Igbinedion: Limits of the law
RECENTLY, a Federal High Court, sitting in Benin, the Edo State capital convicted Mr. Michael Igbinedion of money laundering charges preferred against him. The Court subsequently imposed a fine of one million naira each on him on the three count charges for which he was found guilty. The total amount for which he was fined stood at three million naira.
The judgment of the court presided over by Hon. Justice Liman appears to have generated some concern from members of the public especially those who are not lawyers. They seem to be at a loss why the money that was said to be laundered stood above the fine to be paid by Mr. Igbinedion.
The first thing to note is that the offence appears to be a strict liability one. In other words, even if no harm was caused by the action of the offender, he is still liable. For example it is an offence to drive your car across the red traffic sign. You are still liable despite the fact that your car did not hit anybody after you violated the traffic law. In this case, Mr. Igbinedion was said to have accepted cash payments of the sums of N10,309,000 (ten million three hundred and nine thousand naira) and also N21,000,000 (twenty one million naira) contrary to the Money Laundering Act (Section 15(1) 2004) which provides that “No person or body corporate shall, except in a transaction through a financial institution, make or accept cash payment of a sum exceeding – (a) N500,000 or its equivalent, in the case of an individual”. So even if the convicted person used the money judiciously, he is still liable.
The next issue to consider is the sentencing under the Money Laundering Act (Section 15(2) 2004 thereof). It provides, “A person who commits an offence under sub-section (1) of this section shall be liable on conviction – (b) in the case of an offence under paragraph (d) – (f) where the offender (1) is an individual, to a fine of not less than N250,000 or more than N1,000,000 or a term of imprisonment of not less than two years or more than three years or to both fine and imprisonment”. In other words, the judge has the discretion to either sentence the person to an option of fine or he can sentence the person to the prison. He can also fine the person and at the same time send him to prison. But the thing to note is that the judge in exercising this discretion is guided by the law and judicial precedent.
Following from the above, one can see clearly that the judge imposed the maximum sentence on Mr. Igbinedion as it relates to fine. He could have been fined two hundred and fifty thousand naira (N250,000) on each count charge which is the lowest fine but the judge imposed one million naira on each count charge which is the highest allowed by the law.
On the other hand, some persons may wonder why the judge did not sentence him to a term of imprisonment. The reason is obvious to lawyers but perhaps not to laymen. This is understandable. The convict is a first offender. In other words, he had no record of previous convictions. In a plea of allocutus (mercy) which counsel to an accused person makes after conviction but before sentencing, one of the major things the court watches out for is whether the convict had a previous criminal record of conviction. If he has none, this usually weighs heavily in his favour. Being a first offender, the court would always naturally show some leniency.
Further, by virtue of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria, a court can only impose a sentence as prescribed by the law. It provides: “Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”. Any attempt by the judge in this case to have imposed any other sentence above the three million naira fine which is the maximum would not only be ultra vires but indeed unconstitutional.
In conclusion, one may suggest that the sentencing in this case was not only fair but also according to the law. Anything to the contrary would have been based on the whims and caprice of the presiding judge and the certainty of the law would have been violated. Then the court would cease to be a court of law but a court of public sentiment.
• Njoku is a lawyer based in Lagos.