KUNLE OGUNSOLA & ANOR v. THE STATE OF LAGOS & ORS
(2016)LCN/8360(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/1081C/2015
RATIO
PRACTICE AND PROCEDURE: GRANTING BAIL; WHAT THE COURT CONSIDERS IN EXERCISING ITS DISCRETION TO GRANT BAIL
Bail is the setting at liberty of an accused person subject to certain conditions, but mainly of which will ensure that the person been set free from custody will appear at certain place on prescribed day as he will be required to. By virtue of Section 115(2) of Administration of Criminal Justice Act, 2011, a person charged with a felony other than one punishable with death may be granted bail if the Court deems it fit. The decision whether or not to grant bail in such cases is a matter within the judicial discretion of the trial Judge. Black’s Law Dictionary 8th Edition, defines Judicial discretion as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. Thus the judicial discretion must be exercised in accordance with the law and also taking into consideration the facts of the particular case. An Appellate Court will readily interfere with the exercise of discretion by the lower Court which was not done judicially and judiciously. In SULEMAN & ANOR v COP, PLATEAU STATE (2008) 8 NWLR (PT 1089) 298; (2008) LPELR – 3126 (SC) 20 – 21, paras A – G, the Supreme Court, per NIKI TOBI, JSC held:
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 on 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 liability of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields extensive discretionary power, which must be exercised judicially and judiciously.
In exercising its discretion, the Court is bound to examine the evidence before it without considering extraneous matter. 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.?
It is beyond doubt that the criteria, as established by the Apex Court in plethora of case, to be considered in the grant or otherwise of bail to an Applicant include: (a) the availability of the accused to stand trial; (b) the nature and gravity of the offence; (c) the likelihood of the accused committing offence while on bail; (d) the criminal antecedents of the accused; (e) the likelihood of the accused interfering with the course of justice; (f) the likelihood of further charge being filed; (g) detention for the protection of the accused. See: also BAMAIYI v. STATE (2001) 8 NWLR (PT. 715) 270; ABACHA v. STATE (2002) 5 NWLR (PT. 761) 638. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. KUNLE OGUNSOLA
2. WASIU OYEBANJI Appellant(s)
AND
1. THE STATE OF LAGOS
2. KUBURAT SALAMI
3. TANTOLORUN R. ABIMBOLA
4. WAHEED IBRAHIM
5. MOHAMMED YUSUF Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice A. A. Akintoye of the Lagos Judicial Division of Lagos State High Court delivered on the 15th July, 2015 refusing to admit the appellant herein to bail.
The Appellants being dissatisfied with the ruling filed a Notice of Appeal dated 26/08/2015 and filed on the same date on three grounds.
Meanwhile, the Appellants’ brief of argument is filed on 4/11/15 and settled by Adejare Kembi, Oyebola Odeleye of Excel Chambers and a sole issue was nominated for determination by this Court thus:
?Whether on the totality of the affidavit evidence before the Court, the Appellant ought not to be admitted to bail?.
While the 1st Respondent’s brief is dated and filed 22/02/2016 but deemed 24/02/2016. Same is settled by Sunmonu Tunde Assistant Chief State Counsel from the Chambers of the Attorney General of Lagos State. Counsel also identified a sole issue thus:
?Whether the trial Court properly exceeded, its discretion in refusing the grant of ball to the appellants”
Arguing the sole
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issue, Appellants’ counsel submitted that the affidavit in support of the application is germane and same ought to be given a thorough consideration by the Court to arrive at an equitable decision. He relied on NWALI v. NWANDU (2011) 40 WRN 143 at 148; AWOYOMI v. CHIEF of ARMY STAFF (2013) 81 WRN 148 at 176; SULEMAN v. COP PLATEAU STATE (2005) 21 WRN 1 at 19-20. He submitted with respect to the criteria to be considered by the Court in the exercise of the discretion of the trial Court to include the nature of charge, strength of the evidence which supports the charges as well as gravity of the punishment in the event of conviction vide FASHEUN v. A.G. FEDERATION (2007) 11 WRN 87 at 99. He concluded that none of these were contended in the main application and the Court should set aside the ruling of the High Court and admit the applications to bail on very liberal terms.
In response, 1st Respondent’s counsel submitted that a grant of an application for bail pending or during trial of a defendant in non-capital offence is at the discretion of the Court and relied on OLUWATOSIN LAWAL v. F.R.N (2013) 3 NWLR (PT 1342) 451 at 470, paras D-E; SULEIMAN v COP PLATEAU
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STATE (2008) 8 NWLR (PT 1089) 298. He also set out the criteria for the grant of bail as done by Appellants’ counsel except to further add others including the probability that the accused may not surrender himself for trial, the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him. He relied on OTUNBA GANI ADAMS & ORS v ATT GEN OF FED. (2006) 11 NWLR (PT 991) 341; BAMAIYI v THE STATE (2001) 8 NWLR (PT 715) 270.
On whether the trial Court properly and rightly evaluated facts and affidavit evidence presented by the Appellants, it is the submission of counsel that the exercise of the discretion by the trial judge was not based on extraneous nor irrelevant consideration but on facts and affidavit evidence and the charge. He cited AKINOLA v VICE CHANCELLOR, UNIILORIN (2004) 11 NWLR (PT 885) 610, AGBAHOMERO v. EDIYEGBE (1999) 3 NWLR (PT 594) 170; EZEOKE v. NWAGBO (1988) 1 NWLR (PT 72) 616; ELUTIE v. THE STATE (1994) 8 WLR (PT 360) 66. He urged that the appeal be dismissed.
?In resolving this single issue, I find that both issues raised point to one direction as to ?whether this is a case
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deserving of the grant of bail by the Court”.
Bail is the setting at liberty of an accused person subject to certain conditions, but mainly of which will ensure that the person been set free from custody will appear at certain place on prescribed day as he will be required to. By virtue of Section 115(2) of Administration of Criminal Justice Act, 2011, a person charged with a felony other than one punishable with death may be granted bail if the Court deems it fit. The decision whether or not to grant bail in such cases is a matter within the judicial discretion of the trial Judge. Black’s Law Dictionary 8th Edition, defines Judicial discretion as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. Thus the judicial discretion must be exercised in accordance with the law and also taking into consideration the facts of the particular case. An Appellate Court will readily interfere with the exercise of discretion by the lower Court which was not done judicially and
4
judiciously. In SULEMAN & ANOR v COP, PLATEAU STATE (2008) 8 NWLR (PT 1089) 298; (2008) LPELR – 3126 (SC) 20 – 21, paras A – G, the Supreme Court, per NIKI TOBI, JSC held:
?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 on 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 liability of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields extensive discretionary power, which must be exercised judicially and judiciously.
In exercising its discretion, the Court is bound to examine the evidence before it without considering extraneous matter. 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.?
It is beyond doubt that
5
the criteria, as established by the Apex Court in plethora of case, to be considered in the grant or otherwise of bail to an Applicant include: (a) the availability of the accused to stand trial; (b) the nature and gravity of the offence; (c) the likelihood of the accused committing offence while on bail; (d) the criminal antecedents of the accused; (e) the likelihood of the accused interfering with the course of justice; (f) the likelihood of further charge being filed; (g) detention for the protection of the accused. See: also BAMAIYI v. STATE (2001) 8 NWLR (PT. 715) 270; ABACHA v. STATE (2002) 5 NWLR (PT. 761) 638.
While refusing the Appellant’s application for bail, the learned trial judge held at page 45 of the record thus:
“This case has already been filed in Court and the charges of being in possession of human body parts is a serious offence. Bearing all this in mind I will not admit the Applicants to bail but rather direct that the Prosecution expedites the hearing of this case before the Court so that the Applicants can answer to the charges levelled against them.”
It is apparent that the trial Court considered what are at best
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extraneous to the application for bail before it vis, pending charge before the Court as well as the fact that the offence the Appellant was charged with is a serious offence. The learned trial judge seems to not to have appreciated that the principal function, and perhaps the most important of all criteria of the grant of bail to an accused person is to ensure his or her attendance in Court at the time of trial. See DOKUBO-ASARI v. FRN (2007) 12 NWLR (PT 1048) 320
?In the Counter-Affidavit in opposition to the application for bail, the deponent, one Sunmonu Tunde Bashiru, an Assistant Chief State Counsel, merely deposed at paragraph 7 thereof, that ?there is a strong likelihood” that the applicants would not appear for their trial if admitted to bail.” The deponent, however, failed to depose to such fact that makes him believe that the Appellant not be available to stand trial. The prosecution failed to specify those findings during investigation that now made them conclude that the Appellants would jump bail. I am of the opinion that rather than contending that the application of the Appellants be out-rightly refused, the prosecution should have
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asked for stringent conditions of bail to ensure that the Appellants’ availability for their trial. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that every person charged with a criminal offence shall be presumed innocent until he is proved guilty is still the law governing criminal prosecutions.
In the instant case, the Appellants were charged with two count offence under Section 409 and 236 of the Criminal Law of Lagos State, 2011 vis conspiracy to commit offence contrary to Section 409 and possession of human parts contrary to Section 236 thereof. While it is undisputed that these offences are felonious in nature, they are however not punishable with death and by virtue of Section 115(2) of the Administration of Criminal Justice Law, 2011, the lower Court has discretion to grant bail in such instance. Till date its not clear if trial has commenced.
?However, the attitude of the 1st Respondent and the learned trial Judge in the instant case were as if the Appellants had already been declared guilty as charged. The refusal of bail for the appellant in the circumstances and on the face of affidavit evidence
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before the Court is a miscarriage of justice and a wrong exercise of the trial Court’s discretion.
Therefore, I do not find any reason that should have warranted a denial a grant of the Appellants’ application for bail by the trial Court. I am satisfied that bail can be granted in this regard but on conditions geared towards securing the attendance of the accused person at trial of the charge filed against them.
To this extent, this appeal is meritorious and it is hereby allowed. The Ruling of the trial Court refusing the Appellants bail is set aside. Bail is granted to the Appellant as specified hereunder:
1. Bail is granted to each of the Appellants in the sum of Two Hundred Thousand Naira Only (N200,000.00).
2. Each. Appellant shall provide two sureties in the said sum each.
3. Each of the two sureties shall be resident in Lagos State and must be owners of landed properties within Lagos State, who shall provide acceptable evidence of their title to be verified by the Deputy Chief Registrar in liaison with the Registrar of Titles Lagos.
4. Each of the sureties shall swear to an affidavit of means and furnish tax clearance
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certificate for the past three years.
The above conditions shall be verified by the Deputy Chief Registrar of Lagos.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA.
I agree with the reasoning and conclusions reached therein and have nothing extra to add.
I too find this appeal to be meritorious and it is also hereby allowed by me. I abide by all the consequential order made inclusive of the one as to the costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: Having been privileged to read in draft before now the lead judgment of my learned brother A.O. Obaseki-Adejumo JCA, just delivered, I am of the same view that the appeal is meritorious and ought to be allowed.
I therefore allow this appeal and I also abide by the consequential orders contained in the said lead judgment.
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Appearances:
C. S. Onunwa (Miss)For Appellant(s)
Babatunde Summonu for 1st RespondentFor Respondent(s)
Appearances
C. S. Onunwa (Miss)For Appellant
AND
Babatunde Summonu for 1st RespondentFor Respondent
