LawCare Nigeria

Nigeria Legal Information & Law Reports

AJAI v. C.O.P (2022)

AJAI v. C.O.P

(2022)LCN/16130(CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/G/5C/2022

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

JAMES ISREAL AJAI APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

 

RATIO

WHETHER OR NOT AN ACCUSED PERSON CAN DICTATE TO A COURT THE CONDITIONS THAT IS ACCEPTABLE TO HIM TO BE RELEASED ON BAIL

I do not think, it is the law that an accused will dictate to a Court the conditions that is acceptable to him to be released on bail. In considering the condition to be given as the terms to release an accused on bail, a Court will be more concerned with whether the accused will be available to stand his trial. This is the main purpose of bail. For clarity, the purpose of bail is temporary freedom to the accused pending when final decision is made. A Court should not refuse bail so as a temporarily punish the accused. The purpose of the bail condition should be such that it can guarantee the availability of the accused to stand trial. In Suleman & Anor v. C.O.P Plateau State (2008) S.C. (pt 1) 185, it was held in this regard as follows:
”The Right of bail, a Constitutional right, is contractual in nature. The effect of granting bail 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 entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The Section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212.” Per TOBI, J.S.C
The condition will vary from person to person and from offence to offence and the stage of the proceedings wherein bail is applied for. The condition for bail pending trial will be different from bail pending appeal but whichever way, the primary consideration by the Court is whether the accused will be available to stand his trial. Sounding more specific and relevant, in considering whether to further review the bail condition, paramount in my mind will be a condition that can guarantee the Appellant will be available to stand his trial and not what will suit the Appellant bail and be available to stand his trial. This is the main purpose of bail. See Dokubo-Asari v. FRN (2007) 5-6 SC 150. In furtherance of this position, the apex Court has held in Bamaiyi v. State & Ors (2001) 4 S.C. (Pt 1) 18 as follows:
“Our criminal justice system has its stipulations and safeguards for the prosecutor, the accused and the victim. In the proper operation of that system, it can be said that it is in the interest of the society, and within those safeguards, that if in an application for bail pending trial, there is good reason to believe or strongly suspect that the accused will jump bail thereby making himself unavailable to stand his trial and/or will interfere with witnesses thereby constituting an obstacle in the way of justice, the Court will be acting within its undoubted discretion to refuse bail. It may be added that in such a situation, it will be desirable, as far as reasonably practicable, to accelerate the trial.” Per UWAIFO, J.S.C. PER TOBI, J.C.A.

WHETHER OR NOT IT IS THE DISCRETION OF THE COURT TO GRANT BAIL

In addressing issue 1, I state a trite position of the law, which is that the power to grant bail is within the discretion of a Court and like all other discretions, it must be exercised judiciously and judicially. See Francis v. FRN (2020) LPELR-52520(SC); Ntukidem & Ors v. Oko & Ors (1986) 5 NWLR (pt 45) 909. To exercise discretion judicially means that the discretion must be exercised within legal limits that is to say it is backed by law. This means it is not based on the arbitrary action of the Judicial Officer. There must be a law upon which he operates and exercised the discretion. It is arbitrary when a Court operates on a brain wave without any legal backing. A Court is created by law and therefore, it must operate within the law and guided by law. A judicial power should not be arbitrarily used, it must operate within the compartment of the law. I make bold to say further that a power exercised will be excessive when there is no law backing such exercise of power. In other words, if the power exercise is within legal limits, it cannot be said to be excessive. Discretion is judicious when it meets the tenets of justice, fairness and equity. When it is reasonable within the context of the circumstance of the case, it is judicious. The Court in exercising the discretion will consider whether it is fair and reasonable. The bail condition will be harsh when it does not consider whether it is fair and indeed affordable by the Appellant. A stringent and harsh bail condition is as good as refusing bail. See Shuaibu v. FRN (2014) LPELR-22986(CA). PER TOBI, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT 

I must make this point and this is very clear I cannot interfere with discretion once it is exercised judicially and judiciously. This is notwithstanding that I would have given another bail condition. An appellate Court must respect the discretion of a lower Court once it meets the requirement of exercising same judicially and judiciously. In Adeniyi & Anor v. Tina George Industries Ltd & Ors (2019) LPELR-48891(SC), the apex Court held:
“…I will only comment on “discretion”, which is the power or right to decide according to one’s Judgment; freedom of judgment or choice. “Judicial discretion” is defined in Black’s Law Dictionary 9th Ed., as follows – 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 act when a litigant is not entitled to demand the act as a matter of right. The operative words in the above definition are – “a Court’s power to act or not act, when a litigant is not entitled to demand the act as a matter of right”. It is also settled that all judicial discretions must be exercised according to common sense, and according to justice. If there is a miscarriage of justice, it is within the competence of an appellate Court to have same reviewed – see Odusote V. Odusote (1971) ANLR 221 and Echaka Cattle Ranch V. N.A.C.B. (1998) 4 NWLR (Pt. 547) 526, wherein lguh, JSC, stated as follows: In matters of discretion- – the Court cannot be bound by a previous decision to exercise its discretion in a particular way… Accordingly, since the circumstances constantly change or are never exactly the same, it is for the trial Court to meet the ends of justice and to be fair and just in all the circumstances of each and every case. While it is the law that the exercise of its discretion by the trial Court may be reviewed on appeal, an appellate Court must not interfere unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was mala fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider maternal issues, or otherwise that it was inconsistent with the ends of justice. In this case, there is no question that the Court of Appeal took the surrounding circumstances which was set out by my learned brother in the lead Judgment, into account before refusing to exercise its discretion in favour of granting the said Application, and this Court cannot, therefore, interfere with its decision.” Per AUGIE, J.S.C. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Yobe, Damaturu delivered on 2/2/21 by Hon. Justice G. K. Kaigama. The facts of the case leading to this appeal is not complicated just as the same way the issue involved are not complicated but narrow and straight forward. The Appellant is standing trial for the offence of criminal breach of trust by servant, mischief, criminal misappropriation, theft and negligent conduct contrary to Sections 314, 327, 310, 287 and 197 of the Penal Code of the Laws of Borno State. The trial is still on before the Chief Magistrate Court where the no case submission of the Appellant was dismissed.

​The Appellant had applied for bail before the Chief Magistrate Court. He was granted bail for the sum of Fifty Million Naira with two sureties who must be Permanent Secretaries. This was granted with the above conditions on 8/7/2020. The conditions for the bail was excessive according to the Appellant and so he filed a motion registered as motion No: YBS/DT/CMC1/46M/2020, wherein he sought for a review of the bail condition. This application was before the same Chief Magistrate Court. The Court reviewed the bail condition in the following term where bail was granted to the Appellant on the condition that he provides for two sureties who must have a certificate of landed property worth not less than N10,000,000 each. The sureties must be a Reverend Father and a Community Leader or Village Head. This order was made on 25/8/2020. Once again, the Appellant dissatisfied with the bail condition on the ground that he could not meet the condition brought another motion No: YBS/DT/CMC1/82C/2022 on 7/9/2020 seeking for a review. That was the second time a review is sought before the same Court and it is the third time the Appellant is bringing a bail application before the Chief Magistrate Court. The first been a bail application and the second and third an application to review the bail condition. In the last application before the Chief Magistrate Court, the condition was reviewed. The bail was granted for the sum of N20,000,000 with two sureties in like sum. Each of the sureties was required to deposit N10,000,000 each or in the alternative, the sum of N20,000,000 is to be deposited in the Court. This review requires as a condition for the first time that deposit be made by the sureties. The Appellant before the Chief Magistrate Court had a three times bite of the cherry on bail. The Appellant unable to meet the condition, he filed an application before the lower Court to further review the bail condition on liberal terms, which is that, the Appellant should be allowed to go on bail on self-cognizance. The lower Court heard the application and reviewed the bail condition in these terms:
1. There shall be two (2) sureties each of whom shall enter a bond in the sum of N10,000,000.00 (Ten Million Naira) only.
2. Each of the sureties to deposit the sum of N3,000,000.00 (Three Million Naira) into interest yielding bank account to be designated by the Chief Registrar of the High Court of Justice, Damaturu, Yobe state.
3. Sureties must swear to affidavit of means and must live within the jurisdiction of this Court.
4. Sureties to each deposit two (2) recent passport photographs with the registry of the Chief Magistrate.

​The Appellant not satisfied with this bail condition filed a Notice of Appeal containing 3 grounds. Appellant’s Counsel who settled the Appellant’s brief is M. H. Auta Esq while the Respondent’s brief was settled by A. S. Muhammad Esq of the Ministry of Justice, Yobe State. The issues for determination in this appeal as formulated by the Appellant and adopted by the Respondent are as follows:
1. Whether the lower Court properly exercised its discretion judicially and judiciously based on the material placed before it.
2. Whether the learned Chief Judge in the light of the affidavit evidence in support of the application for bail review has provided the desired remedy to the appellant in the circumstance.

I will take a summary of the submission of Counsel. I will start with the submission of the Appellant’s Counsel. Learned Counsel for the Appellant submitted that particularly in the absence of a counter affidavit, the lower Court should have granted the Application as the bail condition is excessive. He further submitted that the lower Court should have taken into cognizance the unchallenged affidavit evidence in granting the application by varying the bail condition. He referred to Madu vs State (2011) LPELR 3973. In the absence of a counter-affidavit, Counsel submitted that there is no ground upon which the Court could impose the term of depositing some amount in the Court.

On issue 2, relying on the combined effect of Sections 35(1) and 36(6) of the 1999 Constitution, Section 184(2) of Yobe State Administration of Criminal Justice Law, 2020 and the case of Dasuki vs DG, SSS (2020) 10 NWLR (pt 1731) 136, it is the submission of Counsel that though granting of bail is within the discretionary power of a Court, such discretion should be exercised judicially and judiciously with liberal conditions. The bail condition is excessive and amounts to refusing bail, Counsel submitted relying on Sections 165(1) and 187(a) of Yobe State ACJL, Counsel submitted that it is within the powers of the Court to review the bail conditions. Counsel commended the case of Eyu vs State (1988) 2 NWLR (pt 78) 602 in urging Court to review the bail conditions by allowing this appeal.

​Learned State Counsel for the Respondent, A. S. Muhammad Esq adopted the Appellant’s issues in arguing the appeal. He relied heavily on Section 184(2) of Yobe State ACJL and the case of Alhaji Olalani Tijani vs FRN (2018) LPELR-45844(CA) in urging the Court to dismiss the application. It is Counsel’s further submission that since the discretion was not arbitral, not contrary to natural justice and injudicious, this Court should not interfere with the exercise of discretion of the Court. He relied on Imonikhe vs A. G. Bendel State (1992) NWLR (pt 248) 396; Braithwaite & Ors vs Dalhatu (2016) LPELR-40301(SC). Learned Counsel urged Court to dismiss this appeal.

Exercising his right of reply, the Appellant’s Counsel files a reply brief. Counsel submitted that the case of Alhaji Ola Tijani vs FRN (Supra) is not on all fours with the case on appeal and therefore not applicable. Once again, he drew home the point of the inability of the Respondent’s Counsel to file counter affidavit and therefore that the bail should be reviewed. He referred to Safe Trust Saving and Loans Limited vs Governor of Ekiti State & Ors (2014) AELR 3674(CA).

​Before I specifically address the issues for determination, there is a point I need to clear. Looking at the Appellant’s brief and submission of Counsel, it would appear as if the lower Court did not review the bail conditions that the Chief Magistrate Court imposed. This will be wrong because from the last bail condition in the Chief Magistrate Court, it is clear that there is a review. That the review is not what the Appellant wanted does not mean there was no review. Clearly, at the Chief Magistrate Court, the sureties were required to deposit N10,000,000 each. The lower Court reviewed it downward to N3,000,000. If this does not qualify as a review, I wonder what it is. It may not be what the Appellant expected, but nonetheless, there was a review. Let me be quick to say that while bail conditions are not expected to be harsh but it is oversimplifying the whole issue to think that a Court must give conditions of bail which the person seeking bail can comfortably meet. I do not think, it is the law that an accused will dictate to a Court the conditions that is acceptable to him to be released on bail. In considering the condition to be given as the terms to release an accused on bail, a Court will be more concerned with whether the accused will be available to stand his trial. This is the main purpose of bail. For clarity, the purpose of bail is temporary freedom to the accused pending when final decision is made. A Court should not refuse bail so as a temporarily punish the accused. The purpose of the bail condition should be such that it can guarantee the availability of the accused to stand trial. In Suleman & Anor v. C.O.P Plateau State (2008) S.C. (pt 1) 185, it was held in this regard as follows:
”The Right of bail, a Constitutional right, is contractual in nature. The effect of granting bail 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 entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The Section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212.” Per TOBI, J.S.C
The condition will vary from person to person and from offence to offence and the stage of the proceedings wherein bail is applied for. The condition for bail pending trial will be different from bail pending appeal but whichever way, the primary consideration by the Court is whether the accused will be available to stand his trial. Sounding more specific and relevant, in considering whether to further review the bail condition, paramount in my mind will be a condition that can guarantee the Appellant will be available to stand his trial and not what will suit the Appellant bail and be available to stand his trial. This is the main purpose of bail. See Dokubo-Asari v. FRN (2007) 5-6 SC 150. In furtherance of this position, the apex Court has held in Bamaiyi v. State & Ors (2001) 4 S.C. (Pt 1) 18 as follows:
“Our criminal justice system has its stipulations and safeguards for the prosecutor, the accused and the victim. In the proper operation of that system, it can be said that it is in the interest of the society, and within those safeguards, that if in an application for bail pending trial, there is good reason to believe or strongly suspect that the accused will jump bail thereby making himself unavailable to stand his trial and/or will interfere with witnesses thereby constituting an obstacle in the way of justice, the Court will be acting within its undoubted discretion to refuse bail. It may be added that in such a situation, it will be desirable, as far as reasonably practicable, to accelerate the trial.” Per UWAIFO, J.S.C
The condition must not be stringent but at the same time, the condition must be such that it can guarantee with some reasonable assurance, of the Appellant coming for his trial. See Nolan v. FRN (2020) LPELR-51424 (CA); Uduesegbe v. FRN (2014) LPELR-23191(CA). This is why the condition for bail pending trial will be different from condition of bail after conviction or pending appeal. The greater the possibility of the Appellant not showing up for his trial, the more stringent the bail condition will be. The Appellant in paragraph 7 of the affidavit in support of the application at the lower Court want to be granted bail on self-recognizance. With respect to the Appellant there is nothing in the affidavit that shows his pedigree to qualify him to be granted bail on his own cognizance. This is more so, that he has lost his bid to terminate the case at no case submission level. His no case submission was dismissed and so he is still standing trial. On this premise, the bail condition will not be a pat on the back and also not definitely a harsh condition. The question is what makes a bail condition harsh or excessive? I will deal with this later in this judgment. I will however hasten to say that this Court and indeed any Court have the powers to review any bail condition which is harsh and excessive. See Dasuki v. The D.G. SSS & Ors (2019) LPELR-49182 (CA).

​The other point I will consider before delving in the issues is that, the Appellant seems to make heavy weather of the fact that the Respondent did not file a counter-affidavit and therefore he should be granted bail on his own terms. Things do not work that way. The fact that there is nothing on the Respondent’s side in the scale of justice, does not automatically mean, the Appellant will get what he wants. This is far from it. The absence of a counter-affidavit makes the proof requirement to be minimal, the Appellant needs to show in the affidavit evidence that he deserves to be granted the application. This is because the effect of failure to file a counter-affidavit does not mean automatic granting of the application but rather it only means the facts in the affidavit in support are uncontroverted and deemed admitted. See Ogoejeofo v. Ogoejeofo (2006) 1 S.C. (pt 1) 157; Nika Fishing Co. Ltd v. Lavina Corporation (2008) LPELR- 2035(SC). The point must be made that the mere fact that the facts in the affidavit in support is deemed admitted does not mean that the facts necessarily are correct so as to warrant the Court granting the application. For instance, unchallenged evidence that Gombe is the capital of Nigeria will not be taken as correct and acted upon by a Court despite the fact that no counter affidavit was filed. The implication of all this is that the Court will still consider whether the unchallenged evidence has enough materials to justify the application. In spite of the fact that no counter affidavit was filed, if the affidavit in support is bereft of material evidence, the application will be refused. This is the finding of the Supreme Court in Buhari & Ors v. Obasanjo & Ors (2003) 11 S. C 74. The apex Court held:
“Where the affidavit in support is bereft of relevant facts, the Court will refuse to grant the application. See also Kotoye v. CBN (supra); Nwangana v. Military Governor of Imo State (1987) 3 NWLR (Pt. 59) 185; Ajewole v. Adetimo (1996) 2 NWLR (Pt. 431) 391.” Per TOBI, J.S.C
​It is clear that the Appellant enjoyed the benefit of the absence of a counter-affidavit when the amount to be deposited was reduced from N10,000,000 from each of the sureties to N3,000,000 per surety in the lower Court. In my opinion, it is the requirement to pay deposit that the Appellant is really upset about. Learned Counsel erroneously argued by implication that since there is no counter-affidavit, the lower Court had no bases to impose the deposit. I make bold to say that a Court does not need an affidavit to use the provision of the law in determining any case before it, in this instance Section 184(2) of Yobe State ACJL. Affidavits are statement of fact and are not supposed to contain any law. See A.G. Adamawa State & Ors v. A. G. Federation & Ors (2005) LPELR-602(SC) The lower Court was therefore in order without a counter affidavit to refer to Section 184(2) of Yobe State ACJL in imposing a bail condition to deposit some money. I reproduce the section for ease of reference:
“The Court may require the deposit of a sum of money or other security as the Court may specify from the accused or his surety before the bail is approved.”
This is the law and the lower Court can make reference to it even without a counter-affidavit.

Having dealt with the above, I will now address the issues for determination. I adopt the Appellant issues in this appeal. I reproduce them for ease of reference:
1. Whether the lower Court properly exercised its discretion judicially and judiciously based on the material placed before it.
2. Whether the learned Chief Judge in the light of the affidavit evidence in support of the application for bail review has provided the desired remedy to the appellant in the circumstance.

In addressing issue 1, I state a trite position of the law, which is that the power to grant bail is within the discretion of a Court and like all other discretions, it must be exercised judiciously and judicially. See Francis v. FRN (2020) LPELR-52520(SC); Ntukidem & Ors v. Oko & Ors (1986) 5 NWLR (pt 45) 909. To exercise discretion judicially means that the discretion must be exercised within legal limits that is to say it is backed by law. This means it is not based on the arbitrary action of the Judicial Officer. There must be a law upon which he operates and exercised the discretion. It is arbitrary when a Court operates on a brain wave without any legal backing. A Court is created by law and therefore, it must operate within the law and guided by law. A judicial power should not be arbitrarily used, it must operate within the compartment of the law. I make bold to say further that a power exercised will be excessive when there is no law backing such exercise of power. In other words, if the power exercise is within legal limits, it cannot be said to be excessive. Discretion is judicious when it meets the tenets of justice, fairness and equity. When it is reasonable within the context of the circumstance of the case, it is judicious. The Court in exercising the discretion will consider whether it is fair and reasonable. The bail condition will be harsh when it does not consider whether it is fair and indeed affordable by the Appellant. A stringent and harsh bail condition is as good as refusing bail. See Shuaibu v. FRN (2014) LPELR-22986(CA).

The question now is whether in the circumstance of the case, the bail condition is recognized by law and whether it is fair and reasonable. I must make this point and this is very clear I cannot interfere with discretion once it is exercised judicially and judiciously. This is notwithstanding that I would have given another bail condition. An appellate Court must respect the discretion of a lower Court once it meets the requirement of exercising same judicially and judiciously. In Adeniyi & Anor v. Tina George Industries Ltd & Ors (2019) LPELR-48891(SC), the apex Court held:
“…I will only comment on “discretion”, which is the power or right to decide according to one’s Judgment; freedom of judgment or choice. “Judicial discretion” is defined in Black’s Law Dictionary 9th Ed., as follows – 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 act when a litigant is not entitled to demand the act as a matter of right. The operative words in the above definition are – “a Court’s power to act or not act, when a litigant is not entitled to demand the act as a matter of right”. It is also settled that all judicial discretions must be exercised according to common sense, and according to justice. If there is a miscarriage of justice, it is within the competence of an appellate Court to have same reviewed – see Odusote V. Odusote (1971) ANLR 221 and Echaka Cattle Ranch V. N.A.C.B. (1998) 4 NWLR (Pt. 547) 526, wherein lguh, JSC, stated as follows: In matters of discretion- – the Court cannot be bound by a previous decision to exercise its discretion in a particular way… Accordingly, since the circumstances constantly change or are never exactly the same, it is for the trial Court to meet the ends of justice and to be fair and just in all the circumstances of each and every case. While it is the law that the exercise of its discretion by the trial Court may be reviewed on appeal, an appellate Court must not interfere unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was mala fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider maternal issues, or otherwise that it was inconsistent with the ends of justice. In this case, there is no question that the Court of Appeal took the surrounding circumstances which was set out by my learned brother in the lead Judgment, into account before refusing to exercise its discretion in favour of granting the said Application, and this Court cannot, therefore, interfere with its decision.” Per AUGIE, J.S.C
I will refer to this case on this point. This is the case of Iyke Collins Investment Ltd v. First Atlantic Bank (2019) LPELR-47589(CA) where it was held:
“It was held by the Apex Court in the case of CHIEF NICHOLAS BANNA v TELEPOWER (NIG) LTD (2006) LPELR-1352 (SC), which was referred to in the lead judgment, that;
“A trial Court as a Court of law and equity has the power to exercise some discretion in the judicial process. As long as the discretionary power is exercised judicially and judiciously, an appellate Court cannot interfere by show of appellate power. It is good law that an appellate Court cannot substitute its discretion in the administration of justice for that of the trial Court. And because discretionary power is exercised within the confines of the facts of the case, the trial Judge, the Judge of facts, is in the best position to exercise the discretion. Where it is clear on the record that the power was not exercised judicially and judiciously, an appellate Court may interfere.” per TOBI, JSC (P.23, PARA. C-F). In light of the above, I agree entirely with his reasoning and conclusion that the appeal is devoid of merit.” Per OBASEKI-ADEJUMO ,J.C.A
The whole essence of discretion will be defeated if an appellate Court can willingly interfere with the exercise of discretion by a lower Court.

I have referred to Section 184(2) of Yobe State ACJL which gives power to a Judge to impose a bail condition for the Appellant or his sureties to make deposit before the bail is approved. In the light of that, the Chief Magistrate Court and the lower Court was operating within legal limits and the law in giving a bail condition requiring the deposit of some money as part of the bail conditions as this is backed by law. It is not arbitrary but a discretion which the law allows a Court to impose. Whether the amount imposed is appropriate, is a different issue but the fact is that the lower Court was operating within the law by imposing deposit as one of the conditions of the bail. The lower Court in my view has exercised the discretion judicially.
​The next is whether, it is judicious, in other words, is it reasonable and fair to impose such condition. Looking at the circumstance of the case, the Appellant is standing trial for offences relating to theft, criminal misappropriation and criminal breach of trust. There are offences relating to money. The original bail term was N500,000,000 with two sureties who must be Permanent Secretaries. This was reviewed on request by the Appellant by the same Court for the Appellant to provide two sureties with certificate of landed property not less than N10,000,000 each. The sureties are to be Reverend Father and a Community and Village Leader. The Appellant could not meet the condition. This condition did not require any deposit to be made by the Appellant or his sureties. This in my view is a fair condition. The Appellant asked for a further review which condition introduced paying deposit of N10,000,000 by each of the sureties or a deposit of N20,000,000. The reason why he could not meet the above condition was because the condition is excessive as he could not get anyone as surety to pay the deposit in view of the socio-economic crisis and the COVID-19 pandemic. The Appellant seems to have a misconception that bail condition must be imposed within the capacity of the Appellant. This is shown in paragraph 8 of the affidavit in support. Reading paragraphs 7 and 8 together, it would appear the only bail condition that will be acceptable to him is self-recognizance or bail for some amount with one surety. The lower Court listened to the submission of Counsel and read the affidavit evidence and consequently imposed the bail term as stated above including the payment of N3,000,000 deposit by each surety. The Appellant is particularly unhappy with the requirement to pay deposit.
The lower Court had placed as part of the bail condition the deposit of N3,000,000. Is this fair? Apart from Section 184(2) of Yobe ACJL what is the justifiable for asking the sureties of the Appellant to deposit N3,000,000 each. This is a condition with due respect to the Learned Chief Judge that will be difficult to meet. The point must be made that, a person who takes another on bail as surety is doing him a favour. I really do not see any surety who will want to part with N3,000,000 because he wants to take a person on bail. I do not think this is fair. If the amount is required to be deposited by the Appellant it would have been a bit more appropriate than asking the sureties to make such deposit. To that extent, the bail condition requiring the surety of the Appellant to pay N3,000,000 is a bit harsh. I had mentioned above the purpose of bail which is to ensure the Appellant appear for his trial and to that extent the bail condition is not supposed to be harsh or punitive.
​This Court has held that the bail condition requiring a person or his surety to deposit some money as a condition of bail is not in line with constitutional right of the Appellant who is presumed innocent. See Eyu vs The State (1988) 2 NWLR (pt 78) 602; Onyirioha vs IGP (2009) 3 NWLR (Pt 1128)342. In the circumstance, the exercise of discretion is not judicious in the requirement of making deposit before bail can be granted. In the circumstance, I resolve this issue in favour of the Appellant as it relates to the deposit of money by the surety. I do not see any reason for that.

​I will take issue 2. I have stated above that a Court is not under obligation to ensure that the bail condition must be what the Appellant is comfortable with but what will compel the Appellant to appear for his trial. Having lost the No case submission, it will be dangerous to give the kind of liberal condition the Appellant is asking for in paragraphs 7 and 8 of the supporting affidavits. If the bail condition is made too liberal, the temptation not to come for the trial will be high. To therefore ensure the Appellant appear for his trial, the Appellant cannot get his desired remedy in terms of the bail condition. I will review the bail condition in the following way:
1. Bail is granted to the Appellant for the sum of N5,000,000 with two sureties in like sum
2. One of the sureties must be a Clergy Man and the other a blood relation who is the owner/occupier of a land property residing within the jurisdiction of the Chief Magistrate Court.
3. The sureties must swear to affidavit of means to which should be attached two passport photographs to be verified by the Registrar of the Chief Magistrate Court where he is undergoing trial.

This appeal in the circumstance succeeds in part.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft, the lead judgment of my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion.

There is no doubt that the offences for which the Appellant is standing trial are bailable. Therefore, the law is settled that a trial Court may grant bail on conditions that will ensure that the Appellant attends Court to take his trial. In the instant appeal, the lead judgment has captured sequentially the sequence of the proceedings before the trial Magistrate Court, as well as before the lower Court, such that it eradicates the need to re-state them here. Suffice it to say that, after the trial Court had granted the Appellant bail on conditions which he considered stringent, at his request, the conditions were twice reviewed. Thereafter, the lower Court was also invited to review the bail terms, and it so obliged. The Appellant is again before this Court contending that, in its review of the bail conditions, the lower Court failed to exercise its discretion judicially and judiciously and also failed to provide the desired remedy to the Appellant.

The law is settled that in an application for bail, the Court is entitled to exercise its discretion. The qualification is that such discretion must be exercised judicially and judiciously. Where this has been done, an appellate Court will not interfere with the exercise of a Court’s discretion. See EYE V FRN (2018) LPELR-43599(SC) 32; Bamaiyi V State (2000) LPELR-6852(CA) 25-26, D-F.

​In the instant case, I agree that, by virtue of Section 184(2) of the Yobe State ACJL, the lower Court acted judicially in granting the Appellant bail as it acted within the confines of its powers delineated therein to grant bail. On the question of whether its exercise of discretion was judicious, given the surrounding facts and materials placed before the lower Court, I agree that bail conditions need not be such as may be comfortable for an Applicant. Nonetheless, the conditions should also not be tailored in a manner that it will be virtually impossible to meet. In the circumstance, the condition made for the sureties to make a deposit of the sum of N3,000,000.00 each, in addition to other conditions designed to ensure his attendance in Court to take his trial, may be considered a tad too stringent given the facts deposed to in the affidavits. I therefore agree with the review of the bail conditions made in the lead judgment.

The appeal therefore succeeds in part. I abide by the consequential orders made therein.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft the lead judgment of my learned brother, EBIOWEI TOBI, JCA, just delivered.

I agree with the reasoning and conclusions of my learned brother that the appeal has merit.

​It is for the reasons therein contained in the judgment that I also allow the appeal and set aside the ruling of the lower Court delivered on the 2nd day of February, 2021.
I abide by the orders made in the lead judgment.

Appearances:

A. W. Abdulwahab, Esq. holding the brief for N. H. Auta, Esq. For Appellant(s)

A. S. Mohammed, Esq., ACSC, Ministry of Justice, Yobe State For Respondent(s)