NWAKAMA v. STATE OF LAGOS (2020)

NWAKAMA v. STATE OF LAGOS

(2020)LCN/14243(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, June 24, 2020

CA/LAG/CR/746/2019

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

PEACE NWAKAMA APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

GUIDELINES FOR THE COURT IN EXERCISING ITS JUDICIAL DISCRETION ON APPLICATION FOR BAIL PENDING TRIAL

In the case of Bamaiyi v. State (2001) 4SC (Pt. I) 18, (2001) 8 NWLR (Pt. 715) 270; Ogwuegbu, JSC stated that: –
“The Court has in most cases, discretion to admit an accused person to bail pending trial, but, in the exercise of the discretion, the nature of the charge, the evidence by which it is supported, the sentence which by law may be passed in the event of a conviction, the probability that the appellant will appear to take his trial, are the most important ingredients for the guidance of the Court and where these are weighty, an Appellate Court will not interfere.”
Then in Dokubo -Asari v. FRN (2007) ALLFWLR (Pt. 375) 557 @ 589, the Apex Court listed the relevant factors to be taken into account in the exercise of a Court’s discretion on application for bail pending trial as follows:-
(a) the nature and gravity of the offence;
(b) the character of the evidence;
(c) the severity of the punishment;
(d) the criminal record or antecedents of the accused person;
(e) the likelihood of the petition of the offence by the accused person while on bail;
(f) likelihood of further charge being brought against the accused person;
(g) probability of the guilt of the accused person;
(h) evidence that if the accused is granted bail the prosecution witnesses will be interfered with or prevented from appearing to testify; and
(i) detention for the protection of the accused person.
The Apex Court did not state or even give any indication that these factors are exhaustive and/or need to co-exist at the same time for a Court to exercise its discretion to grant bail in favour of an accused person. Consequently, other factors may become relevant and material for consideration from the peculiar circumstances of a case that may be disclosed in the facts and evidence presented before a Court which may and can also rely on one or a combination of these factors in the exercise of its discretion judicially and judiciously to either grant or refuse an application for bail pending trial.
For instance, one of such other relevant factors for consideration is the prevalence or frequency of the offence(s) with which an accused is charged, in the society. See also Obaseki v. Police (1959) NWLR 149; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Alaya v. State (2007) 17 NWLR (Pt. 1061) 481 @ 517-8; Bankole v. State (2006) ALL FWLR (Pt. 312) 2168; Adamu v. COP, Plateau State (2006) ALL FWLR (298) 1348; Onyebuchi v. FRN (supra); Omodara v. State (2004) 1 NWLR (Pt. 853) 80; Olatunji v. FRN (2003) 3 NWLR (Pt. 807) 406; Bulama v. FRN (2004) 12 NWLR (Pt. 888) 498. PER GARBA, J.C.A.

THE EXERCISE OF JUDICIAL DISCRETION BY THE COURT IN THE GRANT OF BAIL PENDING TRIAL IS REQUIRED TO BE EXERCISED BOTH JUDICIALLY AND JUDICIOUSLY

However, in all cases, the exercise of a judicial discretion is required by procedural law on practice to be exercised both judicially and judiciously on a dispassionate consideration of the facts and circumstances disclosed therein which simply means that a Court is to exercise the discretion in line with established principles, good sense, sound judgement and wisdom, taking into account the rights of both parties. See Omodara v. State (2004) 1 NWLR (Pt. 855) 80; Dokubo – Asari v. FRN (supra) also reported in (2007) 5-6 SC, 150; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; A. G., Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436; Atiku v. State (2002) 4 NWLR (Pt. 557) 265; Onagoruwa v. IGP (1991) 3 NWLR (Pt. 193) 593; Enwere v. COP (supra); Anyah v. African Newspapers of Nig. Ltd (1992) 6 NWLR (Pt. 247) 319; Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 @ 60 & 61; Danbaba v. State (2000) 14 NWLR (Pt. 877) 396. PER GARBA, J.C.A.

WHETHER OR NOT THE BURDEN IS ON THE APPLICANT SEEKING BAIL PENDING TRIAL TO PLACE SUFFICIENT AND RELEVANT FACTS TO SATISFY IT THAT HE IS ENTITLED TO THE GRANT OF APPLICATION IN HIS FAVOUR

Now, an application for bail, like all other applications, seeking for the exercise of a Court’s judicial discretion one way or the other, is not granted as a matter of course and the burden is on the applicant to place sufficient, relevant and material facts before the Court in order to satisfy it that he was entitled to the exercise of the discretion in his favour, in the peculiar circumstances of the case. He should not expect the Court to do so in the absence of such convincing materials. Udeh v. FRN (2007) 5 NWLR (Pt. 706) 312 @ 326; Dongtoe v. C. S. C. Plateau State (2001) 9 NWLR (Pt. 717) 132 @ 161-2; Fagbenro v. Oregun (1993) 3 NWLR (Pt. 284) 662; M.V Sealion (Ex Antibes) v. A. F. S. (Grensiding) (2019) 9 NWLR (1678) 385. PER GARBA, J.C.A.

THE MOST IMPORTANT CONSIDERATION OF THE COURT IN MAKING A BAIL DECISION

The most important consideration in the bail decision is the determination of what criteria to use or invoke in admitting or denying the bail of the defendant. The bail ability of the defendant depends largely upon the weight Court attaches to one or several of the criteria open to it in any given case. In exercising the judicial function, the Court wields a very extensive discretionary power which must be exercised judicially and judiciously.
See SULEMAN VS COP PLATEAU STATE (2008) 8 WRN (PT 1089) SC. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Lagos State, sitting at Ikeja (Court below) on a charge No. LD/747c/2018 dated the 1st of March, 2017 along with five (5) other persons and she was alleged to, along with the 5th and 6th Defendants, between the months of January to March, 2017, be into procuration of under aged girls for the purpose of defilement contrary to Section 140(1) (a) of the Criminal Law, Cap C17, Laws of Lagos State, 2015 (CLLS).

She pleaded not guilty to the offence and subsequently, filed an application on notice on the 26th of October, 2018 before the Court below seeking an order admitting her to bail on liberal terms pending the determination of the charge against her. The application was supported by a six (6) paragraphs Affidavit deposed to by her mother; one Mrs. Oyinye Nwakama and a Written Address, both filed on the same date with the application. A ten (10) paragraphs Counter Affidavit deposed to by a Counsel in the Directorate of Public Prosecution (DPP), Ministry of Justice, Lagos State; Tolutope Esan (Miss.) was filed on the 17th of

December, 2018 to oppose the Appellant’s application. It was accompanied by a Written Address.

In a Ruling delivered on the 27th of April, 2019 (and not 23rd April, 2019 as stated in Appellant Brief) the Court below refused the application and denied the Appellant’s bail on the ground that she did not show “an exceptional or a compelling circumstance to necessitate the Honourable Court to exercise its discretion in her favour.”

This appeal, premised on two (2) grounds, was brought by the Appellant being dissatisfied with the decision to deny her bail and in the Appellant’s brief filed on the 2nd of August, 2019 deemed on the 12th of March, 2020, the following sole issue is submitted to the Court for decision:
“Whether the lower Court’s exercise of discretion refusing the Appellant’s bail was based on the material placed before her as well as the circumstance of the case and thus not thereby wrongly exercised and liable to be set aside.” (sic).

At the hearing of the appeal on the 3rd of June, 2020, the Respondent was represented by Y. A. Sule, Assistant Director in the Directorate of

Public Prosecution, Ministry of Justice, Lagos State leading by C. Humpe, Senior State Counsel who informed the Court that he did not file a brief of argument in the appeal and does not oppose it.
The absence of the Respondent’s brief and non-opposition to the appeal only leaves the appeal as an uncontested appeal, but does not translate into its automatic success, obviate or even mitigate the duty of the Court to consider the appeal on the merit in order to find out if it is sustainable in law.John Holt Ventures Ltd. V. Oputa (1996) 9 NWLR (Pt. 470) 101; Akpan v. State (1992) 6 NWLR (Pt. 248) 439; Olatunji v. FRN (2003) 3 NWLR (Pt. 807) 406; Echere v. Ezirike (2006) ALLFWLR (Pt. 323) 1597; Ebe v. Ebe (2004) NWLR (Pt. 860) 215; Onyejekwe v. Nig. Police Council (1996) 7 NWLR (Pt. 463) 704; Chinemelu v. COP (1995) 4 NWLR (Pt. 390) 467 @ 484.
I would consider the merit of the appeal, howbeit brief.

The arguments of the Learned Counsel for the Appellant on the sole issue are to the effect that the Court below did not exercise its discretion judicially and judiciously, as required, by principles of judicial practice because the peculiar facts

presented in the Affidavit evidence of the application were not considered in the Ruling. It is also the case of the Appellant’s Counsel that the offence the Appellant was charge with is a bailable one and in view of the presumption of innocence in her favour, she was entitled to the personal liberty provided for under Section 35(1) and (4) of the 1999 Constitution. Learned Counsel also said that the unchallenged fact in the Affidavit in support of the Appellant’s application that she abided by the bail earlier granted to her at the Magistrate Court before her arraignment at the Court below was a material one that should have been considered in the exercise of the discretion by that Court. He maintains that the Appellant has satisfied the conditions for the grant of bail pending trial and urges the Court to temper with the decision by the Court below and admit her to bail.

Heavy reliance was placed on Ikhazuagbe v. COP (2004) 7 NWLR (Pt. 872) 346 on the exercise of discretion in an application for bail pending trial, and the following cases:-
1. Anaekwe v. COP (1996) 3 NWLR (Pt. 436) 320, Olumegbon v. Kareem (2002) FWLR (Pt. 107) 1145;

Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 and Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) 498 on the proper exercise of a judicial discretion.
2. Enwere v. COP (1993) 6 NWLR (Pt. 299) 333; Chinemelu v. COP (1995) 4 NWLR (Pt. 390) 467; Anaekwe v. COP (1996) 320 and Chinemelu v. COP (1998) 1 ACLR (no page provided) on grant of bail in murder cases.
3. Suleman v. COP, Plateau State (2008) 8 WRN, 1089 on the factors to be taken into consideration for grant of bail pending trial and the right of an accused to bail pending trial.
4. Agbakoba v. Director, SSS (1993) 7 NWLR (Pt. 305) 353 @ 365; Omoregbe v. Lawani (1980) 3-4 SC, 108; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557 @ 581 and FBN, Plc v. Ndarake & Sons Nig. Ltd (2009) 13 NWLR (Pt. 1164) @ 414 on the effect of unchallenged averments in an Affidavit.

It is then submitted the cases of Osuzu v. State (2009) 3 NWLR (Pt. 1128) 247 and Suleman v. COP (supra) being armed robbery and murder cases are distinguishable from the facts of the Appellant’s case and in conclusion, the Court is prayed to grant the Appellant bail.

Resolution
In the case of Bamaiyi v. State (2001) 4SC

(Pt. I) 18, (2001) 8 NWLR (Pt. 715) 270; Ogwuegbu, JSC stated that: –
“The Court has in most cases, discretion to admit an accused person to bail pending trial, but, in the exercise of the discretion, the nature of the charge, the evidence by which it is supported, the sentence which by law may be passed in the event of a conviction, the probability that the appellant will appear to take his trial, are the most important ingredients for the guidance of the Court and where these are weighty, an Appellate Court will not interfere.”
Then in Dokubo -Asari v. FRN (2007) ALLFWLR (Pt. 375) 557 @ 589, the Apex Court listed the relevant factors to be taken into account in the exercise of a Court’s discretion on application for bail pending trial as follows:-
(a) the nature and gravity of the offence;
(b) the character of the evidence;
(c) the severity of the punishment;
(d) the criminal record or antecedents of the accused person;
(e) the likelihood of the petition of the offence by the accused person while on bail;
(f) likelihood of further charge being brought against the accused person;
(g) probability

of the guilt of the accused person;
(h) evidence that if the accused is granted bail the prosecution witnesses will be interfered with or prevented from appearing to testify; and
(i) detention for the protection of the accused person.
The Apex Court did not state or even give any indication that these factors are exhaustive and/or need to co-exist at the same time for a Court to exercise its discretion to grant bail in favour of an accused person. Consequently, other factors may become relevant and material for consideration from the peculiar circumstances of a case that may be disclosed in the facts and evidence presented before a Court which may and can also rely on one or a combination of these factors in the exercise of its discretion judicially and judiciously to either grant or refuse an application for bail pending trial.
For instance, one of such other relevant factors for consideration is the prevalence or frequency of the offence(s) with which an accused is charged, in the society. See also Obaseki v. Police (1959) NWLR 149; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Alaya v. State (2007) 17 NWLR (Pt. 1061) 481 @ 517-8;

Bankole v. State (2006) ALL FWLR (Pt. 312) 2168; Adamu v. COP, Plateau State (2006) ALL FWLR (298) 1348; Onyebuchi v. FRN (supra); Omodara v. State (2004) 1 NWLR (Pt. 853) 80; Olatunji v. FRN (2003) 3 NWLR (Pt. 807) 406; Bulama v. FRN (2004) 12 NWLR (Pt. 888) 498.
I should state that because the issue of bail is usually one of and at the judicial discretion of a Court, the factors enumerated and set out in all previous decisions cited above and others, only serve to guide the Court in the exercise of its discretion that is based on the peculiar facts and circumstances of the case in which the application was made and do not constitute binding authorities on the principle of stare decisis since the facts and circumstances of a case, are very rarely, the same with those of another case. However, in all cases, the exercise of a judicial discretion is required by procedural law on practice to be exercised both judicially and judiciously on a dispassionate consideration of the facts and circumstances disclosed therein which simply means that a Court is to exercise the discretion in line with established principles, good sense, sound judgement and wisdom, taking into

account the rights of both parties. See Omodara v. State (2004) 1 NWLR (Pt. 855) 80; Dokubo – Asari v. FRN (supra) also reported in (2007) 5-6 SC, 150; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; A. G., Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436; Atiku v. State (2002) 4 NWLR (Pt. 557) 265; Onagoruwa v. IGP (1991) 3 NWLR (Pt. 193) 593; Enwere v. COP (supra); Anyah v. African Newspapers of Nig. Ltd (1992) 6 NWLR (Pt. 247) 319; Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 @ 60 & 61; Danbaba v. State (2000) 14 NWLR (Pt. 877) 396.
Now, an application for bail, like all other applications, seeking for the exercise of a Court’s judicial discretion one way or the other, is not granted as a matter of course and the burden is on the applicant to place sufficient, relevant and material facts before the Court in order to satisfy it that he was entitled to the exercise of the discretion in his favour, in the peculiar circumstances of the case. He should not expect the Court to do so in the absence of such convincing materials. Udeh v. FRN (2007) 5 NWLR (Pt. 706) 312 @ 326; Dongtoe v. C. S. C. Plateau State (2001) 9 NWLR (Pt. 717) 132 @ 161-2;

Fagbenro v. Oregun (1993) 3 NWLR (Pt. 284) 662; M.V Sealion (Ex Antibes) v. A. F. S. (Grensiding) (2019) 9 NWLR (1678) 385.
It is also important in the exercise of the judicial discretion of the Court on application for bail pending or during trial, to bear in mind that the very essence of the bail is that an accused person who has not been found guilty of a criminal offence by a Court of competent jurisdiction is constitutionally presumed innocent until proved guilty and so is ordinarily, entitled to his personal liberty also guaranteed by the Constitution in Section 35(1) even if reasonably suspected to have committed a criminal offence, as prescribed by the provisions of Subsection (4). The bail mentioned in Subsection 4 is generally to enable an accused person to be available for his trial of the offence(s) he is reasonably suspected to have committed for which he was charged or brought before the Court while enjoying the rights provided for in Subsection (1) for personal liberty and Section 36 (5) on his presumption of innocence until tried and proved guilty. This position applies more in cases of offences which, by statutory provisions, are

ordinarily bailable. Ibekwe v. FRN (2004) ALLFWLR (Pt. 213) 1780; Abacha v. State (supra); Ani v. State (2001) FWLR (Pt. 81) 1715 @ 1724; Chinemelu v. State (supra); Bolakale v. State (2006) ALLFWLR (Pt. 312) 2168; Obekpa v. COP (1980) 1 NCR, 113; Ikhazuagbe (supra); Idowu v. FRN (2012) 11 NWLR (Pt. 312) 441; Adeniyi v. FRN (2012) 1 NWLR (Pt. 1281) 284.
The position of the Courts in such cases, is that an accused person is entitled to bail as of right and that it is only where there are strong, weighty, cogent and/or compelling reasons from the facts and evidence before a Court indicating that an accused will not come back for his trial, interfere with witnesses or investigations if not completed or commit similar or other offences, among other factors if released on bail, he is entitled to be granted bail during or pending his trial. See Eyu v. State (1988) 2 NWLR (Pt. 78) 602 @ 212; Muri v. IGP (1957) NRNLR, 5; Ogbhemhe v. COP (2002) FWLR (Pt. 103) 358 @ 364; Enwere v. COP (supra).

In this appeal, as stated at the beginning of this judgement, the Appellant was arraigned before the Court below for an offence of procuration under

Section 140(1)(a) of the Criminal Law of Lagos State, 2015. The provisions of the section are as follows: –
“140(1) Any person who procures another:
(a) To have unlawful sexual intercourse with another person or persons, either in the State or elsewhere;
is guilty of a misdemeanor and is liable to imprisonment for two (2) years.”
Section 5(3) defines a “misdemeanor” as any offence which is declared by law to be a misdemeanor, or is punishable by imprisonment for not less than six (6) months, but less than three (3) years. Then Section 115 of the Administration of Criminal Justice Law, 2015 of Lagos State (AJCL) which deals with bail, generally in criminal trials for offences under the Criminal Law of Lagos State, provides that:-
“115(1) A defendant charged with any offence punishable with death shall not be admitted to bail, except by a Judge of the High Court.
(2) where a defendant is charged with any felony other than a felony punishable with death, the Court may, if it thinks fit, admit him to bail.
(3) where a person is charged with any offence other than those referred to in the two last preceding subsections,

the Court shall admit him to bail, unless it sees good reason to the contrary.”
Since the Appellant was charged with an offence punishable by an imprisonment of two (2) years under Section 140(1) (a), the offence she was charged with falls under the definition of a misdemeanor in Section 5(3) of the Criminal Law above because it is punishable by imprisonment for not less than six (6) months, but less than three (3) years. I agree with the submission of the Learned Counsel for the Appellant when he said in the Appellant’s brief that by the provisions in Subsection (3), the Court below has a duty to admit her to bail unless it sees good reason to be recorded and stated expressly in the exercise of its discretion, to the contrary. The deliberate use and employment of the word “shall” in the provisions of Section 115(3) of the Administration of Criminal Justice Law imposes a judicial obligation and duty on that Court and did not give a discretion, to admit an accused person charged with a misdemeanor offence before it, either on application or/and even on its own motion unless or except it sees or finds reasons(s) not to do so.

In such cases, unless or except reason(s) to the contrary are seen from the facts and summary evidence upon which the charge was predicated and presented before it, the provisions of Section 115(3) impose a binding duty on that court to admit such an accused person to bail on its own motion without calling on the accused person to show why he should be admitted to bail pending or during the trial. Bolakale v. State (supra), Idowu v. FRN (supra). But even where an accused person makes an application in such cases, the provisions do not impose a duty on him to establish or show reasons why he should be admitted to bail, but the prosecution if it opposes the grant of the bail, bears the burden of showing, for the Court to see, good reasons why the application should not be granted.Idoko v. COP (2006) LPELR-11609(CA); Eyu v. State (1988) 2 NWLR (Pt. 78) 602.
The provisions of Section 115(3) of the Administration of Criminal Justice Law clearly provide an exception and take precedent over the general rule of practice that an applicant for bail bears the burden of establishing and showing his entitlement to bail before it can be granted by a Court, being

statutory provisions. See Ugwu v. PDP (2013) LPELR-21356(CA).
In the present appeal, the Appellant applied for bail for the offence, which is a misdemeanor, she was charged with before the Court below and it was supported by an Affidavit setting out material and relevant facts to show her entitlement to the grant of the application. Some of these facts are in paragraphs 2, 4 and 5 and as follows: –
“2. That I was informed by the 4th Defendant/Applicant and I verily believe her that:
i. She was being remanded by an order of Magistrate Court 2, Surulere, Lagos sometimes in March, 2017.
ii. That she was subsequently granted bail and consequently was release after perfecting the bail condition granted to her by the Magistrate Court 2.
iii. That she has been attending Court proceedings religiously at Magistrate Court 2, Surulere, Lagos while awaiting Director of Public Prosecution’s Advice.
iv. That when she was granted bail she did not jump bail.
v. That she was later informed that the legal advise is out and that she and the other Defendant in this case should be tried at the High Court in respect of the charge

before this Honourable Court.
vi. That she is innocent of the offence alleged against her and she will be ready to proof her innocent at the trial of the case and ensure that she attend the trial until the determination of the charge.
vii. That she has not criminal record what so ever nor involve in any criminal activity.
viii. That she has not been convicted of any criminal charge in any criminal Court in Nigeria or outside the country.
ix. That she is an undergraduate in the University of Lagos at the Faculty of Social Science and department of economics.
4. That we pray this Court to allow the Defendant/Applicant to continue with his existing bail.
5. That the Respondent will not be prejudice by the grant of this application.”
The 10(10) paragraphs Counter Affidavit filed for the Respondent before the Lower Court to oppose the Appellant’s application, in its entirety, was as follows:-
“I, TOLULOPE ESAN(MISS), Female, Christian, Nigerian, Counsel in the Lagos State Ministry of Justice, Alausa, Ikeja, Lagos, do hereby make oath and state as follows that:-
1. I am a State Counsel in the

Directorate of Public Prosecutions, Lagos State Ministry of Justice and by virtue of my schedule of duties I am familiar with the facts of this Application.
2. I have the consent and authority of the Respondent to depose to this affidavit.
3. That the depositions below are derived from files handled in my official capacity as a Counsel in the Directorate of Public Prosecutions, Attorney General’s, Lagos State Ministry of Justice.
4. The Respondent denies all paragraphs of the Affidavit in support of the Summons for Bail.
5. The 4th Applicant was arrested for the offence of Defilement of one Isiogu Chibundu Kenechukwu aged 17 years.
6. The Respondent issued Legal Advice dated 10th July, 2018 and served same on the Nigeria Police.
7. The Legal Advice disclosed a Prima facie case of Procurement against the Defendant and information has been filed to that effect.
8. That the 4th Applicant has not presented any special circumstances before the Honourable Court to give legal justification for her bail application being granted.
9. That the Respondent is ready and willing to prosecute this matter expeditiously.

That I depose to this Affidavit in good faith believing same to be true and in accordance with Oaths Law of Lagos State.”It can easily observed that the above Counter Affidavit did not even attempt to directly and specifically deny, let alone controvert, the material depositions in the Appellant’s Affidavit as they relate to the reason(s) why the application should be granted. In effect, I agree with the Learned Counsel for the Appellant that the depositions of the Appellant were not challenged effectually and are deemed admitted, true and established on the authority of cases cited in the Appellants brief as well as Azeez v. State (1986) 2 NWLR (Pt. 23) 541; Globe Fishing Ind. Ltd. V. Coker (1990) 11 SCNJ, 56; Enwere v. COP (supra); Adeniji v. Tina-George Nig. Ltd. (1998) 6 NWLR (Pt. 554) 483; Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627; Honda Place v. Globe Motors Ltd (2005) 4 NWLR (Pt. 945) 275.
For being deemed admitted by the Respondent, the facts in the Appellant’s Affidavit should have been considered and treated as true, accepted and acted upon by the Court below in the exercise of the discretion over the application

before it. The Ruling by the Court below, after a review of the submissions by Counsel for the parties, was in the following terms: –
“Upon careful perusal of all the processes filed for and against the bail application as well as the oral submission made by parties, it is settled law that the essence of bail is to ensure the presence of the defendant at the trial. It has been established in plethora of cases that the power of the Court to grant bail is purely discretionary.
See the case of OGEDENGBE VS BALOGUN (2007) VOL. 30 WRN 1 A1 42 (SC). ALSO THEOPHILOUS VS. FRN & ORS(2015) LPELR-25984 (SC)
In determining an application for bail, certain factors that the Court must take into consideration reaching its conclusion on whether to grant bail or not has been established in plethora of cases.
See the case of OSUZU VS STATE (2009) 3 NWLR (PT 1128) 247C-A, where the Court of appeal stated that the grant of bail to the defendant charged with criminal offence is not automatic. It is an exercise of discretion, which involves the consideration of such issues as the nature or seriousness of the offence, the evidence to sustain the charge, the

likelihood of the applicant returning to face his trial and the likelihood of the repetition of the offence.
It is without doubt that the defendant is presumed innocent until proven guilty as provided by Section 36(5) of the 1999 Constitution. Notwithstanding, this Honourable Court is still vested with the duty to consider the weight of facts in the affidavit evidence placed before the Court.
The most important consideration in the bail decision is the determination of what criteria to use or invoke in admitting or denying the bail of the defendant. The bail ability of the defendant depends largely upon the weight Court attaches to one or several of the criteria open to it in any given case. In exercising the judicial function, the Court wields a very extensive discretionary power which must be exercised judicially and judiciously.
See SULEMAN VS COP PLATEAU STATE (2008) 8 WRN (PT 1089) SC
It is the considered view of this honourable Court that the applicant in this instance has not shown an exceptional or a compelling circumstance to necessitate the Honourable Court to exercise its discretion in her favour.
Consequently, the

applicant, Peace Nwakama, is hereby denied bail and the Honourable Court shall give this case accelerated trial.”
What is very apparent in this Ruling is that the decision by the Court below, after a correct restatement of the principles of law on bail, on the application is contained in the last, but one paragraph consisting of a single sentence that: –
“It is the considered view of this Honourable Court that the applicant in this instance has not shown exceptional or a compelling circumstance to necessitate the Honourable Court to exercise its discretion in her favour.”
However, “the considered view” of that Court has not been shown or demonstrated to be based or predicated on any consideration of any of the facts in the Affidavits of both parties which were placed before it as evidence in the application. Here again, the Learned Counsel for the Appellant is right that the Court below did not consider the facts in the Appellant’s Affidavit in its decision to refuse the application before it and so its decision was not based on the evidence of the parties. In addition, the Court below did not even mention the

provisions of Section 140 (1) (a) of the Criminal Law or consider the provisions of Section 115(3) of the Administration of Criminal Justice Law in the Ruling in order to determine whether or not the principles of law and factors set out in the judicial authorities cited therein applied and were satisfied. There is no record of any consideration of any piece of the evidence placed before that Court or application of established principles of law to the facts and circumstances of the case in order to show the judicial and judicious exercise of the discretion it claims to have in the application. Furthermore, as can be seen from the decision, the only ground or reason given by the Court below for denial of bail to the Appellant is that the Applicant did not or “has not shown an exceptional or compelling circumstance to necessitate” the exercise of the discretion in her favour. Again, no law; statutory or judicial authority, was referred to and relied on which prescribed, as a requirement or condition, for the grant of bail pending the trial of a misdemeanor offence, that an exceptional or compelling circumstance must be shown by an Applicant.

Under the Administration of Criminal Justice Law, applicable in the Court below, in Section 115(1) and (2) dealing with offence punishable with death and felony; that is an offence punishable with imprisonment for there (3) years and above, which are not ordinarily bailable as of right, that the requirement of exceptional circumstance may be needed to be shown by an accused person before his application could be granted. See Oladele v. State (1993) 1 NWLR (Pt. 1269) 294; Bamaiyi v. State (supra); Abacha v. State (supra); Atiku v. State (supra); Anaekwe v. COP (1996) 3 NWLR (Pt. 436) 320; Johnson v. Lufadeju (2002) NWLR (Pt. 768) 192; Adamu v. COP, Plateau State (2006) ALLFWLR (Pt. 298) 1348; Unogu v. State (2000) 11 NWLR (Pt. 677) 197 @ 202, Section 35(7) (a) of the Constitution on release of person arrested and detained, on bail under subsection (4).
Special or exceptional circumstances for the grant of an application for bail are also usually required in applications made after conviction and pending an appeal against same by the convict, primarily on the ground that by the conviction for the offences he was tried, the Applicant no

longer enjoys the Constitutional presumption of innocence which will entitle him ordinarily, to the right to personal liberty. With his trial concluded and being proved and adjudged guilty of the offence(s) he was charged with, by a court of competent jurisdiction, the convict loses the right to personal liberty which was hitherto guaranteed him before the conviction on the basis that he was presumed innocent of the offences until proved guilty. Being a post-conviction application for bail, it is no longer ordinarily as of right to be granted and so it is the duty and the burden is on the Applicant to show special or exceptional (or even compelling as the circumstances may necessitate) reasons to satisfy the Court that the application should be granted. See Muri v. IGP (supra); Ekpenyong v. State (1981) NCR 343; Obi v. State (1992) 8 NWLR (Pt. 257) 76; State v. Kowo (1980) 1 NCR, 21 @ 28; Buwai v. State (2004) 16 NWLR (Pt. 899) 285; Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486; Enebeli v. Chief of Naval Staff (2000) 9 NWLR (Pt. 671) 199; George v. FRN (2010) NWLR (Pt. 1187) 254.
In this appeal, as shown earlier, the offence with which the Appellant

was charged before Court below as a misdemeanor punishable with an imprisonment for two (2) years on conviction and she was ordinarily entitled to bail even on the motion of that Court, suo motu.
The material facts in the Affidavit evidence placed before the Court below by the Appellant in support of her application were not controverted by the Respondent and yet not considered in the decision to deny bail to her, on extraneous reason that is not supported by and has no basis in the law governing and regulating the issue of bail for offence the Appellant was charged with.
The unchallenged and uncontroverted material facts contained in the Affidavit which are compelling, weighty and cogent are: –
(a) that she was granted bail at the Magistrate Court before her arraignment and she attended proceedings at that court “religiously”;
(b) that she is an undergraduate student of the University of Lagos;
(c) that she has no criminal record whatsoever against her;
(d) that she is ready to attend her trial to prove her innocence of the offence against her;
(e) that there reasonable/credible sureties to take her on bail;

and
(f) that the Respondent will not be prejudiced if she is released on bail.
In Olori Motors Ltd v. U. B. N., Plc (1998) 6 NWLR (Pt. 554) 493 @ 506-7, it was held that unchallenged and uncontroverted averments in an Affidavit must be accepted by a court without hesitation as the truth of facts stated therein having been admitted by a party who had the duty to controvert them if he intended to dispute them. See Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773; Bossa v. J. Berger (2005) 15 NWLR (Pt. 948) 409 @ 420; Adamu v. COP, Plateau State (supra); Ogoejeofo v. Ogoejeofo (2006) ALL FWLR (Pt. 301) 1792; Long John v. Blakk (1998) 6 NWLR (Pt. 555) 524 @ 522; A. G. Lagos State v. Purification Tech. Nig. Ltd (2003) 15 NWLR (Pt. 845) 1. In the above premises the Appellant’s Affidavit has disclosed sufficient material facts which amply warranted the judicial and judicious exercise of the discretion by the Court below in her favour in the application for bail.
In addition, this Court and the parties to the appeal are bound by the Record of Appeal and entitled to look and consider any relevant record of processes therein in the determination of

an appeal; See Larmie v. D. P. M. S. Ltd. (2005) 12 SC (Pt. 1) 93; Gwandu v. COP, Kebbi State (2006) ALLFWLR (Pt. 294) 529; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Agbareh v. Mimra (2008) 1 SCNJ, 409 @ 426, (2008) 2 NWLR (Pt. 1071) 378 @ 410-11; Tsokwa v. UBA, Plc (2008) 1 SCNJ, 323 @ 334; Abiodun v. A. G. Federation (2007) 15 NWLR (Pt. 1057) 259 @ 411, I have noted that the Appellant was arraigned before Court below on the 26th February, 2019 and she pleaded not guilty to the charge against her, as borne out at pages 23-24 of the Record Appeal. As pointed out earlier, the Ruling by the Court below on Applicant’s application for bail pending her trial was delivered on 29th of April, 2019 and this appeal brought on 9th of May 2019. The appeal was heard on the 3rd of June, 2020 by the Court and there was no indication that the trial of the Appellant for the offence she was charged with has been concluded by that date. This shows that the Appellant has been in custody, remand or detention awaiting and pending the conclusion of her trial since the 26th of February, 2019 when she was arraigned before the Court below for an offence that is punishable

with two (2) years imprisonment if found guilty and convicted. The Appellant has therefore already spent a considerable or substantial part of the period of imprisonment she is liable to be sentenced to if found guilty and convicted for the offence she is awaiting trial for. This is a material and compelling factor that weighs in favour of the grant of the Appellant’s application for bail.
The decision by the Respondent not to file a brief of argument and not to oppose the appeal goes to support that the justice of the case justify allowing the appeal.
It is for the above reasons that I find merit in the appeal and allow it accordingly.
In consequence wherefore, the Ruling delivered on 29th of April, 2019 by the Court below denying the Appellant bail is hereby set aside and the Appellant is hereby ordered to be admitted to bail pending her trial for the offence she was charged with, in the sum of One Million Naira (N1,000,000.00) with two (2) credible sureties acceptable to the Deputy Chief Registrar, in the same amount.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: The Honourable Justice M.L. GARBA, JCA had

obliged me with a preview of the draft of the lead judgment which has just been delivered, and in which the appeal against the refusal of the Appellant’s application filed on 26/10/2018 by a Ruling delivered on 29/4/2019 was refused by the lower Court was found meritorious and was allowed.

In view of the fact, that the appeal was in respect of an area of the law that is well worn out by a host of judicial decisions of both the apex Court and the Court of Appeal, I do not have much to add to the comprehensive re-statement of the principles and law on applications for bail which the lead judgment of my lord, the Honourable Justice M.L. GARBA, JCA had exhaustively espoused in reasonable details.
It is obvious that the learned trial judge who had ably set out the judicial principles for the grant or refusal of bail applications vis-a-vis the provision of the law, i.e. Section 115 (3) of the Administration of Criminal Justice Law, 2015, suddenly somersaulted when he erroneously conjured a strange concept or principle that is alien to the provision of Section 115 (3) of the AOL, supra which made the grant of bail in respect of offences classified as

misdemeanor virtually automatic, perhaps, except there are reasons that can be ascertained from the depositions and materials presented by both parties, mandatory having regard to the active and operative word “shall” used in the said provision to refuse the Appellant’s application. The corpus of our jurisprudence on the exercise of discretionary powers by the Courts over the years, is such that the power is never conceived or contemplated to be at large, and this was the raison detre to have established and recognized judicial guidelines to make such exercise reviewable by the appellate Courts when it is challenged as in the instant appeal. The lower Court failed to exercise its discretion judicially and judiciously as it took into account, a consideration not borne out of the Respondent’s counter affidavit and which the lead judgment had laid out in order to demonstrate that the Respondent has not furnished any fact by which the Appellant’s application could have been judiciously and judicially refused having regard to the provision of Section 115 (3) of the AOL, supra, reproduced in the lead judgment. See OLUWA GLASS CO. V. EHINLANWO (1990)7 NWLR

(pt. 160)14 @ 32. C.A. Appeal and the decision in WAYNE V. JACK (1996)2 NWLR (pt. 431) C.A. 407 @ 441.
This appeal succeeds and I abide with the consequential orders made in the lead judgment as the terms and conditions for admitting the Appellant to bail pending her trial in the lower Court.
Appeal is allowed.

BALKISU BELLO ALIYU, J.C.A.: My learned brother Mohammed Lawal Garba, JCA has, before today availed me with the draft copy of the judgment just delivered. I agree with His Lordship that the learned trial Judge did not exercise his discretion judiciously having failed to consider the facts deposed to in the affidavit in support of the Appellant’s application before refusing her bail. I adopt the reasoning and conclusion reached in the lead judgment and I too find merit in this appeal and I allow it.

Consequently, I hereby set aside the ruling of the High Court of Lagos State delivered on the 27th April 2019 in respect of the application of the Appellant standing trial on Charge No: LD/747C/2018. I grant the Appellant bail on the terms stated in the lead Judgment. Appeal allowed.

Appearances:

C. Aibangbee, Esq. For Appellant(s)

A. Sule, Esq. ACSC and C. Humpe, SSC, Ministry of Justice, Lagos State For Respondent(s)