NOLAN v. FRN (2020)

NOLAN v. FRN

(2020)LCN/14404(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, July 06, 2020

CA/A/97C/2020

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

JAMES RICHARD NOLAN APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

DEFINITION OF A “BAIL”

Bail is simply a security in the form of cash or bond required by the Court for the release of a prisoner who is to appear in Court at a future time. Bail is therefore, a process by which a defendant at the trial of the case is temporarily released from custody on conditions given to ensure his attendance in Court whenever he is required until the determination of the case. See the case of CALEB OJO & ANOR VS.FEDERAL REPUBLIC OF NIGERIA (2006) 9 NWLR (PT. 984) PAGE 103 AT 115.
The whole essence of bail therefore, is to ensure the attendance of the defendant for his trial until the determination of the case against him at least that is the primary aim. See the case of ADAMU SULEMAN & ANOR VS.COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR-3126 (SC). PER IDRIS, J.C.A.

DIRECTION ON THE APPLICATION AND GRANT OF BAIL FOR A DEFENDANT FACING CRIMINAL TRIAL

The provisions of the Administration of Criminal Justice Act 2015, particularly Section 158, 162 and 165 of the Act gives direction on the application and grant of bail for a defendant facing criminal trial before a Court of competent jurisdiction in Nigeria. The provision of Section 158 of ACJA states thus:
“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this Part, be entitled to bail.”
From the above cited provision, it is clear that bail is a constitutional right, to which every person standing trial before a competent Court is entitled to.
By virtue of Section 35(4) and 36(5) of the 1999 Constitution, an accused person is entitled to his unfettered personal liberty and is presumed innocent unless and until proved guilty, and the onus is on the prosecution to prove that an accused person is not entitled to bail. The grant of bail is not an unlimited freedom for the Defendant as he will still be wearing the chain of criminal trial until he is either found guilty and convicted or found innocent and acquitted.
In the Supreme Court case of ADAMU SULEMAN & ANOR VS. COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR – 3126 (SC) the apex Court held per Tobi, JSC that:
“The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pretrial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code, which provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if a person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. Local Government Police v. Abiodun (1958) WRNLR 212.”PER IDRIS, J.C.A.

WHETHER OR NOT THE GRANT OF BAIL IS STRICTLY AT THE DISCRETION OF THE JUDGE

The grant of bail is strictly within the discretion of the judge and such discretion must be exercised judicially and judiciously given the circumstances of each case. However, in exercising the discretion, the judge must bear in mind the provisions of Section 165 of the ACJA which provides that:
“The conditions for bail in any case shall be at the discretion of the Court with due regard to the circumstances of the case and shall not be excessive.”
In the case of JOHNSON VS. FRN (2016) LPELR – 41115 (CA) it was held per Tsammani, JCA that:
“It is not in doubt that, the decision whether or not to grant bail is a discretionary one, placed on the table of the trial Court. That discretion must however be exercised judicially and judiciously having in mind the Constitutional right of the accused to be presumed innocent until proved guilty. Furthermore, Section 162 of the Administration of Criminal Justice Act, 2015, has in my humble view, in recognition of the presumption of innocence enshrined in Section 36(5) of our 1999 Constitution (as amended) enjoined Courts to grant bail except in the circumstances stipulated in Paragraphs (a) – (f) of the said Section. It is obvious that the factors to be considered in the decision whether or not to grant bail are not closed, in view of the general provision in Paragraph (f) to Section 162 of the ACJA, 2015. That being so, where a trial Judge has exercised its discretion by refusing bail, the Appellant against that decision must demonstrate before the appellate Court how the trial Court wrongly exercised that discretion, in that, it was not exercised judiciously and judicially. See Abacha v. State (2002) 5 NWLR (Pt. 761) p. 638 and Dokubo Asari v. FRN (2007) 12 NWLR (Pt.1048) p. 320.” (Pp. 52 – 53, Paras. F – E).

By the Provision of the ACJA, the trial Court is given discretion to either grant or refuse an application for bail subject to the facts presented before it. This discretion is exercised on any issue of bail whether when granting bail or varying bail conditions.
It is the trite position of the law that in exercising the jurisdiction in the grant or refusal of bail, the trial Judge is bound to consider the weight of facts deposed to in an affidavit evidence placed before him. Other considerations include the strength of the evidence which supports the charge, the gravity of the punishment in the event of conviction, the likelihood of the accused interfering with the proposed witness or any supressed evidence that may incriminate him, the likelihood of further charge being brought against him and the probability of guilt. See the case of OGBUAWA VS.FEDERAL REPUBLIC OF NIGERIA (2011) LPELR – 4854 (CA). All these considerations are not exhaustive which goes to show the amount of discretion in the hands of the trial Judge in either granting an application for bail or variation of terms of bail.
It is however trite that this discretion must be exercised both judicially and judiciously guided by the facts and circumstance of the case and the applicable law and not capriciously. See the cases of EZENWAFOR VS.COP (2009) LPELR – A 4004 CA. and LIKITA & ORS VS.COP (2002) 11 NWLR (PT. 777) PG 145.
Trial Courts are advised to be liberal in their approach to grant of bail and the conditions thereof in non-capital offences. They are thus to grant bail on favorable and affordable conditions. It is against the spirit of the law, to impose excessive and stringent conditions for bail as it would amount to a refusal of bail. See the cases of UDUESEGBE VS.FRN (2014) LPELR – 23191(CA) and OBIOMA VS. FRN (2005) 13 WRN 131, 158 – 159. PER IDRIS, J.C.A.

WHETHER OR NOT THE COURT CAN DECIDE A CASE ON MERE SPECULATIONS

It is elementary law and also a trite principle of law that a Court should not decide a case on mere conjecture or speculations. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations.
In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was held:
“It is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840 , it was held:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned along with two limited liability companies before the Federal High Court, sitting in Abuja on a 16 count charge dated the 23rd of September, 2019. The Appellant filed an application for bail pending the determination of the charge.

On the 7th of November, 2019, the Court delivered a ruling, admitting the Appellant on bail on the following conditions:
1. The sum of N500,000,000 and one surety in the like sum.
2. The surety must be a Nigerian and a serving senator of the Federal Republic of Nigeria that is not standing trial in a criminal matter in any Court in Nigeria.
3. The surety must have landed property fully developed in Maitama area of the Federal Capital Territory with Statutory Certificate of Occupancy issued by the relevant department of Ministry of Federal Capital Territory, Abuja or a Certificate of occupancy at the relevant ministry of FCT, Abuja.
4. The surety must submit to Court 3 years tax clearance certificate immediately preceding the application.

The Appellant shall deposit all his International passport with the

Chief Registrar of this Court pending conclusion of trial.
6. The surety shall undertake in writing to be in Court and must be in Court with the Appellant at all adjourned dates till the matter is heard and determined and where the surety fails to appear in Court with the Appellant, the Court is at liberty to rescind the bail the Appellant.
7. The surety shall file affidavit of means with two passport photographs attached and state that he is capable of paying the penal sum in the event of being called upon to do so.

The Appellant, being unable to satisfy the above bail conditions filed a Motion on notice on the 11th of November, 2019, seeking for an order to vary the bail condition imposed as being stringent for him to fulfill.

Delivering his ruling on the 9th of December, 2019, the learned trial judge, Justice O. E. Abang held that the Appellant had failed to provide materials to enable the Court vary the bail application, thus, the application was dismissed.

Unhappy with the ruling of the trial Court, the Appellant filed a Notice of Appeal dated the 15th of January, 2020, consisting of 17 grounds of appeal.
The Appellant’s brief of argument was filed

on the 13th of February, 2020 settled by Paul Erokoro SAN. One issue for determination was distilled thus:
Whether the Appellant made out a case at the trial Court for his bail condition to be varied. (Distilled from Grounds 1 – 12, 14 – 17 of the Notice of Appeal).

The Appellant’s counsel has argued that the bail conditions given by the trial Court are excessive. Relying on Section 165 of the Administration of Criminal Justice Act 2015, the Appellant’s counsel has argued that bail conditions should not be oppressive, unreasonable and stringent. The Appellant had furnished before the trial Court bail conditions he is willing and able to satisfy. The Appellant had also urged the trial Court not to order that the surety be a director in any Ministry as originally prayed for in the motion seeking for variation.

The Appellant has argued that the bail conditions were excessive, citing the case of SHUAIBU VS. FRN (2014) LPELR – 22986. The Appellant’s counsel has argued and furnished reasons why the bail conditions were stringent. The Appellant’s counsel further

argued that the Appellant has been unable to get a Senator that would stand as surety for him despite all efforts made.

Furthermore, the Appellant’s counsel has argued that trial Court’s reasons for refusing to vary the bail conditions are wrong. The trial Court had stated that the Appellant was a foreigner and had no valid resident permit, thus, making him liable to jump bail.

Also, the Appellant’s counsel has argued that in the case of DASUKI VS. FRN (CA/A/806/2019),the Court of Appeal had corrected the anomaly in our criminal procedure which was the requirement of public officers standing as sureties for persons facing criminal trials. The Appellant’s counsel, relying on this authority has argued that a Senator is a public officer.

Finally, the Appellant’s counsel has stated that it would be unsafe for the Appellant’s trial to continue in the same Court as the trial judge had made several adverse findings against the Appellant and on five different occasions, the trial Court ignored the evidence that was placed before it in respect of the Appellant’s case. This Court was urged to allow the appeal,

vary the bail conditions as sought and grant the reliefs sought in the Notice of Appeal.

The Respondent’s counsel filed their brief of argument on the 27th of April, 2020 and it was settled by E. E. Iheanacho Esq. One issue for determination was distilled:
Whether the learned trial judge was not right in refusing to vary the terms of the bail granted to the Appellant. (Distilled from Grounds 1 – 12, 14 – 17 of the Notice of Appeal).

It was argued by the Respondent’s counsel that this appeal is not against the ruling of the Court granting bail on excessive conditions but it is against the ruling of the Court refusing to vary the terms of the bail granted. The Respondent’s counsel further argued that it is trite law that it is the discretion of the judge to vary or refuse to vary terms of bail. Reference was made to BULAMA VS. FRN (2004) 12 NWLR (PT. 888) 12 NWLR AT 509.

It was further argued that the Appellant’s asking the lower Court to review or vary the terms of the bail without demonstrating the failed efforts to meet the terms amounts to nothing but seeking the Court to sit on appeal over its ruling.

The Respondent’s counsel further stated that in the absence of such evidence, it would be premature for the Appellant to rush back to the lower Court for variation of the terms. The Respondent’s counsel further argued that since the Appellant was not present in Court the day the ruling on his bail application was delivered, the Appellant’s counsel failed to show how the terms of the bail was conveyed to him in order for him to search for appropriate sureties.

The Respondent’s counsel further argued they opposed the bail application by filing a counter affidavit and the Appellant failed to file a further affidavit to controvert the averments, thus, it is deemed admitted. Reference was made to ODOCK VS. STATE (2007) 7 NWLR (PT. 1033) PAGE 369.

As regards the Appellant’s counsel argument that the bail conditions were excessive, the Respondent counsel argued that the surety was not required to pay the bail sum into the Court, but only that the surety who must be a Senator would undertake to pay the said sum of #500,000,000 in the event the Appellant fails to attend trial. It was also argued that the submission of the

Appellant regarding the salaries of a Senator does not reflect the worth of all Senators, thus making it speculatory. It was then submitted that the Appellant was out rightly rejecting the ruling on bail and not his inability to satisfy the bail conditions. It was also argued that there was nothing on record to show the steps the Appellant took to try to satisfy the bail conditions.
The Respondent’s counsel also stated that it was wrong for the Appellant’s counsel to say that the lower Court’s ruling was discriminating because the Appellant was a foreigner and was using a forged residence permit as this was not true.

Finally, the Respondent’s counsel submitted that the lower Court took serious factors into consideration before its refusal to vary the bail condition it granted. This Court was urged to dismiss the appeal.

The Appellant’s counsel filed his Reply brief of argument on the 18th of May, 2020, settled by Paul Erokoro SAN.

In response to the issues raised in the Respondent’s brief of argument, the Appellant’s counsel has argued that from the Respondent’s argument, it is clear that they

know that if the conditions of the bail granted are not varied, the Appellant will remain in custody as he would never be able to satisfy the bail conditions.

Also, the Appellant’s counsel has argued that there is no law in our criminal jurisprudence that an accused must show verifiable proof that he tried to meet the bail conditions but could not. The Appellant had deposed in an affidavit that he did not have a close contact with any Senator and that is all that is required.

On the issue that the Appellant was using a forged Residence permit, the Appellant’s counsel has argued that it is pure fiction as the trial Court never made a finding on the issue in its ruling. It was argued that the Appellant is presumed innocent until proved guilty. Also, the Appellant’s counsel has argued that the test for determining whether the lower Court exercised its discretion correctly is objective, not subjective. The case of UNILAG VS. OLANIYAN (1985) 1 NWLR (PT. 1) PAGE 156 AT 175 was cited in support.

Furthermore, the Appellant’s counsel has argued that the submissions of the Respondent’s counsel is not supported by the

provisions of the Administration of Criminal Justice Act (2015) whose intendment was to liberalize bail conditions and decongest prisons and not to render judges fearful that defendants might jump bail. It was also stated that the Act mandates that bail be granted on affordable terms.

Finally, the Appellant’s counsel has argued that the terms of the bail conditions was duly communicated to the Appellant even though he was in detention and he tried all he could to satisfy the bail conditions.
This Court was urged to allow this appeal.

RESOLUTION
I have read the ruling of the trial Court delivered by Honourable Justice Okon Abang of the Federal High Court, Abuja on the 9th December, 2019 refusing the application of the Appellant for the variation of the terms of bail granted by the same Court.

I have also read the respective briefs of the parties before this Court and argument canvassed by the respective Counsel, it is my humble opinion that the main contention of the Appellant is the refusal of the trial Court to vary the bail conditions granted by it since the Appellants have been unable to meet some of the conditions.

I would therefore not concern myself with dealing with any other issue in this interlocutory Appeal especially the one raised by the Appellant Counsel in Paragraphs 3.50 – 3.59 of the Appellant’s Brief of Argumentas same is not an issue for this Court.

Having read and understood the arguments canvassed by respective counsel, I will now proceed to determine same. I will adopt the sole issue for determination raised by the Appellant’s counsel. The issue again is:
Whether the Appellant made out a case at the trial Court for his bail conditions to be varied.

Going forward and for ease of reference, I think it is necessary to reproduce the bail conditions made by the trial Court for which the Appellant have applied for variation of some of the said conditions as follows:
“1. Bail is hereby granted the 3rd Defendant James Richard Nolan in the sum of N500,000,000 (Five Hundred Million only) with one surety in like sum.
2. The surety must be a Nigerian and a serving senator of the Federal republic of Nigeria that is not standing trial in a criminal matter in any Court in Nigeria.
3. The surety must have landed

property, fully developed in Maitama, Abuja Area of the Federal Capital Territory, Abuja with Certificate of Occupancy issued by the relevant department of Ministry of Federal Capital Territory Abuja.
4. The Chief Registrar of this Court shall in writing ascertain the validity or otherwise of the certificate of occupancy at the relevant ministry of FCT, Abuja.
5. The surety must submit 3 years’ tax clearance immediately preceding this application.
6. The 3rd Defendant shall deposit all his international passport with the Chief Registrar of the Court pending the conclusion of trial.
7. The surety shall undertake in writing to be in Court with the 3rd Defendant at all adjourned dates till the matter is heard and determined and where the surety fails to appear in Court with the 3rd Defendant, the Court is at liberty to rescind the bail of the 3rd Defendant.
8. The surety shall file an affidavit of means with two passport photographs attached and state that he is capable of paying the penal sum in the event of being called upon to do so.
9. The Prosecution through the investigation police officer shall in writing ascertain the

residence of the surety to be in FCT, Abuja.”

The Appellant who is the 3rd Defendant at the trial Court applied for the variation of conditions 1,2,3 and 7 above which the trial Court refused to vary upon application for same by the Appellant and the Appellant has now appealed against the ruling of the trial Court refusing its application.

Also, since the Appellants did not apply for the variation of the other conditions for the grant of the bail except conditions 1, 2, 3 and 7, I would concentrate on the said conditions.

Before I proceed, it would be important also, for me to take a look at the essence of bail as this would help form my opinion in the long run.

AT 115.
The whole essence of bail therefore, is to ensure the attendance of the defendant for his trial until the determination of the case against him at least that is the primary aim. See the case of ADAMU SULEMAN & ANOR VS.COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR-3126 (SC).

innocent unless and until proved guilty, and the onus is on the prosecution to prove that an accused person is not entitled to bail. The grant of bail is not an unlimited freedom for the Defendant as he will still be wearing the chain of criminal trial until he is either found guilty and convicted or found innocent and acquitted.
In the Supreme Court case of ADAMU SULEMAN & ANOR VS. COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR – 3126 (SC) the apex Court held per Tobi, JSC that:
“The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pretrial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided

for in Section 345 of the Criminal Procedure Code, which provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if a person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. Local Government Police v. Abiodun (1958) WRNLR 212.”

discretionary one, placed on the table of the trial Court. That discretion must however be exercised judicially and judiciously having in mind the Constitutional right of the accused to be presumed innocent until proved guilty. Furthermore, Section 162 of the Administration of Criminal Justice Act, 2015, has in my humble view, in recognition of the presumption of innocence enshrined in Section 36(5) of our 1999 Constitution (as amended) enjoined Courts to grant bail except in the circumstances stipulated in Paragraphs (a) – (f) of the said Section. It is obvious that the factors to be considered in the decision whether or not to grant bail are not closed, in view of the general provision in Paragraph (f) to Section 162 of the ACJA, 2015. That being so, where a trial Judge has exercised its discretion by refusing bail, the Appellant against that decision must demonstrate before the appellate Court how the trial Court wrongly exercised that discretion, in that, it was not exercised judiciously and judicially. See Abacha v. State (2002) 5 NWLR (Pt. 761) p. 638 and Dokubo Asari v. FRN (2007) 12 NWLR (Pt.1048) p. 320.” (Pp. 52 – 53, Paras. F – E)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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exercised both judicially and judiciously guided by the facts and circumstance of the case and the applicable law and not capriciously. See the cases of EZENWAFOR VS.COP (2009) LPELR – A 4004 CA. and LIKITA & ORS VS.COP (2002) 11 NWLR (PT. 777) PG 145.
Trial Courts are advised to be liberal in their approach to grant of bail and the conditions thereof in non-capital offences. They are thus to grant bail on favorable and affordable conditions. It is against the spirit of the law, to impose excessive and stringent conditions for bail as it would amount to a refusal of bail. See the cases of UDUESEGBE VS.FRN (2014) LPELR – 23191(CA) and OBIOMA VS. FRN (2005) 13 WRN 131, 158 – 159.

The Appellant in this case has filed this appeal after the trial judge refused to grant his application, seeking for the variation of the bail conditions granted. From the facts of the case, it is clear that the Appellant applied for bail on the 30th of October, 2019. The trial judge delivered his ruling on the bail application on the 7th of November, 2019.

The Appellant then brought a motion, seeking for the variation of the bail conditions granted

as he has been unable to satisfy them. The motion was dated the 12th of November, 2019. For reasons stated in the ruling delivered on the 9th of December, 2019, the trial judge refused to grant the motion, seeking for variation of the conditions of bail earlier granted.

The question that comes to mind at this point is: Did the Appellant bring before the trial Court all the facts needed for the Court to exercise its discretion to grant the application seeking for the variation of bail?

The Appellant clearly stated in his application that he is a foreigner and has found the conditions upon which bail was granted to him impossible to meet and he stated all his efforts in the affidavit in support of the motion seeking for variation of bail conditions.
Are the bail conditions granted by the trial Court stringent and onerous, such that they cannot or could not be satisfied by the Appellant?

Now for the purpose of addressing the issue at hand and for emphasis, I would love to examine the conditions 1, 2,3 and 7 which the Appellant applied to be varied at the trial Court as follows:
“1. Bail is hereby granted the 3rd Defendant James

Richard Nolan in the sum of N500,000,000 (Five Hundred Million only) with one surety in like sum.
2. The surety must be a Nigerian and a serving senator of the Federal republic of Nigeria that is not standing trial in a criminal matter in any Court in Nigeria.
3. The surety must have landed property, fully developed in Maitama, Abuja Area of the Federal Capital Territory, Abuja with Certificate of Occupancy issued by the relevant department of Ministry of Federal Capital Territory Abuja.
7. The surety shall undertake in writing to be in Court with the 3rd Defendant at all adjourned dates till the matter is heard and determined and where the surety fails to appear in Court with the 3rd Defendant, the Court is at liberty to rescind the bail of the 3rd Defendant.”

These afore reproduced conditions has raised some weighty questions in my mind which I would like to address herein. The sum of N500,000,000 (Five Hundred Million Naira) is the bail amount which is simply the sum that the surety would undertake to pay in full in the event that the defendant fails to appear in Court.

This sum is rather outrageous and the big question in my

mind now is, how many persons in Nigeria as it is can afford such amount of cash, and even if they can afford same, I cannot imagine a surety who would gamble with such undertaken of releasing a whooping sum of N500,000,000 (Five Hundred Million Naira) once the defendant fails to appear in Court when it is not an investment? And even if the Defendant would not fail, such surety may still consider it a big risk to undertake.

On the condition that the surety must be a serving senator and who is also expected to undertake to be present on all the adjourned dates of the matter until the determination of the case, this is almost impossible to achieve. Would a serving senator who is expected to attend hearings and meetings or who has other family or personal engagement abandon them just to attend the trial of the defendant just as if he himself is the defendant in the matter?

On the issue of the surety owning a developed landed property with a registered C of O in Maitama Abuja, does that mean that if the defendant can only produce a surety who has a developed landed property with a registered C of O elsewhere in Abuja such surety if provided is yet unfit

to stand as a surety?

These questions have brought to mind the excessiveness of the conditions for the bail granted by the trial Court to the Appellant. What was the intention of the trial Judge in the first Place? Was it to bring to the fore the essence of bail or to punish the Appellant for a crime he is yet to be pronounced guilty to have committed against the dry provision of Section 36(5) of the 1999 Constitution, 2011 as amended which provides thus:
“Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.”

It was also argued by the Appellant’s counsel that a Senator is a public servant and the trial judge, in his ruling has held at pages 873 and 874 of the Record of Appeal that a Senator is not a public servant.

This births another question: who is a public officer? Is a Senator a public officer?
In the case of AGBOROH VS. WAEC (2016) LPELR – 40974 (CA) it was held per Mbaba, JCA thus:
“In the determination of who is a public officer, resort is always had to the Interpretation Act, Cap 123 LFN, where Section 18(1) thereof interprets a Public Officer to

mean a member of the Public Service of the Federal within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or the Public Service of the State. And by Section 318(1) of the 1999 Constitution, as amended, Public Service of the Federation is defined as: The service of the Federation in any capacity in respect of the Government of the Federation and includes service as:- a) Clerk or staff of the National Assembly of each house of National Assembly; b) Member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal C.T. Abuja, Sharia Court of Appeal, the Customary Court of Appeal or other Courts established for Federation by this Constitution and by an Act of the National Assembly. c) Member or staff of any Commission or authority established for the Federation by this Constitution or by an Act of the National Assembly d) Staff of any area council e) Staff of any statutory corporation established by an Act of the National Assembly; f) Staff of any educational institution established or financed principally by the Government of the Federation; g) Staff of any company or enterprise in which the

Government of the Federation or its agency owns controlling shares or interest; and h) Members of officers of the armed forces of the Federation or the Nigeria Police Force or other government Security agencies established by law. The Public service of a state is also interpreted in the said section in the same terms.” (Pp. 20 – 21, Paras. C – F)
In the case of COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR VS. ONAKADE (2016) LPELR – 41133 (CA) it was held per Dongban-Mensem, JCA that:
“By virtue of Section 318 (1) of the 1999 Constitution, public service of a State means the service of a State. Section 318(1) of the Constitution further provides for nonpolitical offices in the Government of the State. However, the Governor of a State is not in the public service of a State within the meaning of S.318 (1) of the 1999 Constitution. The Deputy Governor, the speaker and all other political office holders are also not in the public service of a State. Furthermore, “…the appointment was political as the 1st Respondent who was a chairman of a local government was not employed and issued letter of employment by the

Local Government Service Commission.” To nail the argument on who a public officer is, I commend the case pp 20 – 21, AMAIZU JCA (DADA V. ADEYEYE Supra). “The Governor of a State is not in the public service of that State within the meaning of Section 318 (1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of a State. I am however aware that under the 5th Schedule to the Constitution, the definition of public officers, includes political officer holders. In my respectful view, the definition is only for the purpose of dealing with the code of conduct for public officers. This fact is clearly brought out in Part 11 of the said Fifth Schedule it reads Public Officers for the purposes of the code of conduct 1. The President of the Federation. 2. The Vice president of the Federation etc”. To this end the offices of the above cannot be said to be a creation of the Constitution as they cannot be subjected to the rules guiding the conduct of employees employed by Public Service Commission. Also see MOMOH V. OKEWALE (1977) 9 SC 81. I support the Respondent on this issue to the effect that the Respondents are

not public officers’ as their office is subject to the discretion of the Governor who has the right to appoint or discharge and is synonymous to master and servant relationship. Although the Respondent got the fact that the Appellants are sued in respect of their action committed by the Governor, the Governor himself does not qualify as a public officer. Therefore the authority cited by the Appellants to that effect is not applicable to the instant case. The Section 318(1) of the Constitution relied upon by the Respondents is not supportive of the argument of the Appellants in this appeal. Section 318(1) of the Constitution: Further provides for non-political Officer in the Government of the State. However, the Governor of a State is not in the public service of the State within the meaning of Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999. (Pp. 10 – 13, Paras. E – A)
From the above cited authorities, simply put, a Senator is not a public officer by the provisions of Section 318 of the 1999 Constitution. However, by virtue of Part 11 of the Fifth Schedule, a Senator is a public officer for the purposes of the code

of conduct.

I will not belabor this issue as I do not see its relevance in this instant appeal. The crux of this appeal is that the Appellant has found it difficult to get a Senator that will stand as surety for him.

The next set of questions that must be answered are: who should stand as surety for an accused person? What category of persons qualify to stand as surety for an accused person?
In the case of OLAYIWOLA VS. FRN (2018) LPELR – 46772 (CA), it was held per Ebiowei, JCA that:
“A person who is standing surety for an accused person should do so after proper consideration and personal knowledge of the accused. Standing surety for an accused based on recommendation can be very dangerous. The basis for standing surety is that the accused is personally known to the surety. It is a vote of confidence on the accused by the surety. He is saying the accused is of good character. It is based on that assurance that a Court allows the accused to go on bail. It is therefore a big responsibility on the shoulders of the surety. A surety’s inability to produce the accused is therefore seen like an act of deceit on the Court and this will be

taken seriously. The surety therefore has a great burden to show it did all within his power to bring the accused. Taking an accused on bail as a surety should not be seen as a business. This is also dangerous. By this, I mean a situation where people do it as a business just as others go about their business. The Court should discourage such attitude.” Per (Pp. 17 – 18, Paras. F – D)
From the above decision, it is clear that the law expects a surety to have personal knowledge of the accused before agreeing to stand as surety for him. Thus, by law, a person that qualifies to stand as surety for an accused person is only a person that has personal knowledge of him.

In this instant case, the Appellant had in the affidavit in support of the motion, seeking for variation of bail stated in paragraphs 7(b) and (c):
b. Since the Applicant was granted bail, he has made strenuous efforts to secure a surety that can meet all the conditions for the bail as stipulated by this Honourable Court but has not succeeded.
c. Though he is a businessman and has invested heavily in Nigeria, he does not know any Senator of the Federal Republic of

Nigeria who can stand as a surety for him. He has asked his family members and friends to approach any Senator known to them but all Senators approached have refused to be his sureties as they do not know him.

From the depositions, it is clear that the Appellant has sufficiently stated before the trial Court that he has no close relationship with any Senator and thus has found it impossible to get one to stand as surety for him.

In placing material facts before the Court to exercise its discretion, the deponent on behalf of the Appellant deposed in his affidavit at the trial Court that the Appellant’s effort to fulfill conditions 1,2,3 and 7 has proved abortive. In my own mind, the deposition on oath made and stating facts gotten from the Appellant shows sufficient fact by the Appellant that he finds these conditions impossible to fulfil and it should from that point be the duty of the trial Court to vary same accordingly.

It would only be justice if the lay man can look and say “in fact justice has been done”, I doubt if anyone would indeed look at these conditions that seeks variation and nod his head in affirmation that

justice has been done and or clearly seen to be done.

Another issue I would want to make clear here is that in my view, I do not think that efforts made in fulfilling these conditions needs to be spelt out more than the Appellant had done as anyone who swears on oath knows the import of doing so except the trial Court is questioning the efficacy of the deposition on oath which I doubt was his intention. The facts of inability to fulfill these conditions is to me sufficient materials placed before the Trial Judge to enable him exercise his discretion.

I am also taken aback by the reasoning of the trial judge as contained on pages 865 – 867 of the Record of Appeal and also page 30-31 of the additional Record of Appeal where he held thus:
“The point the Court is making here is that having touched the lives of people in Alheri Local Government by constructing for them a primary school and modern access bridge, there is no evidence before the Court that the Defendant reached out to a Senator representing that local government or Senator representing different communities that the 3rd Defendant has invested in human and infrastructural

development and by so doing touched the lives of people in those communities and those senators turn down his request to act as his surety so that the Court will indeed believe the 3rd Defendant that he has made effort to secure a Senator as surety and this is not possible and the need for the Court to vary the bail conditions. This is a case where the Defendant made no effort at all to secure a Senator as his surety. It is not impossible to secure a Senator as surety but the 3rd Defendant made no effort in this regard. A person that has invested so much in human and infrastructural equipment in different communities in Nigeria cannot claim that no Senator is prepared to stand surety for him. He was informed of the bail conditions on the 11/11/2019 and he hurriedly filed the application to vary the conditions on the 12/11/2019. It is just convenient for him to say that he cannot comply with the terms of the bail conditions. He even produced a picture that he was found with a group of people representing mining community. There is no evidence before the Court that he made contact with those people to provide surety and he did not succeed.
Having regards to

the facts of this case, I do not think asking the 3rd Defendant to produce a Senator that owns a house in Maitama District of Abuja was stringent or excessive having regard to the fact that the Prosecution vehemently opposed the bail of the Defendant…”

Is the trial judge trying to say that a person automatically becomes acquainted with Senators because of the infrastructural development he contributes to the community? Or that a Senator becomes naturally “indebted” to members of the society that contribute towards the development of the community? The reasoning of the trial judge is highly speculatory which act is greatly frowned at under our law.

, it was held:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”

Based on the decision of this Court in the case of OLAYIWOLA VS. FRN (SUPRA), the Senator must have close knowledge of the Defendant before deciding to agree to stand as surety for him. It is even unwise and equally dangerous for the Senator to agree to stand as surety based on any recommendation whatsoever.

Furthermore, there is no law that requires the Appellant to provide verifiable information, showing the steps he took in trying to satisfy the bail conditions as argued by the trial judge and the Respondent’s counsel. The Appellant need not list out the names of the Senators approached on his behalf by his friends and family since he was in detention and could not do it himself.

Again, I find it very uncomfortable that the trial judge granted bail in the like sum of N500,000,000(Five Hundred Million Naira) expecting a Senator in Nigeria to pay it in the event the Appellant jumps bail. I agree

with the Respondent’s counsel that indeed, nobody is asking the said sum of N500,000,000 to be paid immediately to the Court by the Senator who agrees to stand as surety. However, going by the last condition upon which the bail was granted, it is expected that the Senator deposes to an affidavit of means, stating expressly that he has the means to satisfy the bail sum if and when the Appellant jumps bail.

Are Senators now seen as multi-millionaires that would gladly and willing stand as surety for someone they do not have a close relationship? Why is the trial Court speculating that a Senator who is being paid salary with tax payers money would have the whooping sum of N500,000,000 and at the same time have a developed property in Maitama? Is the trial judge trying to expose Senators who claim to have such amount of money to corruption investigations? Maitama is one of the high brows areas within the metropolis of the Federal Capital Territory and it is on record that owning a developed property cost a fortune. In my opinion, it is only a corrupt Senator that will have a property, a developed property in Maitama and would also have the means to pay

the sum of N500,000,000 for a person he barely knows if the need arises.

As regards the condition that the Senator must undertake to attend all Court proceedings of the Appellant, I must say that this is ridiculous to say the least. Is the trial judge charging the Senator that agrees to stand as surety alongside the Appellant since his routine, his money and his property will be tied down in the trial of the Appellant? Is the trial judge forgetting that the Senator’s first duty, to which he swore the oath of office for is to this country and the constituency he represents? Will the Senate be informed of this “new duty” the Senator will be taking up if he agrees to stand as surety for the Appellant? Has the trial judge asked himself: in the event that there is a conflict in the call of duty of the Senator for his legal official work and a date for the trial of the Appellant, which will take precedence?
This is one of the most onerous and stringent bail conditions I have ever seen or heard of. These bail conditions scream an outright denial of bail.
In the case of MADU VS. THE STATE (2011) LPELR – 3973 (CA), it was held

that:
“It is however settled that conditions of bail must not be unreasonable or oppressive. They must not amount in effect to punishment. Once the conditions of bail are so stringent, it in effect amounts to refusal.” Per MUHAMMAD, JCA (Pp.17 – 18, Paras. G – A).

Also, I totally disagree with the finding of the trial judge at page 31 of the additional Record of Appeal where he held as follows:
“Having regard to the facts of this case, I do not think asking the 1st Defendant to produce a senator that owns a house in Maitama district of Abuja was stringent or excessive having regard to the fact that the prosecution vehemently opposed the bail of the Defendant that he is a flight risk. I even took a risk to admit the Defendant to bail having regards to the peculiar facts of this case. The prosecution at all times stated that the Defendant is a foreigner who forged his resident permit. The Prosecution furnished the Court with a letter to this effect.”

Did the Learned Trial Judge not avert his mind to the condition Number Six (6) wherein the Appellant shall deposit all his international passport with the Chief Registrar

of the Court pending the conclusion of trial? How then can the Appellant be a flight risk or ‘escape’ from the Country without the knowledge of the Court. If by any means he wishes to travel, will the Appellant’s first resort not be to the trial Court for the release of his passports to enable him travel out of the Country?

Let us call a spade a spade, the conditions 1, 2,3 and 7 are excessive and clearly impossible to meet. Is it not better for the trial judge to refuse bail instead of granting bail with conditions impossible to fulfil? The whole essence of bail in that instance would have been murdered and thoroughly buried.

I am of the considered view that the aim of granting the Appellant bail would be defeated if the Appellant is unable to meet up with the bail conditions on grounds of stringency. In this instant case, it is impossible for the Appellant to satisfy the conditions of the bail granted to him. By granting stringent conditions for bail, it would amount to giving the Appellant meat with one hand and removing it with another hand.

I have looked at the general circumstances of this case and the arguments of the

parties. It is my opinion that the Appellant by the depositions in the application, seeking for the variation of the bail conditions has satisfied this Court and given sufficient reason for this Court to vary the bail conditions given by the trial Court.

In the final result, I am of the well-considered view that the learned trial Judge did not exercise his discretion judicially and judiciously when he refused to vary conditions 1, 2,3 and 7 of the bail granted to the Appellant upon the application by the Appellant. The trial Court ought to have exercised its powers under Sections 168 and 173 of the ACJA and vary the conditions, as applied.

The learned Trial Judge therefore erred when he refused the Appellant’s application for variation of conditions 1,2,3 and 7 of the bail which were clearly excessive. It is therefore in the interest of Justice to now interfere with the exercise of the lower Court’s discretion.

It must be understood that the basic rule is bail, and not jail, except where the circumstances and the social milieu do militate against the grant of bail. Our law does not permit of any differentiation between nationals of

this country and foreign nationals in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions which are necessary to ensure that a defendant will be available to face the trial. It cannot be argued or said that a defendant will either not be granted bail or granted bail on almost impossible terms simply because he is a foreign national.
The Appeal therefore succeeds. The Ruling of the trial Court made on the 9th December, 2019 refusing the application for variation of terms of bail made on the 7th November, 2019 is hereby set aside.

I hereby vary the conditions of bail granted to the Appellant by the Learned Trial Judgeon the 7th November, 2019 especially Conditions 1,2,3 and 7 as follows:
1. Bail is hereby granted the Appellant, James Richard Nolan in the sum of N100,000,000 (One Hundred Million Naira only) with one surety in like sum.
2. The surety must be a Nigerian not standing any criminal trial in any Court both in Nigeria and abroad and he must also be resident in the Federal Capital Territory, Abuja.
3. The surety must own a landed

property, fully developed within the Federal Capital Territory, Abuja which must be worth the bail sum and with Certificate of Occupancy issued by the relevant department of Ministry of Federal Capital Territory Abuja.

I make no further order as to cost.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading in draft, the lead judgment delivered by my learned brother, MOHAMMED BABA IDRIS, JCA.
I adopt the reasons advanced and the conclusion reached in allowing the appeal. I agree that the appeal Is meritorious and the same succeeds.

I will just emphasize that the essence of the grant of bail is not to set the accused free for all times in the criminal process; but to ensure the liberty of an accused person who is presumed innocent until proved guilty and also to ensure his attendance for his trial. The implication of the presumption of innocence under our Constitution and criminal justice system is that no matter how seemingly serious an alleged offence committed by an accused person appears, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the Constitution. See: SECTION 36(5) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED)

SULEMAN & ANOR V. COP PLATEAU STATE (2008) LPELR-3126 (SC); OBIOMA V. FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131, 158—159.

Conditions are attached to bail In order to ensure that the accused person does not jump bail; interfere with investigation or commit further crimes. It is however settled that conditions of bail must not be unreasonable or oppressive. They must not amount in effect to punishment. Once the conditions of bail are brassbound, it in effect amounts to refusal. As was held in CHIKA MADU V. THE STATE (2011) LPELR-3973 (CA);
“Indeed a bail granted on the basis of conditions the accused is incapable of fulfilling is like a poisoned meal. The accused dies on taking it and still dies by keeping away from it”
In UDUESEGBE V. FRN (2014) LPELR-23191 (CA) P. 11-12 Paras. F-B.. Ekanem, JCA held thus:
“Trial Courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non – capital offences. They are thus to grant bail on favourable and affordable conditions. It has been held that it is against the spirit of

the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. See OBIOMA v. FEDERAL REPUBLIC OF NIGERIA SUPRA 165 AND 168 AND MADU V. THE STATE (2011) LPELR 3973. Where the conditions of bail are stringent, the trial Court or an appellate Court has a duty to vary the conditions. See ONUIGBO V. COMMISSIONER OF POLICE (1975) 1 NMLR 44 AND OBIOMA V. FEDERAL REPUBLIC OF NIGERIA SUPRA 165”
See also: SHUAIBU V. FRN (2014) LPELR-22986 (CA).

The Appellant herein was arraigned before the trial Court for offences bordering on money laundering et cetera. The trial Court, on 7th November, 2019, granted the Appellant’s application for bail pending the determination of the Charge on the following terms:
1. “Bail is hereby granted the 3rd Defendant James Richard Nolan in the sum of N500,000,000 (Five Hundred Million only) with one surety in like sum.
2. The surety must be a Nigerian and a serving senator of the Federal republic of Nigeria that Is not standing trial in a criminal matter in any Court in Nigeria.
3. The surety must have landed property, fully developed In Maitama, Abuja Area of the

Federal Capital Territory, Abuja with Certificate of Occupancy issued by the relevant department of Ministry of Federal Capital Territory Abuja.
4. The Chief Registrar of this Court shall In writing ascertain the validity or otherwise of the certificate of occupancy at the relevant ministry of FCT, Abuja.
5. The surety must submit 3 years’ tax clearance immediately preceding this application.
6. The 3rd Defendant shall deposit all his International passport with the Chief Registrar of the Court pending the conclusion of trial.
7. The surety shall undertake in writing to be in Court with the 3rd Defendant at all adjourned dates till the matter is heard and determined and where the surety falls to appear In Court with the 3rd Defendant, the Court is at liberty to rescind the bail of the 3rd Defendant.
8. The surety shall file on affidavit of means with two passport photographs attached and state that he is capable of paying the penal sum in the event of being called upon to do so.
9. The Prosecution through the investigation police officer shall in writing ascertain the residence of the surety to be in FCT, Abuja.
Unable to meet up with the conditions of bail,

the Appellant filed an application on 12th November, 2019 seeking the variation of the said conditions. The learned trial judge, in its Ruling delivered on 9th December, 2019, refused the Appellant’s application for variation; hence this appeal. At page 876 of the Record, the learned trial judge held thus:
“The 3rd Defendant foiled to provide materials to enable the Court vary the Boll conditions. The application lacks merit. It is accordingly dismissed.

The variation of terms of bail is at the discretion of the trial Court which discretion It is however required by law to exercise judicially and judiciously. Thus, judicial discretion must not be exercised in a capricious and unreasonable act of will, or be influenced by irrelevant or extraneous factors. Although the rule is that an appellate Court does not ordinarily disturb the findings of fact or exercise of discretion of a trial Court, however an appellate Court will readily interfere where a trial Court falls to adhere to the established principle of law. See: CHUKWU V. FRN & ANOR (2018) LPELR – 44519 (CA); OFFOR V. STATE (2012) 18 NWLR (1333) 421;

DANBABA V. STATE (2000) 14 NWLR (687) 396; UBN PLC V. ASTRA BUILDERS (WA) UMIJTD (2010) 5 NWLR (1186).
A surety is someone who has a sure knowledge, who is certain, who has confidence in the manner or behaviour of an accused person and with formal engagement to fulfill an obligation which makes him legally liable for the accused person’s default to appear in Court or failure of any other condition attached to his bail. So a surety must be someone who has a basis of confidence or security of an accused person. He cannot be a stranger to the accused person.
In paragraph 7 of the affidavit in support of the application for variation of the terms of bail, the deponent had, on behalf of the Appellant, averred that the Appellant had made strenuous efforts to secure a surety that can meet all the conditions for his bail to no avail; that he had asked his family members and friends to approach any Senator known to them but all Senators approached have refused to be his surety since they do not know him; et cetera. The Appellant’s basis for seeking the variation of his bail condition in the main is that he does not know and no senator knows him. This by

the definition of a surety I attempted above, makes it impracticable for the Appellant to fulfill his bail condition. I am therefore of the view that the Appellant has shown how impossible it is for him to meet the bail conditions imposed by the trial Court and thus the necessity for a variation. Had the trial Court considered the averment in the aforementioned paragraph vis a vis who a surety must be, it would have found sufficient material on the basis of which to exercise Its discretion in favour of the Appellant notwithstanding the time frame of the Appellant’s application from when he was granted bail. Since the trial Court adjudged the Appellant entitled to bail, the terms of the bail so granted him must be such that he can fulfill and access the bail he is allowed to enjoy. That is the justice of the Appellant’s circumstance. See: CHIKA MADU V. THE STATE (SUPRA); SHUAIBU V. FRN (SUPRA).

For these reasons, and the more detailed reasons in the lead judgment, I also allow this appeal and set aside the Ruling of the Federal High Court, Abuja judicial Division delivered on 9th December, 2019 by O. E Abang, J. in Charge No.:

FNC/ABJ/CR/239/2019.

I abide by the consequential orders made in the lead judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I agree.

Appearances:

Erokoro, SAN, with him, M. Ajara, Esq., A. Akinwunmi, Esq., D. Oshodin, Esq. and A. Abdulquadri, Esq. For Appellant(s)

E. Iheanacho, SAN For Respondent(s)