TANKO MOHAMMED RAJAB & ANOR. V. THE STATE (2010)

TANKO MOHAMMED RAJAB & ANOR. V. THE STATE

(2010)LCN/3617(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of March, 2010

CA/A/128C/2009

RATIO

BAIL: PRINCIPLES GUIDING THE GRANT OF BAIL

a) The nature of the charge;
b) The evidence by which it is supported;
c) The sentence which by law may be passed in the event of a conviction and;
d) The probability that the accused will appear to take his trial.

Where these are weighty, an Appellate Court will not interfere with exercise of discretion by the trial Court not to grant bail, see MAMUPA DANTATA VS IGP (1958) NNLR 3, see BAMAIYI VS THE STATE (2001) 8 NWLR (PT.715) 270, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145; and ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT.890) 267.

The relevant considerations for a decision in respect of the above requirements can be listed as:-

a) The evidence available against the accused;
b) Availability of the accused to stand trial;
c) The nature and gravity of the offence;
d) The likelihood of the accused committing another offence while on bail;
e) The likelihood of the accused interfering with the course of justice;
f) The criminal antecedents of the accused person;
g) The likelihood of further charge being brought against the accused;
h) The probability of guilt;
i) The detention for the prosecution of the accused
j) The necessity to procure medical or social report pending final disposal of the case.

These factors may not be relevant in all bail application cases and they are not also exhaustive. It may well be that any one or other may be applied to determine the question of bail in a particular case. PER UWANI MUSA ABBA AJI, J.C.A.

BAIL: ON WHOM LIES THE ONUS OF PROOF IN A BAIL APPLICATION

In an application for bail pending trial, the applicant has the first onus of placing such materials before the Court for its consideration to show that he is entitled to be released on bail. Thereafter, the onus shifts to the Respondent to show that the Applicant is not entitled to bail. See CHINEMELU VS C.O.P (1995) 4 NWLR (PT. 390) 476, ABIOLA VS FRN (1995) 1 NWLR (PT. 370) 155, ANI VS STATE (2002) 1 NWLR. The onus therefore placed on the Applicant to establish his entitlement to bail is on the balance of probability while the burden placed on the prosecution to deny bail to accused person is proof beyond reasonable doubt. PER UWANI MUSA ABBA AJI, J.C.A.

BAIL: WHETHER A PROSECUTOR CAN OPPOSE BAIL MERELY AS A ROUTINE PROCEDURE

A prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See ADAMS VS ATTORNEY GENERAL OF THE FEDERATION (2006); BOLAKALE VS STATE (supra); ANAKWE VS COMMISSIONER OF POLICE (1996) 3 NWLR (PT 436) 320 and OMODARA VS STATE (2004) 1 NWLR (PT.853) 80. PER UWANI MUSA ABBA AJI, J.C.A.

BAIL: CONDITIONS GUIDING THE REFUSAL OF BAIL

Bail will not be granted if by the granting of bail proper investigation of the case would be prejudiced or serious risk exist of the applicants escaping from justice. However, the Court cannot exercise its discretion to refuse bail in vacuum. There must be materials placed before it to exercise its discretion and where there are no materials but bare assertion by the prosecution, the Court will not exercise its discretion to refuse bail. Bail under our criminal justice system is a right of an accused person except where the alleged offence is a capital offence; accused person is not usually denied bail. PER UWANI MUSA ABBA AJI, J.C.A.

JUSTICE

UWANI MUSA ABBA AJI justice of The Court of Appeal of Nigeria

MARY PETER ODILI justice of The Court of Appeal of Nigeria

ABDU ABOKI justice of The Court of Appeal of Nigeria

Between

1. TANKO MOHAMMED RAJAB
2. DATTIJO ALIYUAppellant(s)

AND

THE STATERespondent(s)

UWANI MUSA ABBA AJI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the Niger State High Court sitting in Minna presided over by justice Christopher I. Auta, delivered on the 28th April, 2009 dismissing an application for bail by the Appellants.
On the 30th March, 2009, the Appellants were arraigned before Chief Magistrate Court 1, Minna on a First Information Report (FIR) of Criminal Conspiracy, forgery, injurious falsehood, false information with the intent to mislead public servant by obtaining, circulating official classified documents contrary to Sections 97, 364, 393, 140 and Section 7(1) of the Penal Code and the Official Secrets Law of Niger State respectively. Their application for bail before the Chief Magistrate Court was refused and they were ordered to be remanded in prison custody. The First Information Report No: MN/CR/47/2009 dated 30th March, 2009 states as follows:-
“Criminal Conspiracy Forgery, Injurious Falsehood, False Information with the intent to mislead Public servant by obtaining, circulating official classified documents contrary to Sections 97, 364, 393, Section 7(1) of the Penal Code and the Official Secrets Law of Niger State respectively. Their application for bail before the Chief Magistrate Court was refused and they were ordered to be remanded in prison custody.The First Information Report No: MN/CR/47/2009 dated 30th March, 2009 states as follows:-
“Criminal Conspiracy, Forgery, Injurious Falsehood, False Information with intent to mislead, public servant, obtaining, circulating official classified Document contrary to Sections 97, 364, 393, Section 7(1) CAP 90 of the Official Secrets Law of Niger State and 140 of the Penal Code. That you Tanko Mohammed Rajab and Alhaji Dattijo Aliyu all (m) of Minna town conspired amongst yourselves to present a forged document before the Honourable Speaker of Niger State of Assembly with the intent to mislead him and members of the House. You also obtained classified document and circulated same to members of the Public.”
The other First Information Report marked as MN/CR/48/2009 made, allegations against the 1st Appellant alone and it states as follows:-
“Personating a Public Servant possession of forged record and false personation contrary to Section 132, 368 and 179 of the Penal Code Law. You Tanko Mohammed Rajab falsely represented yourself as an Engineer and a member fellow of Nigeria Engineers and went about to circulate the document to this effect in order to mislead members of the Public you thereby committed the above offences.”
By a motion on notice dated 7th April, 2009, the Appellants applied to the High Court, Minna praying for the following order(s);
1. An order of this Honourable Court admitting the accused persons to bail pending the determination of this case,
2. And for such further orders that this Honourable Court may deem fit to make in the circumstances.
The application was supported by five (5) paragraph affidavit and a further and better affidavit of ten (10) paragraphs. The Respondent opposed the application and filed a counter affidavit of 21 paragraphs and further and better counter affidavit of seven (7) paragraphs.
In a considered Ruling delivered on the 28th April, 2009, the learned trial Judge dismissed their application for bail and remanded them in prison custody. Dissatisfied with the said Ruling, the Appellants have now appealed to this court by a Notice of Appeal dated 6th May, 2009 and filed on the same day upon three grounds of appeal. The grounds of appeal without their particulars are hereby reproduced:-
i. The learned trial Judge erred in law and failed to follow the established judicial principles in his consideration of the application for bail by the Appellants and refusing same.
ii. The learned trial Judge erred in law and exercised his discretion judiciously thereby wrongly refused the application on bare allegations by the State which were unsupported by any evidence before him.
iii. The learned trial Judge erred in law in refusing the application for bail by the Applicants/Appellants on the ground that the supporting affidavit had been controverted by the Respondent when he elected to believe without any attempt to resolve the conflicting averments or stating the grounds for believing same and disbelieving the Appellants.
Parties filed and exchanged briefs of arguments. In the Appellants’ brief settled by Aminu Sadauki, Esq., three issues are distilled for the determination of the appeal to wit:-
1) Whether the learned trial Judge applied the principles for the grant of bail pending trial properly in the circumstances of this case having regard to the fact that bail is a constitutional right.
2.) Whether the learned trial Judge exercised his discretion judiciously in refusing the Appellants’ bail application on bare assertions of the prosecution that the accused will not present themselves for trial or that they would interfere with the investigation when no credible basis for the allegations were presented.
3.) Whether the learned trial Judge was right in refusing bail in the circumstances.
In the Respondent’s brief of argument settled by Olajide Ayodele, SAN, a lone issue was formulated for determination, namely:-
Whether the court below properly exercised its discretion by refusing to grant bail to the Appellants pending their trial having regard to the materials and affidavit evidence before the court.
At the hearing of the appeal, learned Counsel for the Appellants, Aminu Sadauki, Esq., and the learned senior Counsel for the Respondent O. Ayodele, SAN, adopted and relied on their respective briefs of argument filed on the 4th of June, 2009 and the 12th June, 2009 respectively. The Appellants’ Counsel urged the court to allow the appeal. The Respondent’s Counsel also urged the Court to dismiss the appeal.
I have carefully considered the issues formulated by the respective counsel and I am of the view that the single issue formulated by the learned senior Counsel for the Respondent is apt as it encapsulates the complaint of the Appellants in the appeal having regard to the argument of counsel as contained in their respective briefs.
In arguing his issues, learned Counsel for the Appellants, Sadauki, Esq., submitted that right to bail is Constitutional, guaranteed under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 and that an accused person charged with an offence who has not been tried and convicted by a competent court is entitled to bail unless certain circumstances exist militating against the grant of bail, and the duty is on the prosecution to show that those circumstances exist. It is submitted that in denying the Appellants’ bail, the learned trial Judge cited the case of MAMUDA DANTATA VS IGP (1958) NNLR 3 but failed to be guided by the principles set in that case and several other cases that established the guiding principles in bail applications before trial which have been affirmed and established in a long line of cases citing the following authorities; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145, EYO VS STATE (1988) 2 NWLR (PT.78) 602 and ANU VS STATE (2002) 1 NWLR (PT.747) 217.
It is submitted that, if the learned trial Judge had followed the well established principles and applied them to the facts and circumstances of this case, he would have come to the conclusion that it was a proper case to grant bail to the Appellants more especially when the prosecution failed to present any evidence or materials before the court, citing the cases Of ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (1995) 1 NWLR (PT.370) 155 at 179, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT. 991) 341 at 355, where the Court of Appeal emphasized the duty of the court to scrutinize the charge, the available documentary evidence and apply to well established principles in exercising its discretion whether to grant or not to grant bail. It is his view that in the instant case, no materials whatsoever were presented by the prosecution other than its bare assertions which the court accepted without questioning even though they were denied by the Appellants. Learned Counsel referred to the case which set out the principles that should guide the court in hearing bail application and further submitted that the Respondent did not discharge the onus put on it by a bare averment in their counter affidavit which had not been controverted.
It is submitted that up to the filing of this appeal, the Appellants had not been properly charged before any court. That a copy of an application to prefer charges against them filed at the State High Court was only exhibited in a counter affidavit before this Court. It is submitted that from charges, there are no serious offences. That the first three counts of charges carry a maximum of between 1 to 2 years imprisonment, while the charge relating to Official Secrets Law carries a maximum of 14 years imprisonment. Learned Counsel referred to Section 340 of the Criminal Procedure Code and submitted that persons charged with offences carrying less than 3 years imprisonment should be released on bail except if there are reasons which should be recorded in writing by the court that by granting bail, the proper investigation of the offence would be prejudiced, or there is a serious risk of the accused escaping from justice.
Learned Counsel referred also to Section 341(2) (a), (b) and (c) for offences carrying imprisonment for a term exceeding 3 years and submitted that the Appellants had not yet been properly charged before a competent court and that the alleged offences for which they were arraigned on First Information Report were all simple offences and the prosecution ought not refuse bail, citing the cases of BOLAKALE Vs STATE (2006) 1 NWLR (PT.962) 507 and ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (1995) 1 NWLR (PT.370) 155. It is finally submitted that, the Appellants had put before the High Court material facts to warrant their release on bail but the learned trial Judge simply failed to follow the established principles for grant of bail applications. The Court was urged to resolve the issues in favour of the Appellants and to release them on bail on reasonable conditions.
In his response, learned senior Counsel for the Respondent, Ayodele, SAN, submitted that the learned trial Judge considered the issue of bail generally and the provisions of Sections 340 and 341 of the Criminal Procedure Code and Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria 1999 and came to the conclusion that the offences alleged against the Appellants attract punishment with imprisonment for a term exceeding three years and not therefore ordinarily bailable. On the Appellants’ contention that the learned trial Judge did not properly exercise his discretion, it is submitted that the learned trial Judge considered the essential ingredients necessary for the exercise of his discretion in respect of the application placed before him as expounded by this court in an application for bail before trial and cited the case of AMAKA MARTINA ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT. 890) 267 at 283-284 and submitted that the factors therein may not be relevant in all cases and it may well be that anyone or other may be applied to determine the question of bail in a particular case. On the contention that the learned trial Judge misapplied the principles for admission to bail as enunciated in the case of MAMUDA DANTATA VS IGP (1958) NNLR 3, it is submitted that the learned trial Judge considered the principles for exercising discretion to grant or to refuse bail by court and referred to page 35 of the record of proceedings where the learned trial Judge made reference to the case of DANTATA VS IGP (1958) and considered same not as a binding authority but a persuasive authority and contended that the prosecution has shown in their affidavit that the First Information Reports show that the Appellants should not ordinarily be released on bail.
Dwelling on the relevant factors for the exercise of courts discretion to grant or refuse an application for bail as enunciated in the case of EMMANUEL NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328 learned counsel submitted that in the circumstances of this appeal, it cannot be said that the learned trial Judge did not exercise his discretion properly. It is also submitted that the learned trial Judge in his ruling referred to those factors to be considered as enumerated in the decided cases in coming to the conclusion that the Appellants ought not to be granted bail.
Dwelling on the issue of bail being a constitutional right, learned senior Counsel submitted that the constitutional provisions for the presumption of innocence is not a guarantee for the admission of an accused person to bail. It is his view that admission to bail of an accused person is at the discretion of the Judge before whom the application is presented and that the learned trial Judge took those factors into consideration and also considered the provisions of Sections 340 and 341(2) of the Criminal Procedure Code and also Section 36 (5) of the 1999 Constitution before refusing to grant bail to the Appellants. Learned Counsel referred to the Ruling of the learned trial Judge particularly at pages 37 to 38 of the record of appeal and submitted that in the circumstances, it cannot be asserted that the learned trial Judge did not exercise his discretion properly or has taken into consideration extraneous or irrelevant matters having regard to all the circumstances of this case.
It is submitted further that, the Appellants have canvassed the point that no serious materials were placed before the learned trial Judge at the time the application was heard by him and submitted citing the case of DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, that the learned trial Judge took into consideration those matters enumerated therein in the exercise of his discretion. Dwelling also on the issue of non serious materials placed before the learned trial Judge in the consideration of the bail application by the prosecution, it is submitted that this fact is not true and contended that when the objection which the Appellants made against the contents of paragraphs 7 to 17 of the counter affidavit filed by the Respondent failed, it left the learned trial Judge with the consideration of the averments in paragraph 9 to 14 of the counter affidavit which remained unchallenged and uncontroverted and the trial Judge came to the conclusion that the alleged offences against the Appellants are serious ones and the fact that the Appellants will not come for trial has not been controverted and the likelihood of interfering with witnesses has not been denied.
Again, on the point that there were no materials placed before the learned trial Judge by the Respondent upon which the court exercised his discretion to refuse the bail application, it is submitted that this contention supports a case where the accused persons already have charges against them before the court, while in the instant appeal, what was before the court were the First Information Reports, while other materials were contained in the affidavit evidence which the parties placed before the court. It is therefore submitted that the affidavit evidence of the Respondent has not been rebutted or challenged by the Appellants and the trial court is right to rely and act on the uncontroverted affidavit evidence placed before it by the Respondent, particularly the grave allegations contained in paragraphs 9 to 14 of the counter affidavit. It is therefore contended that the allegations made against the Appellants involve the commission of serious offences contrary to the provisions of the official Secrets Law and forgery which carry a maximum of 14 years imprisonment and the learned trial Judge was right to have refused bail to the Appellants and urged the Court to resolve this issue in favour of the Respondent.
The main contention of the Appellants in this appeal is whether having regard to the facts and circumstances of this case the affidavit evidence and decided authorities placed before the trial Court, it can be said that the lower court exercised its discretion judicially and judiciously in refusing to admit the Appellants to bail. It is clear that the application for bail by the Appellants before the lower court was based upon the motion on notice filed by the Appellants supported by affidavit and a further and better affidavit. The Respondent on the other hand filed a counter affidavit and a further, and better counter affidavit.
In the main, the affidavit evidence by the parties was the basis upon which the arguments of counsel on both side was based.
The Appellants in their affidavit in support of the bail application dated 7th April, 2009 filed a five paragraph affidavit. The paragraphs are hereby reproduced:-
AFFIDAVIT IN SUPPORT
I Sunday Bulus, Male, Christian, Nigerian Citizen of full age of Messrs Mohammed Ndayako & Co. Bastion Chambers, Suite 62, Obasanjo Commercial Complex, Minna, Niger State hereby make oath and state as follows:-
1. That I am the Litigation Secretary with Mohammed Ndayako & Co. by virtue of which I have the consent and authority of my employer to depose to this Affidavit.
2. That I was present in the office at 11.20am on Monday the 6th day of April, 2009 when Hon. Mohammed Ndayako, Counsel handling this matter informed me of the following facts which I verily believe to be true.
a) That on the 30th March, 2009 the accused persons were arraigned before the Chief Magistrate Court 1, Minna on a First Information Report (FIR) dated 30/3/2009 for alleged offences of Criminal Conspiracy, forgery, injurious falsehood, false information with the intent to mislead public servant by obtaining, circulating official classified documents contrary to Sections 97, 140 of the Penal Code Law 364 and 393 of the Official Secrets Law of Niger State Cap 90 Laws of Niger State.
b) That on the 30th of March, 2009 the 1st accused person Tanko Mohammed Rajab was also arraigned before the Chief Magistrate Court 1 on a 2nd First information Report (FIR) dated 30/3/2009 for alleged offences of Personating a public servant, possession of false record and false personation contrary to Section (sic) 132, 368 and 179 of the Penal Code Cap 94 Laws of Niger State.
c) That after the said First Information Reports were read; counsel to the accused persons moved an application to admit the accused persons to bail.
d) That the learned Chief Magistrate adjourned the matter to 6th April, 2009 for ruling on the application to admit the accused persons to bail.
e) That on 6th April, 2009, the learned Chief Magistrate in his ruling refused the application to admit the accused persons to bail Copies of the First Information Reports of the Chief Magistrate Court 1 mentioned in paragraphs ‘a’ and ‘b’ are hereby annexed as Exhibits ‘A’ and ‘B’ respectively
f) That the accused persons have since been remanded in prison custody
g) That the accused persons have extended families and several dependents and are the bread winners of their respective families
h) That their continued remand in prison custody will cause untold hardship to the families and dependants of the accused persons
i) That the accused persons are respectable and responsible members of the society
j) That they have never committed any offence previously.
3. That when admitted to Bail, the accused persons shall:-
a) Provide reasonable and responsible sureties
b) Undertake to always attend court to face their trial
c) Undertake not to in any way, interfere with the investigation of this matter
d) Undertake to continue their lawful businesses
4. That it would be in the interest of justice to grant this application.
5. That I swear to this Affidavit in good faith conscientiously believing the contents to be true and in accordance with the Oaths Law 1990.
The Appellants also filed a further and better affidavit dated 15th April, 2009 and averred as follows: –
I Sunday Bulus, Male, Christian, Nigerian Citizen, adult, of Suite 62, Obasanjo Commercial Complex, Minna, Niger State do hereby make oath and state as follows:-
1. That I am the Litigation Secretary with Mohammed Ndayako & Co. solicitors to the applicants, and by virtue of my position afore said, I am conversant with the facts of this application and have the consent of my employers to depose to this Further Affidavit.
2. That on the 7th day of April, 2009, I had earlier deposed to an affidavit in support of the applicants’ motion for bail
3. That I was informed by Hon. Mohammed Ndayako of Counsel in his office at suit 62, Obasanjo commercial complex, Minna on the 14th day of April, 2009 at about 3.45pm of the under mentioned facts and I verily believed him to be true as follows:-
4. That there is need for me to depose to further and better affidavit having obtained the certified true copy of record of the lower court and it is exhibited hereto as Exhibit ‘C’.
5. That the applicants need to prepare for their defense and need to constantly consult with their witnesses which they cannot do from prison custody.
6. That they cannot discuss with their witnesses from prison custody.
7. That the applicants are mere party members and are not even party officials that can influence any person or organization in the society or even the police
8. That the police have never complained of any interference by the applicants either before or now.
9. That there is no risk existing to show that if the applicants’ are released on bail, they will not come for their trials
10. That I depose to this affidavit in good faith believing the contents to be true and correct and in accordance with the Oaths Law 1990.
The Respondent filed a twenty one paragraph counter affidavit on the 17th April, 2009 in opposition to the bail application and averred as follows:-
I, Shehu Sule, male, Muslim, Nigerian, Principal Litigation Registrar in the Attorney General Chambers, Minna do hereby state on oaths as follows:-
1. I am the Principal Litigation Registrar in the Attorney Generals Chambers, Minna.
2. That I have consent of both my employer and that of Danlami Alhaji Wushishi, Senior State Counsel to depose to this counter affidavit
3. That Danlami Alhaji Wushishi of Counsel handling the case called me into his office on 16th day of April, 2009 at about 12:30pm and informed me of the following facts, which I verily believe to be true.
4. That the accused persons were arraigned on the 30th day of March, 2009 for the offences of obtaining and circulating official documents, conspiracy, forgery, injurious falsehood, personating as public servant, possession of forged documents, and were remanded to prison custody same day.
5. The Applicants through their counsel made oral application for their bail same 30th March, 2009
6. That ruling on the said application refused the accused bail on the 6th day of April, 2009
7. That he was served with a motion seeking for the bail of the accused persons dated 7th April, 2009
8. That he was also served with a further and better affidavit dated 15th April, 2009, with the copy of the ruling delivered on 6th April, 2009
9. That in view of the serious nature of the offences in relation to circulating official documents, investigation into the matter is still on going
10. That the accused persons have not been denied access to their supposed witnesses, or counsel
11. That the accused persons are allowed to see their visitors within the regulated hours
12. That numerous classified official documents were retrieved from the 1st accused person.
13. That the 2nd accused has been financier of 1st accused person’s nefarious activities from evidences available to the police
14. That there are correspondences between the 1st and 2nd accused person on the circulation and obtaining of the classified documents which the police are seriously investigating
15. That the 1st accused is a strong party stalwart in Limawa B, while the 2nd was the immediate past Commissioner of Health in the State
16. That the police are presently recording appreciable progress in the investigation, their release is likely to impede the spate of progress, which is taking the police to Abuja and Lagos
17. That the Accused/Applicants are likely to interfere with the investigation
18. That the Accused/Applicants are likely to jump bail
19. That the Accused/Applicants have no particular job that will make them remain within the jurisdiction of this Honourable Court
20. That the police will soon finish their investigations
21. That I depose to this counter affidavit in good faith believing the contents to be true and correct in accordance with the Oath Law, 1990.
The Respondent also filed a 7 paragraph Further and Better Counter Affidavit wherein it is deposed as follows:-
I, Shehu Sule, male, Muslim, Nigerian, Principal Litigation Registrar in the Attorney General Chambers Minna do hereby state on oaths as follows:-
1. I am the Litigation Registrar in the Attorney Generals Chambers, Minna.
2. That I have consent of both my Employer and that of Danlami Alhaji Wushishi, Senior State Counsel to depose to this further and better counter affidavit.
3. That Danlami Alhaji Wushishi of counsel handling the matter at our office in Minna on 17th April, 2009 at about 3:30pm informed me of the following facts, which I very believe to be true;
4. That there is urgent need to depose to this Further and Better Counter Affidavit after perusal of the Applicants Further Affidavit
5. That the offences for which the accused persons are standing trial are serious in nature that touches on acts prejudicial to peace and security of the State
6. That the 2nd accused person is an influential person in the society that is capable of interfering with the police investigations that are currently going on
7. That I depose to this Further and Better Counter Affidavit in good faith believing the contents to be true, and in accordance with the Oath Law 1990.
The learned trial Judge, in a considered ruling, after due consideration of the affidavit evidence before him and submissions of learned counsel, held at page 37 of the records of appeal as follows:-
“The natures of the offence against the Accused/Appellants are serious. I do not know the strength of evidence against the accused person (sic) because this is not a trial court. The Appellants were arraigned before the Chief Magistrate Court for summary trial. The procedure at the Chief Magistrate Court is different from the High Court where proof of evidence must accompany the charge. The offences alleged against the Accused/ Applicants are serious once (sic). The state has exhibited in the affidavit that the accused will not come for trial which has not been controverted (sic). The likelihood of interfering with witnesses has not been denied. On the whole, the application for bail fails and it is hereby dismissed…”
The learned trial Judge denied bail to the Appellants on the ground inter alia, the offences against them are serious offences and that if granted bail, the Appellants may not come to stand their trial and that there is the likelihood of the Appellants interfering with witnesses. The Appellants had contended that the learned trial Judge has failed or refused to be guided by judicial pronouncements on guiding principles for the consideration of bail applications pending trial having deposed to the fact that they are responsible citizens and would appear before the court to stand their trial, but the learned trial Judge considered extraneous matters and refused to grant bail to the Appellants.
This appeal raises the applicability and effect of Sections 340 and 341(1) (2) and (3) of the Criminal Procedure Code dealing with bail application. The Sections provide:-
Section 340(1)
340(1) When any person accused of an offence punishable with imprisonment whether with or without fine for a term not exceeding three years or with fine only is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court and is prepared at any time while in the custody of that officer or before that court to give such security as may seem sufficient to the officer or court, such person shall be released on bail unless the officer or court for reasons to be recorded in writing considers that by reason of the granting of bail the proper investigation of the offence would be prejudiced or a serious risk of the accused escaping from justice be occasioned.
(2) …
(3)…
341(1) Persons accused of an offence punishable with death shall not be released on bail
341(2) Persons accused of an offence punishable with imprisonment for a term exceeding three years shall not ordinarily be released on bail, but the court may on application release on bail a person accused as aforesaid if it considers
(a) That by reason of the granting of bail the proper investigation of the offence would not be prejudiced; and
(b) That no serious risk of the accused escaping from justice would be occasioned; and
(c) That no grounds exist for believing that the accused, if released would commit an offence 341(3) Notwithstanding anything contained in subsections (1) and (2) of this Section, if it appears to the court that there are no reasonable grounds for believing that a person accused has committed the offence, but there are sufficient grounds for further inquiry, the person may, pending the enquiry, be released on bail.
Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, provides:-
Section 36(5) “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

By the judicial interpretation of the provisions of Sections 340 and 341 of the Criminal Procedure Code, it appears settled law that the power to grant or not to grant bail is entirely at the discretion of the Judge, and when a judge is considering whether to release an applicant to bail pending trial, the following are paramount, viz:-
a) The nature of the charge;
b) The evidence by which it is supported;
c) The sentence which by law may be passed in the event of a conviction and;
d) The probability that the accused will appear to take his trial.
Where these are weighty, an Appellate Court will not interfere with exercise of discretion by the trial Court not to grant bail, see MAMUPA DANTATA VS IGP (1958) NNLR 3, see BAMAIYI VS THE STATE (2001) 8 NWLR (PT.715) 270, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145; and ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT.890) 267.
The relevant considerations for a decision in respect of the above requirements can be listed as:-
a) The evidence available against the accused;
b) Availability of the accused to stand trial;
c) The nature and gravity of the offence;
d) The likelihood of the accused committing another offence while on bail;
e) The likelihood of the accused interfering with the course of justice;
f) The criminal antecedents of the accused person;
g) The likelihood of further charge being brought against the accused;
h) The probability of guilt;
i) The detention for the prosecution of the accused
j) The necessity to procure medical or social report pending final disposal of the case.
These factors may not be relevant in all bail application cases and they are not also exhaustive. It may well be that any one or other may be applied to determine the question of bail in a particular case.
In the instant case, the Appellants applied to the lower court by way of motion supported by an affidavit asking that they be admitted to bail. No formal charge was prepared against the Appellants before the High court. There is therefore no proof of evidence of the offence alleged to have been committed for the lower court to consider and determine the strength of evidence if any against the Appellants. However, the Appellants have deposed in their paragraph 2(i)(a) and (f) and paragraph 3(a), (b) and (c) to the fact that they are respectable and responsible members of the society and that they have never committed any offence previously and that if admitted to bail they will provide reasonable and responsible sureties and undertake always to attend court to face their trial. They also undertake not to in anyway interfere with the investigation of this matter. These facts notwithstanding, the lower court ruled against the Appellants’ application for bail on the reason that the allegations against the Appellants involve the commission of serious offences and that the Appellants are influential members of the society and may therefore interfere with police investigation. The learned trial Judge came to this conclusion because according to him the Appellants averment in paragraphs 7, 8, and 9 of the further and better affidavit have been controverted by the Respondent’s counter affidavit in paragraphs 9 to 18 and that the Appellants did not file a reply to contradict the facts stated in the Respondent’s counter affidavit.
In an application for bail pending trial, the applicant has the first onus of placing such materials before the Court for its consideration to show that he is entitled to be released on bail. Thereafter, the onus shifts to the Respondent to show that the Applicant is not entitled to bail. See CHINEMELU VS C.O.P (1995) 4 NWLR (PT. 390) 476, ABIOLA VS FRN (1995) 1 NWLR (PT. 370) 155, ANI VS STATE (2002) 1 NWLR. The onus therefore placed on the Applicant to establish his entitlement to bail is on the balance of probability while the burden placed on the prosecution to deny bail to accused person is proof beyond reasonable doubt.
It is clear from the record of the Court that the prosecution presented no evidence before the trial Court to support their averment that if Appellants are released on bail they will not appear to stand their trial. It is a settled principle of law that mere averments by the prosecution that an accused person will not appear for his trial in the absence of real concrete material to support such an allegation, should not warrant the denial of bail by a court. In ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (supra) the principle is stated that since the court presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show in a given case, that an accused or applicant for bail is one that should be refused bail. The Appellants have deposed to the fact that they are respectable and responsible members of the society and that if admitted to bail, they undertake to always attend court and shall not in any way interfere with the investigation of this matter. The Respondent also deposed to the fact that the 1st Appellant is a strong party stalwart, while the 2nd Appellant was the immediate past commissioner of Health in the State. The fact that the Respondent’s averment in paragraphs 9 to 18 have not been controverted by the Appellants is not sufficient to deny bail to the Appellants having regard to the fact that what was not denied were mere assertions without concrete evidence. Bail is granted or refused at the discretion of the court to be exercised judicially and judiciously while taken into consideration certain factors as enunciated by both this court and the Supreme Court for the grant of bail to an accused or applicant pending trial. The main objective for the grant of bail pending trial is to ensure that the accused person does appear before the court to stand his trial. The Appellants in the instant appeal stated in their supporting affidavit that they would make themselves available for trial and the fact that Appellants are influential and respectable people in the society have not been denied by the Respondent. In fact, they stated so in their counter affidavit. A prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See ADAMS VS ATTORNEY GENERAL OF THE FEDERATION (2006); BOLAKALE VS STATE (supra); ANAKWE VS COMMISSIONER OF POLICE (1996) 3 NWLR (PT 436) 320 and OMODARA VS STATE (2004) 1 NWLR (PT.853) 80. The prosecution has not done so in the instant case. While it is the duty of the applicant to make the application with affidavit stating reasons why he should be granted bail, in a case of offence not ordinarily bailable, as in the instant case, the onus is on the prosecution to show why the Appellant should not be admitted to bail i.e. showing that these conditions have not been satisfied by the accused. See OGBLEMBE VS COMMISSIONER OF POLICE (2000) 5 NWLR (PT.706) 215. It is therefore my considered view in the instant case that, the learned trial Judge has failed to exercise his discretion judicially and judiciously in favour of the Appellants.
Bail will not be granted if by the granting of bail proper investigation of the case would be prejudiced or serious risk exist of the applicants escaping from justice. However, the Court cannot exercise its discretion to refuse bail in vacuum. There must be materials placed before it to exercise its discretion and where there are no materials but bare assertion by the prosecution, the Court will not exercise its discretion to refuse bail. Bail under our criminal justice system is a right of an accused person except where the alleged offence is a capital offence; accused person is not usually denied bail.
Based on what I have said so far, this issue is hereby resolved in favour of the Appellants against the Respondent.
The appeal therefore has merit and it ought to be and is hereby allowed. The Ruling of the lower court delivered on the 28th April, 2009 refusing bail to the Appellants is hereby set aside. Consequently, the Appellants are hereby granted bail pending the determination of the case against them before the lower court in the sum of N500,000.00 with two sureties each in like sum. The sureties must be owners of a landed property and must file affidavit of means.

MARY U. PETER-ODILI, (J.C.A.): I have had the opportunity of reading in draft the judgment of my learned brother UWANI MUSA ABBA AJI, J.C.A which decision and reasonings I agree with. It is difficult to appreciate under what premise the Court below denied the Appellant bail since there was no formal charge prepared against the Appellant and in the light of the materials made available to court by supporting affidavit proffered by the appellant why he should be admitted to bail. It is instructive that the Respondent or prosecution did not challenge the affidavit evidence put up by the Appellant and did not support their contention that if released on bail the Appellant would fail to appear for trial. That therefore ran counter to the principle that Prosecution must establish a reason why the bail should be denied. I refer to Chinemelu v. Inspector General of Police (1995) 4 NWLR (pt.390) 476; Anakwe v. Commissioner of Police (1996) 3 NWLR (pt.436) 320; Abiola v. Attorney General of the Federation (1995) 1 NWLR (pt.370) 155, Dokubo Asari v. Federal Republic of Nigeria (2006) 11 NWLR (pt.991) 341 at 355.
From the foregoing and the fuller consideration of the judgment of my brother I, too allow the appeal and abide the orders of my brother.

ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment Just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A. I agree with the reasoning and conclusion contained therein. I also allow the Appeal and set aside the Ruling of lower Court delivered on the 28th day of April, 2009.
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Appearances

Aminu Sadauki, Esq.,For Appellant

AND

Olajide Ayodele, SAN,
Danlami Wushishi, Esq.,
S.S.C. MOJ, Niger State, and
Gambo Mohammed, Esq.,For Respondent