ADEGBESAN THEOPHILOUS v. FEDERAL REPUBLIC OF NIGERIA & ORS (2015)

ADEGBESAN THEOPHILOUS v. FEDERAL REPUBLIC OF NIGERIA & ORS

(2015)LCN/8050(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of December, 2015

CA/L/512C/2015

RATIO

CRIMINAL PROCEDURE: BAIL; THE EXERCISE OF THE DISCRETION OF A COURT TO ADMIT AN ACCUSED TO BAIL OR NOT

It is settled that a Court has discretion to admit an accused to bail or not. The definition of the word “discretion”, includes – “a public official’s power or right to act in certain circumstances according to personal Judgment and conscience”. Thus, the Court’s decision whether or not to grant bail, is likely to vary from case to case – see Suleman v. COP, Plateau State (supra), wherein the Supreme Court per Akintan, JSC, observed that –
“A judicial officer saddled with the responsibility of exercising a discretion is required to arrive at its decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is, therefore, likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.” In his contribution, Niki Tobi, JSC, further explained as follows – “- – – The most important consideration in the bail decision is the determination of what criteria the Court should use or invoke in granting or refusing bail. The bail ability of the accused depends largely upon the weight the Court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judiciously and judicially. In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matters. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. It is a hard matter of law, facts and circumstances, which the Court considers, without being emotional, sensitive or sentimental.”
So, there are no hard and fast rules regarding the grant or refusal of bail; the Court wields extensive discretionary power to either grant or refuse, however, in considering whether or not to grant or refuse bail, the trial Court is bound to consider the weight of facts pleaded to in an Affidavit before it – see Dokubo Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320. per. AMINA ADAMU AUGIE, J.C.A.

CRIMINAL PROCEDURE: BAIL; THE MAIN FUNCTION OF BAIL

The main function of bail is to ensure the presence of the accused at the trial – see Suleman v. COP (supra), wherein Niki-Tobi, JSC added that this “is the cynosure of all the criteria. It is the center-piece. And – – is regarded as not only the omnibus ground for granting or refusing, but also the most important”. See also Bamaiyi v. The State (supra), wherein Uwaifo, JSC, also observed that “it is a proper and useful test whether bail should be granted or refused to consider the probability that the accused will appear in Court to take his trial”. Any likelihood that the accused would jump bail is a sufficient reason to refuse an accused bail – see Onyebuchi v. FRN (2007) LPELR-4134 CA, wherein it was held –
“The main function of bail is to ensure the presence of the accused at the trial. So if there is any reason to believe that the accused is likely to jump bail – – bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application – – – This criteria has been described by the Supreme Court – – as the omnibus criteria and, therefore, the most important to be considered by the Court in exercise of its discretion, on bail application. It is based on the belief that the incentive to jump bail arises from the gravity and seriousness of the offence – – – An accused person charged with multiple counts of offences carrying or attracting statutory penalties of many years without option of fine as well as forfeiture of assets – – will most likely jump bail.” The decision to refuse bail to an accused is entirely at the discretion of a trial Court based on what was before it, and an appellate Court, would not ordinarily interfere unless its discretion was not exercised in accordance to law or it was exercised in a perverse manner – see Osafare v. FGN (2004) 14 NWLR (pt. 893) 305, Likita v. C.O.P. (2002) 11 NWLR (Pt. 777) 145, Atiku v. The State (2002) 4 NWLR (Pt. 757) 265. per. AMINA ADAMU AUGIE, J.C.A.

COURT: COURT’S DISCRETION; HOW THE COURT IS MEANT TO EXERCISE ITS DISCRETION

It is trite that in an exercise of discretion, a Court is expected to act judicially by being guided by relevant facts and within the precincts of law – see C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 48 at 61 SC, where the Supreme Court per Uwaifo, JSC, very aptly observed as follows –
“A discretion is exercisable not on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. This is a well established principle. Hence, it is the law that a discretion should be exercised judicially and judiciously i.e. reasonably, in the sense that relevant matters are taken into consideration while extraneous matters are avoided and, a decision which suits the occasion, is arrived at.” per. AMINA ADAMU AUGIE, J.C.A.

PRACTICE AND PROCEDURE: BAIL; WHETHER A MERE AVERMENT BE BY THE PROSECUTION THAT AN ACCUSED WILL NOT APPEAR FOR HIS TRIAL IN THE ABSENCE OF ANY REAL CONCRETE MATERIAL TO SUPPORT SUCH ALLEGATION, SHOULD WARRANT THE DENIAL OF BAIL BY A COURT

It is also settled that mere averments by the Prosecution that an accused will not appear for his trial in the absence of any real concrete material to support such allegation, should not warrant the denial of bail by a Court – see Rajab v. The State (2010) LPELR-5001 (CA), Eyu v. State (supra) where this Court per Oguntade, JCA (as he then was) stated as follows –
“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 in a given case that an Applicant for bail is not one that should be released on bail.” per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

ADEGBESAN THEOPHILOUS Appellant(s)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. MOHAMMED RABIU LAWAN
(Alias Shande Dzungwe Ako)
3. RAPHAEL OLORUNFEMI OKOMODA Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This Appeal turns on a narrow issue of bail. The Appellant?and the 2nd and 3rd Respondents were arraigned before the Lagos State High Court, and charged with sundry offences, including conspiracy to and obtaining money by false pretences, Stealing, and money laundering. He pleaded not guilty to Counts 1 to 6 and 15 of the 19-Count Charge on 7/7/2014. On that day – 7/7/2014, a joint Application for their bail dated 23/6/2014, was moved, and the Lower Court reserved Ruling thereon until 8/7/2014, and ordered that the “Accused be remanded in Kirikiri Maximum Prison”. On 29/9/2014, learned Counsel re-adopted their arguments, and in his Ruling delivered that day, the learned trial Judge, Lawal-Akapo, J.?held –
“Paragraphs 8, 9, 11, 12, 18, and 19 of the Respondent’s Counter-Affidavit are very germane. They are hereby reproduced ——Failure of the Applicants to file a Rely to these serious and nostalgic averments amounted in law to admission of those facts —With the admission of these cogent and pointed facts can it be said that the Applicants have fulfilled the above conditions with respect

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1

to grant of bail? The answer clearly is in the negative. By these admissions, the Applicants have demonstrated that they may not surrender themselves for trial and if released on bail may likely interfere with the Prosecution’s evidence. – – All things considered. I find no merit in the Application. It is accordingly dismissed.”

The Appellant later filed a fresh Application dated 20/10/2014 praying for;?
“An Order admitting [him] to bail pending the determination of Suit No.ID/6676c/2014 now pending against him before the Hon. Court.”

The Application was supported by a 14-paragraph Affidavit deposed to by his younger brother, Adeshina Adegbesan, who averred as follows-
3. The Applicant was arrested on 2/4/2014 and is currently detained at Kirikiri prison and thus cannot personally depose to this Affidavit.
4. I have the consent of the Applicant to depose to this Affidavit.
5. The Applicant was charged with conspiracy to obtain money by false pretence and stealing. Applicant is charged only in counts 1 to 7 of the charge.
6. The applicant works with Marc-Angel Ventures Limited before his arrest, does his work diligently and has

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2 never been involved in any crime or indictment.
7. The Applicant has nothing to do with the offence charged in Exhibit A attached to this Application. He is innocent of the allegation contained in the information laid before the Hon. Court.
8. The Applicant is ready to stand the trial in order to clear himself of the allegation contained in the charge.
9. The Applicant has spent over six months under incarceration in detention and the condition in the prison makes the Applicant to be receiving punishment when he is innocent of the charge.
10. The Applicant will not interfere with the investigation which has been completed with the filling of the charge against the defendants.
11. Since the arrest and detention of the Applicant, the children of the Applicant have been sent out of the school due to non-payment of school fees occasioned by the detention of the Applicant.
12. The health of the Applicant has deteriorated in detention, the health of the Applicant is failing rapidly.
13. The Applicant is prepared to present responsible sureties who will ensure that the Applicant appears throughout the trial. The Applicant will not

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3 jump bail if he is released on bail.

The Respondent filed a 28-paragragh Counter-Affidavit deposed to by Tukur Abdullahi, an Investigating Officer with EFCC, who averred that –
5. A Petition was written to the Commission [EFCC] against the Defendants by the Nigeria Stock Exchange sometime in December, 2013, which was detailed to Capital Market Fraud Unit Team 2 for investigation.
6. Investigation revealed that the three Applicants/Defendants are members of a syndicate that specializes in impersonating dead Shareholders, forging documents in order to fraudulently obtain money.
7. The Applicants/Defendants have no other source of income aside defrauding innocent people.
8. The three Applicants/Defendants made a confessional statement to the Respondent confessing and detailing how the crime was perpetrated.
9. Most of the syndicate members are still at large, on the run and they are wanted by the Economic and Financial Crimes Commission in respect to this case.
10. The 3rd Defendant [i.e. the Appellant herein] was granted administrative bail in another matter by Counter Terrorist and General Investigation Unit/Team D of the

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4 Respondent but he jumped the administrative bail.
11. The 3rd Defendant [Appellant] had been reporting to Counter Terrorist and General Investigation Unit/Team D of the Respondent fortnightly but he last reported on 26/8/2011 and he was to report on 9/9/2011.
12. Further investigation – – established a prima facie case against 2nd Defendant.
13. The 2nd and 3rd Applicants have been wanted by Counter Terrorist and General Investigation Unit/Team D of the Respondent for over two years and they eluded arrest.
14. Presently, most of the Defendants’ syndicate and kingpins are still at large and the Defendants would do everything to ensure that the syndicate members are not apprehended and brought before the Court, as they have been thwarting the Respondents’ effort to arrest the syndicate members at large.
15. [Its] investigation into the syndicate would be hampered by the Applicants.
16. Ongoing investigation has linked the 3 Defendants with the commission of many more crimes for which [they] would be charged before the Hon. Court.
17. I was informed by T.A. Arabi, Esq. counsel to the Prosecution/Respondent in our office on

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5 30/10/2014 around 12.00pm and I verily believe him that –
i. The three Defendants – – earlier filed Summons for Bail dated 23/6/2014.
ii. The Court heard the bail Application and refused the three Applicants bail.
iii. There is no fresh fact being brought before the Court by the Applicant.
18. –Investigation revealed that the Applicant does not have a legal means of livelihood aside defrauding innocent people and he is also wanted by the Respondent in respect of a different offence.
19.–Investigation has linked the Applicant/Defendant with commission of the offences he is being charged with before this Honorable Court and additional charges would soon be brought against the Defendant/Applicant.
20.–[He] would jump bail at the slightest chance and members of [his] syndicate are being round up and further charge would be brought against them.

His brother filed a Further and Better Affidavit, wherein he averred that –
5. — The Applicant prior to his arrest and detention was suffering from heart related ailment and was on a periodic medical examination
6. Since his arrest and detention, [he] has been unable to

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6 get proper treatment [as] the facility at the prison clinic is not adequate enough to take care of him.
7. [He] has substantial people who are ready to stand surety for him.
8. [He] will not jump bail if granted by the Court and [he] is ready to abide by the terms of bail that might be fixed by the Court.
9. [He] has no criminal record, [his] Counsel wrote to the Prosecutor in this case, the EFCC, a letter dated 7/10/2014, requesting for information on criminal record of the Applicant apart from the present suit but none is available.
10. [He] is a responsible person and of good character.
11. I was shown a copy of the counter-Affidavit dated 05/11/14 – –
12. [He] is not a member of any syndicate and does not know any member of the syndicate still at large.
13. [He] did not make any confessional statement detailing how a crime was perpetrated to the 1st Respondent.
14. [He] was not indicted in any case reported to the Counter Terrorist and General Investigation Unit/Team D – – because no charge or information was filed against [him] by the Counter Terrorist and General Investigation Unit.
15. Paragraph 23 of the

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7 Counter Affidavit – – is not correct because [he] did not jump administrative bail granted by Team D – – in the course of investigation.
16. [He] not involved or specialized in impersonating dead shareholder or forging document in order to fraudulently obtain money and has not obtained any money fraudulently.
17. The Petition mentioned in paragraph 5 of the Counter Affidavit is a mere allegation which has not been substantiated.
18. Paragraph 7 of the Counter Affidavit is speculative and not factual because [he] is from a responsible home, [his] father owns Olabisi Adegbesan close, Agege, Lagos and Mac-Angels Ventures Ltd. a company where [he] works.
19. [He] and his friend, Engineer Oladehinde also incorporated a limited liability company D.A.A. Bosibo Oil and Gas Ltd., an oil and gas company which mandatorily registered with the Respondent in 2013 as oil and gas company.
[Copies of incorporation document/Registration, etc. attached as Exhibit A2]
20. By paragraph 11 of the Counter Affidavit, it is clear that [he] did not jump bail, the record of attendance for 9/9/2011 is not shown while the Respondent stated that [he] was

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8reporting to the Counter Terrorist and General Investigation Unit/Team D of the 1st Respondent.
21. When [he] was granted administrative bail by the 1st Respondent, he was released to his surety and none of the surety was invited, arrested or informed that [he] jumped bail as stated in paragraph 10 of the Counter-Affidavit.
22. The prison authorities are in charge of prison clinic and not the 1st respondent. Thus, [it] cannot categorically state the state of the facility at the prison clinic.
23. Presently, no prima facie case is established against the Applicant in any court of law [he] is presumed innocent until the contrary is established.
24. It is not true that [he] has been wanted for over 2 years as it is shown in the Exhibit EFCC 1 attached to the Counter Affidavit that [he] appeared at the office of the Respondent on 26/8/2011 and that [he] filed a fundamental right enforcement Application against the Counter Terrorist and General Investigation Unit/Team D – – and others at the Federal High Court Lagos where-[he] and representatives of the 1st Respondent always meet until [he] was arrested on 2/4/2014 when [he] was arrested by the

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9 1st Respondent.
25. [He] did not thwart the Respondent’s effort to arrest the syndicate members at large because [he] is not a member of any syndicate, paragraph 14, 15 and 16 of the Counter-Affidavit is only speculating and not making factual statement.
26. The earlier application for bail was presented jointly by the 3rd Defendants by a counsel for all of them while the present Application is solely [his] by another counsel and fresh fact have been presented to the Court for consideration – – .
27. [He] was constrained in 2011 to approach the Federal High Court, Ikoyi, Lagos in Suit No. FHC/L/CS/152/11 for the enforcement of [his] Fundamental Human Rights against the Counter Terrorist and General Investigation Unity/Team D of the 1st respondent when the unit embarked on endless investigation and trampled on the rights of the 3rd Defendant/Applicant. A copy of the Certified True Copy of the processes filed is hereby attached and marked Exhibit A3.
28. The 1st Respondent to this Application is the 5th Respondent in the Suit at the Federal High Court and is represented in the matter.
29. The matter at the Federal High Court is still

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10 pending and is fixed for 21/11/14.
30. By the pending suit at the Federal High Court, Parties await the outcome of the suit in order not to pre-empt the outcome of the matter.
31. Due to paragraph 27, 28, 29 and 30 above, it is not correct to say that [he] jumped administrative bail granted [him] by the 1st Respondent.

In dismissing the second Application, the Lower Court held as follows –
“- – The 2nd Defendant responded to the Respondents Counter Affidavit paragraph by paragraph but neglected to respond to paragraph 7, which stated categorically that the 2nd Defendant has no visible means of livelihood aside from defrauding innocent members of the public. His failure to respond to this pointed categorical assertions amounted to admission of the same – – This same deposition was contained in the 20 paragraph Affidavit deposed to in opposition to the Application filed by 3rd Defendant [Appellant]. In the like manner, the 3rd Defendant did not also controvert or challenge that averment. The resultant effect is that both Defendants admitted that they have no visible means of livelihood. – – In respect of the 3rd Defendant, I have read the 14

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11 paragraph supporting Affidavit – – The Applicant did not depose to facts to justify the grant of bail. The facts deposed to are to establish his innocence and that he has been in detention for 11 months. These are not the facts to be considered in grant or refusal of a bail application. Paragraphs 10 and 11 of the Counter Affidavit – – in opposition to 3rd Defendant’s application for bail reveals as follows—– The 3rd Defendant in paragraph 20 and 21 of his Further and Better Affidavit deposed to on 24/11/2014 responded to the – averments but did not deny categorically and in clear terms that –
i. He did not jump the administrative bail granted
ii. He last reported to the EFCC on 26/8/2011 as shown in the reporting register attached as Exhibit EFCC 1.
The effect of his deposition is a tacit or implied admission of paragraphs 10 and 11 of the Respondent’s Counter-Affidavit. All things considered, I find no merit whatsoever in the two Applications and they are accordingly dismissed.”

Dissatisfied with this second Ruling, the Appellant appealed to this Court with a Notice of Appeal containing 4 Grounds of Appeal, which he later amended with

12 the leave of this Court, and the Amended Notice of Appeal contains 3 Grounds of Appeal. He distilled 2 Issues for Determination in his Brief of Argument prepared by Vincent Ikwunne Nwana, Esq., Ifeoma Okoye, Bosede Makinde, and Amos Igwe, Esq. The said 2 Issues are –
i) Whether in the consideration of bail application for the Appellant Hon. Justice L.B. Lawal – Akapo correctly interpreted and construed the principle and factors guiding the grant of bail pending trial as well as exercised his discretion judicially and judiciously-as laid down by the superior courts in the case of Ekwenugo v. FRN (2001) FWLR (Pt. 63) page 99 Ratio 4 at pages 102 – 103, Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) page 320, Bamaiyi v. State (2001) 8 NWLR (Pt. 715) page 270 and other case law authorities to refuse to grant the Appellant his constitutional right to bail pending trial.
ii) Whether the learned trial Judge of the Court below Hon. Justice L.B. Lawal – Akapo accorded right of fair hearing and considered issue of presumption of innocence as provided in Section 36(5) and (6) of 1999 Constitution in the consideration of the bail application for the Appellant.

13The Respondent did not file a brief of argument in this Appeal and was not represented at the hearing of the Appeal, and in the circumstances, the Appeal will be determined on the Appellant’s brief only, but that is not to say that this Court would accept his arguments, hook, line and sinker; the Appeal will sink or swim on its own merits. I will start by saying that the issues formulated are a bit of a mouthful, and could be better drafted. Be that as it may, it is my view that the issue for determination is simply whether the Lower Court was right to refuse to admit the Appellant to bail.

In contending that the Lower Court was wrong to have refused bail, the Appellant referred us to the “correct” guiding principles and factors guiding grant of bail pending trial, and to this end, he cited the following –
– Agundi v. C.O.P. (2013) All FWLR (Pt. 660) 1247
– Ekwenugo v. FRN (2001) All FWLR (Pt. 63) 99
– Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320
– Bamaiyi v. State (2001) 1 NWLR (Pt. 715) 270
– Ademoye v. State (2014) All FWLR (Pt. 729) 1270
– Suleman v. C.O.P. (2008) All FWLR (Pt. 425) 1625
– Maman v. State (2012)

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14All FWLR (Pt. 621) 154
– Musa v. C.O.P (2005) All FWLR (Pt. 243) 766
– Ikhazuagbe v. C.O.P (2005) All FWLR (Pt. 266) 1323
– Eke v. FRN (2013) All FWLR (Pt. 702) 1748
– Udoye v. The State (1976) NMLR 197
– Olanipekun v. The State (1979) 3 LRN 204
– Okafor v. Uchebor (2003) FWLR (Pt. 136) 876

He submitted as follows from pages 8 to 10 of his Brief of Argument –
“The learned trial Judge erred in law, fell into error of gross misdirection, went on a voyage of discovery for extraneous material, misinterpreted and misconstrued the criteria, principles and factors guiding the grant and or refusal of application for bail – – – in that in wrongly refusing to grant [him] bail, the learned trial Judge did not take into account any of the following –
a) The maximum sentence imposed by Sections 285(1) and 330 of Criminal Law of Lagos State 2011 is 3 years in Counts 3, 4, 5, 6 and 7 of the charge sheet, which by prison term is about 2 years.
b) Section 315 of the Administration of Criminal Justice Law which provides that in sentencing an accused person, the court must take into account the period to which [he] has been in

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15 prison custody or detention.
c) Given the 11 months [he] has spent in EFCC custody, the period [he] has spent in prison custody from 7/7/2014, till date, the several years it would take the prosecution to call its 17 witnesses and for [them] to call their witnesses, if found guilty – – [he] would have spent in prison custody far and above the maximum sentence imposed by law in Counts 3-5 and 15 – as provided by S. 285(1) and 330 of the Criminal Law of Lagos State.
d) By the nature and severity of the charge, the offences in Counts 1 – 6 and 15 is not capital offence but bailable offence and that Section 36(5) of 1999 Constitution presumes [him] innocent until proven guilty.
e) His plea and depositions that he will provide responsible sureties, will not jump bail, has not committed any offence, will attend trial to prove his innocence, will not interfere with prosecution witnesses, will not commit any offence if granted bail and above all will be of good behavior throughout the trial period.
f) The strength of evidence as per proof of evidence put up in support of the Charge at pages 9 to 96 of the record of appeal to the effect that the 7

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16 count charges as contained in Counts 1, 2, 3, 4, 5, 6 and 15 of the information is rooted and purely border on capital market related offences.
g) The learned trial Judge, misinterpreted and misconstrued paragraphs 10, 11, 12, 13, 14 and 15 of the Counter affidavit to mean that [he] is a terrorist but whereas applying the golden and ejus dem generis rules of interpretation the correct interpretation of those paragraphs of the Counter Affidavit was wrongly referred to anti-terrorism department of the police for investigation and not that [he] is a terrorist.

Under Issue 2, he cited Eyu v. State (1988) 2 NWLR (Pt. 78) 602 on the principles of fair hearing, and submitted that the materials he placed to enable the Lower Court exercise its discretion in granting him bail was not considered, which is a breach of Section 36(6) of the Constitution; that instead of concentrating on the criteria, guiding principle, and other factors, the Lower Court went on a voyage of discovery to fish out extraneous facts and material unknown to law, equity and common sense with Intent to refuse him bail, one of which is he has no visible means of livelihood, and if he has no

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17 visible means of livelihood, that is not one of the criteria, factors and guiding principles for the grant or refusal of bail; and the fact that he had been in detention for 11 months in EFCC custody without bail and arraignment in Court is a material facts to consider in granting or refusing bail as detention of a citizen for 11 months without arraignment in Court is a total breach of Section 35(4)(a) and (b) of the Constitution.

As regards the said paragraphs 10 and 11 of the Counter Affidavit and Exhibit EFCC1 relied on by the Lower Court, the Appellant submitted that it appears to have been misinterpreted and misquoted out of con by the learned trial Judge in that the said paragraphs and Exhibit EFCC1 does not accord with the real interpretation and quotation in the Record.

The Appellant is dead right about the state of the law regarding bail and he cited well-known authorities on the subject. An accused person is presumed innocent, and the burden is on the Prosecution to show that the accused person should not be released on bail – see Onyirioha v. IGP (2009) 3 NWLR (PT. 1128) 342 (supra), Anaekwe v. COP (supra).

?It is settled that a Court

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18 has discretion to admit an accused to bail or not. The definition of the word “discretion”, includes – “a public official’s power or right to act in certain circumstances according to personal Judgment and conscience”. Thus, the Court’s decision whether or not to grant bail, is likely to vary from case to case – see Suleman v. COP, Plateau State (supra), wherein the Supreme Court per Akintan, JSC, observed that –
“A judicial officer saddled with the responsibility of exercising a discretion is required to arrive at its decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is, therefore, likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.”
In his contribution, Niki Tobi, JSC, further explained as follows –
“- – – The most important consideration in the bail decision is the determination of what criteria the Court should use or invoke in granting or refusing bail. The bail ability of the accused depends largely upon the weight the

19 Court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judiciously and judicially. In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matters. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. It is a hard matter of law, facts and circumstances, which the Court considers, without being emotional, sensitive or sentimental.”
So, there are no hard and fast rules regarding the grant or refusal of bail; the Court wields extensive discretionary power to either grant or refuse, however, in considering whether or not to grant or refuse bail, the trial Court is bound to consider the weight of facts pleaded to in an Affidavit before it – see Dokubo Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320.

The main function of bail is to ensure the presence of the

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20 accused at the trial – see Suleman v. COP (supra), wherein Niki-Tobi, JSC added that this “is the cynosure of all the criteria. It is the center-piece. And – – is regarded as not only the omnibus ground for granting or refusing, but also the most important”. See also Bamaiyi v. The State (supra), wherein Uwaifo, JSC, also observed that “it is a proper and useful test whether bail should be granted or refused to consider the probability that the accused will appear in Court to take his trial”. Any likelihood that the accused would jump bail is a sufficient reason to refuse an accused bail – see Onyebuchi v. FRN (2007) LPELR-4134 CA, wherein it was held –
“The main function of bail is to ensure the presence of the accused at the trial. So if there is any reason to believe that the accused is likely to jump bail – – bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application – – – This criteria has been described by the Supreme Court – – as the omnibus criteria and, therefore, the most important to be considered by the Court in exercise of its discretion, on bail application. It is based on the belief that

21 the incentive to jump bail arises from the gravity and seriousness of the offence – – – An accused person charged with multiple counts of offences carrying or attracting statutory penalties of many years without option of fine as well as forfeiture of assets – – will most likely jump bail.”

The decision to refuse bail to an accused is entirely at the discretion of a trial Court based on what was before it, and an appellate Court, would not ordinarily interfere unless its discretion was not exercised in accordance to law or it was exercised in a perverse manner – see Osafare v. FGN (2004) 14 NWLR (pt. 893) 305, Likita v. C.O.P. (2002) 11 NWLR (Pt. 777) 145, Atiku v. The State (2002) 4 NWLR (Pt. 757) 265. In this case, the Appellant was refused bail because –
(a) He has no visible means of livelihood.
(b) He did not depose to facts to justify the grant of bail.
(c) The facts deposed to that he has been in detention for 11 months are not facts to be considered in bail applications pending trial.
(d) He did not categorically and in clear terms deny that he did not jump the administrative bail granted by EFCC as in Exhibit EFCC 1.
(e)

22 The effect of his deposition is a tacit or implied admission of Paragraphs 10 and 11 of the 1st Respondent’s Counter Affidavit

The Appellant’s contention is that instead of concentrating on the criteria, factors, guiding principles on bail applications, and other relevant facts in his Affidavit, the Lower Court relied on extraneous facts to deny him bail. Is his complaint justified? To find out, we must take a closer look at the processes filed at the Lower Court vis-a-vis its reasons for refusing bail.

The 2nd Defendant and the Appellant, who was the 3rd Defendant, filed similar Applications, and the Lower Court’s Ruling relates to both, however, we are only concerned with that of the Appellant in this Appeal. In the said Ruling, the Lower Court referred to the 2nd Defendant’s failure to respond to the averment in the Respondent’s Counter-Affidavit that he has no visible means of livelihood, and concluded this was an admission. It extended it to cover the Appellant by adding that he did not controvert or challenge a similar averment against him in the said Counter-Affidavit, and the resultant effect is that he also has no visible means of

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23 livelihood. But it was averred in paragraph 18 of the Further and Better Affidavit that the Appellant comes from a responsible home, and that his father “owns” Olabisi Adegbesan Close, Agege, Lagos, and Mac-Angels Ventures Ltd., where he works. It was also averred in paragraph 19 that the Appellant and his friend, Engineer Oladeinde incorporated an oil and gas company – D.A.A. Bosibo Oil and Gas Ltd., and attached to the said Affidavit were copies of the incorporation documents and registration as Exhibit A2.

The said Exhibit A2 includes a Certified True Copy of Form CAC 7 – “D.A.A. Bosibo Oil & Gas Limited”, and it has the Appellant’s name on it as one of the Directors of the Company. Evidently, the Lower Court did not consider the averments and Exhibit A2 before accepting and acting on the Respondent’s assertion that he has no visible means of livelihood. The Lower Court may have written a Ruling for two Applications before it, but each Application must be considered on its merit, for each Applicant.

The second reason for refusing him bail is that he did not depose to facts to justify the grant of bail. The essence of bail, as I stated earlier,

24 is to ensure the presence of the accused at his trial, and the Lower Court did not take into account the averments in the supporting Affidavit that the Appellant is ready to stand trial to clear the allegation against him – paragraph 8; that he will not interfere with investigation, which has been completed with the filing of the Charge against him – paragraph 10; and that he is prepared to present responsible sureties, who will ensure that he appears throughout the trial, and he will not jump bail – paragraph 13.

There are other averments in the Further and Better Affidavit to the same effect, including paragraph 10 thereof, wherein it was averred that-
“The Applicant has no criminal record. Counsel to the Appellant wrote to the Prosecutor in this case, the EFCC, a letter dated 7/10/2014, requesting for information on criminal record of the Applicant apart from the present suit but none is available. (A copy of the letter attached and marked as Exhibit A1)”.
Exhibit A1 is a letter written by Appellant’s counsel to EFCC, it reads –
“We act for the 3rd Defendant – Adegbesan Theophilus – – We hereby request for information regarding any

25 charge, information or suit pending between the Commission and the 3rd Defendant apart from the above Suit. We equally apply for record of attendance of the 3rd Defendant in any of such Suit with the Commission. This is to enable us properly handle the defence of the matter on behalf of the 3rd Defendant [Appellant herein].”

There is no indication that EFCC replied the above letter, and this brings us to another reason given by the Lower Court for refusing Appellant bail; that he did not deny categorically that he did not jump the administrative bail granted him by EFCC, and he last reported to EFCC on 26/8/2011, as shown in Exhibit EFCC1 – the EFCC’s Suspect’s Reporting Register.

The question here is – who is to establish that he jumped bail earlier? This is a critical question in this Appeal because, as I mentioned earlier, if there is any likelihood that the Appellant will jump bail, the Lower Court has justifiable reason to refuse him bail in the exercise of its discretion – see Onyebuchi v. FRN (supra). In answer to my question, the burden is on the Prosecution to show the accused should not be released on bail – see Onyirioha v. IGB (supra) and

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26 Anaekwe v. COP (supra).

In other words, it is for EFCC, who alleged that the Appellant had jumped administrative bail granted to him, to establish that fact squarely. The Respondent averred in paragraphs 10 and 11 of its Counter-Affidavit that he was granted administrative bail in another matter by its Counter Terrorist and General Investigation Unit/Team D, and reported fortnightly but he last reported on 26/8/2011, and did not report on 9/9/2011.

The Appellant denied that he jumped the said administrative bail and his younger brother averred in the Further and Better Affidavit that –
20. By paragraph 11 of the Counter Affidavit it is clear that the Applicant did not jump bail, the record of attendance for 9/9/2011 is not shown while the Respondent stated that the Applicant was reporting to the Counter Terrorist and General Investigation Unit/Team D of the 1st Respondent
21. When the Applicant was granted administrative bail by the Counter Terrorist and General Investigation Unit/Team D of the 1st Respondent, he was released to his surety and none of the surety was invited, arrested or informed that [he] jumped bail as stated in paragraph

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27 10 of the Counter Affidavit.
24. It is not true that the 3rd Defendant/Applicant has been wanted for over 2 years as it is shown in the Exhibit EFCC 1 attached to the Counter Affidavit that the Applicant appeared at the office of the Respondent on 26/8/2011 and that the Applicant filed a fundamental right enforcement Application against the Counter Terrorist and General Investigation Unit/Team D of the 1st Respondent and others at the Federal High Court Lagos, where the Applicant and representatives of the 1st Respondent always meet until the Applicant was arrested on 2/4/2014 when the Applicant was arrested by the 1st Respondent
27. The 7 Defendant/Applicant was constrained in 2011 to approach the Federal High Court, Ikoyi, Lagos in Suit No. FHC/CS/152/11 for the enforcement of the 3rd Defendant/Applicant’s Fundamental Human Rights against the Counter Terrorist and General Investigation Unity/Team D of the 1st Respondent when the unit embarked on endless investigation and trampled on the rights of the 3rd Defendant/Applicant. A copy of the Certified True Copy of the processes filed is hereby attached and marked Exhibit A3.
28. The 1st Respondent

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28 to this Application is the 3rd Respondent in the suit at the Federal High Court and is represented in the matter.
29. The matter at the Federal High Court is still pending and is fixed for 21/11/14.
30. By the pending suit at the Federal High Court, Parties await the outcome of the suit in order not to pre-empt the outcome of the matter
31. Due to paragraph 27, 28, 29 and 30 above, it is not correct to say that the 3rd Defendant/Applicant jumped the administrative bail granted to the 3rd Defendant/Applicant by the 1st Respondent.

The Respondent filed a Further and Better Counter-Affidavit, wherein the same averments in paragraphs 10 and 11 of the Counter Affidavit were set out in paragraphs 13 & 15 of the Further and Better Counter Affidavit.

The Appellant’s younger brother deposed to a Further Affidavit in Response to 1st Respondent’s Further and Better Counter Affidavit, wherein he stated that the contents of the Further and Better Counter-Affidavit is a repetition of the depositions in the Counter-Affidavit, and he also averred as follows In paragraphs 13 and 14 of the Further Affidavit –
13. The Applicant did not jump

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29 bail granted by the 1st Respondent. The sureties that stood for the Applicant when the Applicant was granted administrative bail were not informed or contacted by the 1st Respondent about any difficulty by the 1st Respondent to see the Applicant
14. The Applicant and counsel to the 1st Respondent constantly meet at the Federal High Court, Ikoyi, Lagos, venue of the Fundamental Rights Application between the Applicant, the 1st Respondent and others until the arrest and detention of the Applicant in April 2014. The matter came up last on 29/1/2015 and the 1st Respondent was represented in Court by Barrister H. Abdulkadir counsel to 1st Respondent in the matter before it was adjourned to 4/5/2015.

We have come a full circle – the Respondent said in its Counter-Affidavit that the Appellant jumped administrative bail; the Appellant pointed out in his Further and Better Affidavit that he could not have jumped the said administrative bail because none of his sureties were invited, arrested or informed that he had jumped bail, and he had filed a Fundamental Right Enforcement Application at the Federal High Court in 2011, when he was said to have jumped

30 bail, and he always met the representatives of the Respondent at the Federal High Court until he was arrested on 2/4/2014; the Respondent made same assertion in its Further and Better Counter- Affidavit without any other details to counter the Appellant’s averments; and the Appellant repeated that he never jumped the administrative bail in his Further Affidavit to the said Further and Better Counter-Affidavit, and emphasized the fact that his sureties were not informed or contacted about any difficulty by the Respondent to see him, and that he constantly met the Respondent’s counsel at the Federal High Court – venue of the Fundamental Rights Enforcement Application between the two of them.

What does all this say about the Lower Court’s consideration of the facts before it while exercising its discretion to refuse the Appellant bail?

31 on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. This is a well established principle. Hence, it is the law that a discretion should be exercised judicially and judiciously i.e. reasonably, in the sense that relevant matters are taken into consideration while extraneous matters are avoided and, a decision which suits the occasion, is arrived at.”

In this case, the onus was on the Respondent to show that the Appellant jumped administrative bail, but the Lower Court refused him bail

32 on the ground that his failure to deny the fact “is a tacit and implied admission” of the Respondent’s assertion that he jumped the said administrative bail – a fact that had not been “categorically” established by the Respondent.

I do not need to say more; suffice it to say that this is a proper case in which we will interfere with the discretion exercised by the Lower Court.

This Appeal succeeds and is allowed. The Lower Court’s Ruling of 14/4/2015 refusing Appellant bail is hereby set aside, and in its place, the Appellant is granted bail in the sum of N500,000.00 with two sureties in like sum. The sureties must be owners of landed property in Lagos.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the lucid judgment prepared by my learned brother, Amina Adamu Augie, J.C.A., (C.O.N.), with which I agree with these few words, by way of emphasis.

Bail pending trial is a basic conditional right with respect to bailable offence(s) such as the offences for which the appellant is standing trial at the court below. The burden of proof is on the respondent to establish that the appellant is not entitled to

bail pending his trial in respect of the bailable offences at stake.

A strong prima facie case contained in the proofs of evidence, for trial in the High Court or superior courts like the court below, is one of the factors that may militate against the granting of bail pending trial in bailable offences. This factor can be displaced by materials from the appellant establishing a viable case of innocence in consonance with the presumption of innocence under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution). When such is the case, as is the case in hand, it becomes a relevant factor in deciding an application for bail pending trial.

Accordingly, the court below could not have been right when it held that the demonstration of the innocence of the appellant in his papers in support of the application for bail was not a relevant factor in considering the application for bail.

The length of sentence vis-a-vis the period of incarceration pending trial also appears to me to be one of the relevant factors for the consideration of a bail application. lf the whole sentence would be exhausted or spent during the

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34 trial of the appellant who had not been released on bail and it turned out the appellant is absolved of the crime(s) by the court below, the plain and unsavoury result would be that the appellant served a sentence he had not deserved or required to serve.

In the present case, as stated in the affidavit evidence, the maximum penalty for the offence(s) is 3 years in prison. The appellant has spent not less than 11 months on remand. There is unchallenged affidavit evidence that by the reckoning of prison sentence, an offence attracting 3 years in prison is abridged or shortened to 2 years in prison in practice by the Prison Authority.

The trial of the appellant is yet to commence per the unchallenged affidavit evidence on the issue. The appellant may therefore risk spending all or substantial proportion of the years he might have served in prison for the offence(s) before his trial is concluded. The fear that the appellant may serve the term of imprisonment prescribed for the offence(s) while on remand should have been considered a relevant factor by the court below to exercise its discretion with respect to the bail application. The court below was

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35 thus in error when it held that such timeline was not a relevant factor in considering the application for bail.

Although the appellant disclosed visible means of livelihood in his affidavit evidence, which is eloquently captured by the lead judgment, the court below held, surprisingly, that the appellant had no visible means of livelihood. Quite apart from the fact that the said holding is erroneous, the source of livelihood of an accused is not one of the conditions for the consideration of his bail pending trial in respect of a bailable offence.

In my modest opinion, there are always sureties to take up the?pecuniary penalty for an accused in breach of conditions for bail. The accused himself stands to forfeit the bail if he breaches the conditions for bail. In the event the pecuniary penalty imposed for the infraction of bail conditions is not satisfied those in breach may serve appropriate jail terms for the breach as determined by the trial court. And/or their movables may be attached and auctioned in satisfaction of the breach of the monetary terms of the recognizance as determined by the court concerned. Again, the court below relied on the

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36 irrelevant or extraneous factor of the appellant not having visible means of livelihood in refusing the application for bail.

It is clear from the discussion (supra) that the court below did not exercise its discretion judiciously and judicially in refusing the application for bail in this case: Because it laid emphasis or placed weight on irrelevant extraneous factors (supra) in refusing the application for bail. So it is imperative to interfere with the discretion of the court below by allowing the appeal vide Enekebe v. Enekebe (1964) 1 All N.L.R. 102, Demuren v. Asuni (1967) 1 All N.L.R.94, Solanke v. Ajibola (1968) 1 All N.L.R., University of Lagos and Anor. v. Aigoro (1985) 1 NWLR (Pt. 1) 143 at 148 – 149.

In the result, I too find merit in the appeal and hereby allow it and abide by the consequential order(s) contained in the thorough lead judgment prepared by my learned brother, Amina Adamu Augie, J.C.A., (C.O.N.).

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today a draft copy of the lead judgment just delivered by learned brother Amina Adamu Augie, JCA, and I agree with the reasoning and conclusion arrived at.

I allow the
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Appeal and abide by the consequential orders contained in the judgment.

Appearance
Vincent Ikwunne Nwana, Esq.
For Appellant

Appearances

Vincent Ikwunne Nwana, Esq.For Appellant

AND

NILFor Respondent