DR. SANI TEIDI SHUAIBU v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7230(CA)
In The Court of Appeal of Nigeria
On Monday, the 26th day of May, 2014
CA/A/29c/2014
RATIO
BAIL: WHETHER THE GRANT OF BAIL IS AT THE DISCRETION OF THE COURT.
It is trite that the grant of bail and the conditions or terms of the same are within the discretion of the trial court. See SECTION, 120 AND 122 of the Criminal Procedure Act. Such a discretion is to be exercised judicially and judiciously in the sense that it should be dictated by rules of law, sound judgment, common sense and fairness. It should not be exercised arbitrarily or be influenced by irrelevant considerations. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (1) 143, 148, OGBUAWU V. FEDERAL REPUBLIC OF NIGERIA (2011) 12 NWLR (1260) 100, 113 AN AHMED V. COMMISSIONER OF POLICE, BAUCHI STATE (2012) 9 NWLR (1304) 04, 130. It should be added that where a trial court exercised its discretion properly, an appellate court will not interfere. An appellate court will only interfere where there was a wrongful exercise of the discretion as where the lower court acted under a misconception of the law or under a misapprehension of facts by giving weight to irrelevant or unproved matters or where it omitted to take into account matters that are relevant or based its discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. See UNIVERSITY OF LAGOS V. AIGORO, SUPRA 198, OBIOMA V. FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131, 158 – 159, NYAME V. FEDERAL REPUBLIC OF NIGERIA (2010) 7 NWLR (1193) 344, 392 AND ALI V STATE (2012) 10 NWLR (1309) 589, 609. per JOSEPH E. EKANEM, J.C.A
BAIL: ESSENCE OF THE GRANT OF BAIL AND THE CONDITIONS FOR THE GRANT OF SAME
The essence of the grant of bail is to ensure the liberty of an accused person who is presumed innocent until proved guilty and also to ensure his attendance of his trial. See SECTION 36(5) of the constitution of Nigeria and OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154.
However conditions are attached to bail in order to ensure that the accused person does not jump bail, interfere with investigation or commit further comes. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154. per JOSEPH E. EKANEM, J.C.A
BAIL: LIBERALITY OF THE COURT IN GRANTING BAIL
Trial courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non – capital offences. They are thus to grant bail on favourable and affordable conditions. It has been held that it is against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 165 AND 168 AND MADU V THE STATE (2011) LPELR 3973. Where the conditions of bail are stringent, the trial court or an appellate court has a duty to vary the conditions. See ONUIGBO V COMMISSIONER OF POLICE (1975) 1 NMLR 44 AND OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 165. per JOSEPH E. EKANEM, J.C.A
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
DR. SANI TEIDI SHUAIBU Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Abuja Division (Coram Ademola, J.) in Suit No; FHC/ABJ/CR/82/2013 delivered on the 29th November 2013, Wherein the Federal High Court (hereafter called “the lower Court”) refused the application of the appellant for the variation/reduction of the terms of bail imposed on the appellant.
The appellant was arraigned along with eleven others at the lower court on a twenty-count charge alleging various offences which can be grouped as follows;
(i) Conspiracy to obtain money by false pretences and with intent to defraud (contrary to Section 8(a) of the Advanced Fee Fraud and other Fraud Related Offences Act, 2006 and punishable under section 1(3) of the said Act (hereafter called “The Act”)
(ii) Obtaining money by false pretences and with intent to defraud from the Pensions Account, office of the Head of Service of the Federation of Nigeria (Contrary to Section 1(1)(a) of the Act and punishable under section 1(3) of the Act.
(iii) Conspiracy to conduct financial transactions involving various sums of moneys, proceeds of specified unlawful activities with intent to disguise the ownership of the proceeds of the specified unlawful activities (contrary to Section 7(1)(b)(i) of the Act and punishable under Section 7(2)(b)(i) of the Act).
(iv) Conduct of financial transactions involving various sums of moneys, proceeds of specified unlawful activities with the intent to disguise the ownership of the proceeds of specified unlawful activities contrary to Section 7(1)(b)(i) of the Act and punishable under section 7(2)(b)(i) of the Act.
It must be mentioned that the appellant (along with the others) was first arraigned before BELLO J. OF ABUJA DIVISION OF THE FEDERAL HIGH COURT IN CHARGE NO. FHC/ABJ/CR/28/11. He was granted bail in the sum of Ten Million Naira with one surety in the like sum. The charge was withdrawn and struck out on 7th day of June, 2011. He (along with others) was arraigned afresh before Ademola, J. who granted him bail in the following terms;
i. Sum of N500,000,000.00 (Five Hundred Million Naira) with two (2) sureties each in the like sum.
ii. That the sureties must be resident within the jurisdiction of the court and must own landed properties anywhere within the Abuja Division of the Court and the properties must be worth the bail sum:
iii. That the title deeds of the properties must be verified by the Deputy Chief Registrar of the Court before retaining copies.
iv. That the sureties must also swear to affidavit of means to be verified by the Deputy Chief Registrar of the Court.
v. The appellant was to deposit his current international passport with the Deputy Chief Registrar of the court and should not travel abroad without obtaining approval from the court.
Unable to satisfy the conditions of bail, the appellant applied to the lower court by way of motion on notice filed on and dated 4th November, 2013, for a variation of the bail conditions. The court below as earlier stated, refused the application.
Aggrieved by the decision the appellant appealed to this court by way of a notice of appeal filed on 2nd December, 2013, containing four grounds of appeal. In the appellant’s brief of argument, settled by S. I. Ameh, SAN, of counsel, two issues are formulated viz;
1) Whether the bail conditions/terms prescribed by the Learned Trial Judge when he granted the appellant bail on the 12th day of July 2013 are not excessive and stringent
2) Whether the bail earlier granted by Bello J. to the Appellant on the 9th day of May 2011 and which terms were duly met by the Appellant does not subsist in charge No. FHC/ABJ/CR/28/11.
The respondent in reaction filed a brief of argument dated 14th February 2014 but filed on 17th February, 2014. In the brief settled by Chief Godwin O. Obla (SAN) of counsel, one issue is formulated for the court’s determination, viz;
“Whether given the fact and circumstances of this case, appellant has made a showing that the trial court failed to exercise its discretion judicially in denying appellant’s motion to vary the terms and conditions of bail imposed by the trial court.
In the appellant’s brief of argument, adopted by Okutapa, SAN, the following arguments are proffered.
ISSUE ONE:
Counsel submitted that the appeal touches on the constitutional right of the appellant guaranteed in Section 36 of the Constitution of the Federal Republic of Nigeria. After a summary of the facts leading to the appeal, counsel submitted that though bail pending trial is at the discretion of the court, the discretion is to be exercised judiciously. He submitted further that after the grant of bail, the court is vested with jurisdiction to review or vary the conditions of bail from stringent and onerous ones to less stringent ones as the justice of the case requires. He cited and relied on OBIOMA V FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131, 165 to buttress his submission. He added that terms of bail should not be impossible or onerous as that would be a negation of the right to liberty.
Counsel expressed the view that the appellant placed before the lower court sufficient materials that would have enabled the court exercise its discretion to vary the bail conditions as prayed. He added that the fact deposed to in the appellant’s affidavit were not countered by way of a counter-affidavit. He set out the depositions in the affidavit and cited the case of AJOMALE V YADUAT (NO.2) (1991) 5 NWLR (191) 257, 282 to support his stance that the fact therein contained ought to be treated as established.
Continuing, he stated that the appellate courts have enjoined trial courts to be liberal in exercising their discretion to impose bail conditions.
Counsel cited and relied on OBIOMA V FEDERAL REPUBLIC OF
NIGERIA (2005) 13 WRN 131, 165 AND ABACHA V THE STATE (2002) 32 WRN, 34 in support.
He urged the court to resolve the first issue in favour of the appellant.
ISSUE TWO:
Counsel submitted that where bail is granted and the matter is to begin de novo, it is unnecessary to apply for bail where there is no application for the revocation of the bail earlier granted to an accused person. Counsel cited and relied on EZEBO V THE STATE (2005) FWLR (267) 1486.
He urged the court to resolve issue two in appellant’s favour and also allow the appeal, and grant the prayers of the appellant by varying/reducing the bail terms or conditions in the interest of justice.
Counsel for the respondent, as earlier stated identified a sole issue for the court’s determination. He however argued both issues formulated by the appellant and his lone issue. This is not proper. See GLOBAL SCENE LIMITED V THE REGISTRAR TRADE MARKS (2011) ALL FWLR (558) 877, 901, where GALINJE, JCA, stated that when a respondent has decided to formulate issues, he cannot set out those issues formulated by the appellant for the purpose of argument: I shall disregard respondent’s argument under the issues formulated by the appellant.
Arguing his lone issue, counsel submitted that the grant or refusal of bail lies within the discretion of the trial judge and as such, the appellant must show that the trial court failed to exercise its discretion judicially and judiciously. He was of the view that the appellant could not demand variation of bail conditions as a matter of right. He added that the appellant would never be able to show that the learned trial Judge did not exercise his discretion in a judicial and judicious manner. On the exercise of judicial discretion, counsel referred to ALI V. THE STATE (2012) 10 NWLR (1309) 589, 607 and submitted that an appellate court wilt not interfere with the decision of a trial court where the discretion is properly exercised. Counsel cited and relied on IGBOANUGO V STATE (1992) 3 NWLR (228) 176, AND DOKUBO-ASARI V FEDERAL REPUBLIC OF NIGERIA (2007) in support of his submission.
He finally urged the court not to interfere with the decision of the learned trial Judge and to dismiss the appeal.
In his reply, counsel for the appellant submitted that the cases cited by the respondent are different from the case under consideration.
I shall commence my consideration of this appeal by taking a narrow look at issue No. 2 formulated in the appellant’s brief. At the risk of repetition, I shall set it out hereunder;
“Whether the bail earlier granted by Bello J., to the appellant does not subsist in charge No. FHC/ABJ/CR/28/11.”
This issue is said to arise from ground four of grounds of appeal which states;
“The ruling is altogether unreasonable, unwarranted and cannot be supported having regard to the affidavit evidence”.
It is my view that issue 2 does not by any stretch of imagination arise from ground four of the grounds of appeal. An omnibus ground of appeal, as in this instance, postulates that when the evidence adduced by the appellant is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight of evidence which should have been given to the totality of the evidence. It cannot be used to raise an issue of law as the appellant has attempted to do. See MOGAJI V. ODOFIN (1978) 4 SC 91, 93, AKINLOGUN V. OSHOBOJA (2006) 12 NWLR (993) 60, 82 – 83, NKWOCHA V. MTN (NIG.) COMMUNICATION LIMITED (2008) 11 NWLR (1099) 439, 464. Furthermore the issue is a fresh issue which cannot be raised without the leave of court. No leave was sought and obtained. See MBANEFO V AGBU (2014) 6 NWLR (1403) 238, 265.
Consequent upon the above, I hereby strike out issue No. 2 in the appellant’s brief. I also strike out ground No. Four of the grounds of appeal since no issue was formulated from it.
In view of the complaint of the appellant, it is my opinion that the only issue that arises for determination in this appeal is as follows;
Whether or not the lower court exercised its discretion judicially and judiciously in refusing to vary the conditions of bail granted to the appellant.
It is trite that the grant of bail and the conditions or terms of the same are within the discretion of the trial court. See SECTION, 120 AND 122 of the Criminal Procedure Act. Such a discretion is to be exercised judicially and judiciously in the sense that it should be dictated by rules of law, sound judgment, common sense and fairness. It should not be exercised arbitrarily or be influenced by irrelevant considerations. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (1) 143, 148, OGBUAWU V. FEDERAL REPUBLIC OF NIGERIA (2011) 12 NWLR (1260) 100, 113 AN AHMED V. COMMISSIONER OF POLICE, BAUCHI STATE (2012) 9 NWLR (1304) 04, 130. It should be added that where a trial court exercised its discretion properly, an appellate court will not interfere. An appellate court will only interfere where there was a wrongful exercise of the discretion as where the lower court acted under a misconception of the law or under a misapprehension of facts by giving weight to irrelevant or unproved matters or where it omitted to take into account matters that are relevant or based its discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. See UNIVERSITY OF LAGOS V. AIGORO, SUPRA 198, OBIOMA V. FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131, 158 – 159, NYAME V. FEDERAL REPUBLIC OF NIGERIA (2010) 7 NWLR (1193) 344, 392 AND ALI V STATE (2012) 10 NWLR (1309) 589, 609.
The essence of the grant of bail is to ensure the liberty of an accused person who is presumed innocent until proved guilty and also to ensure his attendance of his trial. See SECTION 36(5) of the constitution of Nigeria and OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154.
However conditions are attached to bail in order to ensure that the accused person does not jump bail, interfere with investigation or commit further comes. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 154.
Trial courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non – capital offences. They are thus to grant bail on favourable and affordable conditions. It has been held that it is against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. See OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 165 AND 168 AND MADU V THE STATE (2011) LPELR 3973. Where the conditions of bail are stringent, the trial court or an appellate court has a duty to vary the conditions. See ONUIGBO V COMMISSIONER OF POLICE (1975) 1 NMLR 44 AND OBIOMA V FEDERAL REPUBLIC OF NIGERIA SUPRA 165.
In the instant case the appellant was, as earlier stated, granted bail in the sum of N500,000,000:00 with two sureties, each in the like sum, who must own landed properties within the Abuja Division of the lower court.
The properties must be worth the bail sum. In other words the appellant is to find two persons who own properties worth N500,000,000:00. This in my view is a difficult task, even for a former director in the Civil Service of the Federation as the appellant is said to be. Furthermore, it is my view that getting one person who can take the risk of forfeiting the sum of N500,000,000:00 is equally a herculean task.
It is no wonder that in paragraph 5.2 of the affidavit in support of the motion in notice for the variation of the bail conditions in the lower court, the depondent lamented that the appellant’s “relations and friends have made conscientious effort to meet or fulfill the bail conditions but to no avail”. The court below agreed with the depondent that unsuccessful efforts have been made by the appellant to satisfy the bail conditions. See page 53 lines 21 – 23 of the record of appeal. The lower court ought to have realized that the conditions of the bail granted by it were stringent. A proper exercise of discretion would have been shown by a grant of the application to vary the conditions. This is especially so since the appellant had earlier been granted bail before the charge before Bello J. was withdrawn and struck out and he did not jump bail.
The appellant has been in custody unable to fulfil the stringent conditions of bail since 12th day of July, 2013 when bail was granted and there is no indication that the trial has commenced.
I should state in passing that the trial court did remark that a surety recommended by appellant’s counsel furnished the lower court with forged land documents and letters purportedly emanating from government officials, the subject matter of a First Information Report before the Magistrate Court, FCT, Abuja. It is my view that commenting on or acting on this one way or the other will be pre – emptive of the First Information Report.
On the whole, it is my view, in answer to the lone issue for determination, that the lower court did not exercise its discretion judicially and judiciously in refusing to vary the conditions of bail granted to the appellant. It is in the interest of Justice to interfere in the exercise of the lower court’s discretion. The appeal therefore succeeds. I hereby vary the conditions of bail granted to the appellant by the lower court particularly conditions(1) and (2) as follows:
That bail is granted to the first accused person in the sum of N100,000,000:00 (One Hundred Million Naira) with 1 (one) surety in the like sum.
The surety must be resident within the jurisdiction and own landed property within the Abuja Division of the lower court which must be worth the bail sum and must possess valid tax clearance certificate. All other conditions of bail granted by the lower court remain extant.
It is hereby directed that the substantive case shall be heard and determined by a Judge of the Federal High Court, Abuja Judicial Division, other than Hon. Justice A.F.A. Ademola.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the lead Judgment of my learned brother, Ekanem JCA just delivered, to which I fully agree to. The conditions of bail specified by the trial court are onerous and have amounted to denying the bail. The discretion of the trial court judge ought to be interfered with, and more reasonable conditions provided. I therefore subscribe to the reasoning and the conclusion reached in the lead judgment.
MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother Joseph E. Ekanem, JCA.
His Lordship has elaborately dealt with the lone issue in this appeal and has rightly, in my view, resolved it. I have nothing useful to add to the lead judgment, save to say that for the reasons given by my learned brother, I also allow this appeal and vary the terms of the bail granted to the appellants by the trial court in the terms ably set out by Ekanem, JCA.
Appearances
S.I. Ameh (SAN) (with him J.S. Okutekpa (SAN) Usman O. Sule, Esq. Oludapo Ufaruna (Mrs.) Hakoha Bassey (Mrs.) M.A. Mairamri, Esq. Ifeoluwa Ogunkami (Miss) E.O. Ifedayo (Mrs) E.P. Ochimana (Miss) Z. Akubo – Esq. and R.O. Mohammed, Esq.For Appellant
AND
Dr. C. Amobi (with him, J.E. Aduma Esq.For Respondent
