SAMSON v. FRN (2020)

SAMSON v. FRN

(2020)LCN/15245(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/IB/452C/2019(R)

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

KAYODE AKINTOLA SAMSON APPELANT(S)

And

THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE MAIN ESSENCE OF BAIL

CONDITIONS THE COURT WILL CONSIDER BEFORE GRANTING A BAIL APPLICATION

The point I am trying to make is that all the other conditions the Court will look at for instance, the gravity of the offence, etc are all subject to the availability of the Applicant to stand trial. No matter the gravity of the offence and the punishment the offence attracts, once the Court is convinced that the Applicant will be available to stand trial, he will be granted bail. On the other hand, no matter how minor the offence could be, if the Court is of the view that the Applicant will not be available to stand his trial, bail will be refused. See Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495.
In a bail application, therefore, whether pending trial or pending appeal, the responsibility on the Applicant is to show that he will not jump bail and that he will be available to stand his trial, while the duty on the Respondent is to debunk that fact in showing that the Applicant will not be available to stand his trial. See Abiola vs. FRN (1995) 1 NWLR (Pt. 370) 155.
Bail application can either be bail pending trial or bail pending appeal. The former is in line with the constitutional provision that an accused person is presumed innocent until proven guilty. See Section 35(4) of the Constitution of the Federal Republic of Nigeria (as amended). The latter on the other hand arises where the accused person has been denied bail in the Trial Court. This he can do prior to his conviction or after his conviction by lodging an appeal in the Appellate Court. See Section 28(1) of the Court of Appeal Act. In Okafor vs. State (2015) LPELR-25681 (CA) this Court per Ogunwumiju, JCA exhaustively in my view dealt with both types of bail and the principles or conditions a Court should consider in these words:
“An Applicant can apply for bail pending trial where he has been accused of committing a bailable offence. Likewise, a convict can apply for bail pending appeal after conviction. In this case, the trial at the Lower Court is still ongoing while the Applicant has appealed against the ruling of the Trial Court which over-ruled his no case submission. Bail pending trial, and bail pending appeal are unique in their own right and thus, it is important to differentiate between the two. An application for bail pending trial is usually done by the accused’s counsel after the arraignment of the accused at the trial Court. There are various factors to consider when applying for bail whether pending trial or appeal. These include; the nature of the offence and punishment, quality of the evidence against the accused, possibility of the accused interfering with further investigation or prosecution if bail is granted, prevalence of the offence, safety of the accused if granted bail, possibility of the accused repeating the same offence, criminal history of the accused, health of the accused, etc. See Anaekwe v C.O.P (1996) 3 NWLR (Pt. 436) 320. Dantata v C.O.P (1958) NRNLR 3, Danbaba v State (2000) 14 NWLR (Pt.687) 396, Ajudua v FRN (2005) All FWLR (Pt. 246) 1274, Nnogu v State (2002) FWLR (Pt. 103) 482, Eyu v State (1988) 2 NWLR (Pt. 78) 602, Ani v State (2001) FWLR (Pt.81) 1715. In applications for bail pending appeal, there are additional considerations which include; the nature of the appeal, the physical or mental well-being of the appellant, the length of the sentence passed on the appellant, if the appellant is a first time offender, if the appellant had been granted bail at the course of trial and did not jump bail. See Munir v FRN (2009) All FWLR (Pt 500) 775 at 785-787, Chukwunyere v Police (1975) 5 ECSLR 44, Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486, Olamolu v FRN (2009) All FWLR (Pt. 485)1800. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): Before this Court is a summons for bail dated and filed on 17/12/2019. The Appellant/Applicant had previously filed same application before the Lower Court wherein the Lower Court in a considered ruling delivered on 11/12/2019 in Charge No. FHC/IB/174C/2019 – The Federal Republic of Nigeria vs. Mr. Kayode Akintola Samson by Hon. Justice J.O. Abdulmalik of the Federal High Court sitting in Ibadan refused the bail application of the Appellant/Applicant. That application was filed on 13/10/19 and refused on 11/12/2019. The Lower Court having heard the application delivered its ruling found on pages 123 – 128 of the record of appeal thus:
“… Therefore, I find that where the facts deposed to in paragraph 14 of the counter affidavit was not denied by Applicant in the further affidavit, same averment in paragraph 14 shall be deemed true for all purposes in opposition to the application for bail. And this fact falls under the factor which a Court is bound to consider in an application of this nature. The factors are as follows:
1. The evidence available against the accused,

2. Availability of the accused to stand trial,
3. The nature and gravity of the offence,
4. The likelihood of the accused committing another offence while on bail,
5. The likelihood of the accused interfering with the course of justice,
6. The criminal antecedents of the accused person,
7. The likelihood of further charge being brought against the accused,
8. The probability of guilt,
9. Detention for the protection of the accused,
10. The necessity to procure medical or social report pending final disposal of the case.
Flowing from the above consideration, I find myself unable to exercise my discretion in favour of the Defendant/Applicant by the grant of this application as I perceive the Applicant will jump bail. I hereby refuse this application in its entirety. In place I order accelerated trial of this case. I so order.”

The Appellant/Applicant dissatisfied with the ruling of the Lower Court has thus filed same application before this Court however praying that the bail application filed is sought pending the appeal. The appeal referred to is the appeal the Appellant/Applicant filed against the ruling of the Lower Court delivered on 11/12/2019 refusing bail. In substance therefore, this is not a fresh bail application but rather an application tied to the earlier application refused. This is clear from the prayer sought in the application before this Court. The prayer reads as follows:
1. An order of Court admitting or granting bail to the Appellant/Applicant pending determination of this appeal.
2. And such further order or other orders as this Honourable Court may deem fit to make in the circumstance.

The summons filed by B.P. Ogundele Esq., is supported by a 7-paragraph affidavit to which is annexed Exhibits A01 – A04. The main thrust of the application is that the Appellant/Applicant is sick.

The Respondent/Respondent filed a counter affidavit of 21 paragraphs on 5/2/2020. Counsel to the Respondent, T. E. Olawanle Esq., who held the brief of J. Oloruntoba Esq., urged this Court to strike out the application on the ground that it is based on a struck-out charge and not an existing charge.

The application before this Honourable Court is an application for bail. The Appellant/Applicant has filed an appeal vide a notice of appeal dated and filed 17/12/2019 containing 5 grounds of appeal. The appeal is against the ruling of the Lower Court refusing the Appellant/Applicant bail pending trial.

Counsel on both sides did not file any written address but with the leave of this Court made oral submissions in Court. Before going to the merit of the application, I must make some preliminary points that will assist this Court in coming to the decision either to grant bail or refuse same. I must make this elementary point that in deciding cases fought on affidavit evidence, the Court must restrict itself to the affidavit evidence and will not allow itself to be influenced by statement of facts made by counsel which is not part of the affidavit evidence before the Court. This is because it is trite that the submission of counsel cannot take the place of evidence. Invariably, a Court will not attach any relevance to the submission of counsel on facts not disclosed in the affidavit evidence. See Adegbite & Anor vs. Amosu (2016) 15 NWLR (Pt. 1536) 405; Ali Ucha & Anor vs. Elechi & Ors (2012) 3 S.C (Pt. 1) 26.
Consequent upon the above legal position, the Respondent counsel’s argument on the fact that the Appellant/Applicant did not file any bail application at the Lower Court for the amended charge and as such, this instant application should be struck out as it is based on a struck out charge and not an existing charge cannot hold water as it is not part of the counter affidavit. Similarly, the oral argument made in court to the effect that it took the Respondent so much effort to get the Applicant arrested as he was hiding from arrest was not part of the 21-paragraph counter affidavit and therefore, that will also not be taken seriously by the Court. Since they do not form part of the affidavit evidence before the Court as it is not part of the affidavit evidence. To my mind, I see the Respondent raising this in his oral submission as overreaching to the Appellant/Applicant and inappropriate. I will, therefore, discountenance those arguments.

As a preliminary point of law, it must be stated that the main essence of bail is to secure the accused presence in Court to stand trial for the offence in which he is charged with. See Dokubo-Asari vs. FRN (2007) 4 FWLR (Pt. 395) 6747; Okomoda vs. FRN & Ors (2016) LPELR-40191 (CA); State vs. Ibrahim & Ors (2014) LPELR-23468 (CA). Corollary to this point is the fact that it is a constitutional right guaranteed to the accused person by virtue of Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) which presumes an accused person innocent until proven guilty and Section 35(4) which guarantees a person’s right to personal liberty. In Suleman & Anor vs. COP Plateau State (2008) LPELR-3126 (SC); (2008) 2-3 S.C (Pt. 1) 185, the Apex Court held:
“The Right of bail, a Constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the Police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212.”
The main consideration is whether the Applicant will be available to stand his trial. All other considerations in bail application are all subject to the consideration whether the Applicant will be available to stand his trail. The point I am trying to make is that all the other conditions the Court will look at for instance, the gravity of the offence, etc are all subject to the availability of the Applicant to stand trial. No matter the gravity of the offence and the punishment the offence attracts, once the Court is convinced that the Applicant will be available to stand trial, he will be granted bail. On the other hand, no matter how minor the offence could be, if the Court is of the view that the Applicant will not be available to stand his trial, bail will be refused. See Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495.
In a bail application, therefore, whether pending trial or pending appeal, the responsibility on the Applicant is to show that he will not jump bail and that he will be available to stand his trial, while the duty on the Respondent is to debunk that fact in showing that the Applicant will not be available to stand his trial. See Abiola vs. FRN (1995) 1 NWLR (Pt. 370) 155.
Bail application can either be bail pending trial or bail pending appeal. The former is in line with the constitutional provision that an accused person is presumed innocent until proven guilty. See Section 35(4) of the Constitution of the Federal Republic of Nigeria (as amended). The latter on the other hand arises where the accused person has been denied bail in the Trial Court. This he can do prior to his conviction or after his conviction by lodging an appeal in the Appellate Court. See Section 28(1) of the Court of Appeal Act. In Okafor vs. State (2015) LPELR-25681 (CA) this Court per Ogunwumiju, JCA exhaustively in my view dealt with both types of bail and the principles or conditions a Court should consider in these words:
“An Applicant can apply for bail pending trial where he has been accused of committing a bailable offence. Likewise, a convict can apply for bail pending appeal after conviction. In this case, the trial at the Lower Court is still ongoing while the Applicant has appealed against the ruling of the Trial Court which over-ruled his no case submission. Bail pending trial, and bail pending appeal are unique in their own right and thus, it is important to differentiate between the two. An application for bail pending trial is usually done by the accused’s counsel after the arraignment of the accused at the trial Court. There are various factors to consider when applying for bail whether pending trial or appeal. These include; the nature of the offence and punishment, quality of the evidence against the accused, possibility of the accused interfering with further investigation or prosecution if bail is granted, prevalence of the offence, safety of the accused if granted bail, possibility of the accused repeating the same offence, criminal history of the accused, health of the accused, etc. See Anaekwe v C.O.P (1996) 3 NWLR (Pt. 436) 320. Dantata v C.O.P (1958) NRNLR 3, Danbaba v State (2000) 14 NWLR (Pt.687) 396, Ajudua v FRN (2005) All FWLR (Pt. 246) 1274, Nnogu v State (2002) FWLR (Pt. 103) 482, Eyu v State (1988) 2 NWLR (Pt. 78) 602, Ani v State (2001) FWLR (Pt.81) 1715. In applications for bail pending appeal, there are additional considerations which include; the nature of the appeal, the physical or mental well-being of the appellant, the length of the sentence passed on the appellant, if the appellant is a first time offender, if the appellant had been granted bail at the course of trial and did not jump bail. See Munir v FRN (2009) All FWLR (Pt 500) 775 at 785-787, Chukwunyere v Police (1975) 5 ECSLR 44, Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486, Olamolu v FRN (2009) All FWLR (Pt. 485)1800. In this particular instance however, we are concerned with bail pending the conclusion of trial. This is a hybrid situation in that the Court has overruled his no case submission which is by no means a conviction. The circumstances here are similar to the facts in Abacha v State (2002) LPELR-15 (SC), (2002) 5 NWLR (Pt. 761) 638. There being in that case no conviction of the Applicant at the time he applied for bail to the Supreme Court. There, the Supreme Court on Pg 7-8 of the LPELR-15 (SC) per Ayoola JSC as follows: It is thus not necessary to range all over the field to consider the multifarious circumstances in which bail may be granted to an accused person. It suffices to note that the considerations that may determine the exercise of discretion to grant bail will often depend on the stage of criminal proceedings at which bail is sought. Different considerations may apply where bail is sought before conviction in the trial Court from those which may apply where bail is sought in the appellate Court after conviction. In this case, bail is sought not at the Trial Court but in an Appellate Court before conviction and not by way of Appellate review of a discretion exercised by the Court of Appeal. The Appellant/Applicant has to show and prove the special circumstance which he intends to rely upon.”

Now, let us sound more specific by relating the above legal position to the application before this Court. The application before this Court is bail pending appeal as the motion clearly states. I have gone through the record of appeal and I am not in doubt in stating that the Applicant was charged on a 3 count charge for conspiracy, receiving by false pretence with intent to defraud contrary to Section 1 (1)(a)(b) and (3) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006. This is in Charge No: FHC/IB/174C/2019 filed on 25/10/2019 (pages 3-4 of the records). On 31/10/2019, the Applicant took plea, pleading not guilty to the 3 counts charge. On same day, the Applicant applied for bail at the Lower Court (pages 46-51 of the records), and this application was refused by the Lower Court in a considered ruling of 11/12/2019 (pages 123-128 of the records). The Applicant filed an appeal against the ruling (pages 129-133 of the records). The appeal has been entered with an Appeal No: CA/1B/M452C/2019. The record of appeal was transmitted on 28/1/2020. This motion for bail pending appeal was filed on 17/12/2019. Though trial has not stated in the Lower Court so to speak, in substance, this application is a summons for bail pending appeal, that is pending the appeal refusing bail at the Lower Court. On the state of our law, the Applicant could have proceeded to this Court to apply for bail pending trial since the trial has not started but he decided to come to this Court for bail pending appeal. Whichever way, this is not only a Court of law but a Court of justice and in doing justice the Court will engage in substantial justice and not technical justice. See Comrade Mike Alioke vs. Dr Victoe Ike Oye & Ors (2018) LPELR-45153; Ralph Uwazuruike & Ors vs. The AG of Federation (2013) 10 NWLR (Pt. 1361) 105; Fidelity Bank Plc vs. Chief Andrew Monye & Ors (2012) 3 S.C (Pt. 1) 73. In the circumstance, it is therefore not what the Applicant should have done that is important but rather whether what has been done is enough before this Court to convince the Court that the Appellant/Applicant if granted bail will be available to stand his trial. The point I am laboring to make is whether he should have just filed a bail application instead of filing an appeal against the refusal of the bail application. Substantially what the Applicant wants is to be granted freedom to go home and defend the case against him from his home and not from the correctional center where he is presently located. To determine this, I will consider the affidavit evidence before me. By the requirement of the law, the Appellant/Applicant who is applying for bail has the initial responsibility to show that he will be available to stand his trial and when this has been done, the onus shifts to the Respondent to show reasons why bail should be refused; principally, that the Applicant will not be available to stand his trial. In Olatunji vs. FRN (2003) 3 NWLR (Pt. 807) this court held:
“An Applicant for bail must first place before the Court for its consideration materials upon which to found the exercise of its discretion. It is only after the applicant has discharged this onus that rests on him that the onus will shift to the prosecution to show cause why the bail should not be granted. This is akin to the shifting onus of proof in a civil case. In the instant case, it was the appellants who were asserting the affirmative, that it is, challenging their detention and asking the Trial Court to release them on bail. They therefore had the onus to prove that it was proper for them to be released on bail.”
Similarly, in Alaya vs. State (2007) 16 NWLR (Pt. 1061) 483, it was held thus:
“An applicant for bail pending trial is seeking an exercise of discretion in his favour and he must place some form of materials for the consideration of the Court in dealing with the application. The onus placed on the applicant is not the ultimate one; that is, not one beyond reasonable doubt but on a balance of probabilities. It is when the applicant has placed some materials for the consideration of the Court that the onus will shift to the prosecution to show why bail should not be granted. Since the law presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show that an applicant is not one that should be released on bail. In the instant case, the appellant failed to establish by affidavit evidence the existence of any special and exceptional circumstances as would permit the Trial Court to grant bail. The onus therefore never shifted to the prosecution to prove otherwise.”
The question now is, whether the Applicant has placed before this Court the material facts needed to make this Court grant him the bail he is seeking for. Since it is bail pending appeal, there is no doubt that there is an appeal. The main reason for the application is that he is sick as at now and that he requires traditional herbs to survive. He has categorically stated that he will not jump bail and that he has reputable sureties to take him on bail. There are contained in paragraphs 4 (h)(l)(m)(n)(o)(p)(q)(r). He had also averred in paragraph 4 (j) that he has no criminal record. The Applicant has satisfied the requirement of the law on his part. The onus now shifts to the Respondent to show why bail should not be granted especially to show that the Applicant will not be available to stand trial and therefore jump bail. See Ahmed vs. C.O.P. Bauchi State (2012) 9 NWLR (Pt. 1304) 104.
In doing this, the Respondent should do more than merely stating to the contrary that the Applicant will jump bail. He has to also place before the Court material facts that will convince the Court that the Applicant will jump bail or likely to jump bail. The Court will then place both averments on an imaginary scale and wherever side the scale tilt more will determine how the Court will decide. What then did the Respondent bring to the scale against the Applicant’s averment? I have gone through the 21 paragraph counter affidavit and all I see is a statement of denial on most of the averment of the Applicant. The Respondent in my opinion need to state and place some material points and details in support of the averment more than merely contradicting the averment and nothing more. The Applicant has averred in paragraph 4 (n) and (o) that he will not jump bail and be available to stand trial and all that the Respondent’s averred is that there is a likelihood that the Applicant will jump bail. I reproduce the paragraphs for ease of reference. In paragraph 4 (n) and (o), the Appellant/Applicant averred thus:
“(n). That the Appellant/Applicant is ready to defend the charges before the Honourable Court diligently without absconding to enable the Honourable Court decide the case on merit.
(o) That the Appellant/Applicant is ready to stand trial and will not jump bail.”
In response, the Respondent in paragraph 13 of the counter affidavit averred thus:
“That paragraph 4 (n) and (o) of the Appellant/Applicant affidavit are not true, there is likelihood that the Appellant/Applicant will jump bail if released.”
The above averment is speculative and the trite position of the law is that the Court does not act on speculation. See The State vs. Yahaya (2019) LPELR-47611 (SC); Ikenta Best (Nig) Ltd vs. A.G. Federation (2008) 6 NWLR (Pt. 1084). The whole counter-affidavit did not give any reason for the basis of the conclusion reached that the Appellant/Applicant will not be likely to be available to stand his trial. The Applicant has also averred that he has reliable sureties to take him on bail and that he will not interfere with the prosecution witnesses. In addition to that, he has promised to abide by the bail condition. There is nothing on the other side of the scale to dislodge all these averments with material facts. I make bold to say that the Respondent has not discharged the obligation placed on it towards convincing the Court that the Applicant will not be available to stand his trial.
The Respondent having not been able to show that the Appellant/Applicant will not be available to stand his trial and particularly that the offence is bailable taking into cognizance the constitutional provision of innocence that is in favour of the Appellant/Applicant, I have no difficulty in granting bail to the Appellant/Applicant. The law under which the Appellant/Applicant is charged in Section 19 gives powers to this Court to grant bail on terms and conditions as the Court deems fit. In the circumstance by the provision of Section 15 of the Court of Appeal Act, this Court can assume the position of the Lower Court to grant bail and give the condition of the bail.
Bail is hereby granted to the Appellant/Applicant in the sum of N2,000,000 (Two Million Naira) with one surety in like sum who must have evidence of tax payment for the past three years and an owner/occupier of a property within the jurisdiction of this Court. The surety is to swear to an affidavit of verification. The Registrar in the Lower Court is to verify the fulfillment of the conditions of the above bail terms.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother EBIOWEI TOBI JCA. I agree that the Applicant should be granted bail pending trial in the circumstances of this case.
Application granted.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the ruling prepared by my learned brother, Ebiowei Tobi, J.C.A.

Appearances:

BAMIDELE OGUNDELE ESQ., appears with TOSIN OJO ESQ., For Appellant(s)

T.E. OLAWANLE ESQ., For Respondent(s)