the President under sub section (1) of section 175
shall be exercised by him after consultation with the Council of State. The Council of State is
established by section 153(1) of the Constitution and under paragraph 5, Part 1 of the Third
Schedule of the Constitution, it comprises of high profile personalities who have excelled in
their respective fields of human endeavour to wit:
a. The President, who is the Chairman;
13 Ibid at p.21, paras. C-F. 14 (2003) LPELR-3195(SC). 15 Ibid at p. 18, paras. D-F.
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San, I. A. (2022). Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua Dariye and 157 Others: Delimiting the Confluence Between
Morality and Legality. Advances in Social Sciences Research Journal, 9(6). 58-67.
URL: http://dx.doi.org/10.14738/assrj.96.12343
b. The Vice – President, who shall be the Deputy Chairman;
c. All former Presidents of the Federation and all former Heads of the Government of
the Federation;
d. All former Chief Justices of Nigeria;
e. The President of the Senate;
f. The Speaker of the House of Representatives;
g. All the Governors of the States of the Federation; and
h. The Attorney – General of the Federation.
The responsibility of the Council of State is to advise the President in the exercise of his powers
with respect to prerogative of mercy.16 From the foregoing, a presidential pardon is one form
of the clemency powers of the President under the Constitution. The powers extend to all
federal offences. Therefore, the Constitution must always be construed in such a way that it
protects what it sets out to protect, and guides what it is meant to guide.17 In interpreting the
Constitution of a nation, it is the duty of the Court to ensure that the words of the Constitution
preserve the intendment of the Constitution.
18 Every Constitution has a life and moving spirit
within it and it is this spirit that forms the raison d’être of the Constitution and without which
the Constitution will be a dead piece of document. The life and moving spirit of the 1999
Constitution is captured in the preamble. It has been held that when a constitutional provision
is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star
and the directive principles of State Policy as the 'book of interpretation' and that while the
Preamble embodies the hopes and aspirations of the people, the directive principles set out the
proximate grounds in the governance of the country.19 In the United States of America, the
plenary power to grant a pardon or a reprieve is granted to the President.20 The only limitation
provided in the Constitution is that pardon is limited to Federal offences and they cannot affect
impeachment process. It reads;
“The President shall have power to grant reprieves and pardons for offences against
the United States, except in cases of impeachment”
The grant of Presidential pardon is not novel to other parts of the world. In the United States of
America, approximately 20,000 pardons and commutations were issued by the United States
Presidents in the 20th Century alone. President Gerald Ford announced his decision to pardon
former President Richard Nixon in relation to the Watergate Scandal 21 . Barrack Obama
pardoned, commuted or rescinded the conviction of 1, 927 people amongst which include James
Cartwright, Dwright J. Loving, Chelsea Manning, Willie McCcovey, Ian Schrager and Oscar Lopez
Rivera etc.
16 See paragraph 6 (a) (ii), Part 1 of the Third Schedule of the Constitution. 17 See the case of Adeleke Vs Oyo State House of Assembly (2006) 6 NWLR (Pt 1006) 608. 18 See the cases of Okogie Vs Attorney General, Lagos State (1981) 2 NCLR 337, Abaribe Vs Speaker, Abia State House
of Assembly (2002) 14 NWLR (Pt 788) 466, Marwa vs Nyako (2012) LPELR 7837 (SC).
19 SeeThakur vs Union of India (2008) 6 SCC 1.
20 See Article 11, section 2, clause 1 of the Constitution of the United States of America. 21 This announcement was made on the 8th of September 1974.
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SETTLED LAW: LIMITATIONS OF PRESIDENTIAL PARDON
Although the power of Presidential pardon in Nigeria is broad, the power is not without its
limitations. The President can only pardon or grant a respite for federal offences and the
pardoning power only extends to criminal offences created by an act of the National Assembly
and does not extend to civil actions and the power is exercisable only after consultation with
the Council of State22. No pardon can be granted to an innocent man. There cannot be a pardon
where a person has a pending appeal against his conviction for murder and sentence to death
and as such cannot be pardoned by the President of Nigeria under the provisions of Sections
175 of the 1999 Constitution (as amended) until the appeal has been heard and determined. In
other words, that there can be no pardon until it is certain that the accused person has been
finally convicted.23
VALIDITY OF THE GRANT OF PRESIDENTIAL PARDON TO 159 CONVICTS
It is very vivid from section 175(1), (2) & (3) of the Constitution that there is no criterion fixed
to determine the factors that must be taken into consideration before the discretion is exercised
by the President in consultation with the Council of State. One cannot therefore breadth into
the Constitution what is not there. It is therefore expected that whatever decision influenced
the grant of the Presidential pardon and taking into consideration the caliber of personalities
that constitutes the Council of State, it was done in good faith and which saw 159 convicts as
beneficiaries. Mala fide is the opposite of a bona fide. It simply means bad faith as opposed to
bona fide which is good faith, mala fide projects sinister motive designed to mislead or deceive
another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of a
wrong arising from dishonest purpose or moral obliquity. Good faith or "bona fide" action is
implied in the decision taken. To insist otherwise is an argument taken too far. In the case of
ODENIYI v. ONALAJA & ANOR,
24 UGOCHUKWU ANTHONY OGAKWU, JCA posited thus;
"Now, the phrase bona fide means good faith, it could also be defined as the absence
of bad faith. Also it denotes honestly, without fraud or collusion in wrongdoing. See
SPIESS V. ONI (2016) LPELR (40502) 1 at 23 (SC), SHODEINDE V. THE REGD.
TRUSTEES OF THE AHMADDIYA (1983) LPELR (3064) 1 at 53-54 (SC) and
ANIMASHAUN V. OLOJO (1990) LPELR (419) 1 at 17 (SC)."25
Section 168 (1) of the Evidence Act 2011 raises a presumption of regularity and the
processes leading to the grant of pardon. In the case of FRN v. ACHIDA & ANOR26, HABEEB
ADEWALE OLUMUYIWA ABIRU, JCA held as follows;
... However, I believe it will be stretching it a bit too far to say that an Instrument of
Pardon is incompetent for failing to say so on its face. Section 168 (1) of the
Evidence Act raises a presumption of regularity in favor of such an Instrument of
Pardon, as in the instant case; that the power was exercised by the Governor in due
22 See generally section 175 of the Constitution. 23 See the case of Solola vs The State (2005) All NLR 443. 24 (2017) LPELR-50545(CA).
25 Ibid at Pp 19 - 20 paras E – A.
26 (2018) LPELR-46065(CA).
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San, I. A. (2022). Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua Dariye and 157 Others: Delimiting the Confluence Between
Morality and Legality. Advances in Social Sciences Research Journal, 9(6). 58-67.
URL: http://dx.doi.org/10.14738/assrj.96.12343
consultation with the Advisory Council on Prerogative of Mercy. It was for the
Appellant to rebut the presumption...27
No such valid rebuttal had been advanced. In a Council of State comprising of the President,
who is the Chairman; the Vice – President, who shall be the Deputy Chairman; all former
Presidents of the Federation and all former Heads of the Government of the Federation; all
former Chief Justices of Nigeria; the President of the Senate; the Speaker of the House of
Representatives; all the Governors of the States of the Federation; and the Attorney – General
of the Federation, it is uncharitable and casting unreasonable aspersions to argue that the
President was ill advised in the circumstances. Moral arguments will not suffice and will fly into
oblivion in the face of legality. The Supreme Court of Nigeria in the cases of EZEUGO VS
OHANYERE28, ONIAH VS ONYIA29, MBACHU VS ANAMBRA-IMO RIVER BASIN DEVELOPMENT
AUTHORITY OWERRI 30, UDOSEN VS STATE31 has stated over and over that the Court is for
espousing the law and not a place for sentiments and that sentiments command no place in
judicial adjudication. In other words sentiments command no place in exposition of the
frontiers of the law. Thus, it is settled law that if there is a right to do an act (in this case, the
right to grant a Presidential pardon), the fact that the motive for doing the act is bad or self- serving will not affect its validity or legality of such a grant. Likewise, where there is no right or
the thing done is illegal, the purity of the motive or magnanimity of the act done will not alter
the legal consequence.32 In the case PEUGEOT AUTOMOBILE NIGERIA LTD VS OJE & 3 ORS33,
Mahmud Mohammed, JCA (as he then was) stated thus: "... I think the age-long principle of
the law, that law and morality are almost always poles apart is still very much alive”34
One other thorny area of the law that a view was expressed has to do with the fact that the duo
of Rev. Jolly Nyame and Joshua Dariye where tried under the Penal Code Act and it was the view
of Chief Mike Ozekhome SAN, that the Penal Code Act is a reflection of a State Legislation and
therefore the President cannot grant a pardon under section 175(1) of the Constitution as the
power rests on the State governors to do so. This view can hardly hold water.
It must be stressed here that ordinarily, criminal offences in Northern Nigeria are tried within
the Penal Code while criminal matters in the Southern part of Nigeria are tried under the
Criminal Code.
35 There is however the Penal Code Act, a federal legislation applicable to the
FCT, Abuja as the National Assembly has powers to make laws for the whole of Nigeria.36 I am
not aware of any conflict that has been pointed out between the Penal Code Act and the Penal
Code Law of the respective States under consideration. It was in the light of the above that a
similar argument was advanced up to the Supreme Court level by the duo and both the trial
Federal High Court of Nigeria sitting at Gudu, the Court of Appeal of Nigeria and the Supreme
27Ibid at Pp 98 - 100 paras E – E. 28 (1978) 6-7 SC 171. 29 (1989) 1 NWLR (PT.99) 514. 30 (2006) 14 NWLR (PT.1000) 691. 31 (2007) 4 NWLR (PT.1023) 125. 32 See the cases of Anosike Building & Commercial Co Vs Federal Capital Development Authority (1994) 8 NWLR (363)
421 and Nwajagu vs British American Insurance Co. (Nig) Ltd (2000) 14 NWLR (PT.687) 356. 33 (1997) 11 NWLR (PT.530) 625. 34 Ibid at page 636 paras D-E. 35 See the case of Esthon vs FRN & ANOR (2020) LPELR-49994 (CA). 36 See the case of Eze vs Udeh & Ors (2017) LPELR-42716 (CA).
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Court of Nigeria all held that that the trial court had the requite jurisdiction to try the offences
against the duo thus paved the way for the application of the Penal Code Act and there
subsequent conviction and sentence under the Act. In the case of NYAME v. FRN37, OYEBISI
FOLAYEMI OMOLEYE, JCA posited thus;
... In the instant case, the learned trial Judge held "inter alia" that: "In the light of
above, I find that there is (sic) both subject matter as well as territorial jurisdiction.
The proof of evidence has already shown that some of the acts were alleged (sic)
committed within the Federal Capital Territory, thus conferring jurisdiction on this
Court in terms of Section4(2) (b) of Penal Code Act and Section 6(m) and Section
7(2) (f) of the Economic and Financial Crimes Commission." The proof of evidence
shows explicitly that part of the "elements" of the offences with which the Appellant
has been charged took place within the Federal Capital Territory, Abuja. From the
combined effect of the provisions of Section 257(1) & (2) of the 1999 Constitution
and Section 4(2)(b) of the Penal Code Act, the High Court of the Federal capital
Territory, Abuja could assume jurisdiction to try the Appellant for the offences with
which he has been charged. I have no ought against but agree with the sound ruling
of the lower Court being appealed in assuming jurisdiction to try the Appellant, for
it possesses jurisdiction...38
Having being convicted under an Act of the National Assembly, the President and indeed the
Council of State never goofed in the grant of the Presidential pardon to the beneficiaries. The
grant was validly made irrespective of the motive allegedly involved.
CONCLUSION AND RECOMMENDATIONS
It may be argued that the essence of imprisonment of offenders of whatever colour is to meet
the legitimate expectations of the society for retribution, where the society strikes back at the
offender as to deter potential offenders and make the commission of crime, especially financial
crimes, unattractive, protect the public and society by ensuring that dare devil criminals and
recalcitrant offenders are taken out of circulation.
39 But the overall essence of sentencing and
or punishment should be reformative in nature and not punitive. This view was upheld by
IKYEGH, JCA in the case of OLATIDOYE v. THE STATE.
40 It will therefore serve no good to an
accused/defendant to spend a life incarcerated when he can still be useful to himself and the
society. But where the law provides for mandatory punishment as in capital offences, then it is
quite unfortunate that an accused person will have to pay the ultimate penalty for his reckless
actions but that is the law and it is not open to any Court of law to go contrary to the law.
To my mind, a pardon simply erases the penalties and at least some disabilities attendant to a
conviction. Despite being pardoned, a person would still have to answer ‘yes’ when asked if he
had ever been convicted of a crime.
37 (2008) LPELR-8872(CA). 38 Ibid at Pp 42 - 46 Paras E – E. 39 See the cases of Agbiti v. The Nigerian Navy (2007) LPELR - 4893 (CA) and Ali v. FRN (2016) LPELR -
40472 (CA).
40 (2010) LPELR - 9079 (CA).
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San, I. A. (2022). Presidential Pardon Granted to Nigeria’s Rev. Jolly Nyame, Joshua Dariye and 157 Others: Delimiting the Confluence Between
Morality and Legality. Advances in Social Sciences Research Journal, 9(6). 58-67.
URL: http://dx.doi.org/10.14738/assrj.96.12343
The State Governors have their own powers of prerogative of mercies which they discretionary
exercise in consultation with the Advisory Council of the State on Prerogative of Mercy as may
be established by the Law of the State.41 Therefore the call for the Attorney General of the
Federation as well as the President to grant pardon to all “thieves” has no support under the
law. To prevent suspicion, mutual distrust and possible abuse arising from the exercise of
Presidential pardon, the wide discretionary powers of the President as well as those of the
governors need to be checked by constitutional amendments by providing and or listing the
factors/criteria that the President in consultation with the Council of State, would have to take
into consideration before the exercise of the said pardon. In this way, it would meet the
legitimate expectations of the citizens to know when the said power is abused and challenge
same if need be before a court of competent jurisdiction.
41 See generally section 212(1) & (2) of the Constitution.