IHENETU v. FRN (2020)

IHENETU v. FRN

(2020)LCN/14019(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 24, 2020

CA/L/1557C/18

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

CHARLES IHENETU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT GRANTING OF BAIL TO A DEFENDANT STANDING TRIAL FOR A CRIMINAL OFFENCE IS AT THE DISCRETION OF THE TRIAL JUDGE

The law is settled beyond any argument that the granting of bail to a defendant standing trial for any criminal offence is at the discretion of the trial Judge, which discretion must be exercised judicially and judiciously, that is, upon facts and circumstances presented before the trial Court. The end result must always be the overall interest of justice in the matter. See Eye V. FRN (supra), Adamu Suleman & Anor. V. COP Plateau State (2008) LPELR-3126 (SC), Abacha V. State (2002) LPELR- 15 (SC) among others. The parties in this appeal are in agreement on this long established settled principle of law. Nevertheless, the appellate Court can interfere with the exercise of discretion of a trial Court where it is shown that exercise of the discretion was wrongful and/or that it is in the interest of justice to interfere. PER ALIYU, J.C.A.

FACTORS TO BE CONSIDERED BY A TRIAL COURT IN DECIDING WHETHER OR NOT TO GRANT BAIL

Factors to be considered by a trial Court in deciding whether or not to grant bail have been stated in several decisions of the Apex Court and this Court. It however needs to be reiterated that the discretion to grant bail is that of the trial Court and not the appellate Court, as such the appellate Court can only offer broad guidelines knowing that the exercise of discretion always depends on the facts of each case.
For instances in the case of Suleman V. C. O. P. Plateau State (supra), the Apex Court, per Akintan, JSC held as follows:
“The criteria to be followed in taking a decision in cases of this nature as laid down by this Court 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 accused, if any; (v) the probability that the accused may not surrender himself for trial; (vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; and (viii) the necessity to procure medical or social report pending final disposal of the case…”
The factors stated by the Supreme Court supra are not exhaustive and they do not derogate the principle of law that each case is determined according to its facts and circumstances. What is the paramount consideration is that where bail is refused by a trial Court, it must be well supported and justified by the facts and evidence placed before the Court. See Umar V. State (2017) LPELR-43144 (CA), Tijani V. FRN (2018) LPELR-45844 (CA) and Abacha V. State (supra). PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the ruling of the High Court of Lagos State, holden at Ikeja (trial Court) delivered on the 26th October 2018 in respect of the application of the Appellant who was standing trial before it on Information No: ID/3715C/16. The application was by way of Summons filed on the 20th August 2018, whereby the Appellant as the 1st defendant prayed the trial Court to grant him bail pending the determination of the criminal information filed by the Economic and Financial Crimes Commission (EFCC) (prosecution) for and on behalf of the Respondent against him and one other.

The Appellant and the 2nd defendant were alleged to have committed the offences of conspiracy to obtain money under false pretences and obtaining money; the sums of N19 million and N7 million respectively from Mr. Osaduwa Amechi under false pretence that the two sums of money represented his investment on crude oil on board a vessel named Kaveri Spirit bound for Ghana from Nigeria, which pretence he knew was false. The offences are contrary to Sections 8(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006.

See pages 9 to 10 of the record of appeal.

Trial on the information commenced and the prosecution already called one witness before the Appellant filed the summons for his bail. The Respondent opposed the application through her counter affidavit. The trial Court in its ruling relied on seven (7) reasons for refusing the application upon which it held that:
“All these factors have weighed heavily on the mind of the Court that the 1st defendant once released on bail will not be available for trial which may then signal the death of the case mid-trial…. The application therefore failed for lacking in merit and is hereby dismissed.”

The Appellant was aggrieved by the ruling of the trial Court dismissing his application and appealed to this Court through his notice of appeal filed on the 5th November 2018, relying on four (4) grounds of appeal. The record of appeal was transmitted on the 21st December 2018 after which the Appellant filed his brief of argument settled by S. R. Aliyu Esq., on the 31st December 2018, spanning 11 pages. At page 1 to two of the said brief, the learned counsel

proposed the following three issues for the determination of this appeal:
i. Whether the learned trial Judge was right in law when in dismissing the Appellant’s application for bail, he failed or refused to consider the affidavit evidence presented by parties before arriving at the decision dismissing the Appellant’s summons for bail even though the Appellant has satisfied the conditions for the exercise of the Court’s discretion in his favour. (Grounds 1 and 3).
ii. Whether the learned trial Judge was right in law, when he refused to admit the Appellant to bail even though the Appellant, through his affidavit presented overwhelming and uncontroverted evidence of ill-health. (Ground 2).
iii. Whether the learned Judge of the lower Court was right when he refused to admit the Appellant to bail as a punishment. (Ground 4).

The Respondent’s brief of argument settled by A. B. C. Ozioko Esq. was filed on the 10th October 2019, out of time but it was deemed properly filed and served by the order of this Court made on the 12th March 2020. The said brief spanned 12 pages and at page 3 paragraph 3.1 thereof, the learned

counsel proposed a single issue for determination thus:
Whether the lower Court did not rightly exercise its discretion in dismissing the bail application of the Appellant having regards to the facts of the case. (Distilled from grounds 1, 2, 3 and 4 of the Notice of Appeal).

The Appellant’s Reply brief was filed on the 15th October 2019 and consequent to the deeming of the Respondent’s brief as properly filed on the 12th March 2020, the Appellant’s reply brief was also deemed properly filed and served on the same date.

The appeal came up for hearing on the 12th March 2020, and learned counsel adopted and relied on their respective briefs of argument. The Appellant’s learned counsel urged the Court to allow the appeal and to set aside the ruling of the trial Court, the Respondent’s learned counsel contrariwise urged the Court to dismiss the appeal and affirm the ruling of the lower Court.

Upon giving ample consideration to the four (4) grounds of appeal, the vexed ruling of the lower Court and the parties’ respective briefs of argument, it is observed that the sole issue raised by the Respondent is same

as the Appellant’s issues one and two each counsel are the same and interrelated. I adopt the Appellant’s three issues for determination as my guide to the determination of this appeal. However the three issues are compressed into the following sole issue, but all the complaints raised in the three issues will be adequately addressed and determined:
Whether the learned trial Judge properly exercised his discretion in refusing the bail application of the Appellant.

APPELLANT’S SUBMISSIONS
The learned Appellant’s counsel in arguing the appeal conceded that granting bail to a defendant is at the discretion of the Court, but that the Court must exercise its discretion judicially and judiciously and it is duty bound to consider the affidavit evidence presented before arriving at its decision, otherwise, the discretion will not be said to be exercised judiciously and judicially.

He submitted that in this case, the learned trial Judge failed to consider the affidavits of the parties before him, rather, he dwelt heavily on other extraneous matters not relevant to the application before him. That none of the seven reasons

given by the learned trial Judge for refusing the bail application was hinged on any of the facts deposed in the affidavits for and against the application. One of such extraneous matters dwelt on by the learned trial Judge was the “the pressure mounted by the defense side on the Court through a staff of the Lagos State High Court, who by virtue of his office has access to the Court.” See page 147 of the record of appeal. It was submitted that the stated reason was not related to or founded on any of the affidavits before the learned trial Judge and it amounted to His Lordship giving unsubstantiated evidence which is not tenable in law. That the failure of the trial Court to consider and evaluate the affidavits evidence has resulted in injustice against the Appellant and this Court should interfere and set aside the ruling and grant him bail. He relied on the decisions in the cases of Chinemelu V. C.O.P. (1995) 4 NWLR (pt. 390) 467, Eye V. FRN (2018) 23 WRN 1 at 17, Chedi V. A. G. Federation (2006) 13 NWLR (pt. 997) 308 at 325, Shagari V. C.O.P. (2007) 5 NWLR (pt. 1027) 272, Ani V. State (2002) 5 SC (pt. I) 33 and Abacha V. State (2002) 7 SC (pt.

I) 1, in support his submissions.It was contended for the Appellant that ill health is a weighty and compelling factor among others, that the trial Court should have considered in the determination of the bail application and that the learned trial Judge was wrong when he refused to admit the Appellant to bail even though the Appellant has presented uncontroverted affidavit evidence of ill health. It was also submitted, on the authority ofDogo V. COP (1980) NCR 14 that bail should never be refused as punishment. That the holding of the learned trial Judge that the Appellant’s counsel “stoutly refused to cross-examine PW1 who is in the witness box” and accusing him of delaying the trial as one of the grounds for refusing the application amounted to denying the Appellant bail as a punishment. It was posited that causing delay in a criminal trial is not one of the factors to be considered in an application for bail. Conclusively, the Court was urged upon to set aside the ruling of the trial Court and to grant bail to the Appellant.
RESPONDENT’S SUBMISSIONS
The Respondent’s learned counsel, A. B. C. Ozioko Esq. drew

the Court’s attention to the background facts of this case to wit; that the Respondent had earlier, on the 1st December 2016, filed an information before the trial Court against one Nonso Anigbogu and others including the Appellant, on the allegations of offences of conspiracy to obtain money under false pretence and three counts of obtaining money under false pretence contrary to the Advance Fee Fraud Act, 2006. However the suspects were all at large until later when Nonso Anigbogu was arrested and charged to the trial Court. He was subsequently granted bail, which he jumped, thereby stalling the trial. It was later alleged that Nonso Aniagbogu had died while the Appellant and the others remained at large. Eventually, was arrested and charged to Court on an amended Information filed on the 9th October 2017, while his alleged co-conspirators remain at large.

Upon these background facts, he submitted that the law is trite as stated in Section 115 (2) of the Administration of Criminal Justice Law, 2011 that bail is at the discretion of the trial Court, and on the authority of Dokubo-Asari V. FRN (2007) 12 NWLR (pt. 1048) 320 at 350, in the exercise

of such discretion, no one case can be an authority over another even where the two cases are exactly similar. It was contended that contrary to the argument of the Appellant’s learned counsel, the learned trial Judge did consider all the processes for and against the application before arriving at his decision to refuse the application, as born out at page 144 of the record of appeal. That indeed contrary to the position of the Appellant, the lower Court was not bound to consider only the affidavit evidence but to also evaluate same.

With regards to the complaint of the Appellant that the learned trial Judge considered extraneous matters by alluding to the pressure mounted on him by a staff of the Lagos State Judiciary, he referred to and relied on Section 122(2)(j) & (m) of the Evidence Act and the decision in the case of Nwora V. Nwabueze (2011) 17 NWLR (pt. 1227) 699 to submit that the trial Court is empowered to take judicial notice of the course of proceedings and the officers of the Court involved in the execution of its processes.

It was argued that the case of Eye V. F.R.N. (supra) heavily relied upon by the Appellant is

distinguishable with the present case because in that case trial was yet to commence when the application was filed, while in this case trial has already commenced. Also that the Apex Court in Eye’s case held that one of the determining factors in a bail application is whether the Applicant would avail himself for trial if granted bail. It was submitted that in this case, the Respondent through her counter affidavit had shown evidence that the Appellant was granted administrative bail by the EFCC and he jumped, which the lower Court considered in refusing the Appellant’s bail application.

With regards to the factors to be considered in determining application for bail as stated in Eye V. F.R.N (supra), the Respondent argued that those factors are by no means exhaustive, but other relevant factors may be considered, as was held by the Supreme Court inDokubo Asari V. FRN (2007) 12 NWLR (pt. 1048) 320, Bamaiyi V. State (2001) 8 NWLR (pt. 715) 270 and Ogbuawa V. FRN (2011) 12 NWLR (pt. 1260) 100. That in this case, the fear of the Appellant evading trial was a sufficient ground for the dismissal of his application by the trial Court.

In response to the Appellant’s argument that the trial Court failed to consider the averments in his affidavit regarding his ill-health to grant him bail, the Respondent’s learned counsel referred this Court to the decisions of the Apex Court in Ogbuawa V. FRN (supra) and Ofolue V. FRN (2005) 3 NWLR (pt. 913) 571 to submit that the onus was on the Appellant to prove that the nature of his illness was such that the prison has no medical facility required to treat it. It was argued that the Appellant presented a medical report that was issued one year prior to the filing of his bail application, which only showed that he was fit and healthy with no threat to his health. The Respondent therefore aligned herself to the finding of the trial Court to the effect that mere allegation of ill health by the Appellant does not automatically entitle him to bail. See Abacha V. The State (2002) 3 SCNJ 1 at 18 in support.

In response to the argument of the Appellant’s learned counsel to the effect that the trial Court refused the Appellant’s bail application as a punishment because his counsel refused to cross-examine PW1, it was submitted that this

claim is a mere sentiment for it is clear from the record that the trial Court was only apprehensive about abuse of its process and the stalling of its proceedings in refusing the application. Further argued that the Appellant cannot just pick only one of the several factors that were considered for the refusal of the bail application and ignored others. That the accusation of the Appellant against the learned trial Judge to the effect that he refused to transfer the case to the vacation Judge was unfounded because the record showed that there was no application from the Appellant or a ruling of the Court allowing the case to be heard during vacation. In conclusion, it was submitted that the trial Court exercised its discretion judicially and judiciously in refusing the bail application of the Appellant and this Court is urged to so hold. He referred to and relied on the cases of EFP Co. Ltd V. NDIC (2007) ALL FWLR (pt. 367) 239 and Braithwaite V. Dalhatu (2016) 13 NWLR (pt. 1528) 32 at 56 -57, where the Apex Court set out the principle of law regarding attitude of the Appellate Court to the exercise of discretion, that is, unless the exercise of the

discretion by a Court of first instance is so manifestly wrong, arbitrary, reckless or injudicious, an appellate Court would not interfere merely because faced with similar circumstances it would have reacted differently.

In the Appellant’s reply brief, the learned counsel argued that the fact that the learned trial Judge stated in his ruling that he considered all the processes before coming to the conclusion refusing the application is not conclusive proof that he actually did so. He relied on the Olowolaramo V. Umechukwu (2003) 2 NWLR (pt. 805) 129 to the effect that the trial Judge has to demonstrate how he considered the processes to arrive at the conclusion reached.

On the Respondent’s reliance on Section 122 of the Evidence Act, 2011 to argue that the learned trial judge was entitled to take judicial notice of certain things, the learned Appellant’s counsel while conceding this fact submitted that in this case the Appellant’s complaint is that the lower Court relied on facts outside the affidavits of the parties in considering the application for bail. See paragraphs 2, 3, 4, 5, 6 and 7 in the ruling of the trial

Court, which according to the Appellant, contradicted the record and are extraneous matters. As such, Section 122 of the Evidence Act is not applicable to this case.

In response to the Respondent’s contention that the trial Judge was duty bound to consider the evidence of PW1 already before it in determining the bail application, the Appellant’s learned counsel submitted that the trial Court lacks the power to consider the evidence already admitted because doing so will contradict the principle of presumption of innocence of an accused person as enshrined in Section 35 of the Constitution of Nigeria 1999 as amended. That it will amount to delving into the substance of the matter at an interlocutory stage. See Eye V. FRN (supra) where the Apex Court specifically forbids trial Court from relying on the proof of evidence instead of the affidavits evidence in determining bail applications of the defendants.

On the allegation of the Respondent to the effect that the Appellant jumped administrative bail, it was argued that denied in his further affidavit contained at page 126 to 129 of the record, which Appellant insisted that the learned trial

Judge failed to consider. That since the trial Court failed to consider the affidavits of the Appellant, there was no basis for any fear of him escaping and evading his trial to warrant the dismissal of his application. He further contended that the case of Ogbuawa V. FRN (supra) relied upon by the Respondent’s learned counsel is not applicable to this case because in that case, the trial Court did comment on the affidavit evidence before it which he insisted is not the case in this appeal.

In reply to the argument of the Respondent to the effect that the fact that the Appellant alleged ill health does not automatically mean that he would be granted bail, it was argued that in this case, the trial Court did not consider the facts contained in his affidavits wherein he deposed that the prison authority could not handle his illness. That the failure to consider these averments that were not denied by the Respondent, renders the trial Court’s ruling perverse and liable to be set aside. He relied on Olowolaramo V. Umechukwu (supra) in urging the Court to so hold and to discountenance the submissions of the Respondent’s learned counsel.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESOLUTION
The law is settled beyond any argument that the granting of bail to a defendant standing trial for any criminal offence is at the discretion of the trial Judge, which discretion must be exercised judicially and judiciously, that is, upon facts and circumstances presented before the trial Court. The end result must always be the overall interest of justice in the matter. See Eye V. FRN (supra), Adamu Suleman & Anor. V. COP Plateau State (2008) LPELR-3126 (SC), Abacha V. State (2002) LPELR- 15 (SC) among others. The parties in this appeal are in agreement on this long established settled principle of law. Nevertheless, the appellate Court can interfere with the exercise of discretion of a trial Court where it is shown that exercise of the discretion was wrongful and/or that it is in the interest of justice to interfere.

broad guidelines knowing that the exercise of discretion always depends on the facts of each case.
For instances in the case of Suleman V. C. O. P. Plateau State (supra), the Apex Court, per Akintan, JSC held as follows:
“The criteria to be followed in taking a decision in cases of this nature as laid down by this Court 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 accused, if any; (v) the probability that the accused may not surrender himself for trial; (vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; and (viii) the necessity to procure medical or social report pending final disposal of the case…”
The factors stated by the Supreme Court supra are not exhaustive and they do not derogate the principle of law that each case is determined according to its facts and circumstances. What is the paramount consideration is that where bail is

refused by a trial Court, it must be well supported and justified by the facts and evidence placed before the Court. See Umar V. State (2017) LPELR-43144 (CA), Tijani V. FRN (2018) LPELR-45844 (CA) and Abacha V. State (supra).

In this appeal, the Appellant is seeking the interference of this Court with the exercise of the discretion of the trial Court that refused him bail. His complaint in the main is that the facts he presented before the trial Court via his affidavits (in support and further affidavit in reply to the counter affidavit) were such that, had the trial Court considered same, it would have decided differently than it did. That, instead of considering the affidavit evidence of the parties, the learned trial Judge relied on extraneous matters like the refusal of the Appellant’s counsel to cross-examine the Respondent’s PW1, and the interference of an undisclosed officer of the Lagos State judiciary who tried to influence the trial Judge to determine the application in favour of the Appellant, as such the decision of the trial Court was perverse.

The summons for bail together with the affidavit in support are located at pages

37 to 61 of the record of appeal. In his 15 paragraphed affidavit in support of his summons for bail, the Appellant stated inter alia that he was arraigned on a charge alleging the offences of conspiracy to obtain money under false pretence and obtaining money by false pretence before the trial Court on the 16th May 2018 and remanded in prison custody pending his trial. That he is now critically ill and there is no medical facility in the Ikoyi prison where he is detained to care for his peculiar illness. He traced the genesis of his ill health to a surgery performed on him at Enugu in February 2017, prior to his arrest and arraignment. He also stated that he had been rushed to the military hospital at Ikoyi for treatment in same February 2017 and March 2017, both dates were also prior to his arrest and arraignment. He averred that after his arrest, the Respondent’s officers granted him administrative bail, and he had been reporting to them periodically in the course of investigation of the case, “except when he sought for permission from the officers to travel to Enugu for medical attention.” He promised not to jump bail and will always be

available for trial. That he has no criminal record and the transaction leading to the criminal charge was a purely contractual disagreement between him and the nominal complainant and there is a pending civil suit for breach of contract before another Judge of the High Court of Lagos State.

In opposing the bail application, the Respondent filed a counter affidavit of 23 paragraphs contained at pages 111 to 115 of the record of appeal. It was deposed to by the investigation officer in the office of the EFCC, the prosecution of this case. The deponent stated that, it was in the course of investigating the petition of one Amechi Osadua against one Nonso Anigbogu for fraudulently obtaining the sum of N26million that it was discovered that the said Nonso had a syndicate of fraudstars including the appellant, who conspired to defraud the petitioner of the said sums of money. It was alleged that the Appellant received at least N10million into his personal bank account on more than one occasion from the proceeds of the alleged fraud. That Initially, Nonso was arrested but released on bail, which he jumped and his surety later reported to Court that he had died

somewhere in the eastern part of Nigeria. That meanwhile, the Appellant was in hiding, only resurfacing when he assumed that the case had died along with Nonso Aniagbogu and he was arrested with the help of his bank. He was still granted administrative bail by EFCC, which he jumped and never reported back to the EFCC. He was re-arrested again and arraigned before the trial Court. That contrary to the claim of the Appellant that he sought permission to go for medical attention, he actually jumped administrative bail granted him by the EFCC. This is in addition to his being in hiding and avoiding arrest for a year. On the claim of the Appellant that the relationship between him and the petitioner was purely contractual, the Respondent averred that the petitioner denied signing any contract document, and the document attached by the Appellant to his affidavit was forged.

On the claim of ill health by the Appellant and the medical documents he attached from the Nigerian Navy Reference Hospital, the Respondent averred that the said hospital is similar in status to the Military Hospital, which is affiliated to the Nigerian Prison where the Appellant can be

referred to in the event that the prison hospital is unable to manage his complaint.

In his further affidavit in reply to the counter affidavit of the Respondent contained at pages 126 to 129 of the record of appeal, the Appellant denied being in hiding and only resurfacing after the death of Nonso Anigbogu, and that he was always available but the EFCC never invited him nor was any petition brought to his attention. He also denied jumping administrative bail granted to him by the EFCC, but said that he was allowed to travel to Enugu on health grounds. He concluded his further affidavit by averring that he needed to be granted bail to enable him prepare adequately for his defence including access to fund to prosecute his defence and also to have access to counsel.

The above are the summary of the facts contained in the affidavits of both parties placed before the trial Court. The main complaint of the Appellant is that none of the 7 reasons given by the learned trial Judge was hinged on any of the facts contained in the affidavits of the parties. I have examined the said 7 reasons given by the learned trial Judge. In his first reason, His Lordship

stated the history of the suit, that it was initially filed on 1/12/2016 against one Nonso Anigbogu and the Appellants among others, and it was stated in the charge that the Appellant was at large. These facts stated by the learned trial Judge are contained in paragraphs 4 to 7 of the counter affidavit of the Respondent. Specifically, in paragraph 6 of the counter affidavit, the deponent stated that the Appellant and others involved in the fraud were nowhere to be found and the EFCC was unable to secure his arrest. Moreover the suit was part of the record of the Court and it has the power to look into its record to verify and confirm the facts stated in the affidavit evidence.

The second reason given by the learned trial Judge was that when the Appellant was eventually arraigned before the Court he said he knew the 2nd defendant, being a company and pleaded not guilty on its behalf, but he later changed his mind and stated that he did know the 2nd defendant. These facts happened before the trial Court and it was in its record. It is to be noted that trial had already commenced in the case.

The third, fourth and fifth reasons given by the trial Court

for refusing the application are that the prosecution has been ready for trial on several occasions, but that the Appellant always scuttled same for one reason or another, though eventually trial commenced on the 27/9/2018. That the Appellant had 2nd change of counsel and the new counsel refused to cross-examine PW1 for the trial to make progress. These were the events that happened in the presence of the learned trial Judge in the course of the proceedings and they cannot be termed as extraneous matters. It was upon the stated facts that the Court was convinced the Appellant was only interested in obtaining bail and not the conclusion of the trial. Considering the fact that the Appellant was at large, as stated in the earlier filed charge, the learned trial Judge cannot be faulted in being skeptical and apprehensive that the Appellant may not present himself for his trial if granted bail. This fact was clearly stated in the counter affidavit of the Respondent and therefore it is not an extraneous consideration. The main consideration for the grant of bail is to ensure that the defendant present himself for his trial, and the trial Court is entitled to

consider circumstances that may show the defendant may not present himself for trial

Another complaint of the Appellant is the comment made by the learned trial Judge to the effect that someone else from the Appellant’s side has been mounting pressure on him to decide the application in his favour. This comment was what the learned Appellant’s counsel relied on in support of his ground of appeal that the trial Judge relied on extraneous matter to refuse the Appellant’s bail application. On this complaint, let me examine the exact words used by the learned trial Judge under factor number seven, (page 145 of the record), wherein the learned trial Judge held thus:
“From the foregoing, it is obvious that the defence is not interested in the prosecution of this case. This view of mine is fortified by the fact that the 1st Defendant has stated again that he is not representing the 2nd Defendant on behalf of whom he already pleaded. Another very unfortunate factor is the pressure being mounted by persons from the defence side on the Court through a staff of the Lagos State Judiciary who by virtue of his office has access to the Court.”

It is clear that the remark on the pressure put on him was in passing having already considered other circumstances from the record of the Court and the affidavit evidence of the parties. It was not the main reason why he did not exercise his discretion in favour of the Appellant as vehemently argued by his counsel. This is more clear when considered in the light of the last paragraph of the ruling at the same page 145 of the record when he finally held that:
“All these factors have weighed heavily on the mind of the Court that the 1st defendant once released on bail will not be available for his trial which may then signal the death of this case mid-trial. The Court is a Court of Justice and has a duty to prevent abuse of its process whenever such is perceived as in this case.”

I have not seen any reason in the brief of the Appellant why, sitting as an appellate Court reviewing the cold record, I should doubt the perception of the learned trial Judge drawn from his records and facts in the affidavits that were before him, and I will not. The criteria used by the learned trial Judge to reach his decision in the vexed

ruling was stated at page 144 of the record, namely, after perusing the processes, he was guided by his records and other circumstances which he regarded as factors to be considered in determining the application. Thus ab initio, the criteria upon which he will exercise his discretion in the application was determined. I find no fault in the criteria adopted by the learned trial Judge.

Finally on the complaint of the Appellant that the learned trial Judge did not consider his averments on his health issue in granting the application in his favour. I note that the Respondent in paragraphs 19 and 25 of her counter affidavit (page 111 to 114 of the record) averred that:
19. “Exhibit C-F are the purported medical documents which are yet to be thoroughly verified by the EFCC and Exhibit C particularly is a medical report purportedly procured from the Nigerian Navy Reference Hospital which is similar in status, operation and facility to the Military Hospital where the Appellant can be referred in the event that the Prisons hospital is unable to manage his complaints.
25. Following the Radiology Report, Exhibit F is supposedly a prescription of

drugs from the Military Hospital which is affiliated with the Nigerian Prison and other law enforcement agencies without any stated special recommended treatment.” (Underlining provided).

The above quoted paragraphs 19 and 25 are significant because the hospital the Appellant said he wanted to attend for his ill health and which reports he attached to his affidavit in support is said to have the same status in operation and facility with the Military Hospital affiliated to the prison where he is in custody and that he could be referred to that hospital if the prison hospital could not handle his complaint.

In paragraph xi of the reply affidavit, (page 128 of the record) the Appellant simply stated that:
“Contrary to the prosecution’s deposition in paragraphs 19 and 25 of the counter affidavit, all the exhibits attached to the summons for bail are true reflection of his state of health which has continued to deteriorate due to lack of the facility for treatment in the prisons.”

The above reply did not address the issue of similarity of his chosen hospital to the Military hospital affiliated to the prison which he can

be referred to. I think there was no proper traverse for the trial Court to consider the issue of health as significant to grant the Appellant application.

In the final analysis, as stated earlier I cannot fault the criteria employed by the learned trial Judge to rely on its record to refuse the Appellant bail. I therefore answer the lone issue in the affirmative, that is to say, that the learned trial Judge properly exercised his discretion in determining the Appellant’s application for bail. The sole issue is resolved against the Appellant. Consequently, this appeal is devoid of merit and it is dismissed by me.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in advance, the leading judgment delivered by my learned brother, BALKISU BELLO ALIYU, JCA. I agree with the reasoning and conclusion in it. I, too, visit a deserved dismissal on the appeal. I abide by the consequential orders decreed in it.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft, the leading judgment of my learned brother, BALKISU BELLO ALIYU, JCA, in which the appeal was dismissed as meritorious.

While I agree with the said

decision, let me just add a few remarks for emphasis because, my learned brother has exhaustively dealt with the core issue at the heart of the instant appeal which was whether the Appellant has presented any fact or argument that could be urged to persuade this Court to reverse the exercise of the discretionary powers of the lower Court to grant or refuse bail for Defendants standing trial on indictable felonies such as the Appellant was charged with and in which the Court’s will seldomly refuse bail.

By the provision of Section 115(2) of the Administration of Criminal Justice Law, 2015, Lagos State and Sections 162 and 163 of the Administration of Criminal Justice Act, 2015, the grant of bail has become so liberalized that the burden to show why a Defendant should not be admitted to bail is now on the Prosecution. But, not-withstanding these liberal provisions, the grant of bail is never a right or to be taken as automatic as every Court seised of a criminal charge in which the Defendant applies for bail, is entitled to apply the judicially laid down guidelines in exercising its discretion, and the most fundamental of these guidelines is the

probable prospect that the Defendant will be available to face his trial. A Defendant who jumped administrative bail accorded to him by the Respondent has compromised his case to receive the sympathetic consideration of his application for judicial bail as every Court of record exercising criminal jurisdiction, has a duty to ensure that criminal prosecution is not rendered illusory or frustrated by the disappearance of the Defendant when admitted to bail.
I have no doubt, having regard to the affidavit and Counter Affidavit depositions before the lower Court, that the Appellant poses a clear and present danger as a Defendant who will not likely return to Court to face his trial.
Secondly, whilst the Courts will always accord deep and sympathetic consideration to the issues of ill health in determination of application for bail, such issue will not automatically operate as a magic wand that will sway the mind of the Court to admit the Defendant to ball, and a Defendant who applies for bail on health grounds, needs to obtain a medical reference report from the Prison or correctional facility’s Doctors to the effect that the nature of his ailments

are such that cannot be treated by the Prison Clinic or with its facilities. Where a Defendant did not do this, it makes the grant of his application for bail on health grounds such that is suspect and may not receive positive consideration from the Court. The grant of bail no doubt is discretionary, bail is never as of right or automatic even where the new provisions in the Administration of Criminal Justice Law, supra and the Administration of Criminal Justice Act, 2015 have placed the burden on the State to show why bail should not be granted in respect of indictable felonies that are not capital offences. A Defendant with a history of evading arrest when invited by Investigative/Prosecution Agencies, or jumping administrative bail after he was arrested, may have put his application for judicial bail in grave danger.

I agree with the judgment delivered by my learned brother, BALKISU BELLO ALIYU, JCA that this appeal be dismissed. The trial of the Appellant in the lower Court shall be expedited and may be heard day by day so that he will in a short while, know his fate.
Appeal is dismissed.

Appearances: