ISHOLA v. FRN (2021)

ISHOLA v. FRN

(2021)LCN/15001(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/C/385C/2020

RATIO

JURISDICTION: FUNDAMENTAL NATURE OF JURISDICTION

Jurisdiction is the sole of adjudication and if a trial Court has no jurisdiction to entertain a matter an appellate Court cannot assume jurisdiction over its proceedings that have been conducted without jurisdiction. Thus, it is always expedient to resolve any challenge to jurisdiction first before proceeding to resolve any other issue. SeeEZOMO V. OYAKHIRE (1985) 1 NWLR (prt. 2) 195, ANAMBRA STATE V. A.G. FEDERATION (1993)6 NWLR (prt. 302) 692 and UGO-NGADI V. FEDERAL REPUBLIC OF NIGERIA (2018)8 NWLR (prt 1620) 29 at 37. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

JURISDICTION: MEANING AND NATURE OF TERRITORIAL JURISDICTION OF THE COURT

Turning back to territorial jurisdiction of the Court, it implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise is statutory and is conferred on the Court by the law, creating it. Territorial jurisdiction means the jurisdiction which a Court may exercise over person residing or carrying on business within a defined area. In the context of criminal law, territorial jurisdiction is dependant on the enabling law setting out the jurisdiction of the Court against the accused person. In order to have jurisdiction, the Court must therefore be satisfied that the offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law. In other words, the Court cannot exercise jurisdiction where the offence is outside the enabling law. See ONWUDIWE V. FEDERAL REPUBLIC OF NIGERIA (2006) LPELR 2715 (SC), BAKKAT V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 22817 (CA), DARIYE V. F.R.N. (2015) LPELR – 24398 (SC). In GOLIT V. IGP (2020) LPERL – 50636 (SC), it was held that in determining whether a trial Court had territorial jurisdiction to hear and determine the case, the issue of venue is to be determined by the trial Court which should ascertain the identity the offence(s) charged and the elements of the offence as contained in the proof of evidence with a view to ascertaining whether any of the acts constituting the offence occurred in a particular place. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
COURT: JURISDICTION OF THE FEDERAL HIGH COURT

The provision of Section 19 of the Federal High Court Act provides for the jurisdiction of the Court and it states as follows:-
“19 (1) – The Court shall have and exercise jurisdiction throughout the Federation and for that purpose the whole area of the federation shall be divided by the Chief Jugde into such number of judicial divisions or part thereof by such name as he may think fit.”
The provision of Section 45 of the Act on the other hand deals specifically with venue or place where offence may be tried. It states thus:
“45 – Subject to the power of transfer contained in this Act the place for trial of offence shall be as follows:
(a) An offence shall be tried by a Court exercising jurisdiction in the area or place where the offence was committed;
(b) When a person is accused of the commission of any offence by reason of anything which has been omitted to be done and of any consequence which ensued such offence may be tried by a Court exercising jurisdiction in the area or place in which any such thing has been done or omitted to be done or any such consequence has ensued.
(c) When an act is an offence by reason of its relation to any other act which is also to be tried by a Court exercising jurisdiction in the area or place either in which it happened or in which the offence with which it was so connected happened,
(d) When
(i) It is uncertain in which of several areas or places an offence was committed, or
(ii) An offence is committed partly in one area or place and partly in another, or
(iii) An offence is a continuing one and continues to be committed in more areas or places than one, or
(iv) An offence consists of several acts committed in different areas or places such offence may be tried by a Court exercising jurisdiction in any of such areas or places;
(e) An offence committed while offender is in the course of performing a journey or voyage may be tried by a Court in or into the area or place of whose jurisdiction the offender or person against whom or the thing in respect of which the offence was committed resides is or passed in the course of that journey or voyage.”
The above provision of the Act was somewhat replicated in Section 93 of the Administration of Criminal Justice Act 2015 and it states that:

“93(1) – An offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction:
(a) The offence was wholly or in part committed or some act forming part of the offence was done,
(b) The consequence of the offence has ensued,
(c) An offence was committed by reference to which the offence is denied, or
(d) A person against whom or property in respect of which the offence was committed is found having been transported there by the suspect or by a person knowing of the offence.
(2) A criminal charge shall be filed and tried in the division where the alleged offence, was committed unless it can be shown that it is convenient to do otherwise for security reasons.”
Interpreting the provisions of Section 19(1) and 45 of the Federal High Court Act in the case of IBORI & ANOR V. F.R.N & ORS (2008) LPELR – 8370 (CA) this Court, per AUGIE JCA (as he then was) held the view that although the jurisdiction of the Federal High Court is one and nationwide, the Court is also divided into Judicial Divisions and where a crime is committed, such crime ought to be prosecuted in the judicial division of the Federal High Court in the state where any of the elements of the crime were allegedly committed, subject to the power of transfer contained in the Act. Also in the recent case of MUHAMMAD DELE BELGORE (supra), the Supreme Court held a similar view and went further to say that where there is a lacuna in the charge as regards the place where the offence took place, the Court is to look at the proof of evidence attached to the charge in order to ascertain the precise place where the offence (s) allegedly took place. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
COURT: WHICH COURT HAS JURISDICTION AND LOCATION IN RELATION TO CYBERCRIMES

I have stated that counts 6 – 45 of the charge in question relates to cybercrimes which are computer oriented crimes involving computer and network. These types of offences are not constrained to a given location and thus its territorial or geographical limit is undeterminable. It is therefore not surprising that Section 50 (1) of the Cybercrime Act, 2015 confers jurisdiction on the Federal High Court regardless of the location where the offence is committed. The said Section 50 (1) of the Cybercrime Act, 2015 emphatically provides as follows:-
“50 (1) – The Federal High Court located in any part of Nigeria regardless of the location where the offence is committed shall have jurisdiction to try offences under this Act if committed –
(a) in Nigeria, or
(b) in a ship or aircraft registered in Nigeria or
(c) by a citizen or resident in Nigeria if the person’s conduct would also constitute an offence under a law of the country where the offence was committed, or
(d) Outside Nigeria, where –
(i) the victim of the offence is a citizen or resident of Nigeria, or
(ii) the alleged offender is in Nigeria and not extradited to any other country for prosecution.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
BAIL: RIGHT OF BAIL

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 custody of the law and to entrust him to appear at his trial at a specific time and place. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction and or on acquittal of the accused. The contractual nature of bail is that before any person is released on bail he must execute, a bond for such sum of money as determined by either the Police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. See SULEMAN & ANOR V. C.O.P PLATEAU STATE (2008) LPELR – 3126 (SC). The main function of bail is to ensure the presence of the accused at trial. Thus, if there is any reason to believe that the accused is likely to jump bail, bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application.
As rightly posited the decision whether or not to grant bail on offences that are ordinarily bailable is a matter within the judicial discretion of the Court. A judicial discretion has to be exercised judiciously and judicially and the reason for the exercise of the discretion must be given. See DARLINTON V. F.R.N (2018)11 NWLR (prt 1629)152. Similarly, the Court in the exercise of its discretion, must only act on empherical facts or materials placed before it and not on extraneous or irrelevant matters. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

SCALES OLATUNJI ISHOLA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling of the Federal High Court, sitting in Uyo delivered on 9th November, 2020 by Hon. Justice A. A. Okeke refusing to admit the appellant herein on bail pending trial. At page 662 of the record of appeal, learned trial judge found as follows –
“Applicant failed to place sufficient facts before this Court to warrant the grant of this application. The nature of the charge does not tilt the balance of convenience in favour of the application. This application is refused and same is struck out”.

Dissatisfied with the above ruling, appellant appealed to this Court through a notice of appeal filed on 12/11/2020. The said notice of appeal contains four grounds of appeal at pages 663 – 667 of the record of appeal.

At the hearing of the appeal on 12/01/2021, learned counsel for the appellant, Gboyega Oyewole, SAN adopted the appellant’s brief of argument and the appellant’s reply brief respectively filed on 24/11/2020 and 1/1/2021 but deemed properly filed on 12/1/2021 in urging this Court to allow the

appeal. Nwandu K. Ukoha, Esq. learned counsel for the respondent adopted and relied on the respondent’s brief of argument filed on 17/12/2020 but deemed as properly filed on 12/1/2021 in urging this Court to dismiss the appeal.

In the appellant’s brief of argument, learned counsel formulated the following three issues for the determination of this appeal and these are:-
1. Whether the discretionary powers of the trial judge was exercised judicially and judiciously when it refused to grant bail to the appellant without first averting its mind to the requisite factors to be considered in either granting or refusing a bail application? If no, whether the appellant enjoys the constitutional right to be presumed innocent and ought to have been granted bail for a bailable offence for which he was arraigned before the trial Court.
2. Whether failure by the trial judge to determine all issues raised by the appellant amounts to a denial of the appellant’s right to fair hearing or fair trial?
3. Whether the trial judge was right to have assumed jurisdiction over a matter allegedly committed outside the purview of its territorial

jurisdiction?

On behalf of the respondent, learned respondent’s counsel also formulated three issues for the determination of this appeal thus:-
1. Whether the trial Court was right in refusing the bail application of the appellant.
2. Whether the issue of territorial jurisdiction raised by the defence counsel in an interlocutory appeal for bail is germane same having not been raised at the trial Court.
3. Whether the predicate offence which is cybercrime in counts 1 – 6 of the charge of Money Laundering vest jurisdiction on the Federal High Court Uyo judicial division in line with Section 50 (1) of the Cybercrimes (Prohibition) Act, 2015.

I have carefully examined the record vis-à-vis the issues formulated by the respective counsel and it is my humble view that the appeal can conveniently be determined based on the first and third issues of the appellant. I shall therefore determine this appeal on the bases of the appellant’s issues one and two as paraphrased by me as follows:
1. Whether the discretionary powers of the trial Court was exercised judicially and judiciously in refusing to admit the

appellant on bail?
2. Whether the trial Court is forum non conveniens for the trial of the appellant herein in respect of the offences charged?

Arguing the first issue on behalf of the appellant, learned counsel for the appellant submitted that the discretionary power of the lower Court to grant or refuse bail must be exercised judicially and judiciously. He referred to the factors set out in Section 162 of the Administration of Criminal Justice Act 2015 (ACJA) in contending that the said factors were not considered by the trial judge and thus there was failure to exercise the discretionary powers by the trial judge in refusing to admit the appellant on bail.

Still in argument, learned counsel submitted that in considering the section of the law that encapsulate the offences charged against the appellant, it is evident that same reveals that the minimum sentences on conviction are terms exceeding 3 years and the lower Court was duty bound to grant bail to the appellant by virtue of the said Section 162 of the Administration of Criminal Justice Act. He cited and relied on the authorities in the cases of ONWUGHALU V. STATE (2008) ALL FWLR (pt 420)

764 at 770 and OGEDE V. F.R.N. (2018) LPELR – 46816.

In further argument, he submitted that under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the appellant is presumed innocent until he is proven guilty and that being the case, the trial judge ought to have been swayed in granting bail to the appellant considering the fact that the appellant is standing trial for bailable offences. He referred to UKPE V. STATE (2001) 18 WRN 84 at 105 and EYE V. F.R.N. (2018) LPELR – 43599.

Assuming without conceding the fact that the trial judge was right in refusing the appellant’s application for bail, learned counsel contends that where cogent, credible and convincing evidence in an affidavit in support of an application are left uncontroverted in a counter affidavit in opposition, such cogent evidence are deemed admitted. Counsel submitted that the respondent in the instant case neither made any attempt to dispute nor oppose the medical evidence presented by the appellant but rather, went on a speculative voyage. He referred to the averments in paragraphs 5 (f) (g) (h) (j) and (k) 8, 9, 10 and 11 of

affidavit in support of the application and paragraphs 18 – 25, 31, 37 and 39 of the respondent’s counter affidavit thereat, to the effect that the respondent was unable to prove the exceptional circumstances required under Section 162 of the Administration of Criminal Justice Act.

In response to the above, learned counsel for the respondent submitted that the appellant though standing trial on bailable offences but they involves cross border cyber crimes that needs to be treated with care. He referred to Exhibit B, medical report which the appellant heavily relied in alluding to his medical needs which the respondent contended predates the offences charged. Counsel citedOGBHEMHE V. C.O.P (2001) 5 NWLR (pt 706) 218 and CHINEMELU V. C.O.P (1995)4 NWLR (pt. 390) 467 to the effect that to be entitled to bail, the applicant must show that the detaining authority is incapable of providing the medical needs of the applicant.

Counsel submitted further that if the appellant is granted bail, he will never be present at his trial due to his antecedents before his arrest and that all his cohorts are at large. He referred to EKWENUGO V. F.R.N.

(2001) 6 NWLR (prt 708) 171.

On the second issue, learned counsel for the appellant referred to the cases of MADUKOLU V. NKEMDILIM (1962)1 ALL NLR 581 and GEN. ELEC. CO V. AKANDE (1999)1 NWLR (pt 588) 532 at 543 to contend that the issue of jurisdiction of the lower Court to continue to try this matter is so fundamental that it can be raised at any time and in any manner even for the first time on appeal and even viva voce.

Counsel submitted that since none of the criminal charge proffered against the appellant took place in Uyo, Akwa Ibom State but in Lagos, the trial Court is not the proper forum and thus, lacks the jurisdiction to try the said charge. He referred to Section 45 of the Federal High Court Act and the cases of JAMES ONANAFE IBORI & ANOR V. FEDERAL REPUBLIC OF NIGERIA & ORS (2008) LPELR – 8370, JOSEPH MORAH V. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 44054 to the effect that the territorial jurisdiction of the Court to prosecute a criminal matter is rooted in the place of the commission of the offence and a Court where the alleged commission of the offence did not take place cannot be supplanted with jurisdiction

to prosecute the criminal matter by the cleverness of the matter the charge sheet was brought by the prosecution.

Counsel also cited Section 19 of the Federal High Court Act and the case of MUHAMMAD DELE BELGORE V. FEDERAL REPUBLIC OF NIGERIA & ANOR (2020) SCNLR (1/2 4) 22 at pages 37 – 38 in submitting that where ingredients of an offence occurs outside the territorial jurisdiction of the Court asked to adjudicate over the matter, such a Court will not assume jurisdiction over the offence for apparent lack of jurisdiction.

On the part of the respondent it was contended that although jurisdiction can be raised at any time in the proceedings but the business of the Court according to the learned counsel is the refusal of the trial judge to admit the appellant to bail pending his trial. He cited the cases of PDP & ORS V. ABUBAKAR (2006) LPELR – 6035 (CA) and AMADI V. NNPC (2000) 6SC (pt 1) 66 at 82 to contend further that whereas in the instant case there is an interlocutory appeal to a substantive suit, the point on jurisdiction should be taken alongside the judgment on merit in the proceedings.

In further contention, counsel

referred to Section 396 (2) of the Administration of Criminal Justice Act 2015 to submit that the appellant ought to have raised an objection challenging the jurisdiction of the trial Court for the trial Court to determine same one way or the other.

It was also contended by the respondent that 39 out of the 45 counts of charge the appellant is standing trial for are cybercrime offences which can be tried anywhere in Nigeria by virtue of Section 50(1) of the Cybercrimes (Prohibition Prevention etc) Act, 2015. The remaining 6 counts according to the learned counsel are Money Laundering offences which is a derivate or predicate offence which requires underlying illicit act or offences. Thus, the case of MUHAMMAD DELE BELGORE V. FEDERAL REPUBLIC OF NIGERIA (supra) been relied upon by the appellant represent an exception to the general rule and hence inapplicable to the present case concluded the respondent’s counsel.

RESOLUTION
In resolving the above issues, I will for the obvious reason start with the second issue which touches on the territorial jurisdiction of the trial Court. Jurisdiction is the sole of adjudication and if a trial Court

has no jurisdiction to entertain a matter an appellate Court cannot assume jurisdiction over its proceedings that have been conducted without jurisdiction. Thus, it is always expedient to resolve any challenge to jurisdiction first before proceeding to resolve any other issue. SeeEZOMO V. OYAKHIRE (1985) 1 NWLR (prt. 2) 195, ANAMBRA STATE V. A.G. FEDERATION (1993)6 NWLR (prt. 302) 692 and UGO-NGADI V. FEDERAL REPUBLIC OF NIGERIA (2018)8 NWLR (prt 1620) 29 at 37.

As stated right from the onset that the appellant complaint on the second issue is that Federal High Court sitting in Uyo judicial division is not the proper venue for the trial of the appellant in respect of offences contained in charge No. CA/FHC/UY/74C/2019: FEDERAL REPUBLIC OF NIGERIA V. SCALES OLATUNJI ISHOLA. I also need to stress here that the issue of jurisdiction can be brought up with, filed and argued with or without leave of Court since there is no given formula on which it could be ignited as an issue. That being the case, the argument of the respondent that the business of the day is the refusal of the trial Court to grant bail as opposed to the issue of territorial jurisdiction of

the trial Court is of no moment. The issue here transcend beyond the interlocutory application for bail as the Court’s judicial power can only be exercised where it has jurisdiction. See BRONIK MOTORS LTD V. WEMA BANK LTD (1983)1 SCNLR 296.
Turning back to territorial jurisdiction of the Court, it implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise is statutory and is conferred on the Court by the law, creating it. Territorial jurisdiction means the jurisdiction which a Court may exercise over person residing or carrying on business within a defined area. In the context of criminal law, territorial jurisdiction is dependant on the enabling law setting out the jurisdiction of the Court against the accused person. In order to have jurisdiction, the Court must therefore be satisfied that the offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law. In other words, the Court cannot exercise jurisdiction where the offence is outside the enabling law. See ONWUDIWE V. FEDERAL REPUBLIC OF NIGERIA

(2006) LPELR 2715 (SC), BAKKAT V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 22817 (CA), DARIYE V. F.R.N. (2015) LPELR – 24398 (SC). In GOLIT V. IGP (2020) LPERL – 50636 (SC), it was held that in determining whether a trial Court had territorial jurisdiction to hear and determine the case, the issue of venue is to be determined by the trial Court which should ascertain the identity the offence(s) charged and the elements of the offence as contained in the proof of evidence with a view to ascertaining whether any of the acts constituting the offence occurred in a particular place.
In the case at hand and by charge No. FHC/UY/74C/2019 – FEDERAL REPUBLIC OF NIGERIA V SCALES OLATUNJI ISHOLA, the defendant (now the appellant) was charged on 45 counts of which counts 1 – 5 are offences of Money Laundering while counts 6 – 45 are for Cybercrime. The pertinent question here is the trial Federal High Court sitting in Uyo, Akwa Ibom State the proper forum or venue for the trial of the accused/appellant for the offences listed in charge sheet? Put differently, is the trial Court forum non conveniens?

of its relation to any other act which is also to be tried by a Court exercising jurisdiction in the area or place either in which it happened or in which the offence with which it was so connected happened,
(d) When
(i) It is uncertain in which of several areas or places an offence was committed, or
(ii) An offence is committed partly in one area or place and partly in another, or
(iii) An offence is a continuing one and continues to be committed in more areas or places than one, or
(iv) An offence consists of several acts committed in different areas or places such offence may be tried by a Court exercising jurisdiction in any of such areas or places;
(e) An offence committed while offender is in the course of performing a journey or voyage may be tried by a Court in or into the area or place of whose jurisdiction the offender or person against whom or the thing in respect of which the offence was committed resides is or passed in the course of that journey or voyage.”
The above provision of the Act was somewhat replicated in Section 93 of the Administration of Criminal Justice Act 2015 and it states that:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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judicial division of the Federal High Court in the state where any of the elements of the crime were allegedly committed, subject to the power of transfer contained in the Act. Also in the recent case of MUHAMMAD DELE BELGORE (supra), the Supreme Court held a similar view and went further to say that where there is a lacuna in the charge as regards the place where the offence took place, the Court is to look at the proof of evidence attached to the charge in order to ascertain the precise place where the offence (s) allegedly took place.
I have stated that counts 6 – 45 of the charge in question relates to cybercrimes which are computer oriented crimes involving computer and network. These types of offences are not constrained to a given location and thus its territorial or geographical limit is undeterminable. It is therefore not surprising that Section 50 (1) of the Cybercrime Act, 2015 confers jurisdiction on the Federal High Court regardless of the location where the offence is committed. The said Section 50 (1) of the Cybercrime Act, 2015 emphatically provides as follows:-
“50 (1) – The Federal High Court located in any part of

Nigeria regardless of the location where the offence is committed shall have jurisdiction to try offences under this Act if committed –
(a) in Nigeria, or
(b) in a ship or aircraft registered in Nigeria or
(c) by a citizen or resident in Nigeria if the person’s conduct would also constitute an offence under a law of the country where the offence was committed, or
(d) Outside Nigeria, where –
(i) the victim of the offence is a citizen or resident of Nigeria, or
(ii) the alleged offender is in Nigeria and not extradited to any other country for prosecution.”
It is also pertinent to note that from the contents of counts 6 – 45 of the charge, the appellant and his cohorts allegedly committed the offences in Nigeria using several emails to various victims worldwide. In the light of the above, the trial Court sitting at Uyo, Akwa Ibom State is uncontestably a forum conveniens for the trial of the appellant in respect of offences in counts 6 – 45 of the charge.

Now the next fundamental question that rears its head in the instant case is which division of the Federal High Court has the

territorial jurisdiction to try the appellant on the offence(s) in counts 1 – 5 of the charge? The said counts 1 – 5 of the charge are offences for Money Laundering contrary to Sections 18 (a) and 15 (2) (b) and punishable under Section 15 (3) of the Money Laundering (Prohibition) Act 2011 as amended. Money Laundering is simply the concealment of the origins of illegally obtained money by means of transfers usually involving banks or other legitimate businesses. Learned counsel for the respondent has submitted and I agree with his submission that money laundering is a derivative offence which implies that for the money to be laundered, a basic criminal activity must have taken place. Hence, there is a relationship between other financial crimes and money laundering. The methods used to launder proceeds of crime and other criminal activity though complex but it usually involves three stages namely, placement, layering and integration. Unlike the provision of Section 50 (1) of the Cybercrime Act that vested territorial jurisdiction on any Federal High Court regardless of the location where the cybercrime is committed; Section 20(1) of the Money Laundering (Prohibition) Act 2011 as amended

provides for the general jurisdiction of the Federal High Court wherein it states as follows:-
“20(1) – The Federal High Court shall have exclusive jurisdiction to try offences under this Act.”
In NYAME V. F.R.N. (2010) 7 NWLR (prt 1193) 344 and DARIYE V. F.R.N.(supra), it was held that the best way to resolve the issue of proper venue of trial is to identify the offence(s) charged and elements of same as contained in the proof of evidence so as to determine whether any of the acts constituting the offence occurred in the particular place where the accused is being tried. Counts 1 – 5 of the charge with which the appellant in this appeal is standing trial before the trial Court is hereunder reproduced hereunder as follows:-
COUNT 1:
That you, SCALES OLATUNJI ISHOLA “M”, MERAIYEBU CHARLES “M” (AT LARGE), GABRIEL ADEYEMI OLUGBENGA “M” (AT LARGE) OJOMO OLUWATOBI AYODELE “M” (AT LARGE) AND ADEKOLA OLUWATOYIN (AT LARGE), between January, 2017 to October 2018, in Nigeria, within the jurisdiction of this Honourable Court conspired

amongst yourselves to convert the total sum of N525,172,580.00 (Five Hundred and Twenty-five Million, One Hundred and Seventy-two Thousand, Five Hundred and Eighty Naira) only, being proceeds of crime which sum you reasonably ought to have known forms part of proceeds of an unlawful activities to wit: Fraud (Business E-mail compromise and identity theft), and thereby committed an offence contrary to Section 18 (a) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNT 2:
That you, SCALES OLATUNJI ISHOLA “M” & MERAIYEBU CHARLES “M” (AT LARGE) between March 2017 to April 2018, in Nigeria, within the jurisdiction of this Honourable Court transferred the total sum of N197,720,080.00 (One Hundred and Ninety-Seven Million, Seven Hundred and Twenty Thousand and Eighty Naira) only being proceeds of crime to your various accounts, which sum you reasonably ought to have known forms part of the proceeds of an unlawful act, to wit: Fraud (Business E-mail compromise and identity theft) and you thereby committed an offence

contrary to Section 15 (2) (b) of the Money Laundering (prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) of the same Act.
COUNTS 3:
That you, SCALES OLATUNJI ISHOLA “M” & ADEKOLA OLUWATOYIN “M” (AT LARGE) between January 2017 to October 2018, in Nigeria, within the jurisdiction of this honourable Court transferred the total sum of N186,529,000.00 (One Hundred and Eighty-Six Million, Five Hundred and Twenty-Nine Thousand Naira) only being proceeds of crime to your various accounts, which sum you reasonably ought to have known forms part of the proceeds of an unlawful act, to wit: Fraud (Business E-mail compromise and identity Theft) and you thereby committed an offence contrary to Section 15(2) (b) of the Money Laundering (prohibition) Act, 2011 as amended and punishable under Section 16(3) of the same Act.
COUNT 4:
That you, SCALES OLATUNJI ISHOLA “M” & GABRIEL ADEYEMI OLUGBENGA “M” (AT LARGE) between September, 2017 to March 2018, in Nigeria, within the jurisdiction of this honourable Court transferred the total sum of N94,114,000.00 (Ninety-Four Million, One Hundred and Fourteen Thousand Naira)

only being proceeds of crime to your various accounts, which sum you reasonably ought to have known forms part of the proceeds of an unlawful act, to wit: Fraud (Business E-mail compromise and identity Theft) and you thereby committed an offence contrary to Section 15(2) (b) of the Money Laundering (prohibition) Act, 2011 as amendedand punishable under Section 15 (3) of the same Act.
COUNT 5:
That you, SCALES OLATUNJI ISHOLA “M” & OJOMO OLUWATOBI AYODELE “M” (AT-LARGE) between January, 2017 to October, 2018, in Nigeria, within the jurisdiction of this honorable Court transferred the total sum of N46,807,500.00 (Forty-Six Million, Eight Hundred and Seven Thousand, Five Hundred Naira) only being proceeds of crime to your various accounts, which sum you reasonably ought to have known forms part of the proceeds of an unlawful act, to wit: Fraud (Business E-mail compromise and identity Theft) and you thereby committed an offence contrary to Section 15 (2) (b) of the Money Laundering (Prohibition) Act, 2011 as amended and punishable under Section 15 (3) of the same Act.
From the above, it is clear that the offence(s)

in counts 1 – 5 above are not stated to have been committed or occurred in any particular location in Nigeria and applying the principle enunciated by the Supreme Court in the case of MUHAMMAD DELE BELGORE V. FEDERAL REPUBLIC OF NIGERIA (supra); recourse has to be made to the proof of evidence in order to bridge the yawning gap. The proof of evidence in the case at hand includes petitions or complaints emanating from Norwegian and Danish National police. Part of the complaints read as follows:-
“On 4 May, 2018, the perpetrators contacted Monica Gulmoen of the Charity Association for providing Girls and Boys in Kabane with a Football pitch posing as former Norwegian Football Association President per Rarn Omedal. They asked for a transfer of EUR 48,350 to IBAN GB 74HBUK 4006213722119. The amount was transferred. The perpetrators of the fraud used the email address email office 01.com.”
Consequent to the above, the Norwegian Police requested the assistance of the EFCC to conduct a coordinated investigation to identify and arrest the perpetrators in Nigeria and to seize assets that can be confiscated for the Norwegian and/ or

Nigerian treasury. Also included in the proof of evidence is the EFCC internal memo showing that intelligence on some Nigerian Fraudsters have inflicted havoc and financial losses running into millions of dollars on businesses in Norway, Denmark, Finland and Austria involving a group lead by the appellant herein.
I have highlighted the complex nature of money laundering offences particularly as in this case where the methods allegedly employed involved international transactions. In contrast to the case of MUHAMMED DELE BELGORE V. F.R.N (Supra) where the sum of N450 Million Naira was disbursed to various persons in Ilorin without going through a financial institution, the allegations in counts 1 – 5 of the charge against the appellant and his cohorts reveals that they conspired and transferred proceeds of crimes into their various accounts in Nigeria. Thus, fixing these transactions that are not physical by their nature to a particular location in Nigeria is practically impossible. To that extent, the trial Federal High Court will undoubtedly be a forum convenience for the trial of the appellant.
Furthermore, since there is apparent connection

or relation between both the predicate Cybercrimes charged with the derivative money laundering offences, the Court with territorial jurisdiction to try the conjoined or related offence shall in the same vein try other offence that are so connected. By virtue of Section 45 (c) of the Federal High Court, when an act is an offence by reason of its relation to any other act which is also an offence, the charge of the first mentioned offence may be tried by a Court exercising jurisdiction in the area or place either in which it happened, or in which the offence with which it was so connected happened. Thus, considering the fact that both the cybercrimes and money laundering happened in Nigeria and that they are so connected with one another; the trial Court is also a forum conveniens for the trial of the appellant for the money laundering offences charged.

Having arrived at the inevitable conclusion that the trial Court is a proper venue for the trial of the appellant on both counts of charge; the next issue is whether or not the learned trial judge had exercised his discretionary power judicially and judiciously in refusing to admit the appellant on

bail.
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 custody of the law and to entrust him to appear at his trial at a specific time and place. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction and or on acquittal of the accused. The contractual nature of bail is that before any person is released on bail he must execute, a bond for such sum of money as determined by either the Police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. See SULEMAN & ANOR V. C.O.P PLATEAU STATE (2008) LPELR – 3126 (SC). The main function of bail is to ensure the presence of the accused at trial. Thus, if there is any reason to believe that the accused is likely to jump bail, bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application.
As rightly posited the decision whether or not to grant bail on offences that are ordinarily bailable

is a matter within the judicial discretion of the Court. A judicial discretion has to be exercised judiciously and judicially and the reason for the exercise of the discretion must be given. See DARLINTON V. F.R.N (2018)11 NWLR (prt 1629)152. Similarly, the Court in the exercise of its discretion, must only act on empherical facts or materials placed before it and not on extraneous or irrelevant matters.
Learned counsel for the appellant submitted that inspite of sufficient materials placed by the appellant before the trial Court stating his eligibility to bail but the trial judge hinged on the medical report which allegedly predate the charge to deny him bail.
It is settled that in exercising its discretion to grant or refuse bail the Court is bound to examine the evidence before it before considering any extraneous matters. In effect, the Court cannot exercise its discretion indiscriminately or on sentiments. See EYE V. F.R.N (Supra).
The next germane issue is whether the appellant has placed sufficient material before the trial Court and to attempt answering this question, the pertinent averments in paragraphs 5 – 12 of the affidavit in

support of the motion on notice for bail at pages 183 – 184 of the record of appeal are very relevant. These are:-
“5. That the Defendant/applicant informed me on the 25th day of June, 2019 at the complainant/Respondent’s office in Uyo around 2.00pm and I verily believe him as follows:
a. That he was arrested on the 20th day of March, 2019 for allegations for cyber crimes and related offences.
b. That he has been in custody of the complainant from the date of arrest till the defendant’s arraignment in Court.
c. That the computation of the time the applicant spent in the custody of the complainant is well over three (3) months.
d. That he has surrendered himself for all investigations conducted by the Complainant since his arrest and detention by the complainant.
e. That he had sometime in 2017 lost one of his eyes for which he underwent a survey. A report of the medical condition of the defendant/applicant is hereby attached and marked as EXHIBIT A.
f. That he requires monthly consultation with his optician in order to prevent the inner cells of the blind eye from affecting his other eye and thereby

rendering him totally blind.
g. That he has not been able to visit his optician due to his detention by the Complainant for the past three (3) months.
h. That the Complainant is aware of his visual impairment.
i. That during his detention by the Complainant/Respondent he has applied for bail, particularly on health grounds but same was not granted by the complainant. A photocopy of the said letters and annexures are hereby attached and marked as EXHIBITs A and B.
j. That he is at risk of losing both eyes and being totally blind if not allowed access to visit his optician without further delay.
k. That he will not interfere with his trial before this honorable Court if granted bail.
l. That he will at all times honour his bail terms if admitted to bail by this honorable Court.
6. That if released on bail he will not jump bail and he will make himself available at all sitting of the Court in this matter.
7. That he has responsible persons to stand as surety if such is required.
8. That he will not attempt to conceal or destroy any evidence if granted bail.
9. That he will not commit any offence and he will not

interfere and prejudice the proper investigation of the offence by the Complainant/respondent if granted bail.
10. That the charge upon which the defendant/applicant is being charged is not such that requires his continuous detention as it may likely take some time before conclusion and judgment.
11. That the defendant/applicant is charged with an offence which is bailable under the Act and under the inherent jurisdiction of Court.
12. That the complainant/respondent will not be prejudice if this application is granted.
By the combined effect of Sections 18 (a), 15 (2) and (3) of the Money Laundering (Prohibition etc) Act, the minimum sentence on conviction exceeds 5 years imprisonment. The right of the accused person charged with offence exceeding 3 years imprisonment to bail is also provided for under Section 162 of the Administration of Criminal Justice Act, 2015 thus:-
“162 A defendant charged with an offence punishable with imprisonment for a term exceeding three years shall, on application to the Court be released on bail except in any of the following circumstances:-
(a) Where there is reasonable ground that the

accused person will commit another offence or offences.
(b) Where the accused person will evade trial;
(c) Where the accused will influence, interfere with, intimidate witnesses and or interfere with the investigation of the case;
(d) Where the accused person attempts to destroy evidence;
(e) Where the accused will prejudice the investigation of the offence, or
(f) Where the accused person will undermine or jeopardize the objective purpose or sanction of the criminal justice administration including the bail system.
What the above postulates is that notwithstanding the fact that an accused person is charged for offences exceeding minimum of 3 years imprisonment upon conviction and sentence, such an accused person is still entitled to bail unless the above circumstances exist. Even where the above circumstances exist, an accused person shall pursuant to Section 163 of the Act be entitled to bail, unless the Court sees reasons to the contrary. The bottom line or bench mark of the exercise of discretion by Courts is to use the discretionary powers judiciously and judicially.
In the instant case, the appellant in paragraphs 5

– 12 of the affidavit in support of the motion on notice reproduced above, stated that he would refrain from contravening the conditions spelt out in Section 162 of the Administration of Criminal Justice Act, 2015.
However, the respondent in paragraphs 18 – 23 of the counter affidavit deposed as follows:-
18. That frantic efforts were made to apprehend the applicant since 2018.
19. That it was when the respondent was about giving up hope that the applicant was found via its intelligence network and the applicant arrested.
20. That it will be difficult to command the appearance of the applicant if he is granted bail based on his previous antecedents.
21. That intelligence reports reveals that the applicant was about to flee Nigeria before his arrest.
22. That the applicant still has his cohorts at large and is very much likely to interfere with the prosecution of the case.
23. That there is very huge likelihood that the applicant will abscond if granted bail, given that all his cohorts are at large.
On the strength of the averment in paragraphs 21 of the counter affidavit above which reveals that intelligence

report shows that the applicant/appellant was about fleeing Nigeria prior to his arrest which averment is nowhere denied or uncontroverted by the appellant, there is the likelihood that he will jump bail. Where it is believed that the applicant is likely to jump bail, bail will properly be refused by the Court. It must be borne in mind that a judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by law. In ESSIET V. A.G. OF AKWA IBOM STATE & ANOR (2015 LPELR – 24644 (CA), this Court per OYEWOLE, JCA said:-
“Without doubt the application filed by the appellant was one in respect of which the learned trial judge had to exercise judicial discretion. For that discretion to be judicial and judicious, it must involve a consideration of the materials placed before the Court. The materials did not just consist of the submission of counsel but also the facts adduced by parties.”
I cannot in the circumstance subscribe to the submission of the learned counsel for the appellant that the learned trial judge did not consider the affidavit evidence in

support of the bail application and that the respondent has not adduced any credible evidence in proof of any of the circumstances provided in Section 162 of the Administration of Criminal Justice Act. And since there was attempt by the appellant to evade his trial, the learned trial judge acted judiciously and judicially in refusing to exercise his discretion in favour of the appellant. This appeal is moribund and it is hereby dismissed. Accordingly, the lower Court shall ensure giving accelerated hearing of the case in line with the Federal High Court (Criminal) Practice Direction, 2013.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the opportunity of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion and I also agree that the appeal ought to be dismissed.

It is true that bail before conviction except in certain cases especially capital offences is generally grantable as of right. However, even the grant of bail before conviction is a matter of discretion to be exercised judiciously and judicially by the judex.
There is no doubt that in exercising such a discretion

the gravity of the offence and the likelihood of the offender to escape justice would be taking into consideration.
In the instant case, the Appellant was charged with five (5) counts of offences of money laundering and forty-four (44) counts of cyber crime offences.
In the instant case, by the time one considers the nature and gravity of the offences charged along with paragraphs 18 — 23 of the Respondent’s counter-affidavit, becomes reasonably clear that it would be wrong exercise of judicial discretion to grant bail to the Appellant in the circumstances of the case.
Rather, I also agree with the lead judgment that this case ought to be given accelerated hearing in the trial Court. And, I so order.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother M. L. Shuaibu, JCA. he has exhaustively dealt with the issues for determination. I agree that the Federal High Court, Uyo has jurisdiction to try the Appellant and that he is likely to evade his trial if granted bail.
For the more detailed reasons contained in the lead judgment, I too dismiss the appeal.

Appearances:

GBOYEGA OYEWOLE, SAN, with him, S. E. NEGBENEBOR For Appellant(s)

NWANDU K. UKOHA, (PDS) EFCC) For Respondent(s)