PIUS OGBUAWA V. FEDERAL REPUBLIC OF NIGERIA (2011)

PIUS OGBUAWA V. FEDERAL REPUBLIC OF NIGERIA

(2011)LCN/4483(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of April, 2011

CA/E/293C/2010

RATIO

BAIL: WHETHER THE GRANT OR REFUSAL OF AN APPLICATION FOR BAIL IS AT THE DISCRETION OF THE COURT

It is trite law that the grant or refusal of an application for bail is at the discretion of the court which discretion must not only be exercised judicially but judiciously. That being so, when a court has duly exercised that discretion either to grant or refuse the grant of bail, the real issue that calls for determination in an appeal arising therefrom is whether the trial court properly exercised its discretion in acting in the particular way it did. PER MOHAMMED L. TSAMIYA, J.C.A.

INTERFERENCE WITH THE EXERCISE OF DISCRETION: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE DISCRETION OF THE TRIAL COURT

It is also trite law that the judicial discretion properly exercised by a court will not generally be set aside by an appellate court even if that court was of the opinion that it might have exercised the discretion differently. The court will interfere only when a trial court exercised its discretion upon wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or exclude relevant matters thereby given rise to injustice, in order to correct or prevent injustice. See Kudoro v. Alaka (1959) S.C.N.L.R 255; Williams V. Williams (1987) 2 NWLR (Pt.54) 66, Ebute v. State (1994) 8 NWLR (pt.360) 66, University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143. Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144. PER MOHAMMED L. TSAMIYA, J.C.A.

BAIL: CRITERIA THE COURT WILL TAKE INTO CONSIDERATION IN DETERMINING WHETHER TO GRANT OR BAIL PENDING TRIAL OF AN ACCUSED PERSON

FELONY: MEANING OF THE WORD “FELONY” AS CONTAINED IN SECTION 2 OF THE CRIMINAL PROCEDURE ACT

By section 2 of the C.P.A, the word ‘felony’ means, ‘an offence or conviction for which a person , without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony. PER MOHAMMED L. TSAMIYA, J.C.A.

JUDICIAL DISCRETION: WHETHER A JUDICIAL DISCRETION EXERCISED IN ONE CASE CAN BE A PRECEDENT TO ANOTHER

JUSTICES

MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

PIUS OGBUAWA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

MOHAMMED L. TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Awka Judicial Division (herein referred to as the trial court), in the Criminal Case No.FHC/AWK/7C/2009, which Ruling was delivered on 6/10/2010, refusing the application for bail pending trial.
From the facts contained in the printed record of appeal placed before this court, the Appellant Mr. Pius Ogbuawa, along with other twenty accused persons were arrested by the Police and arraigned before the trial court on a three count charge related to treason, and terrorism. These are offences created by and punishable under the Criminal Code Act, Cap-77, and Economic and Financial Crimes Commission (E.F.C.C) Act Cap. E I, Laws of the Federation of Nigeria, 1990 and 2004 respectively.
On 28/7/2010 the appellant along with other twenty accused persons, upon being arraigned before the trial court pleaded not guilty to all the three count charge.
On 24/9/2010, appellant’s counsel moved his motion on notice, praying the trial court to admit the accused/appellant to bail. The application was supported by an affidavit of 123 paragraphs and a further affidavit in support, of 81 paragraphs. The two respective affidavits contained several documents as attachments and marked as Exhibits A – M3 respectively. On the other hand, the respondent in opposing the application filed three counter affidavits deposed to by police Inspector, Ambrose Ilabor (see p. 459-558 of the record of Appeal), a further counter affidavit deposed to by one Chief Innocent Chukwuma on 16/9/2010 (see pp. 593 – 586 of the record of Appeal) and the 2nd further counter affidavit deposed to by one Chinenye Egwu (see pp.617- 637) of the record). The respondent in addition to the above filed a proof of evidence (see pp.10-233 of the record) on 24/9/2010.
In the said application for bail the grounds on which the appellant relied were stated in the motion papers as follows:
1. That the offences the applicant/appellant are standing trial are non-capital offences and that bail is in the circumstances is a constitutional right.
2. The facts and circumstances of the application warrant granting the Applicant/appellant bail.
3. The applicant/appellant ought to be granted bail on health grounds.
4. The prosecution is not ready as it has not filed proof of evidence.
The counter affidavits apart from denying generally the deposition of the accused/appellant, also averred that the accused/appellant, other accused persons resorted to kidnapping as a way of raising fund, gave financial assistance even before the other accused persons resorted to kidnapping as a way of raising fund, through the 4th accused person who is a brother in law to the accused/appellant. That after arresting the other accused persons the police made several efforts to interview the applicant/appellant but their attempts was frustrated by the appellant’s constant resort to court for the enforcement of his fundamental rights, until when other accused were arraigned before the trial Court on the said count charges. That the appellant is also standing trial for some other offences different from the present charges, before another court.
After taking arguments from the learned counsel for the respective parties, the learned trial judge examined their submissions along with the affidavits evidence laid before him. On 6/10/2010, the learned trial judge refused to grant bail to the appellant. The appellant being not satisfied with the decision, appealed to this court on four grounds of appeal. And from the said four grounds of appeal, learned counsel for the appellant, in the appellants brief of argument filed on 10/11/2010 and adopted in argument of the appeal, on 24/1/2011, has formulated only one issue for determination. The issue is as follows:
“Whether in all the circumstances of this case, the court below was wrong in refusing the appellant’s bail.”
The respondent on the other hand neither raised any issue for determination in his brief of argument filed on 23/12/2010 which he adopted during the hearing of this appeal, or adopted the appellant’s single issue for determination. But from his response in the brief it seems to me that he intends to adopt appellant’s single issue for determination in this appeal.
It is trite law that the grant or refusal of an application for bail is at the discretion of the court which discretion must not only be exercised judicially but judiciously. That being so, when a court has duly exercised that discretion either to grant or refuse the grant of bail, the real issue that calls for determination in an appeal arising therefrom is whether the trial court properly exercised its discretion in acting in the particular way it did. That will definitely not call for the filing of four grounds of appeal.
Be that as it may, in arguing this issue, learned senior counsel for the appellant submitted that the trial court in determining the appellant’s application for bail, totally misconceived the law on criminal justice as it relates to bail. That as the appellant is charged with non-capital offences, there is no practice which says ordinarily he (the appellant) is not entitled to bail.
Learned senior counsel for the appellant further submitted that in its introductory part of the Ruling the trial court laid emphasis on the fact that the punishment for the charge against the appellant is life imprisonment and the charge is serious, and thereby erroneously decided that the appellant have the duty to convince the trial Court to grant him bail and that the appellant in doing so had a Herculean task of convincing it to grant bail. This pronouncement and reasoning of the trial court, learned senior counsel submitted, necessarily did not only connote that the appellant was making a near impossible request from the trial court, but revealed that the trial court had approached the bail application from the angle that the appellant was not entitled to bail pending trial having been charged with an offence that attracts the maximum sentence of life imprisonment. That this approach offends section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and the principle of law stated in Bolamale v. State (2006) 1 NWLR (pt.916) 507 at 518. The learned senior counsel for the appellant also submitted that the trial court from the approach adopted in the appellant’s application for bail, required the appellant to prove his innocence beyond reasonable doubt, and this can only amount to a travesty of justice and a desecration of the Nigerian Gnund-Norm – the Constitution of the Federal Republic of Nigeria 1999. The case of Ikhazueba V. C.O.P. (2004) 7 NWLR (Pt.827) 346 at 366 was relied on to support his submission.
It was further submitted by the learned senior counsel for the appellant that the trial court’s approach led it into further erroneous pronouncement in its ruling refusing bail to the appellant, when, at the concluding part of the ruling held that, “it has not been shown that the prison Doctor could not manage the health situation of the appellant and therefore, it will not be in the interest of justice to grant the application for bail, when infact there is no law that states that an applicant charged with the Commission of non-capital offence is not entitled to bail unless he proves that he is sick and a fortiori that the prison Doctor cannot manage his health.
Another area of contention was the trial court’s reliance on certain facts, namely: Kidnapping of the foreign nationals and the death of one of them, to refuse the bail application, when those facts merely disclosed the gravity of the offence alleged while the onus is on the prosecution to show Criminal Culpability of the accused which will serve as a pointer that an accused should not be released on bail. The mere allegation that the two foreign Nationals were kidnapped and that one of them died cannot be a reason to refuse bail. He further submitted that by the above pronouncement the trial court was of the view that the appellant could no longer take the advantage of the provisions of section 36(5) of the Constitution of the Federal Republic of Nigeria 1999.
The other area of contention of the learned senior counsel for the appellant is on the other part of the Ruling of the trial court, (appearing at paragraph I of page 653 of the record) where the trial court observed that:
“…The counter-affidavit has however put a question mark on the interim report.”
He submitted that the trial court did not find it necessary to disclose what part of the counter-affidavit that his put a question mark to the police interim Report. That the above holding of the trial court cannot be a justification for refusing the appellant bait. For any such question mark ought to be resolved against the prosecution and not against other way round.
Another area of contention is on the alleged admission of the alleged offence, where the trial court (in paragraph 2 of page 653 of the record,) observed that:
“… The Respondent has told the court that the applicant has admitted the commission of the alleged offence.”
The learned senior counsel for the appellant on this pronouncement submitted that the trial court was merely acting on the submission of the respondent’s counsel without scrutinizing the record before it to ascertain this fact. That the trial court ought to have verified from the counter affidavits and proof of evidence before concluding that, there is indeed an admission of the offence or at least an allegation of admission, and this was not done in the instant case.
The last contention of the learned senior counsel for the appellant is on the looking at the proof of evidence by the trial and its observation to wit:
“…I cannot close my eyes to the proof of evidence which is already before the court….”
He submitted that the trial court having stated the above observation swallowed the proof of evidence as a document totally operating against the appellant without taking pains to justify its decision from the contents of the said proof of evidence or even the counter-affidavit. He urged this court to X-ray the approach or reasonings adopted by the trial court as the basis for refusing bail to the appellant. He also urged this court to set aside the Ruling of the trial court as it ought not to be allowed to stand in the light of over whelming evidence that same was based on improper use of the principles guiding courts in consideration of application of this nature. He finally urged the court the appeal to be allowed.
On his part, the learned counsel for the respondent, in the respondent’s brief filed on 23/12/2010 submitted that the court has a discretion to refuse bail to an accused person charged with a non-capital offence, and relied on the case of NWUDE V. F.G.N (2005) 1 NCC 196, Anaiemba v. F.G.N (2005) p. 390, Bamaiyi V. State (2001) NWLR (Pt.715) 270 and section 118(2) of the Criminal Procedure Act to support his submission.
On the portion of the ruling where the learned trial court observed that the charge attracts life imprisonment and is serious and therefore there is a task on the applicant to convince the court to grant him bail, learned counsel for the respondent submitted that there is absolutely nothing wrong with that pronouncement as any judge has the right in our adjective law to use particular words or phrase which in his opinion, are germane to his evaluation of the facts of the case.
On the nature of the burden allegedly placed on the appellant by the trial court in the passage of the ruling referred to by the appellant’s counsel learned counsel for the respondent submitted that the appellant counsel misconceived the situation. For in several cases, the courts have made it clear that it is the duty of the applicant who seeks the indulgence of the court to admit him to bail to place all such concrete materials that would convince the court to grant him what he is requesting for. The case of Nwude V. F.G.N (supra) was relied on in support of this point.
On the approach of the trial court in determining the appellant’s application which the appellant submitted that the approach offends section 36(5) of the Constitution (supra), learned counsel for the respondent submitted that the appellant’s submission is baseless and misconceived in law because raising the issue of presumption of innocence in a pretrial bail matter is premature. The case of Nwude v. F.G.N. (supra) was relied. He also submitted that since proof of evidence has been filed the detention of the appellant is not unconstitutional.
On issue of ill-health, learned counsel for the respondent submitted that the issue was rightly considered by the trial court on the strength of the case presented by the appellant.
Learned counsel for the respondent submitted that the trial court rightly considered the grounds for making the application for bail and no other ground, as it is not the duty of the trial court to make a case for either the applicant or the respondent. On the totality of the findings, he submitted that the findings of the trial court have not been shown by the appellant to be perverse. That the appellant also failed to show that the trial court did not exercise its discretion properly in this matter. He finally urges this court to dismiss the appeal and resolve this issue in favour of the respondent.
I have carefully gone through the record of appeal including the ruling now on appeal, and the briefs of counsel. The law is that the issue of whether or not to grant an application for bail is strictly within the discretion of the court concerned which discretion the court is enjoined to exercise judicially and judiciously.
It is also trite law that the judicial discretion properly exercised by a court will not generally be set aside by an appellate court even if that court was of the opinion that it might have exercised the discretion differently. The court will interfere only when a trial court exercised its discretion upon wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or exclude relevant matters thereby given rise to injustice, in order to correct or prevent injustice. See Kudoro v. Alaka (1959) S.C.N.L.R 255; Williams V. Williams (1987) 2 NWLR (Pt.54) 66, Ebute v. State (1994) 8 NWLR (pt.360) 66, University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143. Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144.

When it comes to the issue of whether to grant or refuse bail pending trial of an accused person by the trial court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. The criteria have been stated in several decisions of this court and the Apex court. Such criteria include, inter-alia, the following:
1. the nature of the charge,
2. the strength of the evidence which supports the charge
3. the gravity of the punishment in the event of conviction,
4. the previous criminal record of the accused, if any,
5. the probability that the accused may not surrender himself for trial.
6. the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
7. the likelihood of further charge being brought against of the accused,
8. the probability of guilt.
9. detention for the protection of the accused,
10. the necessity to procure medical or social report pending final disposal of the case. See Bemaiyi V. The State (2001) 8 NWLR (Pt.715) 270 and Eyu v. State (1988) 2 NWLR (Pt.78) 602.
I wish to point out that the above criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide the required guidelines to trial courts in the exercise of their discretion on matters of bail pending trial. The Supreme Court, per Uwaifo, J.S.C. (as he then was) has this to say on these above mentioned factors:
“In that regard it is proper to consider the nature of the offence, the nature of the evidence in support of it, and severity of the punishment which conviction will entail… These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial but they are certainly worthy to be taken into account in an application for bail pending trial. See BAMAIYI V. STATE (supra) at page 292.
In the present case, the accused/appellant is facing criminal charges at the trial court and it is worthy of note and for clarity, to reproduced in full, the counts for which the appellant is standing trial.
CHARGE:
(Count III)
“That you Mr. Pius Ogbuawa between the months of March and April, 2007 at Nnewi Anambra State, knowingly harboured and provided assistance to the named accused persons even when you knew that the security Agents are searching for them, und thereby you committed an office punishable under section 40 (a) of the Criminal Code Act, Cap. C38 Laws of the Federation 2004.”
Count V.
“That your Mr. Pius Ogbuawa on or about 17th day of March, 2007 between Nnewi in Anambra State and Ekoli – Edde in Ebonyi State committed: a terrorist act, to wit: sponsoring kidnapping and depriving of liberty and you thereby committed an offence contrary to and punishable under section 15(2) of the Economic and Financial Crime Commission Act, 2004.”
Count VII:
“That you, Mr. Pius Ogbuawa on or about the 17th day of March, 2007 between Nnewi in Anambra State and Ekoli – Edde in Ebonyi State, willfully provided money and motor cycles to one Innocent Orji in the knowledge that the money and the motor-cycles shall be used for acts of terrorism and thereby you committed an offence contrary to and punishable under section 15 (1) of the Economic and Financial Crimes Commission Act 2004.”

From the above reproduced, it is clear that all the counts are Criminal in nature. The offences are all created by the Criminal Code Act as well as the Economic and Financial Crimes Commission Acts respectively and punishable by same. That these various offences set above, if each is proved, will attract a punishable for life imprisonment. See the various sections under which the offences are punishable i.e. sections 40 (a) of the Criminal Code Act, (supra), 15(2) and 15(1) of the E.F.C.C. Act (supra).
Section 118(2) of the Criminal Procedure Act, (C.P.A.) Cap. 80, Laws of the Federation of Nigeria (L.F.N.) 1990 provides that:
“Where a person is charged with any felony other than a felony punishable with death the court May, if it thinks fit admit him to bail.” (underlined mine for emphasis).
“By section 2 of the C.P.A, the word ‘felony’ means, ‘an offence or conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony.” (under line mine)

On question of exercise of discretion legal authorities are not of much value. For no two cases are exactly similar and even if they are, the court cannot be bound by a previous decision to exercise it in a particular way otherwise it would be putting an end to discretion. No discretion in one case can be a precedent to another. See Kudoro v. Alaka (1956) 1 F.S.C. 82 at 383.
It is clear from the record of this appeal that, having heard the arguments and all the submissions made by the learned counsel for the respective parties, the trial court made the following conclusion:
“Having regard to the facts which I have highlighted above especially about the seriousness of the charge and the fact that it has not been shown that the prison doctor could not manage the health situation of the applicant, I am of the opinion that it would not serve the end of justice to grant the applicant to bail. It is therefore refused and dismissed accordingly.”
Having stated the finding of the trial court the question is could it be said that the finding is based on the evidence available before the trial court.
The evidence available before the trial court was that of the affidavit evidence and proof of evidence. The accused/appellant as applicant before the trial court deposed to the following facts in support of his application for bail, through his son Uchenna Ogbuawa. The relevant paragraphs containing relevant facts are as follows:
3. My father has told me the story of his travails in this matter and the charge pending against him over and again but he, at about 1:00pm on 23/8/2010 at Nigeria Prisons, Awka where he is presently being detained, specifically narrated the facts to me for the purpose of deposing to this Affidavit which facts I verily believe to be true.
8. My father is presently being remanded in the Prison at Awka, Anambra State.
9. My father is charged in Charge No. FHC/AWK17C/2009 pending at Federal High Court, Awka with the offence of knowingly harbouring and providing assistance to alleged members of the Movement for the Actualization of the Sovereign Republic of Biafra (MASSOB) some of whom are Co-Accused persons in the said charge, sponsoring kidnap and deprivation of liberty and willfully providing money and motorcycles to a group of terrorists knowing that those items shall be used for acts of terrorism.
11. My father is not a member of MASSOB and prior to his abduction which took place on Sunday, the 28th day of January, 2007 being a Sunday, he did not have any contact with any person claiming to be a member of MASSOB.
12. My father’s first encounter with the alleged members of MASSOB was on the 28th day of January, 2007.
13. On the said day, my father was abducted right in front of our Church at Nnewi (Church of Jesus Christ, Nnewi) when he was about to enter the said Church for the Sunday service by a group of men who later identified themselves as members of the Eastern Colonization Force of the Movement for the Actualization of the Sovereign State of Biafra (MASSOB).
15. While he was being held hostage by his abductors, his said abductors extorted the sum of N20,000,000 (Twenty Million Naira) as ransom from my father through members of our family and his associates.
16. The said abductors also gave him a condition that they would subsequently come at their convenience to take 5 motorcycles and 2 electricity generators from him.
38. It is for the acts of paying ransom to my father’s abductors that he is being charged for sponsoring, harbouring and providing money and motorcycles to the members of MASSOB.
42. The complainant in this case is a long standing business rival who has been in unhealthy business competition against my father.
68. When my father made a previous Application for Bail, Chief Oseloka Osigwe vehemently opposed the said Application for Bail just to please his client, Chief Innocent Chukwuma (the Complainant).
69. The said opposition to the Application for Bail was in bad faith.
70. The prosecution since filing the Charge has refused to file and serve Proof of Evidence on my father.
71. Chief Oseloka Osigwe as the Prosecutor has failed to articulate and bring forward the case and evidence they have against my father and other Accused persons but is only clamoring that my father be detained indefinitely in prison custody when he has not made any efforts to prove the case against my father.
72. The said Oseloka Osigwe, Esq has been using fiat to persecute and not prosecute my father.
73. From sometime in April, 2007 when the complainant brought this allegation against my father, he has been detained from one Police Cell to the other and has also been granted bail.
74. In all this time and in the face of all the Complainant has been doing to my father, my father did not jump bail or flee the country.
75. My father of his own volition presented himself before the Federal High Court of Justice, Awka on 28/7/2010 from which date he has been detained till date.
76. By reason of the attacks on my father’s life and the series of incarceration in various Police Cells in connection with this matter, my father’s health became precarious and is fast deteriorating.
77. Owing to my father’s deteriorating health, he was moving from one Medical Practitioner to another and from one hospital to another in search of healing.
78. My father now virtually lives on drugs in order to sustain his health.
79. Due to lack of appropriate medical facilities in the country, my father was constrained to go to SAIFEE HOSPITAL, Mumbai, India where he was admitted as an in-patient on 16/6/2010 after the medical experts thereat ran tests on him.
80. My father eventually underwent Laparascopic Sleeve Gastrectomy at the said Hospital on 5/7/2010.
81. One Dr. M. A. Lakdawala a consultant laparascopic Surgeon who treated my father at the said SAIFEE HOSPITAL certified that he has been suffering from diabete mellitus, hypertension and obstructive sleep apnea
82. The said Dr. M.A. Lakdawal, as part of the treatment process, also fixed regular follow-up (check-up) visits in India for my father the first of such follow-up visits slated for 5/8/2010.
83. I attach a copy of the said Certification by Dr. M.A. Lakdawal hereto exhibited and marked J.
84. I also attach copies of some of the photographs my father took while undertaking treatment at the said SAIFEE HOSPITAL, Mumbai India hereto exhibited and marked K.
85. The said Medical experts who had treated my father in Mumbai, India, also stated that Laparascopic Sleeve Gastrectomy is a complex surgical operation that require strict adherence to the prescribed post surgical operation follow-ups in order to avert adverse effects and post-surgery complication.
86. Due to my father’s confinement in prison custody, my father has failed to attend the follow-up treatment scheduled for him the first of which was on 5/8/2010 to his detriment.
87. The advanced medical equipment used in carrying out Laparascopic Sleeve Gastrectomy and the required follow-ups are not available in the prisons and in the country and my father will not have access to same if confined in the prison.
88. My father had earlier filed a Bail Application on 28/7/2010 which came up for hearing on 5/8/2010 but the Presiding Judge of the Honourable Federal High Court, Awka who was then proceeding on vacation adjourned the matter to 5/10/2010 without ruling upon the Bail Application.
89. Attached hereto as exhibit L is a copy of the Record of Proceedings of 5/8/2010 at the Federal High Court, Awka wherein the charge was adjourned to 5/10/2010 without ruling.
90. From 5/8/2010 to 5/10/2010 which is the next adjourned date is a period of about 2 months.
91. Since the said 5/8/2010 when the matter was adjourned, my father’s health is further deteriorating and presently, he is in pains every minute of the day.
92. My father is in imminent danger of losing his life if he does not attend follow-up treatment in respect of his surgical operation.
93. Instead of waiting till 5/10/2010 for a Ruling on his previous application for bail, my father is constrained to file this present Application for the Court to consider and determine his bail Application expeditiously.
94. My father runs grave health risks for each day he is confined to prison custody in respect of a matter he has not been proved guilty of the charges against him.
95. My father is an excessively fat man and his continued confinement in prison custody is adversely affecting his health.
96. My father needs to be alive in order to stand his trial and clear his name.
97. My father will make himself available to stand his trial if granted bail.
101. My father also has a very big business enterprise which he actively runs as the Chief Executive Officer and the Managing Director to wit:
a. P.P Ogbuawa and Sons Nig. Limited.
b. Uchepas Nig. Ltd Nnewi.
c. Ogbuawa Oil (Filing Station) Awka Etiti.
103. In addition, my father has a lot of properties in Nnewi and other Places.
104. My father’s property in Nnewi include the following
i. 4 four-storey buildings.
ii. 3 three-storey building.
iii. 1 one-storey building.
iv. 1 one-storey building at Nkwo Nnewi Market comprising 20 shops.
v. A show room for the sale of motorcycles at Nkwo Nnewi Market
vi. A very large compound serving as our residential building in Nnewi.
vii. 1 filing Station at Awka-Etiti, Anambra State
viii. A residential house at Abuja.
107. My father’s real estate is worth over N1,000,000,000 (One Billion Naira).
108. My father is willing to enter into recognizance to forfeit the above property to the Federal Government in the event that He jumps bail.
111. My father will not interfere with the course of the investigation of this matter and will not interfere with the witnesses (if any) In the Charge against him if granted bail.
112. My father needs to be granted Bail to enable him effectively confer with his lawyers and effectively and effectually defend the charges against him.
114. My father did not run away all these while and does not contemplate doing so now or in the future.
118. My father has substantial sureties who are prepared to take him on Bail if granted Bail.
121. Apart from the charges relating to this matter, my father does not have any criminal record: He has not been accused or found guilty of any other offence.
122. It is in the interest of justice to grant Bail to my father.
123. I make this oath in good faith conscientiously believing the contents to the true and correct to the best of my knowledge and ability and in accordance with the Oaths Act.

The respondents filed three counter-affidavits and the relevant paragraphs of them are as follows:
9. The Innocent Orji in his statement which was exhibited in the counter affidavit made it clear that the applicant was funding their operations even before they resorted to kidnap and that it was the applicant who gave them my name amongst other people to be kidnapped for ransom.
18. That on several occasions since the charge against the applicant and others was registered the applicant in sundry ways frustrated the due prosecution of the matter. The prosecuting counsel has repeatedly told the court that he is ready for hearing and to field his witnesses. On the 28th day of July, 2010 the prosecuting counsel had three of the witnesses in court.
19. That on the application of defence counsel, the prosecuting counsel photocopied the entire case file and gave copies to them.
24. That when the policemen investigating the complaint of forgery and uttering forged document made against the applicant, invited the applicant for questioning, instead of answering the invitation he went and filed an application for enforcement of his fundamental rights at the High Court, Nnewi and obtained an order staying all matters.
25. That the applicant has no right to decide who should prosecute him. The applicant is being prosecuted in accordance with the law. He is not being persecuted by anybody or person. He was the person who spent more than N50 Million on the press in order to undermine and frustrate his trial in court.
29. That a check at the Prison Clinic Awka by me incognito showed that the applicant since his admission into the prison has not received any treatment from the clinic or from the doctor in charge of the prisons. The applicant since his admission has not submitted any drugs to the prison clinic as suitable for treatment of any type of ailment being suffered by him. The applicant has not been seen by any medical doctor since 28/7/10 when he was admitted because he has never complained of any ill-health and there has not been any need for it.
30. That I know as a fact that all the illness mentioned by the applicant was merely contrived for the purposes of this case. He is not in any serious pain as he calls several people on phone on daily basis.
32. That the applicant since his arrival at the Awka Prison has been living like a Lord and contrary to Prison Regulations. His wife stays the whole day with him in a private room in the prison. As a result of the misconduct of the applicant in the prisons, the State Controller of Prisons and his Deputy were removed and replaced.
33. That the applicant will use his undoubted wealth to interfere with the prosecution of this case. He has a way with abusing due process of law in order to ensure that the trial does not commence. The applicant since his arrest for the crimes he committed had filed more than 15 suits in court in order to ensure that he is not brought to justice.
34. That the applicant has been convicted before for Contempt of Court by the High Court of Anambra State presided by Hon. Justice B.A. Nwankwo. He has no regard for the court. He believes that money is everything and that with his money that he is above the law.
35. That the applicant will do everything humanly possible to ensure that the prosecution does not go on.
36. That it is not in the interest of justice to grant bail to the applicant.
37. That Hon. Justice P.A.C. Obidigwe of the High Court of Anambra State holden at Nnewi in Suit NO. HN/MISC.133/07 P.O. Ogbuawa V. I.G.P and 5 ORS held that there was prima facie evidence of the commission of the offences alleged against the applicant. The applicant did not appeal against the said judgment which declared that the police have sufficient reasons to arrest and detain the applicant.
38. That the applicant is merely whapping up sentiments in order to becloud the issues in controversy and thereby mislead the court.
39. That I swear to this affidavit bonafide and in accordance with the Oath Act, 2004.
The trial court commented on the affidavits evidence and other processes placed before the trial court. The trial considered those processes in arriving at its decision.
Granting of bail to an accused person charged with a non-capital offence at pre-trial stage, to be noted, is not automatic. In Nwude V. F.G.N. (2005) 1 N.C.C. 196. This court, per I.T. Mohammed (JCA) (as he then was) held that:
“While the court is bound to consider weight of facts deposed to in affidavit evidence placed before it for granting or refusing to grant bail section 341 (2) of the Criminal Procedure Code, (which is of the same effect as section 118 (2) of Criminal Procedure Act (C.P.A.) must be related to other considerations on matters of granting or refusing bail at a pre-trial stage.
I have already in this judgment, stated the factors the courts take into consideration in deciding whether to grant or refuse bail. The first consideration is the nature of the offence, and the punishment prescribed for the offence. (Underlined mine for emphasis). Where the offence is a serious one, carrying a heavy penalty, the Court may not exercise its discretion in favour of granting bail to the accused.”
In this case the appellant is standing trial for the stated offences for which each is not ordinarily entitled to bail. The reason for this is clear for the offence of treason and terrorism are among the highest Crimes under the Law which attracts one of the most severe punishments. See Oladele V. The State (1993) 1 NWLR (Pt.260) 294 at 308. Similarly, the law creating these offences mentioned above did not make provision for the grant of bail to a person charged with any of these offences under the respective Acts.
The punishment for each of the offence stated above is life imprisonment. Should the appellant be found guilty upon trial, he is liable to be sentenced to life or to a very long term of imprisonment. He has been in custody since 28/7/2010 i.e. for less than a year so far. He cannot, therefore, be said to have been in prison custody longer than the term of imprisonment he is liable to serve upon conviction if found guilty.
Meanwhile, the ferocious performances of kidnappings and terrorism have not diminished. It seems rather to be on the increase. Law abiding citizen live in fear of the security of their lives and legitimate possession day and night. No wonder therefore that there exists this general reluctance to release persons suspected of these heinous crimes once arrested. Neither the Criminal Procedure Act for an easy release on bail in this type of felony.
On the complaint of the learned trial judges holding to wit: “the appellant had a herculen task to convince the court to grant him bail” I wish to remind the learned senior counsel for the appellant that every judge has the right in our adjective law to use particular words or phrases which in his opinion, are germane to his evaluation of facts of the case. See Enekwe V. I.M.B. (2006) 26 N.S.C.
Having stated the above, the pronouncement of the learned trial judge and his approach as shown on page 3 of the record, do not amount to travesty of justice or a desecration of the Nigerian Constitution and I so hold.
The appellant also complained against the trial courts holding in its ruling to wit: “…. The fact that it has not been shown that the prison doctor could not manage the health situation of the applicant. …” In the brief, the appellant’s senior counsel contended that there is no law that states the applicant/appellant charged with the commission of a non-capital offence is not entitled to bail unless he proves that he is sick and a fortiori that the Prison Doctor cannot manage his health.
In his application for bail one of the cardinal grounds of the appellant is ill-health. In his affidavit evidence it was averred on behalf of the appellant that, he had under gone a complex surgical operation and needed to go for check-up treatment. That his health is declining. Exhibits ‘J’ and ‘K’ were submitted as basis for the application. Part of the Medical report is hereby reproduced:
TO WHOM IT MAY CONCERN. This is to certify that Mr. Pius Okwuchukwu Ogbuawa has been suffering from diabetes mellitus, hypertension and obstructive sleep apnea for which he has been undergone laparoscopic sleeve Gastrectomy on 5th July 2010.”
He is expected to do regular follow up visits the first being on 5th August 2010.
We wish him good health.
Sign:
Dr. M. A. Lakdawala
Cons. Laparascopic – Surgeon.

It has been held severally that mere allegation of ill-health is not sufficient ground for the grant of bail. See Fawehinmi v. State (1990) 1 NWLR (Pt.127) 486. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee poses a possibility of real health hazard to others, and there are no quarantine facilities of authorities for the type of illness. See Abacha v. State (2002) 11 NWLR (Pt.779) 437. The special Medical need of an accused person whose proven state of health needs special medical attention which the prison authorities may not be able to provide is a factor that may be put before the court for consideration in the exercise of discretion to grant bail to the accused person.
But in this case, it has not been shown by evidence that the prison authority cannot take the appellant to the Hospital for special attention. As there is no evidence before the trial court that the prison Medical team cannot handle the matter or that the prison authority cannot take the appellant to a specialist Hospital for treatment, the appellant therefore has no case on this score and I so hold.
Again, at page 4 of the Ruling (appearing at paragraph 1 page 653 of the record of appeal the trial court opined that:
“There is however the counter-affidavit of the police officer, Ambrose Liabour, stating the circumstances of this case. It was revealed that there was a kidnapping of two foreign nationals and one of them died. “I cannot over look this counter-affidavit by the police…” (Italics mine for emphasis).
In the appellant’s brief, it was argued on behalf of the appellant that the mere allegation that the two foreign Nationals were kidnapped and that one of them died, cannot be a reason to refuse bail and the trial court totally failed to securitize the said counter-affidavit with a view to justifying from same why bait should therefore be refused.
Reference to the fact of kidnapping of the two foreign nationals and the death of one of them by the trial court was to clearly show the nature of seriousness the case and gravity of the offence with which the appellant was charged, and nothing else. The trial court, under this circumstance was properly and rightly guided in reviewing the facts and affidavit evidence laid before it.
Still on the reasons and approach adopted by the trial court in refusing the appellant’s application for bail, the appellant also contended that the trial court’s observation to wit: “… The counter-affidavit has however, put a question mark on the interim report …” and submitted that this holding cannot be a justification for refusing the appellant bail. He further submitted that the trial court did not find it necessary to disclose any part of the counter-affidavit that has put a question mark to the police interim report.
I have examined the said counter-affidavit, and it shows clearly why the appellant refused to submit himself to the police for interview in order to clear himself from certain allegations. The reason disclosed by the counter affidavit is the appellant’s constant going to court to seek redress under the guise of threat of breach of his fundamental rights. With regards to the police interim report, it disclosed detailed account of the nature of evidence linking and connecting the appellant with the crime. In the report it was recommended that, in the interest of fair hearing, the appellant should be interviewed along with the other co-accused persons that made the allegations against him. But he refused to be interviewed for reasons stated above. These facts are definitely able to put a question mark on the aspect of the recommendation contained in the police interim report. In my view, the learned trial judge in marking such pronouncement was not labouring under a mis-apprehension that the appellant had a near impossible task to convince it to grant bail in the matter as alleged by the senior counsel for the appellant.
Again, the appellant complained against the observation of the trial court to wit:
“The Respondent has also told the court that the applicant has admitted the commission of the alleged offence. I cannot try the main case at this point but, in my opinion the affidavit of the Respondent has pointed to a serious case before the court …”, and contended that the trial court did not bother to disclose from the counter-affidavit the facts that informed its opinion that the case against the appellant was a serious one. Similarly, the trial court, he contended, did not find it worthwhile to show from the proof of evidence or the counter-affidavit disclosing the admission of the offence by the appellant, rather it merely acted on the submission of the prosecuting counsel in coming to the conclusion that appellant has admitted the commission. From the printed copy of this appeal it is evident that the learned trial judge in his ruling appealed against clearly considered all the grounds relied upon by the appellant in making the application and resolved each of them against the appellant.
On the issue of the confession of the appellant, it was averred in the counter-affidavit deposed to by one Innocent Chukwuma, the chairman/chief executive officer of the Company from where the kidnapping took place that, the appellant was financing their operations even before the co-accused persons resorted to kidnapping and that it was the applicant who gave his (deponent’s) name among those to be kidnapped for ransom. In addition to this, in the statement of Innocent Orji to the police, which is exhibited in the counter-affidavit, it was stated that the appellant was financing the operation even before the other accused persons resorted to kidnapping and that the appellant was the one who gave the name of the above named chief executive among those to be kidnapped for ransom. It is therefore wrong on the part of the appellant to submit that the trial court relied on the respondent’s submission on this issue. Even if it was true, the said submission in my view is borne out by the proof of evidence. It is therefore wrong to believe that reasons for refusing the application cannot be gleaned from the ruling of the trial court.
On the onus of proof, which the appellant alleged to have been misplaced in the proceedings of the trial court, thus heavy burden was laid upon the appellant in this case. Onus of proof is very important in every proceeding. It ought to be placed properly on the party who should assume onus. This is because when the onus is placed wrongly it will lead to a miscarriage of justice. In the bail application, as in this case, what is needed to be done is to provide sufficient materials to show his entitlement to bail, i.e. the first burden, meaning to show that the proof of Criminal responsibility is not evidence. The second burden is when the applicant has placed sufficient material for the consideration of the court, that the onus will shift to the door steps of the prosecution to show because why the bail should not be granted. I.e. to show that the proof is evident or the presumption of innocent is great.
In either case, the court is required to exercise some discretionary power and this must do judicially and judiciously.
From the printed record I observed that the trial court did not misplace the onus or lay a heavier onus on the appellant. And I am unable to discover how the trial court did exercise its discretion improperly in this matter. The bail ability of the appellant at the trial court depends largely upon the weight the trial judge attached to one or several of the criteria open to him in a given situation. The learned trial judge, in my view, attached appropriate weights to the seriousness of the case gravity of the charge and the failure of the appellant to satisfy it through the materials placed before it for consideration that the bail should be granted.
The trial, court in the circumstances of this case exercised its discretion judicially and judiciously. It is well settled that if judicial discretion is exercised bona fide, uninfluenced by irrelevant consideration and not arbitrary or illegally by the court, the general rule is that the appeal court will not accordingly interfere.
For the above reason, I finally find no merit in this appeal, and same is hereby dismissed by me.

ABDU ABOKI, J.C.A.: I have before now read in draft the judgment of my learned brother Mohammed L. Tsamiya, (JCA) and I am in agreement that the appeal lacks merit and should be dismissed. I also dismiss same.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the judgment just delivered by my learned Brother TSAMIYA, JCA. I agree with the reasonings and conclusions reached therein. I have nothing more to add and I abide by the orders made in the said lead judgment.

Appearances

Mr. A. O. Okafor (SAN) with OkonyeFor Appellant

AND

Chief G. O. OsuigbeFor Respondent