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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.