ADOLE v. FRN
(2022)LCN/16067(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/MK/16/CM/2021(R)
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
AMALI GODWIN ADOLE APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN ADMIT AN APPELLANT TO BAIL PENDING THE DETERMINATION OF HIS APPEAL IF THE CONDITIONS FOR BAIL ARE MET
This Court by virtue of Section 28 of the Court of Appeal Act can admit an appellant to bail pending the determination of his appeal if the conditions for granting bail are available. The Supreme Court has held that bail under Section 28 of the Court of Appeal Act is discretionary. The provision does not state whether there has to be a conviction and sentence before bail could be granted. For bail to be granted, there must be an application pending the determination of the appeal. See Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 275 SC. Whether or not to grant bail is a discretion to be exercised by this Court. However, the Court of Appeal has the power to entertain a bail application pending trial or post-conviction bail application. Thus, where an application for bail pending trial is refused by a trial Court same can be brought before this Court. See Eyu v. The State (1988) 2 NWLR (Pt.78) 602.
In the same vein, where an application for bail pending appeal is refused by a trial Court, this Court can entertain an application for bail pending appeal. See Bamaiyi v. The State (2001) 8 NWLR (Pt.715) 270 SC. PER HASSAN, JC.A.
CRITERIA FOR THE GRANT OR REFUSAL OF APPLICATION FOR BAIL
Several lines of judicial authorities had set the criteria for grant or refusal of application for bail as an exercise of discretion by the Court. The Supreme Court, Per Akintan, JSC set the criteria in the case of Suleman & Anor v. C.O.P. Plateau State (2008) 2-3 SC (Pt.1) 185 at 196-198 when he held:
“It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black Law Dictionary, 6th Edition, 1990, page 466 as meaning:
“A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all parties to action while having regard for what is right and equitable under all circumstances and law.”
The criteria to be followed in taking a decision in case of this nature as laid down by our courts include:
(i) The nature of the charge;
(ii) The strength of the evidence which supports the charge;
(iii) The gravity of the punishment in the event of conviction;
(iv) The previous criminal record of the defendant, if any;
(v) The probability that the defendant may not surrender himself for trial;
(vi) The likelihood of the defendant interfering with witness or may suppress any evidence that may incriminate him;
(vii) The likelihood of further charge being brought against the defendant; and
(viii) The necessity to procure medical or social report pending final disposal of the case.
See Bamaiyi v The State (supra), Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt.375) 558; Abacha v. The State (2002) 5 NWLR (Pt.761) 638 SC, Ani v. The State (2002) 1 NWLR (Pt.747) 217 CA and Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt.708) 9 CA.
A Judicial Officer saddled with the responsibility of exercising discretion is required to arrive at the 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. PER HASSAN, JC.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgement): The Applicant by motion on notice filed on 15th November, 2021 brought pursuant to Order 6 Rule 3 Court of Appeal Rules, 2016 and Sections 6(6)(a), 35(1) & 36(5) of the Constitution of the Federal Republic of Nigeria,1999 (as amended) and Sections 158 & 162 of the Administration of Criminal Justice Act, 2015 prayed the Court for the following reliefs:
1. An order admitting the Applicant to bail pending his trial in charge no FHC/MKD/CR/131/2021 (Federal Republic of Nigeria V. Amali Godwin Adole & 3 Ors) pending before the Federal High Court, Makurdi.
2. Any other order(s) as may be deemed necessary.
The application is predicated on the following grounds:
i. The Applicant and three others were arraigned before the Federal High Court, Makurdi on 29th October, 2021 in a Five (5) count charge bordering on the Cybercrimes (Prohibition, Prevention, etc) Act, 2015.
ii. The Four (4) Defendants in the charge applied for their respective bail after being arraigned on 29th October, 2021.
iii. The learned trial Judge, on 1st November 2021, admitted the 2nd – 4th Defendants to bail while refusing the Applicant herein bail.
iv. The offences for which the Applicant is charged before the lower/trial Court are bailable.
v. The Applicant is presumed to be innocent of the allegations made against him in the charge.
vi. The Applicant has no past criminal records. He has not been convicted by any Court for any criminal offence.
vii The Applicant would be available for his trial before the Federal High Court, Makurdi.
viii. The Applicant is ready to provide a credible surety to guarantee his bail in the event this Court exercises its discretion in his favour; and
ix. This application was filed within fifteen days after the Applicant was refused bail by the lower/trial Court.
The application is supported by 14 paragraphs deposed to by one Martha Enewa Amali the Applicant’s elder sister.
The application is further supported by Further and Better Affidavit filed on 14th December, 2021 with three documentary exhibits attached namely Exhibit A CTC of the ruling of the lower Court refusing bail to the Applicant while granting bail to the three other Defendants dated 1st November, 2021 and Exhibit B Copy of affidavit of Goong Isaac an investigating officer with EFCC deposed to on 8th October, 2021 and Exhibit C copy of conditions of bail granted to the Applicant by EFCC dated 25th August, 2021.
Learned Counsel for the Applicant relied on all the paragraphs of his affidavits in support of the application including the exhibits attached and adopted his written address in support wherein he formulated two issues for determination as follows:
i. Whether this Honourable Court has the power to grant the Applicant bail pending the hearing and determination of the charge against him at the Federal High Court.
ii. Whether the Applicant has placed enough materials before this Honourable Court to warrant the exercise of the Court’s discretion in his favour.
Arguing issue one, learned counsel submitted that it is common knowledge that this Court has the unfettered discretion to consider and grant bail to deserving applicants. He relied on Sections 158 and 162 of the Administration of Criminal Justice Act (ACJA).
He submitted that it is manifestly clear from the depositions in the supporting affidavit before this Court that the alleged offences for which the Applicant is being prosecuted by the Respondent in charge no. FHC/MKD/CR/131/2021 are not offences punishable with death. He contended that they are bailable offences.
According to counsel, this Court have the power to exercise its discretion in granting the Applicant bail pending the hearing and determination of the charge at the Federal High Court.
He submitted that the Respondent granted the Applicant administrative bail as well as the co-defendants charged with the same offences under the same law. He referred the Court to Exhibits A and C attached to the supporting affidavit of this application.
He urged the Court to invoke its powers pursuant to Section 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 158 and 162 of ACJA, to grant the Applicant bail.
On issue two, it was submitted that from the affidavit in support of the instant application, the Applicant have placed sufficient materials to convince the Court to grant bail to the Applicant. Reliance was placed in the case of OLAYIWOLA V. FRN (2006) 8 WRN 108 at 115.
He urge the Court to admit the Applicant to bail on conditions and terms that will be fair, friendly, and judiciously.
In opposition, learned counsel for the Respondent 19 paragraphs counter-affidavit with seven exhibits attached namely Exhibit EFCC 1 Petition letter address to EFCC Zonal office Makurdi dated 28/4/2021, Exhibit EFCC 2 a copy of the charge sheet, Exhibit EFCC 3 copy of the extra-judicial statement of the Applicant, Exhibit EFCC 4 copy of ruling of the trial Court delivered on 1st November, 2021, Exhibit EFCC 5 extra-judicial statement of one Akaa Dooshima dated 29th November, 2021, Exhibits EFCC 6 and 7 are extra-judicial statements of one Aluga Luper Michael and Dzuamo Sefa Eldred respectively. Learned Counsel also filed a further affidavit of 21 paragraphs on 30th November, 2021 with one exhibit attached marked as Exhibit EFCC 1 Statement of one Mr. Isaac Goong an operative with EFCC.
Learned Counsel for the Respondent relied on all the paragraphs of his counter-affidavits and adopted his written address in support as his argument wherein he formulated one issue for determination as follows:
‘’Whether or not the Defendant/Applicant has placed sufficient material before the Court to enable it exercise its powers and discretion in his favour as prayed.’’
Learned Counsel submitted that by virtue of the relevant provisions of the Constitution, the Administration of Criminal Justice Act (ACJA) and all other laws enabling it in that behalf, this Court has the power and discretion to admit the defendant/applicant to bail. He stated that the Court also has the power in appropriate cases and at the appropriate time to grant leave to a Defendant to travel abroad during trial whether on medical tourism or other grounds.
He argued that those powers and discretion are exercise judicially and judiciously and in the latter case with all sense of caution and sparingly. It was submitted that in case of bail the superior Courts have laid the guidelines in number of cases, notably Bamaiyi v. State (2005) 4 QCCR 184 and restated in the case of Akano v. FRN (2016) 10 NWLR (Pt. 1519) 17 on the factors the Court considers in exercising its discretion one way or the other.
According to counsel, one common thread in all authorities on grant of bail is that the applicant must place sufficient material before the Court to convince it that he deserves the exercise of the discretion in his favour. He stated that this is irrespective of whether the application is opposed or not. He relied on the case of Olayiwola v. FRN (2005) 4 QCCR 15 at 37.
He submitted that looking at the paragraphs of the supporting affidavit vis-à-vis their counter-affidavit those depositions are not sufficient to sustain the application. He submitted further that paragraphs 3 (i-vi) amongst other depositions of their counter-affidavit have adequately controverted the defendant/applicant’s claims in his affidavit. He urged us to so hold.
He argued further that in paragraphs 13, 14 and 15 of their counter-affidavit remain unchallenged by the defendant/applicant. He stated that the depositions in those paragraphs adequately address the guidelines of the superior Courts on factors to be considered in granting or refusing bail.
On the nature and gravity of the punishment for the offence in event of conviction, he referred the Court to the relevant provisions of Cybercrime Act 2015 which specifically provide for stiffer punishments.
He maintained that the relevant paragraphs of his counter-affidavit indicate that the Defendant/Applicant may not surrender himself for trial and he is very likely to interfere with witnesses and further investigation. He urged us to resolve the sole issue formulated by the Respondent in their favour to the effect that the applicant has not placed sufficient material to warrant him being admitted to bail.
RESOLUTION:
The main issue for determination is whether the Applicant is entitled to bail pending the hearing and determination of the criminal case against him at the lower Court.
This Court by virtue of Section 28 of the Court of Appeal Act can admit an appellant to bail pending the determination of his appeal if the conditions for granting bail are available. The Supreme Court has held that bail under Section 28 of the Court of Appeal Act is discretionary. The provision does not state whether there has to be a conviction and sentence before bail could be granted. For bail to be granted, there must be an application pending the determination of the appeal. See Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 275 SC. Whether or not to grant bail is a discretion to be exercised by this Court. However, the Court of Appeal has the power to entertain a bail application pending trial or post-conviction bail application. Thus, where an application for bail pending trial is refused by a trial Court same can be brought before this Court. See Eyu v. The State (1988) 2 NWLR (Pt.78) 602.
In the same vein, where an application for bail pending appeal is refused by a trial Court, this Court can entertain an application for bail pending appeal. See Bamaiyi v. The State (2001) 8 NWLR (Pt.715) 270 SC.
Several lines of judicial authorities had set the criteria for grant or refusal of application for bail as an exercise of discretion by the Court. The Supreme Court, Per Akintan, JSC set the criteria in the case of Suleman & Anor v. C.O.P. Plateau State (2008) 2-3 SC (Pt.1) 185 at 196-198 when he held:
“It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black Law Dictionary, 6th Edition, 1990, page 466 as meaning:
“A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all parties to action while having regard for what is right and equitable under all circumstances and law.”
The criteria to be followed in taking a decision in case of this nature as laid down by our courts include:
(i) The nature of the charge;
(ii) The strength of the evidence which supports the charge;
(iii) The gravity of the punishment in the event of conviction;
(iv) The previous criminal record of the defendant, if any;
(v) The probability that the defendant may not surrender himself for trial;
(vi) The likelihood of the defendant interfering with witness or may suppress any evidence that may incriminate him;
(vii) The likelihood of further charge being brought against the defendant; and
(viii) The necessity to procure medical or social report pending final disposal of the case.
See Bamaiyi v The State (supra), Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt.375) 558; Abacha v. The State (2002) 5 NWLR (Pt.761) 638 SC, Ani v. The State (2002) 1 NWLR (Pt.747) 217 CA and Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt.708) 9 CA.
A Judicial Officer saddled with the responsibility of exercising discretion is required to arrive at the 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 the instance case, the Defendant/Applicant was granted administrative bail by the Respondent (EFCC) see Exhibit C attached to paragraph 10 of the Respondent further affidavit, the Defendant/Applicant was subsequently arraigned in the Federal High Court Makurdi Division along with three others in Charge No FHC/MKD/CR/131/2021 for offences of cybercrimes, the learned trial Judge granted bail to the other three Defendants while refusing bail to the Applicant despite been charge for the same offences the factor that weight into the mind of the lower Court is the fact that the Respondent dispute the grant of bail to the Applicant. The lower Court in his ruling delivered on 1st November, 2021 while granting bail to the 2nd-4th Defendants stated inter alia at page 5 that the offences the Applicants are charged with are bailable offences and none of the offences in the five counts of the charge carries a punishment of more than three (3) years imprisonment, I wonder why the Applicant should be isolated and refused bail just for a flimsy reason that the Applicant while in custody instructed one Gabriel Yogh to run away with a car he gave to him.
This Court will interfere with the discretion of a lower Court where such discretion was exercise on a wrong principle or mistake of law or under a misapprehension of facts or did not act in good faith but acted arbitrarily. See Nyong v. Etene & Ors (2011) LPELR-4264 (CA). I am unable to agree with the learned trial Judge as the discretion was not properly exercised.
In arriving at a decision as to whether to grant or refuse bail, it is my duty as a judicial officer to balance the interest of the State, interest of the Defendant and the interest of the general public in coming to a conclusion which is judicious in the circumstances of this case. In doing this, I am of the firm view that a judicious exercise of discretion in the circumstances of this case is to grant bail to the Defendant/Applicant thus I hereby set aside the decision of the learned trial Judge refusing bail to the Defendant/Applicant delivered on 1st November, 2021 by Hon. Justice A. Dogo Federal High Court Makurdi Division in Suit No. FHC/MKD/CR/131/21 and grant bail to the Applicant on the following terms and conditions:
1. The Applicant is hereby released on bail in the sum of Ten Million Naira (N10,000,000.00) with one surety in the like sum.
2. The surety shall be a Civil or Public Servant in the Service of the Federation or Benue State not below the rank of Grade Level 14 or landed property owner within Makurdi or the Headquarters of any Local Government Area of Benue State.
3. The surety shall deposit two recent passport photographs with the registry of this Court.
4. The surety shall file an affidavit of means and residence in the Registry of this Court.
5. The Registrar of this Court shall upon presentation of the documents mention above endorse his confirmation or otherwise of the genuineness of such documents produce by the surety.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading before now the draft ruling just delivered by my learned brother, Hon. Justice Muslim Sule Hassan, JCA, and I am in complete agreement with the reasoning and conclusion of my Lord in his ruling on all the issues raised.
I also abide by the consequential orders made in the ruling.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the ruling delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA. I agree entirely with the reasoning and conclusion arrived there in granting the applicant bail. I shall make few comments for the sake emphasis.
The criteria that should guide the Court in deciding whether to grant or refuse bail are well laid down by the Supreme Court in numerous decisions particularly in DOKUBO-ASARI VS. FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (PT. 375) 5558; BAMAIYI VS. THE STATE (2001) FWLR (PT.46) 956. Bailability of an accused person depend largely on the weight the judge attached to one or several of the criteria open to him in any given case.
It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case.
The word discretion has been defined to mean a power or right conferred by law of acting officially in certain circumstances, according to the dictates of one’s own judgment and conscience uncontrolled by the judgment or conscience of others. As public officers, discretion is the power to act in an official capacity in a manner which appears to be just and proper under the circumstances. See F.R.N VS. BULAMA (2005) 16 N.W.L.R (pt.591)219.
A judicial discretion however, is 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. See AKINYEMI VS. ODU’S INVESTMENT CO. LTD (2012) I S.C. (PT.IV) 33.
Thus from the fact of this case as set out in the affidavit filed by parties, the Applicant was granted administrative bail by the Respondent. Upon arraignment at the lower Court along with three co-accused persons on the same charges, the trial judge granted bail to the co-accused persons and surprisingly refused bail to the applicant.
First, it needs to be reiterated that, bail is a constitutional right and the effect of granting it is not to set the accused free for all times in the criminal process, but to release him from the custody of the law and to trust him to appear at his trial at a specific time and place. The object of bail is to grant temporal freedom to an accused whose appearance in Court can be compelled by the terms and conditions so granted to him.
Secondly what is good for the goose is also good for the gander. The reason so given by the trial court for refusing to grant the applicant bail in the circumstance and fact of this case where he had granted his co-accused charged with same offence cannot be seen to be judiciously exercised. In exercising its discretion, the Court is bound to examine the evidence before him and not to consider extraneous matter. The lower Court should not have exercised its discretion indiscriminately.
It is in the light of the foregoing and the more comprehensive reasons given by my learned brother, that I too shall grant the application. The applicant is certainly entitled to bail in the peculiar circumstances of this case. I abide by the conditions set out in the ruling of my learned brother.
Appearances:
Max Ogar, Esq. For Appellant(s)
Musa Yusuf, Esq. For Respondent(s)