RAPHAEL OLORUNFEMI OKOMODA v.FEDERAL REPUBLIC OF NIGERIA & ORS (2016)

RAPHAEL OLORUNFEMI OKOMODA v.FEDERAL REPUBLIC OF NIGERIA & ORS

(2016)LCN/8298(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/L/511C/2015

RATIO

PRACTICE AND PROCEDURE: BAIL APPLICATON; THE POSITION OF THE LAW ON BAIL APPLICATION

Be that as it may, to fulfill our judicial function, I will set out the position of the law on bail applications. An accused is presumed innocent, and the onus is on the Prosecution to show the Court that he should NOT be released on bail – see Onyirioha V. IGP (2009) 3 NWLR (PT. 1128) 342. It is also settled that the Court has discretion to admit an accused to bail or not, and the definition of the word “discretion”, includes – “a public official’s power or right to act in certain circumstances according to personal Judgment and conscience”.
With “discretion” in the mix, it follows that the Court’s decision whether or not to grant bail, is likely to vary from case to case – see Suleman V. COP, Plateau State (2008) 8 NWLR (Pt. 1089) 298SC, wherein Akintan, JSC, observed-
“A judicial officer saddled with the responsibility of exercising discretion is required to arrive at its decision in every case or situation, based on the facts placed before him in the very case and apply the applicable law. His decision is, therefore, likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance”.
In his contributory Judgment, Niki Tobi, JSC, further explained as follows –
“The most important consideration in the bail decision is the determination of what criteria the Court should use or invoke in granting or refusing bail. The bail ability of the accused depends largely upon the weight the Court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judiciously and Judicially.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matters. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. It is a hard matter of law, facts and circumstances, which the Court considers, without being emotional, sensitive or sentimental”.
So, there are no rigid principles or rules governing bail applications because so much discretion is involved, and discretion can only be exercised in the light of the peculiar circumstance of the case. per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: WHEN CAN AN APPELLATE COURT INTERFERE IN THE EXERCISE OF THE DISCRETION OF THE TRIAL COURT TO REFUSE BAIL

COURT: THE EXERCISE OF COURT DISCRETION: WHAT SHOULD A COURT BE GUIDED BY IN ITS EXERCISE OF DISCRETION

The Appellant is right; it is well settled that in an exercise of discretion, a Court is expected to act judicially by being guided by relevant facts and within the precincts of law – see C.B.N. V. Okojie (2002) 8 NWLR (Pt. 768) 48 at 61 SC, where the Supreme Court per Uwaifo, JSC, very aptly observed as follows –
“A discretion is exercisable not on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. This is a well-established principle. Hence, it is the law that a discretion should be exercised judicially and judiciously i.e., reasonably, in the sense that relevant matters are taken into consideration white extraneous matters are avoided and, a decision which suits the occasion, is arrived at”. per. AMINA ADAMU AUGIE, J.C.A.

COURT: WHETHER MERE AVERMENTS BY THE PROSECUTION THAT THE ACCUSED WILL NOT APPEAR FOR HIS TRIAL IN THE ABSENCE OF ANY REAL CONCRETE MATERIAL TO SUPPORT SUCH ALLEGATION SHOULD WARRANT THE DENIAL OF BAIL BY A COURT

It is also settled that mere averments by the Prosecution that an accused will not appear for his trial in the absence of any real concrete material to support such allegation, should not warrant the denial of bail by a Court – see Rajab V. The State (2010) LPELR-5001(CA), Eyu v. State (1988) 2 NWLR (Pt. 78) 602 wherein this Court per Oguntade, JCA (as he then was) observed as follows –
“Since the law presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the Prosecution to show in a given case that an Applicant for bail is not one that should be released on ball”. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

RAPHAEL OLORUNFEMI OKOMODA Appellant(s)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. MOHAMMED RABIU LAWAN
(Alias Shande Dzungwe Ako)
3. ADEGBESAN THEOPHILOUS Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned along with the 2nd and 3rd Respondents before the Lagos State High Court, and charged with sundry offences, including conspiracy to and obtaining money by false pretences, stealing, and money laundering.
He pleaded not guilty to Counts 1 to 6 and 15 of the said Charge on 7/7/2014. The lower Court reserved Ruling on their Application for bail dated 23/6/2014, and ordered that all three of them be “remanded in Kirikiri Maximum Prison”. On 29/9/2014, learned Counsel re-adopted the arguments for their bail and in his Ruling delivered on that day, the learned trial Judge, Lawal-Akapo, J., held –
“Paragraphs 8, 9, 11, 12, 18, and 19 of the Respondent?s Counter Affidavit are very germane. They are hereby reproduced – – – – Failure of the Applicants to file a Reply to these serious and nostalgic averments amounted in law to admission of those facts … With the admission of these cogent and pointed facts can it be said that the Applicants have fulfilled the above conditions with respect to grant of bail? The answer dearly is in the negative.

By these admissions, the Applicants have demonstrated that they may not surrender themselves for trial and if released on bail may likely interfere with the Prosecution’s evidence. – – All things considered. I find no merit in the Application. It is accordingly dismissed.”

He later filed a fresh Application for bail supported by a 27-Paragraph Affidavit, wherein the Deponent, Adetoun Ogunbunmi, a legal practitioner, averred that-
“4. The Applicant and two others were arrested on 3/4/2014 and have since been in custody for a period of about 7 (seven) months now.
5. Prior to [his] arrest and detention he has been diagnosed and on treatment for stomach ulcer disease since sometimes in 2005.
6. Upon the result of the medical diagnoses conducted on [him], he was placed on fortnight clinical appointment with the said hospital to keep his condition medically stable.
7. Since his incarceration about 7 months ago, he has been unable to enjoy the required clinical appointment especially with the medical expert who is familiar with his medical history and he has been unable to observe the required diet and recommended drugs.
8. He has

been in and out of hospital from Military Hospital Ikoyi to the medical unit of the Maximum Prison, Kirikiri, Apapa.
9. [His] health has deteriorated upon being detained at the Maximum Prison, Kirikiri – – where he has been hospitalized [twice] for severe stomach pain – – vomiting of blood and unconsciousness due – – to lack of consumption of proper diet – – and admissibility of the required drugs since the Prison Health Unit lack the required facilities to handle his case.
10. Due to [his] deteriorating health, which has gravely threatened his life, [his] law firm Ola Anthony & Associates was forced to send a written complaint to the Prison Authority.
11. [His] health is complicated as the health unit has diagnosed him of High Blood pressure which – – is life threatening just as the chronic stomach Ulcer he has been bottling with.
12. In view of the foregoing development, [his] health requires very urgent attention of a well-equipped hospital with the correct facilities to cater for him in the circumstances.
13. (His) deteriorating health poses a serious danger to (his) being able to stand his trial.
14. (He) is a responsible

citizen of Nigeria, married with children, gainfully engaged in lawful business as on exporter and pays his taxes regularly.
15. (He) is of good character and has never been involved in any criminal activities prior to this allegation. He is a community leader whose developmental contribution has attached several merit awards from different quarters.
16. (He) is a graduate of the prestigious University of Ibadan (UI) where he obtained a B. SC. Degree in Mathematics in 1988 and has worked with several reputable organizations before he ventured into his own business as an Exporter. The Certificate issued to him by the Nigerian Export Promotion Council as a confirmed exporter is currently with the Economic and Financial Crimes Commission (EFCC) operatives in charge of this case.
17. [He] has operated his export business on his personal saving and loan facilities from – – Diamond Bank, where he was granted a credit line of N800, 000.00, which he serviced every 29th day of each month and has been unable to so service since his incarceration.
18. [His] failure to service the said loan has made hid said Bank (Diamond Bank) threaten to report [him]

to National Financial Institution (NDI), which threat, if carried out, has the unpleasant consequences of preventing him from enjoying credit facilities from the said bank or any other financial institution in Nigeria or and outside Nigeria and this will no doubt adversely affect his business and bring untold hardship not only to him and his family members but to all his dependents as well.
19. The EFCC who is prosecuting this case has earlier granted [him] bail while in its custody but (he) did not pursue it having been served with draft charges at the same time which gave him the impression that he may soon be charged to Court where he preferred to apply for bail. The strike of the Judicial Staff Union of Nigeria (JASUN) and the subsequent vacation by the Courts prolonged his stay in the custody of EFCC.
20. When [he] was finally arraigned before this Hon. Court (he) applied jointly with the other Defendants for bail, but same was refused as a result of certain paragraphs bordering on terrorism that were not denied in the Counter-Affidavit of the EFCC.
21. [He] informed me at Kirikiri Maximum Security Prison on 7/10/2014 – – as follows: that

–
(i) The paragraphs alleging terrorism were not brought to his notice by his former Counsel, for him to react to them;
(ii) He has never had any case whatsoever, apart from this instant one, with any deportment of the EFCC whether on terrorism or otherwise.
(iii) He mandated his new Counsel O. A. Ola to write to the EFCC to supply the evidence of that alleged terrorist act;
22. O. A. Ola of counsel did a letter to the EFCC but no reply was mode to his enquiry.
23. [He] has vehemently denied the allegation leveled against him both in his statement to the EFCC and in his plea before the Honourable Court, insisting on his innocence.
24. I know quite sincerely that the Applicant has no criminal record anywhere in the whole world and is desirous of seeing his trial commenced in earnest; hence he will not jump bail, if granted to him by this Honourable Court.
25. The Applicant as a community leader is capable of attracting responsible surety or sureties who will guarantee his presence in Court anytime his presence is required.”

The Respondent filed a 28-paragragh Counter-Affidavit deposed to by one Tukur Abdullahi, an

Investigating Officer with the EFCC, who averred that –
“5. A Petition was written – – against Defendants by Nigeria Stock Exchange in December, 2013, which was detailed to Capital Market Fraud Unit, Team 2 for investigation.
6. Investigation revealed that [they] are members of a syndicate that specializes in impersonating dead Shareholders, forging documents to fraudulently obtain money.
7. (They) have no other source of income aside defrauding innocent people.
8. The three Applicants/Defendants made a confessional statement to the Respondent confessing and detailing how the crime was perpetrated.
9. Most of the syndicate members are still at large, on the run and they are wanted by the Economic and Financial Crimes Commission [EFCC] in respect to this case.
10. The 2nd Defendant/Applicant [Appellant] was indicted in on earlier case reported to the Counter Terrorist and General investigation Unit/Team D of the Respondent but and all efforts to invite or apprehend him prove abortive as he remained elusive.
11. Further investigation made by Counter Terrorist and General Investigation Unit/Team D of the Respondent also

established a prima facie case against (him).
12. The 2nd [Appellant] and 3rd Defendants have been wonted by Counter Terrorist and General investigation Unit/Team D – – for over two years and they eluded arrest.
13. Presently, most of the Defendants’ syndicate and kingpins are still at large and the Defendants would do everything to ensure that the syndicate members are not apprehended and brought before the Court, as they have been thwarting the Respondent’s effort to arrest the syndicate members at large.
14. (It’s) investigation into the syndicate would be hampered by the Applicants –
15. On-going investigation has linked the three Defendants with the commission of many more crimes for which the Defendants would be charged before the Hon. Court.
16. I was informed by T. A. Arabi, Esq. counsel to the Prosecution/Respondent in our office on the 30 /10/2014 around 12.00 pm and I verily believe him that –
a) The three Defendants – – earlier filed Summons for Bail doted 23/6/2014.
b) The Court heard the bail application and refused the three Applicants bail.
c) There is no fresh fact being brought before the Honorable

Court by the Applicant.
17. Contrary to Paragraph 6 of [his supporting] Affidavit, investigation revealed that [he] does not have a legal means of livelihood aside defrauding innocent people.
18. That contrary to Paragraph 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the (said) Affidavit, the Prison Authorities have access to Qualified Medical Personal that can treat (him) and the Prison authorities have Medical Facility that can cater for (his) health need. The prison authorities have availed [him] the required medical facility to treat his ailment.
19. Contrary to Paragraphs 14 and 15 of the [said] Affidavit, investigation has revealed that (he) has no means of livelihood apart from scamming innocent people.
20. Contrary to Paragraph 16 of the [said] Affidavit, [the Appellant] has never submitted any certificate issued to him by Nigeria Export Promotion Council.
21. The Respondent does not have any knowledge with regards to Paragraphs 17 and 18 and as such the Respondent can neither deny nor affirm the averments.
22. Contrary to Paragraph 19 and 20 of the said Affidavit, the Applicant could not bring a single surety to the Respondent.<br< p=””

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23. Contrary to Paragraph 21 i, ii and iii and 20 of the (said) Affidavit, the (Appellant) was a suspect in a matter being handled by Team D of the respondent’s Counter Terrorism by the Respondent since year 2011, for which the [Appellant] eluded arrest.
24. Contrary to Paragraph 22 of the (said) Affidavit, the Respondent is not in receipt of the [Appellant]’s letter.
25. Contrary to Paragraph 23, 24 and 26 of the (said) Affidavit, investigation has linked the [Appellant] with the offences and more charges would be brought before [him] and some of his syndicate members that have just been apprehended.
26. I strongly believe that the Defendants/Applicant having had the privilege to see the overwhelming evidence against them will be tempted to jump bail, and will jump bail.
27. It will serve a greater cause of justice if bail is refused and the Court orders accelerated hearing of this case.”

The Appellant as 2nd Defendant filed a Further and Better Affidavit deposed to by another legal practitioner, one Remi Kadiri, who averred therein as follows –
“4. I have seen and read through the Respondent’s Counter Affidavit – – and I say

averments therein are mere fabrication, speculative, hearsay and absolute falsehood calculated to keep the Applicant in perpetual incarceration and mislead the Court.
5. Contrary to Paragraphs 6, 9, 13 and 14, on 7/10/ 2014 – – my principal, myself and one other counsel were the with Applicant at the – – Prison when [he] denied ever being a member of any syndicate and that he did not know or ever interact with any syndicate member(s) at large with regard to this case or any case whatsoever.
6. Contrary to Paragraph 8 of the said Counter Affidavit, the Applicant did not make any confessional statement anywhere as it is obvious in his written statement to EFCC and his plea of not guilty before this Honourable Court.
7. Contrary to Paragraphs 10, 11, 12, and 23 of the said Counter Affidavit, the Applicant has never been informed or invited through any means whatsoever prior to the present case by any unit/team D or any deportment or Unit or Team of EFCC for any alleged crime and has never been indicted by any Court of law in Nigeria or abroad for terrorist related matter or any matter at all for that matter.
8. Paragraphs 15, 18, 23, 25 and 26

of the said Counter Affidavit are mere speculation of contemplated events which are not before this Court and cannot be substantiated.
9. Paragraph 16 (c) of the said Counter Affidavit is not true. The issues bordering on terrorism allegation, and jumping of administrative hail were not brought to the knowledge of the Applicant by his former counsel for him to react to them, he only got to know about it on – – 29/9/2014 when the Ruling was being read by the Court.
10. Further to Paragraph 9, the health condition of the Applicant who have been on treatment for chronic stomach ulcer disease since 2005 and who was also taken to military hospital by EFCC on several occasions – was not made an issue in the previous summons for bail as his health situation has not deteriorated to the level it is now.
1.7. Contrary to Paragraphs 17, 19 & 20 of the Counter Affidavit he is gainfully employed.
He is the chief executive officer of Global Multi Concept Nigeria Ltd, a company duly registered with Corporate Affairs Commission and licensed by Nigerian Export Council to export coco other produce. All the original incorporation documents and the

Nigerian Export Promotion Council Certificate issued to the company are contained in an envelope removed from the Applicant?s car by the operatives of EFCC which is indicated on page 223 and 226 of the proof of evidence attached to the information attached to Charge No. ID/667C/14 dated 16/5/2014 – – .
12. Paragraph 18 of the said counter affidavit contained hearsay and falsehood as it is only the prison authorities is in position to deposed to the adequacy of its medical facilities in contradiction to the Applicant’s deposition in his supporting Affidavit.
13. Paragraph 22 is not true, the Applicant as a well-respected community leader is able and willing to attract credible surety if admitted to bail by this Court, he chose not to take advantage of the administrative bail offered to him by EFCC since he was aware he may still have to process same with the Court hence decided to wait for the Court.
14. Paragraph 24 is absolutely not correct; the said letter was received by EFCC as indicated in Exhibit ROOC, the proof of delivery of some by Courier Plus.
15. Contrary to Paragraphs 25 and 29 – – the Applicant being mindful of the need

to clear his names as a well-respected community leader who has built his reputation over the years is willing and eager to see to the speedy dispensation of this matter, hence, it will serve the greater interest of justice to admit [him] to bail to enable him adequately prepare for his defence by attending to his health need.”

After adoption of Written Addresses, the learned trial Judge, Lawal-Akapo, J., delivered his Ruling on 14/4/2015, wherein he held as follows in refusing bail –
?- – I find as a fact that 13 of the Exhibits namely ? ?ROO1?- ROO9?, ROO11? & ?ROO12″ & ?ROO19″ are all public documents which by law ought to be certified.
They were not certified. I therefore place no evidential value or reliance on these exhibits and they are accordingly jettisoned. With the rejection of these Exhibits can (Appellant) be said to have made out a case for a successful bail application. The answer is clearly in the negative, Mr. Arabi further argued that (he) did not controvert or challenge averments – – in Paragraphs 7 & 22 of his Counter Affidavit I have examined the 16-Paragraph

Further and Better Affidavit – – the (Appellant) responded to the – -Counter Affidavit paragraph by paragraph but neglected to respond to Paragraph 7, which stated categorically that [he] has no visible means of livelihood aside from defrauding innocent members of the public. His failure to respond to this pointed categorical assertions amounted to admission of the same – – – This same deposition was contained in the (3rd Defendant?s) Affidavit – – In the like manner, the 3rd Defendant did not also controvert or challenge that averment. The resultant effect is that both Defendants admitted they have no visible means of livelihood. In opposition to the Paragraph 22 of the Counter Affidavit the [Appellant] stated in Paragraph 13 of his Further and Better Affidavit that he opted not to provide surety to perfect the Administrative Bail but prefer to remain in prison pending his arraignment in Court. This deposition in my view disqualifies the [Appellant] as a person, who can be granted to bail. All things considered, I find no merit whatsoever in the two Applications and they are accordingly dismissed”.

Dissatisfied, the Appellant appealed to

this Court with a Notice of Appeal that contains 8 Grounds of Appeal, and he distilled 6 Issues for Determination in his Brief of argument settled by Yinka Farounbi, Esq., & O. A. Ola, Esq. as follows –
“1. Whether the Learned Judge of the Court below erred in law when he held that 13 Exhibits, namely “ROO1” to “ROO9”: “ROO11”, “ROO12” and “ROO19″ attached to the Appellant’s bail Application were public documents, which ought to be certified in spite of the fact that the Exhibits were private documents.
2. Whether the Learned Judge – – misdirected himself in law when he held that the Appellant’s Further and Better affidavit did not deny Paragraph 7 of the – – Counter Affidavit in spite of the fact that Paragraphs 7, 17 and 19 of the Counter Affidavit contained the some averments and were denied by Paragraph 11 of the Appellant’s Further and Better Affidavit.
3. Whether the Learned judge – – erred in law when he held that the failure of
Appellant to perfect administrative bail granted by EFCC disqualifies him from being granted Court bail in spite of the fact that uncontroverted, valid and logical reason was adduced why administrative

bail was not taken.
4. Whether the Learned Judge – – erred in law when he did not make a pronouncement and/or finding in any way whatsoever on the submission of Appellant’s Counsel that Paragraphs 10-13, 17, 18, 22, 23 and 26 of the Counter Affidavit of the 1st Respondent Offended Section 115 of the Evidence Act, 2011 in spite of the fact that the Learned Judge of the Court below noted the submission of Counsel in his Ruling on the bail application.
5. Whether the Learned Judge of the Court below erred in law when he failed, refused and/or neglected to consider the guiding principles and the Constitution in refusing to admit the Appellant to bail in spite of the fact that all these materials were placed and argued before the Court below.
6. Whether the decision of the Learned Judge of the Court below was against the weight of evidence and facts placed before the Honourable Court by the Appellant in his Affidavits and Written Addresses vis-a-vis the Ruling refusing to admit to bail.”

The 1st Respondent failed or refused to file a brief of argument in this Appeal, and the Appellant sought and was granted an order of this Court dated 1/3/16,

to have the Appeal heard on his Brief of Argument only. The 1st Respondent was also not represented by counsel at the hearing of the Appeal on 3/3/2016.
Thus, this Appeal will be determined on the Appellant’s brief only, but that is not to say that this Court would accept his arguments, hook, line and sinker, and thereby find in his favour. The Appeal will sink or swim on its own merits.

I have gone through processes filed vis-a-vis the Ruling appealed against, and it is my view that questions arising from the issues he formulated can be subsumed under one main issue, particularly as there is only his brief, and that is whether the lower Court was right to refuse to admit the Appellant to bail.

The Appellant submitted under Issue 5 that bail applications are one of the most made applications to our Courts, both at lower and the higher Courts.
He then referred us to principles on pages of the Record that he and the 1st Respondent had canvassed at the lower Court, which I consider inappropriate. This is an appellate Court, and our judicial role is to superintend, review and correct any errors made by a trial Court – see Olanrewaju V.

Gov. of Oyo State (1992) 9 NWLR (Pt. 265) 335. It is infra dig [beneath the dignity of this Court] for the Appellant to refer us to the “principles” he submitted at the trial Court, and that of 1st Respondent, who did not file any brief, in arguing this Appeal.

every case or situation, based on the facts placed before him in the very case and apply the applicable law. His decision is, therefore, likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance”.
In his contributory Judgment, Niki Tobi, JSC, further explained as follows –
“The most important consideration in the bail decision is the determination of what criteria the Court should use or invoke in granting or refusing bail. The bail ability of the accused depends largely upon the weight the Court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judiciously and Judicially.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matters. The Court cannot exercise its whims

indiscriminately. Similarly, there is no room for the Court to express its sentiments. It is a hard matter of law, facts and circumstances, which the Court considers, without being emotional, sensitive or sentimental”.
So, there are no rigid principles or rules governing bail applications because so much discretion is involved, and discretion can only be exercised in the light of the peculiar circumstance of the case.

?However, the Court must remember that the main function of bail is to ensure the presence of the accused at trial, which is a very important criterion; any likelihood that he would jump bail is sufficient reason to refuse him bail – see Bamaiyi V. State (2001) 8 NWLR (Pt. 715) 270 and Onyebuchi V. FRN (2007) LPELR-4134 CA, wherein it was held –
“The main function of bail is to ensure the presence of the accused at the trial. So if there is any reason to believe that the accused is likely to jump bail – – bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application – – – This criteria has been described by the Supreme Court – – as the omnibus criteria and, therefore, the most

important to be considered by the Court in exercise of its discretion, on bail application. It is based on the belief that the incentive to jump bail arises from the gravity and seriousness of the offence – – – An accused person charged with multiple counts of offences carrying or attracting statutory penalties of many years without option of fine as well as forfeiture of assets – – will most likely jump bail”.

Given that a decision to refuse bail is entirely at the discretion of a trial Court, an appellate Court would not ordinarily interfere unless its discretion was not exercised in accordance to law or it was exercised in a perverse manner ? see Osakwe v. FGN (2004) 14 NWLR (Pt.893) 305 Likita V. C.O.P, (2002) 11 NWLR (pt. 777) 145 and Atiku V. The State (2002) 4 NWLR (Pt. 757) 265. In this case, the Appellant was refused bail because he has no visible means of livelihood; and because he refused administrative bail when it was offered by the EFCC.
?
The Appellant argued that if the lower Court had considered any of the factors relevant to an application for bail, he would have been admitted to bail; rather it “left the substance and scouted

for extraneous and irrelevant reasons to justify a refusal of bail”; that the reasons for refusing him bail are not part of the factors for consideration in bail applications; that Section 36(5) of the 1999 Constitution presumes him to be innocent until otherwise decided by a Court; that this provision was totally ignored despite the fact that he has no record of previous crime and had already spent over 11 months in custody without trial; and that the offences for which he was charged are naturally bailable offences and in the absence of any serious contravention of some factors to consider in granting or refusing bail, he ought to naturally to have been admitted to bail.
?
He further submitted that the arbitrariness of denying him bail without consideration of the governing factors is a gross violation of his constitutional and African Charter on Peoples and Human Rights personal right to liberty; that his continuous unjust incarceration is making him serve the punishment, even before he is tried not to talk of being found guilty and sentenced; that the lower Court did not exercise its discretionary power judicially and judiciously in considering his bail

application; and that it ignored fundamental submissions and paragraphs of his Affidavit, which thereby aided the lower Court to come to a fundamentally wrong conclusion, and the decision to refuse him bail.

It is also settled that mere averments by the Prosecution that an accused will not appear for his trial in the absence of any real concrete material to support such

allegation, should not warrant the denial of bail by a Court – see Rajab V. The State (2010) LPELR-5001(CA), Eyu v. State (1988) 2 NWLR (Pt. 78) 602 wherein this Court per Oguntade, JCA (as he then was) observed as follows –
“Since the law presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the Prosecution to show in a given case that an Applicant for bail is not one that should be released on ball”.

In this case, the lower Court based its decision to refuse bail on the Appellant’s failure to respond to Paragraphs 7 & 22 of Respondent’s Counter-Affidavit i.e. –
“7. That the Applicants/Defendants have no other source of income aside defrauding innocent people.
22. Contrary to Paragraph 19 and 20 of the Affidavit in support of the summons for bail, the Applicant could not bring a single surety to the Respondent.”

It seems there is no paragraph in the Further and Better Affidavit controverting or challenging the averment in Paragraph 7 of Respondent’s Counter-Affidavit.
So, the lower Court held that since the Appellant “responded to the Counter-Affidavit paragraph by paragraph

but neglected to respond to Paragraph 7, which stated categorically that [Appellant] has no visible means of livelihood aside from defrauding innocent members of the public, his failure to respond to this pointed categorical assertions amounted to admission of the same”; and that the resultant effect is that he admitted that he has no means of livelihood.

The question is whether the source of livelihood of an accused is one of the criteria for considering bail pending trial in respect of a bailable offence?
We dealt with this same question in the sister Appeal No. CA/L/512/2015 filed by 3rd Respondent – Adegbesan Theophilus, and in relation to the same Ruling.
I wrote the lead Judgment in the said Appeal No. CA/L/512/2015 but my learned brother, Ikyegh, JCA, addressed this issue squarely in his contribution –
“The source of livelihood of an accused is not one of the conditions for the consideration of his bail pending trial in respect of a bailable offence. – – There are always sureties to take up the pecuniary penalty for an accused in breach of conditions for bail. The accused stands to forfeit the bail if he breaches the conditions for

bail. In the event, the pecuniary penalty imposed for the infraction of bail conditions is not satisfied, those in breach may serve appropriate jail terms for the breach – – And/or their movables may be attached and auctioned in satisfaction of the breach of the monetary terms of the recognizance as determined by the Court concerned. Again, the Court below relied on the irrelevant factor of the Appellant not having visible means of livelihood in refusing the application for bail. It is clear from the discussion above that the Court below did not exercise its discretion judiciously and judicially in refusing the application for bail in this case: Because it laid emphasis or placed weight on irrelevant/extraneous factor in refusing the application for bail. So it is imperative to interfere with the discretion of the Court below by allowing the appeal- -“.
There we have it; the answer to the above posed question spelt out explicitly -the source of livelihood of the Appellant is not a criterion for considering bail. The lower Court seriously erred when it used that yardstick to refuse bail even as it was averred in Paragraph 11 & 13 of the Further &

Better Affidavit that –
“11. – – He is gainfully employed. He is the chief executive officer of Globol Multi Concept Nigeria Ltd, a company duly registered with Corporate Affairs Commission and licensed by Nigerian Export Council to export coco other produce.
13. Paragraph 22 is not true, the [Appellant] as a well-respected community leader is able and willing to attract credible surety if admitted to bail – – He chose not to take advantage of the administrative bail offered to him by the EFCC since he was aware he may still have to process some with the Court hence [he] decided to wait – – .”

The lower Court concluded that from the above averment in Paragraph 13 – “he opted not to provide surety to perfect the administrative bail but preferred to remain in prison pending his arraignment in Court”, and that “disqualifies [Appellant] as a person, who can be granted bail”, which is outrageous, as he never said he opted not to provide a surety to perfect the administrative bail.

It was merely averred in the said Paragraph 13 that the Appellant being a well-respected community leader is able and willing to attract credible surety if admitted

to bail. The issue of administrative bail has nothing whatsoever to do with the Application for bail, which must be considered purely on its merit. It goes without saying that the Appellant is right; the lower Court, as he put it –
“left the substance and scouted for extraneous and irrelevant reasons to justify a refusal of bail”, and that is more than enough reason to set aside its decision. I also agree with him that the lower Court ought to have considered how long he had been detained vis-a-vis term of imprisonment for the offences charged in our Judgment delivered on 16/12/15, in the sister Appeal, Ikyegh, JCA, said –
?The length of sentence vis-a-vis the period of incarceration pending trial also appears to me to be one of the relevant factors for the consideration of a bail application. If the whole sentence would be exhausted or spent during the trial of the Appellant [3rd Respondent herein], who had not been released on bail and it turned out [he] is absolved of the crime(s) – – the plain and unsavoury result would be that the Appellant served a sentence he had not deserved or required to serve”.

The Appellant has been in

detention since 7/7/2014, and today is 22/3/2016, thus, he has been incarcerated for nearly 2 years, and trial is yet to commence. This is an overriding factor in my estimation, and one that I will take seriously, which means that all the other issues canvassed by the Appellant will fall away. Clearly, we have to interfere with the discretion exercised by the lower Court.

The Appeal succeeds and is allowed. The lower Court’s Ruling delivered on 14/4/2015, wherein it refused Appellant bail is set aside, and in its place, Appellant is granted bail in the sum of N500,000 with two sureties in like sum, and the two sureties must be owners of landed property in any area of Lagos.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the benefit of reading in draft the leading judgment prepared by my Learned Brother AMINA ADAMU AUGIE, JCA and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.

I too allow the appeal and abide by the consequential orders made in the lead judgment.

?JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my

learned brother Amina Adamu Augie JCA and I agree with the reasoning and conclusion contained therein.
?
I also allow the Appeal and abide by the consequential orders made therein.

Appearances

Yinka Farounbi, Esq.For Appellant

AND

Miss A.I. Okoye for the 3rd RespondentFor Respondent