picture of a purported settlement agreement executed between an alleged
offender and the parents of a fourteen year old girl who was defiled has been
making the rounds on Social Media, with many lawyers and PUBLIC commentators condemning
the said settlement agreement which was presided over by Office of the
Commissioner of Police of Rivers State.

Many lawyers have opined that this
settlement agreement is alien to our criminal jurisprudence, as offences
dealing with rape, sexual harrasment and defilement of minors should be placed
outside the scope of operation of Alternate Dispute Resolution (ADR) mechanism
in order to emphasize the gravity of such offences. 
has become necessary to critically examine the position of the law on ADR in
criminal litigation in Nigeria. Does the law expressly prohibit “settlement” of
criminal cases? Before engaging in an exposition of the jurisprudential
principles of criminal litigation as it applies to this case, it is pertinent
to briefly state the facts of this notorious case for the ease of assimilation. 
father of a fourteen year old girl, upon the advice of his Counsel brought a
petition to the Office of the Commissioner of Police in Rivers State, alleging
that his daughter had been sexually defiled by a certain Chief in the
community. They sought the arrest and prosecution of the offending Chief.
Subsequently, the suspect who was accosted by the police confessed to his
complicity.  An agreement was then
reached between the accused person and the victim’s family that the accused
person and his family would apologise to the victim and her family, and also be
responsible for the medical bills of the victim. It was also agreed that the
victim would undergo monthly check up at a specified hospital for six months.
It was further agreed that upon the final check up on the sixth month, the
victim would withdraw the petition if she has been certified to be medically
fit and okay. The accused person also agreed to pay a specified sum of money as
immediate compensation to the victim’s family. The agreement was drawn up by
the legal Counsel of both parties, and executed by the parties and their
Counsel. The victim, being a minor did not sign this agreement, but it was
signed by her father. 

picture of this settlement agreement which was leaked on Twitter as soon as it
was executed has attracted serious opprobrium from different quarters.
Alternate Dispute Resolution (hereinafter “ADR”) is not alien to our criminal
jurisprudence. Before the introduction of colonial rule in Nigeria, disputes
were settled amicably amongst the interested parties. There was no distinct discrepancy
between civil and criminal cases in pre-colonial cases, as there was no
codified system of laws. The head of communities in most instances acted as an
umpire in settling disputes. Where offencs were committed against a member of
the community, the offender would be made to pay restitution to the victim, and
also be made to suffer moral reproach and disgrace. The principle of
restitution was however the most paramount principle behind punishment of civil
offenders in pre-colonial Nigeria. 

with the advent of colonial rule, and subsequently independence, the legal
system became formalised with the introduction of the courts and prison system.
Offenders were prosecuted by the state on the behalf of the victim and the community,
and in most cases, sentenced to either jail term or compelled to pay fines to
the state. There are several principles behind the concept of punishment in
modern day criminal jurisprudence, including:

1.      Retribution: This is based on the
biblical theory of an eye for an eye, wherein offenders are made to suffer
punishment parallel to the wrong they have committed. Sentences of imprisonment,
death penalty, and corporal punishment are based on the retributive philosophy.

2.      Restitution: Here, the offender is
given the chance to make amends for his past misgivings. The offender is
punished in such a way that the society and/or the victim are compensated for
his crimes. Sentences such as community service, fines, and orders for
forfeiture of property are classic examples of the restitutive principle.

3.      Detterence: Often times, some offenders
are used as scape goats to teach a lesson to other members of the society to
desist from engaging in similar vices. This priniciple which is also known as
the utilitarian principle by Western Legal Scholars is more pronounced where
the victim has shown remorse or has already offered to make restitution for his
actions. Sentence of both imprisonment and fines on convicts is an example of
the detterence philosophy at work.

4.      Rehabilitation: This theory aims at
correcting and re-integrating offenders into the society. The offenders are
given the lessons which make them vilify their previous crimes, and are
re-integrated into the society to live crime-free lives. This principle is
mostly utilised for juvenile delinquents and first time offenders.  

Nigerian criminal justice system which attempts to combine all the above
principles can however be said to be largely retributive in nature. It is trite
that no person shall be punished for an offence except if such punishment is
defined and the punishment prescribed in a written law. A critical review of
the penal laws of Nigeria will reveal most criminal punishments are retributive
in nature. It places much premium on inflicting punishment and pain on the
offender than any real attempt to reform and reintegrate the offender back into
the society. From the time an offence is committed to the trial and judgment,
all our legal rules is concerned with is proving guilt according to the letters
of the law. Little or nothing is done about repairing the damage done by the
crime. Victims of crime and even the community who suffer the direct impact of
the offence are relegated to the background. 

resultant effect of this over-reliance on the retributive system is that the
court rooms are over-congested with too many cases and litigation is prolonged
before justice is achieved. It takes time for the guilt (or innocence) of an
accused person to be established, due to the traditional problems of shortage
of facilities associated with our juducial system. Trials at the high courts
take as long as three years before a verdict is reached. An appeal from the Court
of Appeal to the Supreme Court can span for as long as six years. Ordinarily,
an accused person remains incarcerated in custody as a guest of the state
during his trial, and may be discharged by the apex court on appeal. He would
then be made to have suffered unjustly for an offence which he is innocent. The
case of Shande v State (2005) 12 NWLR
(PT 939) 301
wherein the accused person was acquitted by the Supreme Court
after facing trial for eight years is a classic example of the tribulations
facing our retributive criminal justice system. 

proximate impulsion to this treatise being the recent settlement agreement to
oust the jurisdiction of the court in trying an alleged criminal offender is
the critical review of the application of ADR to criminal litigation in
Nigeria. Recently, the policy framers of the Nigerian Criminal Justice system
have begun to embrace and intigrate ADR into our criminal jurisprudence. The
Administration of Criminal Justice Act (ACJA) contains a legal framework for the
adoption of a mild form of ADR via plea bargaining in Nigeria. In the case of FRN v Igbinedion & Ors (2014)
LPELR-22760 (CA),
the Court of Appeal in defining plea bargaining adopted
the definition of the Black’s Law dictionary thus: 

is a plea bargain arrangement? Bryan Garner’s Black’s Law Dictionary 8 the
Edition at pg. 1190 defines plea bargain as “A negotiated agreement between a
prosecutor and a criminal defendant whereby the defendant pleads guilty to a
lesser offence or to one of multiple charges in exchange of some concession by
the prosecutor usually a more lenient sentence or a dismissal of the other

bargain also known as plea agreement or plea deal, although not expressly
stated to be an ADR mechanism, can be regarded as such because its form and
effects conforms to the principles and aims of ADR. It has been submitted that
plea bargaining is a case management strategy like other ADR mechanism which
brings about effective case management.[1]
In a plea bargain arrangement, the accused person agrees to plead guilty to the
some or all of the offences he is charged with, in return for a lesser
punishment. Plea bargains are mostly activated in corruption trials involving
the EFCC. It was used in the trial of ex-IGP of Police Tarfa Balogun, and the
trials of ex-Governors Lucky Igbinedion, and Diepreye Alamieyeseigha of Edo and
Bayelsa States, amongst others. The advantages of plea bargain which have been
given judicial notice by the Court of Appeal in FRN v Igbinedion (Supra) include: 

“(1) Accused can avoid the time and
cost of defending himself at trial, the risk of harsher punishment, and the
publicity the trial will involve.

(2) The prosecution saves time and
expense of a lengthy trial.

(3) Both sides are spared the
uncertainty of going to trial.

(4) The court system is saved the
burden of conducting a trial on every crime charged.”

must however be stated that plea bargaining can only be activated where there
is a pending charge before a competent court. In the Rivers State purported
settlement agreement under consideration, the matter was still being
investigated by the Police, who were yet to prefer a formal charge against the
accused person. Therefore, it can be submitted that this does not amount to a
plea bargain arrangement. The best legal terminology to describe this
settlement is mediation. It is clear from the facts that the agreement was
signed ssubject to the supervision of the Nigerian Police Force who were
investigating the matter. It is pertinent to note that the Police Force is
given wide powers under Section 4 of the
Police Act
which provides that: 

“The police shall be employed for the
prevention and detection of crime, the apprehension of offenders, the
preservation of law and order, the protection of life and property and the due
enforcement of all laws and regulations with which they are directly charged,
and shall perform such military duties within or outside Nigeria as may be
required of them by, or under the authority of this or any other Act.”

Police therefore have the primary responsibility of apprehending offenders. But
they are not saddled with the task of punishing offenders. However, they have a
general duty to maintain the peace, law and order in the society. It is the
duty of the state to prosecute and punish offenders, and not the police. Before
the state can prosecute, the police must first file a first information report
which informs the relevant state department (Ministry of Justice or Department
of Public Prosecution) of the purported commission of the offence. It is
important to note that the entire criminal system in Nigeria is based on the
exercise of discretionary powers by the parties involved. The Police Force in
submitting an information report to the Department of Public Prosecution
exercises discretionary powers. They are not bound to charge every percieved
offender to court. The Ministry of Justice or Department of Public Prosecution
(as the case may be) is also not under any obligation to prosecute all persons
who have been referred to them. The Supreme Court in the locus classicus case
of Akpa v. State (2008) 14 NWLR
(Pt.1106) 72
explained this hallowed position of the law when the Noble
Lord Nikki Tobi JSc opined thus:

prosecution has an unfettered discretion to prosecute person in court and
because the discretion is unfettered, court of law do not have the power to
question it
…The only jurisdiction of the court is to try accused person
presented before it for prosecution. The
prosecution is not under any regimental duty or any duty at all, to charge all
possible accused persons
“. (@ pg 18 paras A- D). 

it is submitted that the Police Force and the Ministry of Justice should be
exonerated from whatever legal and moral vilification that the purported
settlement agreement attracts.  

stated earlier, the purported settlement can be best described as the proceeds
of a mediation agreement. The Victim-Offender Mediation program is not unknown
to international jurisprudence. The Victim-Offender Mediation program is aimed
at promoting direct communication between the victim and the offender. The
victim has the opportunity to ask questions, address the mental, psychological
and emotional trauma caused by the crime and its aftermath and seek reparation.[2]
It lays more emphasis on restitution and reconciliation of crime related
offenders through one on one meeting between victims and offenders subject to
the oversight of trained mediators, rather than focusing on the retributive
system which characterises our outdated criminal litigation system. This method
is the oldest and most widely used form of ADR in criminal cases in other
jurisdiction especially when juveniles are involved.

proper analysis of the terms of settlement of the Rivers State Agreement
reveals that each of the clauses is geared towards the restorative or
restitutive principles of punishment. The accused person and his family were
made to undergo moral reproach by publicly apologising to the victim and her
family. The case has aleady gained sufficient notoriety, and his identity as a
potential sex offender is not in question. Furthermore, and in addition to the
moral punishment of apology, financial sanctions has also been imposed on him.
The fine which he would pay goes directly to the victim. This is unlike the
traditional penal system where fines imposed by the court are payable to the
state and becomes the property of the state. The offender has thus been
compelled to make amends to the victim by paying for her medical treatment and
also by the payment of damages. 

critical evaluation of the entire agreement will reveal that the mere execution
of the agreement does not immediately oust the jurisdiction of the court to
prosecute the accused offender.  In fact,
the petition submitted to the police was not withdrawn at the time of executing
the agreement. The most important clause in the agreement is term No. 5 which
provides that the victim and her family will withdraw the petition if she is
certified to be medically fit after the final medical check to be carried out
on a pre-determined date. Thus, the victim is given the freedom to pursue the
petition in the event that she has not benefitted from the proposed
restitution. The entire agreement is one which exemplifies the restorative
approach to criminal jurisprudence which places the victim at the centre of
proceedings, as opposed to the traditional retributive approach wherein the
offender is the centre of proceedings. It is only in extremely rare cases
involving theft of property that the accused person in criminal proceedings is
compelled by the courts to make restitution to the victim.[3]

is however understandable that the gravamen of public opprobrium against this purported
settlement agreement (and Victim-Offender Mediation) is the percieved
trivialisation of the grave offence of rape and sexual molestation. It has been
argued that such agreement operates to make the offence of rape very lucrative
and appealing to potential offenders who now know they can avoid jail term by
the simple payment of compensation to the victim. In blancing this conflict
between the need to impose retributive/detterent punishment on offenders and
the need to engage in restitutive practices, the dictum of the Court of Appeal
in the case of Okomu Oil Palm Ltd v
Okpame (2007) 3 NWLR (Pt. 1020) p.71
is most instructive thus:

all, it must be remembered that justice is not a one-way traffic. It is not
justice for the plaintiff alone. It is not even only a two-way traffic in the
sense that it is justice for the plaintiff and the defendant alone. I think
really justice is a three-way traffic in justice for the plaintiff who is
crying for a redress of the wrong done to him; justice for the defendant who is
crying that he should be heard and his defence considered before being ordered
to pay any sum claimed against him and also before being mulcted in cost; and
finally but very important, justice for the society at large whose social norms
and psyche are certainly going to be adversely affected if it cannot be seen by
the common but reasonable man that upon the facts as laid down, justice in the
real and true sense of that word, has been seen to have been done by the
(Per Aderemi JCA). 

has justice been done to all aggrieved parties in this case? Has justice been
done to the accused ofender who has been made to make financial restitution for
the consequences of his act? Will this deter him from committing similar act in
the future? Has justice been done to the victim who has received compensation
for the injury she suffered? Has justice been done to the victim’s family who
have received an apology and monetary compensation from the offender and his
family? Does this apology and monetary compensation diminish and overshadow the
shame of having a defiled daughter? Has justice been done to the state by this
agreement? The agreement has saved the state the resources it would otherwise
have expended in prosecuting and punishing the offender. However, will this
prevent future occurences of similar crimes in Rivers State? Will the society
learn from this event and come to the conclusion that defilement of underage
girls is unacceptable, or will they be willing to risk the venture of public apology
and payment of monetary compensation just to have a bite at the forbidden

writer invites his readers to draw their own conclusions.

Nonso Anyasi is a Lagos-based Lawyer.
He tweets @Oluwanonso_Esq

Dispute Resolution and Its Relevancy in Criminal Matters, Aduaka & Onnome,
International Journal of Business & Law Research 6(1):75-84, Jan.-Mar.,

J.R. Gehm “Victim-Offender Mediation
Programs: An Exploration of Practice and Theoretical Frameworks
Western Criminology Review, Vol. 1 No 

See the case of Ikpe v FRN & Anor (2018) LPELR-45567 (CA)
Written By:

Nonso Anyasi