IKECHUKWU OKORONKWO v. FEDERAL REPUBLIC OF NIGERIA (2014)

IKECHUKWU OKORONKWO v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7350(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of July, 2014

CA/E/425/2012(R)

RATIO

CRIMINAL PROCEDURE: BAIL; WHETHER THE AIM OF GRANTING THE APPLICANT BAIL WOULD BE DEFEATED IF THE APPLICANT IS UNABLE TO MEET UP WITH THE BAIL CONDITIONS ON GROUNDS OF STRINGENCY

I am of the considered view that the aim of granting the Applicant bail would be defeated if the Applicant is unable to meet up with the bail conditions on grounds of stringency. By granting stringent conditions for bail, it would amount to giving the relief with one hand and removing it with another hand. per. AMIRU SANUSI, OFR, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria

Between

IKECHUKWU OKORONKWO Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

AMIRU SANUSI, OFR, J.C.A. (Delivering the Lead Ruling): By way of undated motion on notice filed on 18th December 2013, the applicant seek the indulgence of this court to vary the conditions for bail granted him by this court on 20th November 2013 pending the determination of his appeal he lodged at the Enugu State High Court (the lower court) against the judgment of Magistrate Court, Enugu State (hereinafter called “the Trial Court) which convicted him of the offence of 13 count charges of stealing by conversion and forgery etc. In this motion, the reliefs sought by the applicant are hereinafter stated, thus:
“1. AN ORDER varying paragraph iii (sic) and iv of the conditions upon which the Appellant/Applicant was admitted on bail by this Honourable Court on 20th November, 2013.
2. AN ORDER varying the conditions as contained in paragraph (sic) iii and iv of the Order of the court granting bail to the Appellant/Applicant which states as follows;
iii. The said two persons shall each also depose to an affidavit of means and ownership of a property in the Capital of any State in Nigeria accompanied by the valuers report showing it has a minimum value of Ten Million Naira (N10,000,000.00).
iv. Each of the said two persons shall deposit the original copy of the certificate of his statutory right of occupancy with the Chief Registrar of the Enugu State High Court with a memorandum of deposit indicating therein that the property is a security for the appellant attending his said trial and that if he fails to attend court any day of the trial, the said property shall stand automatically forfeited to the state.”

The application is supported by a 13 paragraph affidavit deposed to by the applicant himself. A written address was filed by the applicant in support of the application, which is dated 27/2/2014.

Upon being served with the applicant’s motion and written address, the respondent reacted by filing a ten paragraph counter affidavit deposed to by one Mamza Ahmed Dauda on 20/11/2014 to which a certified true copy of judgment of Magistrate Court Enugu State dated 27/6/2013 and photocopy of written application of one Eze Gil dated 20/7/2011 and written address of counsel dated 11/3/2014 were all annexed. It needs to be mentioned here also, that the applicant filed a Further and Better Affidavit in support of his motion of 18/12/2013 which contains 22 of documentary exhibits.
“1. AN ORDER varying paragraph iii (sic) and iv of the conditions upon which the Appellant/Applicant was admitted on bail by this Honourable Court on 20th November, 2013.
2. AN ORDER varying the conditions as contained in paragraph (sic) iii and iv of the Order of the court granting bail to the Appellant/Applicant which states as follows;
iii. The said two persons shall each also depose to an affidavit of means and ownership of a property in the Capital of any State in Nigeria accompanied by the valuers report showing it has a minimum value of Ten Million Naira (N10,000,000.00).
iv. Each of the said two persons shall deposit the original copy of the certificate of his statutory right of occupancy with the Chief Registrar of the Enugu State High Court with a memorandum of deposit indicating therein that the property is a security for the appellant attending his said trial and that if he fails to attend court any day of the trial, the said property shall stand automatically forfeited to the state.”

It is the prayer/suggestion of the Applicant for the said paragraphs of the Order of this Honourable Court to read thus:
“iii. The said two persons shall be Civil Servants of Grade Level 12.
iv. And each of the said civil servants shall deposit a copy of their letter of appointment and last promotion with the Chief Registrar of the Enugu State High Court.”

I have carefully studied the contents of the Applicant’s affidavit in support of his motion of 18/12/2013, his further and better affidavit of 12/2/2014, and the Respondent’s counter Affidavit of 20/1/2014.

I think it is apt to reproduce below, some of the relevant paragraphs of the affidavits of the parties in this ruling for ease of reference are for purpose of clarity.
In his affidavit in support of the motion of 18/12/2013, the applicant deposed as follows:
“6. That I have been trying to comply with the conditions of my bail, but I find it extremely difficult to meet.
Moreso, my confinement in prison has constrained me from taking personal steps to ensure compliance with the bail terms and my wife who is taking care of our children could do but a little to help.
7. That due to the length of my detention pending trial (since July 2011) over 2 years now, I have lost touch with some persons/friends who could have been of assistance to me towards meeting the terms of my bail as stipulated by the court.
8. That I only succeeded in securing the assurance of one person who has only an irrevocable power of Attorney over his landed property and are yet to secure their certificate of occupancy from the State Government (sic).
9. That I also have landed property which is covered by an Irrevocable Power of Attorney and duly registered at the Enugu State Lands Registry under the name of my company and the name of Osondu Okoronkwo O. The said landed property is where I and my family reside. If the court allows it, I am willing to deposit same in court as security for my bail.
10. That I also have two senior civil servant (sic) who are willing to stand as guarantors to my bail if this Honourable Court would grant this application.
11. That I need to be alive to be able to stand my trial, hence the need to reduce the conditions required to be satisfied before I could be granted bail.
12. That I have a wife and 3 teenage children who are depending on me as the breadwinner of the family and since my detention, my family has been going through untold hardship.
13. That I make this affidavit in good faith believing same to be true to the best of my knowledge and in accordance with the oaths Act.”
The relevant paragraphs of the Respondent’s counter affidavit read thus:
“3. That paragraph 10 of the Appellant/Applicant affidavit in support of his Motion on Notice is not true, the Appellant does not have reliable persons to take him on bail.
4. That in furtherance to paragraph 3 above, the Appellant jumped administrative bail earlier granted him by the Respondent Economic and Financial crimes Commission.
5. That consequent upon that, the surety who took him on Administrative bail, one Mr. Eze Gil withdrew his surety-ship on the ground that the Appellant is not a trust worthy person (FIND ATTACHED A COPY OF THE said APPLICATION TO withdraw BAIL SURETY MARKED AS EXHIBIT EFCC 1).
6. That contrary to paragraph 8 of the Appellant/Applicant Affidavit in support of his Motion on Notice, the irrevocable Power of Attorney is not a title and can be revoked by the parties or by operation of law.
7. That contrary to paragraph 9 of the Appellant/Applicant Affidavit in support of his Motion on Notice, investigations revealed that the said landed property which is covered by an irrevocable Power of Attorney is a proceeds (sic) of crime which is the subject-matter at the lower court.
8. That in furtherance to our paragraph 5 above, the said landed property forms part of the properties the Appellant acquired from the monies he duped the nominal complainant Prince Ifeanyi Okoye in charge no. E/95C/2011.
9. That in furtherance to paragraph 6 above the Appellant does not have a legitimate source of living apart from duping people:
10. That consequent upon that the Appellant has been convicted for an offence of stealing by conversion at the Enugu State Magistrate Court (FIND ATTACHED A COPY OF THE CERTIFIED TRUE COPY OF JUDGMENT OF THE MAGISTRATE COURT DATED THE 27TH DAY OF JUNE, 2013 AND MARKED EXHIBIT EFCC 2).
11. That it is likely that if the bail terms are varied the Appellant would likely jump bail to escape prosecution because of the weight of the evidence against him.

In his Further and Better Affidavit, the Applicant stated thus:
“1. That contrary to paragraphs 3, 4, 5, 6 of the Respondent’s counter affidavit, I have two reliable sureties who are senior civil servants and they are ready to submit their letter of appointment and promotion to the registrar of the High Court if this application is granted.
2. That I have never jumped EFCC administrative bail and had always reported at EFCC office until I was charge to court by the Respondent.
6. On 20/07/2011, I was called to the Respondent’s office together with Mr. GIL Emeka Eze, my surety where he was forced to withdraw his surety via letter and thereafter, the Respondent issued me with another letter dated 20/07/2011 for another surety, see letter addressed to me to find surety dated 20/07/2011 is attached and marked as Exhibit FA3.
11. That paragraph 7 of the Respondent’s Counter affidavit is not true and contrary to paragraph 8 and 9 of the Respondent’s Counter Affidavit, I have many legitimate sources of income among other things I do.
(A) I am a sport consultant to State Government because of my position in Boxing that in 2007 I was appointed former IBB International Boxing Champion in light welter Weight Category for World Peace. Also I have won many boxing championships for many states in this country and Nigeria as a whole. My letter of Appointment and Boxing certificates are few attached and marked as Exhibit FA5 series. See Exhibits FA5A letter for Appointment as a former chairman, Exhibit FA5B, world Youth Boxing championship in Canada, Exhibit FA5C – 1st Intra Zonal Sports Competition, Exhibit FA5D, 1994 National Boxing championship, Exhibit FA5E, 1992 National Boxing championship, Exhibit FASF zone III Inter State Competition, Exhibit FA5G, IBB International Amateur Boxing Tournament where I won the Champion for this country Nigeria.
(B) The above also earned me the chairman of lion boxing club based in Enugu State which is a statutory sports body. See a copy of letter dated 8th July, 2011 as attached and marked as Exhibit FA6.
(C) I am also the chief executive officer of Ikeiy Enterprises Nig. Ltd which carries on business of management of properties, business of computer services and general merchandise. Therefore I know the consequences of not attending court during trial and will never jump bail if this Honourable Court varies the bail condition of the bail graciously granted by this Honourable Court on 20th November, 2013.
(D) That I am also a Collection agent with the Federal Inland Revenue Service.
20. That I will not jump bail if my bail condition is varied.
21. That it will be in the interest of justice if my application is granted and also considering the special circumstances.

I have also perused through the Written Addresses of the Applicant’s Counsel in this appeal. The Applicant’s Counsel formulated a sole issue for determination which reads thus:
“Whether in the opinion of the court the Reduction/Variation of Amount of Bail is expedient”

In his argument the learned counsel for the Applicant contends that the Applicant’s bail was predicated on medical condition of the Applicant which the court has found that threatens not only the Applicant’s life but those of other inmates. Relying on the authority of MADU V. THE STATE, (2011) LPELR 3973 (CA), the learned counsel states that the condition of bail must not be unreasonable or oppressive. He further states that they must not amount in effect to punishment and once the conditions of bail are so stringent, it in effect amounts to refusal.

On the issue of the Applicant jumping bail as raised by the Respondent in the counter affidavit, referring to the Application of Gil Eze – withdrawing his surety-ship the learned counsel referred this court to the annexed deposition of Mr. Gil Eze as marked Exhibit FA4. He stated that the burden of proof of a particular fact lies on him who asserts the fact. He cited the authorities of ADAKE v. AKUN (2003) 7 SC 26 and CAN V. LAMIDO & 4 ORS (2012) 2 SC (PT II) 163.
It is the further contention of the learned counsel for the Applicant that the Counter Affidavit of the Respondent is an abuse of court’s process in that it seeks to re-argue the bail application which the Honourable court had decided on 20/11/2013. In his reaction to the postulation of the Respondent that the Applicant’s living house is a proceed of the alleged offence against him, the learned counsel stated that the 13 count charge against the Applicant is that between 2010 and 2011, he unlawfully collected from persons house rents totaling N16,510,000.00, whereas the property under reference covered by Irrevocable Power of Attorney was evidently registered in the Applicant’s company’s favour in 2008 in Enugu State Deeds Registry.

The learned counsel for the Applicant further referred this court to the Respondent’s prosecution of the Applicant and his wife for forgery of medical report in Suit No. FHC/EN/CR/69/2012 wherein the Applicant and his wife were discharged on 20th January, 2014. In conclusion, the learned counsel urged the court to exercise its discretion and grant the Applicant’s prayers.

The learned counsel for the Respondent formulated a sole issue for determination. The sole Respondent’s issue reads thus:
“Is the Accused/Appellant entitled to Variation his bail conditions? (sic)

In arguing his sole issue, the learned counsel for the Respondent relied on paragraphs 4 and 5 of the counter affidavit. He referred further to exhibit EFCC 2 contending that the Applicant jumped the administrative bail, hence the withdrawal of his surety. He cited the authority of OMODARA v. STATE (2004) 1 NWLR (PART 853) page 80 at 92-93.

It is the contention of the learned counsel for the Respondent that the Applicant has placed nothing before this court to show why his bail conditions should be varied. He stated that the Controller Nigeria prison Service Enugu State Command Mr. Uchenwa Alloy wrote a letter to the Respondent on 4/9/2013 stating that “the inmate in question has fully recovered after the treatment and in good state of mind to stand for his case. The learned counsel submits that the Applicant will surely jump bail as a habitual offender. In conclusion he urged this court to maintain the earlier condition of bail as the Applicant is not a reliable person.

I will now proceed to consider the merit or otherwise of the instant application. In doing this, I have to state frantically that the Applicant is already admitted to bail vide the ruling of this Honourable Court on 20/11/2013. The lingering issue is the inability of the Applicant to meet up with the bail condition.

I have weighed the submissions of both the Applicant and the Respondent on the issues formulated and argued in line with the depositions of the parties.

By my simple calculated understanding, the learned counsel for the Respondent opposes the application of the Applicant on the following grounds:
1. That the Applicant has no reliable person to stand as his surety.
2. That the Applicant has no defined means of livelihood, otherwise that the Applicant is not reliable.
3. That the Applicant would jump bail as his former surety before EFCC withdrew his surety-ship.

I looked critically at the arguments of counsel and the affidavit of the parties, in the instant matter. I took a look at Exhibits FA5A, FA5B, FA5C, FA5D, FA5E, FA5F, FA5G, FA6A FA6B, FA7A and FA7B annexed to paragraph 11 of the Applicant’s Further and Better Affidavit. I am satisfied that the evidence so demonstrated by the above Exhibits shows without doubt that the Applicant is a Heavy Weight Boxer and a Revenue Collection Agent of Federal Inland Revenue Service.

I found that the said Mr. Gil Eze whom the Respondent alleged withdrew his surety – ship against the Applicant on 20/07/2011, made a counter declaration in the High Court Enugu on 12th May, 2012. The Affidavit in question is attached as Exhibit FA4 in support of paragraphs 6 & 7 of the Applicant’s Further and Better Affidavit.

The Applicant has declared that he has struggled in vain to meet the conditions earlier given for his bail. He also declared that he has two reliable civil servants who are ready to stand for him. In addition, he declared his willingness to deposit his residential house which he owns as covered with irrevocable Power of Attorney and duly registered in the Lands Registry Enugu, if his application is granted.

I agree entirely with the contention of the learned counsel for the Appellant that the Applicant’s house is not a proceed of the alleged charge against the Applicant before the High Court of Enugu State.

The Applicant was granted bail on health ground to enable him be alive to face the charge against him. “It is the living that can stand to give evidence in court”. This Honourable Court, graciously granted bail to the Applicant since the 20th day of November 2013 nearly 8 months now.

I have looked at the general circumstances of this case vide the positions of the parties in the instant application. I have no doubt in my mind, that the depositions of the Applicant constitute very weighty circumstances that would compel this court in the interest of justice to vary the bail conditions it had earlier given for admitting the applicant … At the same time I also have to give condition which will allay the fears of the respondent that applicant may jump bail.

In the light of the above, I hold that the prayers of the Applicant in his Motion on Notice filed 18/12/2013 are hereby granted. In the circumstance, therefore, paragraphs III and IV of the Order of this Honourable Court made on 20/11/2013 are hereby varied as follows:
(iii) The two sureties to be produced by the Applicant shall be civil servants of not less than Salary Grade Level 12 and must adduce evidence of possession of landed property each situate in Enugu covered in valid certificate of occupancy.
(iv) Each of the said Sureties shall deposit both the Original Copy of Letter of Appointment and Last Promotion letter with the Chief Registrar of the Enugu State High Court to be retained by the latter until the time the case is deposed off finally.

In addition to the above, the Applicant’s Irrevocable Power of Attorney in respect of No. 3 Fred Obeta Close, Alulu Nike, Enugu which is presently in the custody of the Enugu office of the Economic and Financial Crimes Commission should be transferred forthwith to the Chief Registrar of High Court Enugu as additional security for the Applicant’s bail, which said document should be kept by the Chief Registrar of the court below.

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading the draft of the ruling rendered by my lord HON. JUSTICE AMIRU SANUSI (OFR), JCA. I am in complete agreement with the lucid reasoning and conclusion reached therein to the effect that this application be granted.
I, too grant it. I adopt the orders contained in the lead ruling as mine.

SAIDU TANKO HUSAINI, J.C.A.: I have had the advantage of reading before now the Ruling just delivered by my learned brother, Amiru Sanusi, OFR, JCA. Having perused same, I agree with the reasoning and conclusions arrived at that the application to vary bail condition has merit and it be so allowed. I abide by other consequential orders made in the lead Ruling.

Appearances

Ibem Chidiebere holding brief of Nnaemeka OkekeFor Appellant

AND

K.C. Chukwuma – EnehFor Respondent