OMOEFE ERIC UDUESEGBE v. THE FEDERAL REPUBLIC OF NIGERIA (2014)

OMOEFE ERIC UDUESEGBE v. THE FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7285(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of June, 2014

CA/A/29A/CR/2014

RATIO

WHETHER THE GRANT OF BAIL IS AT THE DISCRETION OF THE COURT

I will be saying the obvious in stating that the grant of bail and the terms thereof are within the discretion of a trial court. See Sections 120 and 122 of the Criminal Procedure Act. Such a discretion is to be exercised Judicially and Judiciously in the sense that it should be dictated by rules of law, sound Judgment, common sense and fairness. It should not be exercised arbitrarily or be influenced by irrelevant considerations. See UNIVERSITY OF LAGOS V AIGORO (1985) 1 NWLR (1) 143, 148, OGBUAWU V FEDERAL REPUBLIC OF NIGERIA (2011) 12 NWLR (1260) 100, 113 AND AHMED V COMMISSIONER OF POLICE, BAUCHI STATE (2012) 9 NWLR (1304), 104, 130.
It should be added that where a trial court exercised its discretion properly, an appellate court will not interfere. An appellate court will only interfere where there was a wrongful exercise of the discretion as where the lower court acted under a misconception of the law or under a misapprehension of facts by giving weight to irrelevant or unproved matters or where it omitted to take into account matters that are relevant or based its discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. See UNIVERSITY OF LAGOS V AIGORO, SUPRA 198, OBIOMA V FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131, 158 – 159, NYAME V FEDERAL REPUBLIC OF NIGERIA (2010) 7 NWLR (1193) 344, 392 AND ALI V STATE (2012) 10 NWLR (1309) 589, 609.
The essence of the grant of bail is to ensure the liberty of an accused person who is presumed innocent until proved guilty and also to ensure his attendance of his trial. See SECTION 36(5) of the constitution of Nigeria and OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154. However conditions are attached to bail in order to ensure that the accused person does not jump bail, interfere with investigation or commit further crimes. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154. per JOSEPH E. EKANEM, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

Between

OMOEFE ERIC UDUESEGBE – Appellant(s)

AND

THE FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Abuja Division (Coram; Ademola, J) in suit No. FHC/ABJ/CR/82/2013 delivered on 29th November, 2013, wherein the Federal High Court (hereafter called “the lower court”) refused the application of the appellant for the variation/review of the terms of bail granted to the appellant by the lower court.

The appellant was arraigned along with ten others at the lower court in charge No. FHC/ABJ/CR/82/2013 on a charge containing twenty counts of offences out of which the appellant was charged with four offences, which can be grouped as follows;

(i) Conspiracy to obtain by false pretence and with intent to defraud various sums of money contrary to section 8(a) of the Advanced Fee Fraud and other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the said Act (hereafter called “the Act”); and

(ii) Obtaining by false pretence and with intent to defraud various sums of money from the pension’s Account office of the Head of Service of the Federation of Nigeria contrary to Section 1(1)(a) of the Act and punishable under Section 1(3) of the Act.

It must be mentioned that the appellant (along with others) was first arraigned before Bello, J. of the Abuja Division of the Federal High Court in charge No. FHC/ABJ/CR/28/11. He was granted bail in the sum of Ten Million Naira with one surety in the like sum. The charge was withdrawn and struck out. He (along with others) was arraigned afresh before Ademola, J; who granted him bail in the following terms;

1. “…In the sum of N500,000,000.00 (Five Hundred Million) with two (2) sureties each in the like sum.

2. That the sureties must be resident within the jurisdiction of this court who must own landed properties anywhere within the Abuja Division of the court and the properties must worth the Bail sum and possess valid Tax Clearance Certificates.

3. That the Title Deeds of the properties must be verified by the Deputy Chief Registrar of this Court before retaining copies.

4. That the sureties must also swear to Affidavit of means also to be verified by the Deputy Chief Registrar of this court.

5. That the Accused/Applicants are to deposit their current international passport with the Deputy Chief Registrar of this court and should not travel abroad without obtaining approval…”

Unable to satisfy the conditions of bail, the appellant applied to the lower court by way of motion on notice dated and filed on 18th day of September, 2013, for a variation or a review of the bail conditions. The lower court, as earlier stated, refused the application.

Aggrieved by the decision, the appellant appealed to this court by way of a notice of appeal dated 2nd November, 2013, with the leave of this court.

In the appellant’s brief of argument, one issue is formulated for the court’s determination viz;

“Whether the learned trial judge was not in error when he refused the appellant’s application for variation of the terms of bail earlier granted and held that the terms of bail earlier granted the Appellant was not onerous or excessive, thus frustrating compliance with the order granting bail to the Appellant”.

In response, the respondent filed a brief of argument dated 19th March, 2014 but filed on 21st March, 2014. In the brief settled by Chief Godwin O. Obla (SAN), of counsel, the appellant’s sole issue is adopted by the respondent.

In the appellant’s brief of argument settled by Adewale Adegoke, Esq, the following arguments are proffered.

He conceded that the application for variation of the terms of bail was only seeking the exercise of the lower court’s discretion which must be exercised Judicially and Judiciously. He noted that the depositions in the affidavit in support of the application were not countered. He submitted that bail generally is a temporary succour given to an accused person standing criminal trial or in incarceration to enjoy his liberty while his trial lasts or while investigations into allegations against him subsist. This, he said, is based on the presumption of innocence in his favour until the contrary is established at the end of the trial.

Counsel referred to Sections 118(2) and 120 of the Criminal Procedure Act and stated that the application for the variation of the terms of bail presented the lower court an opportunity to review the terms which, according to him, turned out to be unrealistic. He was of the view that the effect of the terms of bail is that the order of the lower court granting bail had been made in vain as the appellant continued to remain in prison custody. He submitted that a court should not make an order in vain.

He finally urged the court to allow the appeal, set aside the ruling of the lower court and grant bail to the appellant on such terms as comparable to those granted by BELLO, J. or any other liberal terms as the court may be willing to grant.

Counsel for respondent, as earlier stated, adopted the lone issue formulated by appellant’s counsel. Arguing the issue, he submitted that the lower court was not in error when it held that the terms of the bail earlier granted were not onerous and excessive. He stated that the appellant could not obtain a variation of the terms of bail as a matter of right and that the appellant would never be able to show that the lower court did not exercise its discretion in a Judicial and Judicious manner. Counsel referred to and relied on several cases including ALI V STATE (2012) 10 NWLR (1309) 589 to buttress his submission.

Continuing, Counsel submitted that whenever it is shown that a trial Judge exercised its discretion in a Judicial and Judicious manner, an appellate court will not interfere. Counsel relied in support of his submission on UNIVERSITY OF LAGOS V AIGORO (1985) 1 NWLR (1) 193 AND DOKUBO – ASARI V FEDERAL REPUBLIC OF NIGERIA (2007) 5 – 6 SC 156 among other cases. He added that failure to counter appellant’s affidavit at the lower court was not conclusive to admit him to bail as a matter of course.

He finally urged the court not to interfere with the decision of the lower court and to dismiss the appeal.

Counsel on both sides agree on the sole issue for the determination of this appeal namely:

“Whether the learned trial Judge was not in error when he refused the appellant’s application for variation of the terms of bail earlier granted and held that the terms of bail earlier granted the appellant was not onerous or excessive, thus frustrating compliance with the order granting bail to the appellant.

I shall adopt the issue for the determination of this appeal.

It should be added that where a trial court exercised its discretion properly, an appellate court will not interfere. An appellate court will only interfere where there was a wrongful exercise of the discretion as where the lower court acted under a misconception of the law or under a misapprehension of facts by giving weight to irrelevant or unproved matters or where it omitted to take into account matters that are relevant or based its discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. See UNIVERSITY OF LAGOS V AIGORO, SUPRA 198, OBIOMA V FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131, 158 – 159, NYAME V FEDERAL REPUBLIC OF NIGERIA (2010) 7 NWLR (1193) 344, 392 AND ALI V STATE (2012) 10 NWLR (1309) 589, 609.

The essence of the grant of bail is to ensure the liberty of an accused person who is presumed innocent until proved guilty and also to ensure his attendance of his trial. See SECTION 36(5) of the constitution of Nigeria and OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154. However conditions are attached to bail in order to ensure that the accused person does not jump bail, interfere with investigation or commit further crimes. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154.

Trial courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non – capital offences. They are thus to grant bail on favourable and affordable conditions. It has been held that it is against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 165 AND 168 AND MADU V THE STATE (2011) LPELR 3973.Where the conditions of bail are stringent, the trial court or an appellate court has a duty to vary the conditions. See ONUIGBO V COMMISSIONER OF POLICE (1975) 1 NMLR 44 AND OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 165.

In the instant case the appellant was, as earlier stated, granted bail in the sum of N500, 000,000:00 with two sureties, each in the like sum, who must own landed properties within the Abuja Division of the lower court. The properties must be worth the bail sum. In other words the appellant is to find two persons who own properties worth N500,000,000:00. This in my view is a difficult task. Furthermore, it is my view that getting one person who can take the risk of forfeiting the sum of N500,000,000:00 is equally a herculean task.

It is no wonder that in paragraph 8(a)(b)(c) of the affidavit in support of the motion on notice for the variation of the bail conditions in the lower court, the deponent lamented;

(a) That it has become impossible to fulfill the afore-stated Bail Conditions as set out in Paragraph 7 of this Affidavit above because his intended surety has landed properties worth only about N10,000,000.00 (Ten Million Naira) in Garki J Abuja, F.C.T., within the jurisdiction of the Honourable Court.

(b) The 2nd accused/Applicant has ONLY ONE surety available to stand for him.

(c) That all efforts to secure another surety with Landed Property worth the sum of N50,000,000.00 (Five Million Naira) as stipulated in the Bail conditions has proved abortive.

The lower court ought to have realized that the conditions of the bail granted by it were stringent. A proper exercise of discretion would have been shown by a grant of the application to vary the conditions. This is especially so since the appellant had earlier been granted bail before the charge before Bello J. was withdrawn and struck out and he did not jump bail.

The appellant has been in custody unable to fulfill the stringent conditions of bail since 12th day of July, 2013 when bail was granted and there is no indication that the trial has commenced.

On the whole, it is my view, that the lower court did not exercise its discretion judicially and judiciously in refusing to vary the conditions of bail granted to the appellant. The learned trial Judge therefore erred when he refused the appellant’s application for variation of the terms of bail which were excessive. It is in the interest of justice to interfere in the exercise of the lower court’s discretion.

The appeal therefore succeeds. I hereby vary the conditions of bail granted to the appellant by the lower court particularly conditions (1) and (2) as follows:

That bail is granted to the appellant in the sum of N10,000,000.00 (Ten Million Naira) with 1 (one) surety in the like sum.

The surety must be resident within the jurisdiction and own landed property within the Abuja Division of the lower court which must be worth the bail sum and must possess valid tax clearance certificate.

All other conditions of bail granted by the lower court remain extant.

It is hereby directed that the substantive case shall be heard and determined by a Judge of the Federal High Court, Abuja Judicial Division, other than Hon. Justice A.F.A. Ademola.

ABUBAKAR JEGA ABDULKADIR, J.C.A.: I had read before now, the draft of the judgment just delivered by my learned brother, JOSEPH EKANEM, JCA. Having read the briefs of argument of learned counsel to the parties and the record of appeal, I agree with the reasoning and conclusion reached in the judgment to the effect that the instant appeal is meritorious.

Consequently, I allow the appeal. I adopt all the orders made in the said judgment.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had read in draft the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA. My learned brother has exhaustively dealt with the issue involved.

I am in full agreement with his reasoning and conclusion reached therein. I also abide by the consequential orders made by my learned brother.

Appearances

Adewale Adegoke, Esq, (with him, Isaiah Opaaje, Esq.)For Appellant

AND

Dr. C. AmobiFor Respondent