EZE MOSES ONYEBUCHI V. FEDERAL REPUBLIC OF NIGERIA & ORS.
(2007)LCN/2566(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2007
CA/L/358/07
RATIO
CRIMINAL LAW AND PROCEDURE – BAIL: MEANING AND PRINCIPLES OF BAIL
“Bail is a legal issue with which the Courts are inundated with almost on a daily basis. The principles of bail are fundamental but have become trite due to the frequency with which the Courts address the matter. Bail is the process by which an accused person is temporarilyy released from state custody to sureties on conditions given to ensure his attendance in the Court whenever he is required until the determination of the case against him. Often, the prosecution is apprehensive of the grant of bail because the accused might escape to avoid trial. In the case of Caleb Ojo and Anor V Federal Republic of Nigeria (2006) 9 NWLR Pt. 984 P103 @115, Muhammad JCA (as he then was), explained the bail process as follows: – “Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though they may free themselves from further responsibility if they surrender him to the Court before the date assigned.” PER MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
CRIMINAL LAW AND PROCEDURE – BAIL APPLICATION : WHETHER THE ILL HEALTH OF AN ACCUSED CAN BE A SUFFICIENT REASON FOR THE GRANT OF BAIL
“Ill-health of an accused person for instance, have been held not to be a sufficient reason for the grant of bail. However, where an accused person’s ill-health is such that he requires some special medical equipment for a regular and peculiar procedure, the Court may grant bail in the circumstance. Where however, an accused is seriously ill from an ailment by which the ingestion or swallowing of prescribed drugs will provide relief, such treatment can be taken anywhere. Thus, although the ill-health of an applicant for bail may constitute a special circumstance for the grant of bail, a mere allegation of ill-health will not be sufficient justification for admitting a person to bail (Refer:- Fawehinmi V State (1990) 1 NWLR Pt 127 P486).” PER MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
CRIMINAL LAW AND PROCEDURE – BAIL APPLICATION : CRITERIA AND FACTORS TO BE CONSIDERED BY THE COURT IN AN APPLICATION FOR BAIL
“The main function of bail is to ensure the presence of the accused at the trial. So if there is any reason to believe that the accused is likely to jump bail or to interfere or influence his trial bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application -See R. V. JAMUNOL 16 NLR 54; STATE V. OKAFOR (1964) ENLR 96; R V. ROSE (1898) 18 COX CC 717; and DOKUBO ASARI V. (2007) ALL FWLR (pt. 375) 557 at 589. This critaria has been described by the Supreme Court in the last of the above-cited cases as the omnibus criteria and therefore the most important one to be considered by the Court in excrcise of its discretion, on bail application, It is based on the belief that the- incentive to jump bail arises from the gravity and seriousness of the offence depending on whether it is a felony, a misdemeanour or even a capital offence. Thus an accused person charged with multiple Counts of offences carrying or attracting statutory penalties of many years of imprisonment without option of fine as well as forfeiture of assets under a special legislation as in the present case will most likely attempt to jump bail if granted by the Court. The other factors or criteria to be considered by the Court in an application for bail are as follows:- (a) the nature and gravity of the offence; (b) the character of the evidence (c) the severity of the punishment; (d) the criminal record or antecedents of the accused person; (e) the likelihood of the repetition of the offence by the accused person while on bail. (f) likelihood of further charge being brought against the accused person; (g) probability of guilt of the accused person; (h) evidence that if the accused person is granted bail the prosecution witnesses will be in deferred with or prevented from appearing to testify; and (i) detention for the protection of the accused person, The above factors are not exhaustive and need not co-exist and the Court can rely on one or more of them in the exercise of its discretion judiciously or judicially to grant or refuse an application for bail -See ABACHA V. STATE (2002) 5 NWLR (pt. 761) 638; OBASEKI V. POLICE (1959) NMLR 149; DAN BABA V. POLICE (1958) NMLR 3; BAMAYI V. STATE (2001) 2 NWLR (pt.698) 435; and ALATA V. STATE (2007) 16 NWLR (Pt. 1061) 483 at 517 -518.” PER DALHATU ADAMU J.C.A.
CRIMINAL LAW AND PROCEDURE – BAIL : WHETHER AN ACCUSED CAN INVOKE THE PRESUMPTION OF INNOCENCE AND RIGHT TO PERSONAL LIBERTY AND THEREFORE ENTITLED TO BAIL WHERE THERE IS PRIMA -FACIE EVIDENCE AGAINST HIM
“On the submission that the appellant is entitled to be presumed innocent until proved guilty and is therefore entitled to be granted bail by virtue of the provisions of sections 35 (4) and 36 (5) of the 1999 constitution of the FEDERAL REPUBLIC OF NIGERIA the submission merely postulates that the onus of showing that he is not entitled to bail is on the prosecution. In other words, the presumption of innocence and the right to personal liberty enshrined in those provisions can only be invoked by an accused person who is standing trial if and where there is no prima-facie evidence against him. It would therefore be unwise to allow an accused person to be released on bail when there is a prima facie evidence against him for the offence for which he is charged simply because of the presumption of his innocence or personal liberty -See EYU V. STATE (1988) 2 NWLR (pt.78) 602; ABIOLA V. FRN (1995) 7 NWLR (pt.445) 155. PER DALHATU ADAMU J.C.A.
JUSTICES
DALHATU ADAMU (OFR) Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
JP+ Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
Between
EZE MOSES ONYEBUCHI Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA
IN RE MOHAMMED & 3 ORS Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. JP+(Delivering the Leading Judgment): In a Ruling pronounced on the 25th day of April, 2007, the Hon. Justice O.K. Oyewole of the Lagos State High Court refused the Appellant’s application for bail pending trial.
The Appellant is distressed and has appealed against the said Ruling upon three grounds of Appeal. The Respondent is opposed to the grant of bail to the Appellant.
The brief facts of the case which led to this appeal are that: – the Appellant was arraigned along with three others before the Lagos State High Court Coram O.K. Oyewole (J) on a sixteen count charge of conspiracy, obtaining money by false pretence, forgery and uttering. The offences if proved are punishable with up to 10 years imprisonment provided in Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act NO.13 of 1995 as amended by Act NO.52 of 1999. Forfeiture of assets and 3 years imprisonment for each of the offence of forgery and uttering are also probable punishment upon conviction.
The parties each adopted their respective briefs of argument at the hearing of the appeal.
In an amended Appellant’s brief, the learned Counsel for the Appellant formulated five issues for determination. It is instructive to state that no relief was stated in the grounds of appeal. However, it is apparent from the grounds and the particulars that the subject matter is bail and since the liberty of a Citizen is involved, we shall not dwell on the omission.
The Appellant’s issues are:
1. Whether the learned trial Judge exercised its discretionary power judicially and judiciously for not granting the Appellant Bail.
2. Whether the offence the Appellant is been charged for is not bailable offence.
3. Whether the trial Judge properly considered the ill health of the Appellant.
4. Whether the constitutional rights of the Appellant wherein he is being presumed to be innocent until proved guilty not existing in this case.
5. Whether the trial of the Appellant would not take considerable period and/or indefinite time to be disposed off.
The Respondent also formulated three issues for determination which are:
1. Whether the lower Court did not judicially and judiciously consider the Appellant’s application for bail in the light of the various affidavit evidence before it.
2. Whether the learned trial Judge considered the ill health of the Appellant and the constitutional presumption of innocent guaranteed under the 1999 Constitution.
3. Whether the trial of the case will not take considerable time to be disposed off.
In my humble opinion, this appeal can be effectively determined upon issue one as formulated by the Appellant. All the other issues including those of the Respondent can be considered as constituting the peculiar facts of the appeal.
The proliferation of the trite issue of bail in this appeal is uncalled for as borne out by the brief of the Appellant. All the five issues are argued in three pages!
Thus, the crucial question in this appeal is whether the learned trial Judge exercised his discretionary power judicially and judiciously in refusing bail to the Appellant.
It is the submission of the learned Counsel to the Appellant that bail is a basic right although the grant is at the discretion of the Court. Citing the case of University of Lagos V Aigoro (1985) 1 NWLR Pt.1 P143 as stating the condition for bail where the Court held that to exercise its discretion properly in favour of an Applicant, the said Applicant must place before it sufficient material to enable it to do so. In compliance with the said condition, the following facts were placed before the trial Court:-
“i. The Respondent granted bail to the Appellant in the year 2005, the Appellant was reporting to the Respondent uptill 27th day of January, 2007, even when he (Applicant) was informed that the Respondent (EFCC) intends arraigning him (the Appellant) in Court, he did not abscond;
That the Respondent in their counter affidavit and argument in the Lower Court did not contradict nor controvert this averment in the Affidavit in Support of Motion for Bail. Refer to page 204 of the Records of Appeal. It is trite law that uncontroverted and/or uncontradicted averments in an affidavit are deemed admitted see the case of Adesina Vs Commissioner (1996) 4 SCNJ 112 at 113, submits Counsel.
ii. The Appellant is seriously sick and medical reports were placed before the trial Court.
iii. Further we averred that the Appellant had sufficient surety(s) as the case may be. Even his Counsel C.J. Jiakponna Esq. is willing to stand as a surety, being that the Appellant is his Cousin. Refer My Lordship to pages 190 – 220 of the Records of Appeal.”
Having placed all the above material facts before the Court, the trial Judge still refused to exercise his discretionary power in favour of the Appellant. Counsel therefore urges this Court to set aside the refusal, and grant bail to the Appellant in the interest of justice.
By the provisions of Section 35(5) of the 1999 Constitution, the Appellant is charged with offences which are all bailable argues the Counsel. The learned Counsel also cites Section 35(1) and (4) of the Constitution and the case of Egu V State (1988) 2 NWLR Pt. 79 Pg. 106 @ 110 in support of his submission.
The Appellant, as an accused person is presumed innocent until the contrary is proved as provided in Section 36(5) of the Constitution and as held in the case of Dogo V Cop (1980) 1 NLR P14 @ 19. Constitutionally, contends the learned Counsel, it appears the spirit behind the provisions of 36(5) of the Constitution is to keep the accused person out of incarceration until found guilty. This privilege, submits Counsel allows those wrongly accused to escape punishment which the period of imprisonment would inflict upon them while awaiting trial. It also guarantees them easy access to their Counsel and witnesses and ensures unhampered opportunity for the preparation of the defence. The learned Counsel contends that if the right to freedom before conviction is not preserved, the presumption of innocence guaranteed to every accused person will loose its meaning and force.
The learned Counsel is also of the opinion that the accelerated hearing envisaged by the trial Court is already in abeyance and is unrealistic for the reason that the proof of evidence state a total number of seven witnesses who may not be easily available to testify. This facts maintains the learned Counsel will further delay the hearing of the case and its early conclusion.
The learned trial Judge, decried the learned Counsel refused bail inspite of all these circumstances.
The learned Counsel is particularly irked at the cavalier manner in which the learned trial Judge dismissed the issue of the health of the accused person. The learned Counsel cites the case of Ogbehense V Cop (2001) 5 NWLR P. 706 @ 215 which held that a medical report is infact not a prerequisite for the grant of bail on the grounds of ill-health, The learned trial Judge should have granted the said the learned Counsel.
In opposing the grant of bail to the Appellant, the learned Counsel to the Respondent submits that the offence in respect of which the Appellant is standing trial borders on Advance Fee Fraud and Other Fraud Related Offences Act NO.13 of 1995 as amended by Act NO.62 of 1999 and Sections 467(3) (c) and 468 of the Criminal Code Cap C.17, Vol.2 Laws of Lagos State of Nigeria, 2003.
The Advance Fee Fraud and Other Fraud Related Offences Act, submits Counsel is a special legislation enacted by the National Assembly to check the prevalence of this alleged offence of obtaining by false pretence otherwise known as Advance Fee Fraud which has desecrated our social norms and value.
The learned Counsel argues that the Appellant has not produced sufficient material facts to move the Court to exercise its discretion in his favour (Refers Abiola Vs Federal Republic of Nigeria (1999) 1 NWLR Pt. 370 P. 155 @ 179. It is further the contention of the learned Counsel that the Appellant jumped bail initially granted him by the EFCC … which led to painstaking efforts to re-arrest him. This fact further necessitated an amendment of the processes at the trial Court to include the name of the Appellant among the accused who had already been arraigned thereby slowing down the prosecution.
On the ill-health of the Appellant, the learned Counsel submits that: –
Bail is a legal issue with which the Courts are inundated with almost on a daily basis. The principles of bail are fundamental but have become trite due to the frequency with which the Courts address the matter.
Bail is the process by which an accused person is temporarilyy released from state custody to sureties on conditions given to ensure his attendance in the Court whenever he is required until the determination of the case against him. Often, the prosecution is apprehensive of the grant of bail because the accused might escape to avoid trial.
In the case of Caleb Ojo and Anor V Federal Republic of Nigeria (2006) 9 NWLR Pt. 984 P103 @115, Muhammad JCA (as he then was), explained the bail process as follows: –
“Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though they may free themselves from further responsibility if they surrender him to the Court before the date assigned.” Ordinarily, a person charged with a felony other than one punishable with death may be granted bail if the Court deems it fit so to do. Section 118(2) of the CPA confers this discretionary power on the Court which power must be exercised judicially and judiciously. The Court must be guided by some principles. Judicial decisions have identified some factors as necessary in the exercise of this power.
(Refer Dantata Vs IGP (1957) NRNLR 3)
These criteria are however not exhaustive and may not be pertinent in all applications for bail (See Per Salami JCA in Orji and Ors Vs Federal Republic of Nigeria (2007) 13 NWLR Pt. 1050 P.55@ 87-88).
Being a discretionary power, the decision of a Court to grant or refuse bail does not constitute an issue estoppel because a Court cannot be bound by a previous decision to exercise its discretionary power in a static way. (Refer Federal Republic of Nigeria Vs Sulama (2005) 16 NWLR Pt 951 P. 219 @…
The reason for the volatility in the exercise of discretion generally lies in the fact that there must exist special features in each case which are not necessarily the same nor do the circumstances present the same compelling situations. A few examples could explain. Ill-health of an accused person for instance, have been held not to be a sufficient reason for the grant of bail. However, where an accused person’s ill-health is such that he requires some special medical equipment for a regular and peculiar procedure, the Court may grant bail in the circumstance. Where however, an accused is seriously ill from an ailment by which the ingestion or swallowing of prescribed drugs will provide relief, such treatment can be taken anywhere. Thus, although the ill-health of an applicant for bail may constitute a special circumstance for the grant of bail, a mere allegation of ill-health will not be sufficient justification for admitting a person to bail (Refer:- Fawehinmi V State (1990) 1 NWLR Pt 127 P486). In considering the grant of bail a Court can be guided by some, all or more of the following conditions:-
1. The nature of the charges.
2. The severity of the punishment.
3. The character of the evidence.
4. Availability of the accused to stand trial.
5. The likelihood of the accused committing another offence while on bail.
6. The likelihood of the accused interfering with, the course of justice; and
7. The criminal antecedent of the accused person.
In the case of Orji V Federal Republic of Nigeria (supra) by the medical report which is reproduced anon, this Court held that there was no compelling reason to grant bail on grounds of ill-health:
“Medical Report: –
This is to certify that Chief Theodore Ahamefula Orji has been receiving medical treatment under me. I last saw him on the 15th February, 2007. He was then suffering from moderate hypertension, mild diabetes and obstructive aropathy due to an enlarged prostrate gland.
After clinical evaluation and laboratory investigations, he was placed conservatively on medical treatment and asked to report after four weeks on 14 March, 2007 for a definitive decision on the lines of further treatment, including surgical intervention. He has not, even up to this date, kept this crucial appointment.
He is now overdue for review and treatment assessment and options in order to avoid any complicating kidney damages.”
In the instant appeal the medical report in respective of the Appellant was in these terms: –
“…Patient is a known diabetes metitus, physical examination revealed an ill-looking middle aged man, warm to touch with a tinge of jaundice. An impression of Phyrexis of unknown origin? Hepatitis was made. Patient was placed on infusions, hematinics and is to continue on the prescribed antibiotics.
In view of his health condition, he is to be on bed rest”
Signed Dr. Chiwike S.M. (Principal Medical Officer. Abia State University Teaching Hospital Aba)
No follow up treatment was recommended other than bed rest. It has not been established that the Appellant is being denied the bed-rest recommended. This medical report does not constitute a special circumstance for the grant of bail.
I agree entirely with the analysis of the provisions of the Constitution as ably made by the learned Counsel for the Appellant as reproduced (supra).
Where a man places himself in a suspicious position which exposes his actions to legal scrutiny, he mortgages his constitutional rights temporarily until the prosecution is unable to satisfy the Court of his guilt or otherwise.
Ordinarily, every man is presumed innocent and free until some set of facts which appear to directly implicate him are identified. In the instant appeal, the Appellant is being tried for numerous offences contrary to the provisions of the EFCC Act. Statements of witnesses and that of the Appellant have been taken. Trial has commenced and the learned trial Judge has made a commitment to an accelerated hearing.
As earlier noted (supra), the nature of an offence for which an accused person is standing trial is a crucial factor in the consideration of an application for bail. The Appellant is standing trial for multiple counts of offences punishable with not less than ten years imprisonment. This fact in itself is a good ground and has been so held, to induce an accused person to jump bail in order to avoid trial.
No length of time is too short nor too long for a citizen to regain and enjoy his liberty. However, where the larger interest of the society is involved, the ordeal of the Appellant could be shortened by an accelerated hearing rather than the grant of bail.
The learned Prosecuting Counsel had imputed in his brief that it is the Appellant who will cause delay in the quick disposal of his case, having already displayed a tendency to jump bail.
It is a bad situation in that the liberty of citizens is involved. However, the Appellant is standing trial along with other accused persons, though each stands before the Court clothed with his individual rights to the exclusion of all others. Nonetheless, their collective arraignment requires a joint trial and the absence of one will affect the progress of the case. In the circumstances a supervised presence of the Appellant presents a more probable end to the trial of the Appellant and the other accused persons.
The learned trial Judge who has seen the Appellant decline to grant bail.
No special and compelling circumstances has been presented to this Court to warrant a reversal of the decision of the learned trial Judge.
Accordingly, this appeal is without merit and is hereby dismissed. The commitment to an accelerated hearing made by the trial Court is hereby commended and the Prosecution is accordingly directed to accentuate the realization of the said commitment.
DALHATU ADAMU, J.C.A: I have had the privilege and advantage of reading the draft of the lead judgment of my learned brother DONGBAN-MENSEM, JCA (JP+), just delivered, I agree with the reasons given and the conclusion reached that the appeal lacks merit and should be dismissed, Consequently the ruling of the trial Court refusing bail to the appellant should be upheld, The main function of bail is to ensure the presence of the accused at the trial. So if there is any reason to believe that the accused is likely to jump bail or to interfere or influence his trial bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application -See R. V. JAMUNOL 16 NLR 54; STATE V. OKAFOR (1964) ENLR 96; R V. ROSE (1898) 18 COX CC 717; and DOKUBO ASARI V. (2007) ALL FWLR (pt. 375) 557 at 589. This critaria has been described by the Supreme Court in the last of the above-cited cases as the omnibus criteria and therefore the most important one to be considered by the Court in excrcise of its discretion, on bail application, It is based on the belief that the- incentive to jump bail arises from the gravity and seriousness of the offence depending on whether it is a felony, a misdemeanour or even a capital offence. Thus an accused person charged with multiple Counts of offences carrying or attracting statutory penalties of many years of imprisonment without option of fine as well as forfeiture of assets under a special legislation as in the present case will most likely attempt to jump bail if granted by the Court.
The other factors or criteria to be considered by the Court in an application for bail are as follows:-
(a) the nature and gravity of the offence;
(b) the character of the evidence
(c) the severity of the punishment;
(d) the criminal record or antecedents of the accused person;
(e) the likelihood of the repetition of the offence by the accused person while on bail.
(f) likelihood of further charge being brought against the accused person;
(g) probability of guilt of the accused person;
(h) evidence that if the accused person is granted bail the prosecution witnesses will be in deferred with or prevented from appearing to testify; and
(i) detention for the protection of the accused person, The above factors are not exhaustive and need not co-exist and the Court can rely on one or more of them in the exercise of its discretion judiciously or judicially to grant or refuse an application for bail -See ABACHA V. STATE (2002) 5 NWLR (pt. 761) 638; OBASEKI V. POLICE (1959) NMLR 149; DAN BABA V. POLICE (1958) NMLR 3; BAMAYI V. STATE (2001) 2 NWLR (pt.698) 435; and ALATA V. STATE (2007) 16 NWLR (Pt. 1061) 483 at 517 -518. In the instant case, criteria nos; (a), (b), (c), (g) and (h) applied to influence the trial court in its refusal to grant bail to the appellant.
On the submission that the appellant is entitled to be presumed innocent until proved guilty and is therefore entitled to be granted bail by virtue of the provisions of sections 35 (4) and 36 (5) of the 1999 constitution of the FEDERAL REPUBLIC OF NIGERIA the submission merely postulates that the onus of showing that he is not entitled to bail is on the prosecution. In other words, the presumption of innocence and the right to personal liberty enshrined in those provisions can only be invoked by an accused person who is standing trial if and where there is no prima-facie evidence against him. It would therefore be unwise to allow an accused person to be released on bail when there is a prima facie evidence against him for the offence for which he is charged simply because of the presumption of his innocence or personal liberty -See EYU V. STATE (1988) 2 NWLR (pt.78) 602; ABIOLA V. FRN (1995) 7 NWLR (pt.445) 155. In the present case, the proof of evidence contains series of statements by the appellant showing his romance with one MJ AUDU who is a principal suspect in the case -See pages 69 -97 of the records.
On the alleged ill health of the appellant and the medical report tendered in the present case it is now- trite that ill health of an applicant for bail is strong enough to qualify him for bail and as a special circumstance.
But mere allegation of ill-health by a person in custody will not be sufficient justification for admitting him to bail unless there are really compelling grounds showing that his continued stay in prison custody poses a possibility of a real health hazard to other inmates -See FAWEHINMI V. THE STATE (1990) 1 NWLR (pt.127) 486; ABACHA V. THE STATE (2002) 5 NWLR (pt.761) 638; and CHINEMELU V. COP. (1995) 4 NWLR (pt.390) 467; and ORJI V. FRN (2007) 13 NWLR (pt.1050) 55 at 89-90. In the present case, no such compelling ground (s) have been established or proved by the appellant who did not also show that there are no adequate facilities in the prison clinic to cater for his diabetic or jaundiced conditions.
I therefore agree with the respondent’s submission on the point, which has not been denied or controverted. The medical report tendered by the appellant does not show any compelling ground to admit him on bail.
On my above considerations and the more detailed considerations in the lead judgment, I too find the present appeal as unmeritorious and accordingly hereby dismiss it.
I abide by the consequential orders including that of accelerated hearing or trial made by the lower Court and upheld in the lead judgment.
ADZIRA GANA MSHELIA, J.C.A: I read in draft the judgment just delivered by my learned brother Dongban-Mensem, JCA with which I am completely in agreement. I have nothing useful to add but to adopt same as mine. I too would dismiss the appeal as lacking in merit and abide by the consequential order made in the lead judgment.
Appearances
C.J. JIAKENNAFor Appellant
AND
M.S. HASSAN ASST. CHIEF FEDERAL MINISTRY OF JUSTICE
G. O. ADEBOLA – PRIN. STATE COUNSELFor Respondent
