UKANDU v. FRN (2020)

UKANDU v. FRN

(2020)LCN/15709(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/LAG/CR/866/2019

Before Our Lordships:

Joseph ShagbaorIkyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

CHESTER ONYEMAECHI UKANDU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

THE PRINCIPLES IN THE GRANT OF BAIL IN NON-CAPITAL OFFENCES

“The law is settled on guiding principles in the grant of bail in non-capital offences. In DOKUBO-ASARI v FRN (2007) 12 NWLR (PT. 1048) 320, Tobi J.S.C. explained the principles thus:
The general criteria for granting bail at the trial Court are as follows:
(a) The availability of the accused to stand trial.
(b) The nature and gravity of the offence.
(c) The likelihood of the accused committing offence while on bail.
(d) The criminal antecedents of the accused.
(e) The likelihood of the accused interfering with the cause of justice.
(f) Interference with investigation EBIOWEI TOBI, J.C.A.

THE TRIAL JUDGE IS BOUND TO CONSIDER THE WEIGHTS OF FACT PLEADED TO IN AN AFFIDAVIT EVIDENCE

Tanko Muhammad J.S.C. in his own contribution had this to say:
The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail the trial Judge is bound to consider the weight of facts pleaded to in an affidavit evidence placed before him. Other considerations enumerated earlier such as the strength of the evidence which supports the charge the gravity of the punishment in the event of conviction, the likelihood of the accused interfering with the proposed witness or may suppress any evidence that may incriminate him, the likelihood of further charge being brought against him and the probability of guilt are weighty issues in his case that the trial Court cannot gloss over. See also SULEMAN v. C. O. P. PLATEAU STATE (2008) 8 NWLR EBIOWEI TOBI, J.C.A.

THE AVAILABILITY OF THE APPLICANT TO STAND HIS TRIAL

DENIAL OF BAIL APPLICATION OF THE APPELLANT

The Appellant in paragraph 18 of the affidavit has clearly averred that he will not interfere with the witnesses. I reproduce the averment in paragraph 18:
“That the applicant undertakes not to do any act that will interfere or impede the trial of this case if granted bail and further undertake not to breach the bail conditions.”
Taking into cognizance the affidavit evidence as contained in the record of appeal and the position of the law, I cannot see my way clear to refuse bail to a person who the Respondent agrees will make himself available for trial and will not jump bail simply because he took a legitimate step against a conduct he complains over a witness. That in my opinion is not a good reason to deny the Appellant bail for an offence which is ordinarily bailable. EBIOWEI TOBI, J.C.A.

THE COMPETENCY OF A NOTICE OF APPEAL AND THE QUESTION OF MIXED LAW AND FACTT

The Notice of Appeal filed by the Appellant was signed by his counsel. The Respondent has made this one of the grounds of its preliminary objection, contending that the appeal was incompetent since being a criminal matter, the Appellant was to sign the Notice of Appeal personally. Indeed, prior to the 2016 Rules of this Court, for a criminal appeal to be competent, the Appellant had to personally sign the Notice of Appeal: UMEZINNE vs. FRN (2018) LPELR (46334) 1 at 7 -20, IWUNZE vs. FRN (2014) LPELR (22254) 1 at 18 and UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 9-11.
. In the words of Tobi, JSC in NEWSWATCH COMMUNICATIONS LTD vs. ATTA (2006) LPELR (1986) 1 at 19-20:
“Putting the position nakedly, a question of mixed law and fact will prevail where the facts struggle with the law for the first place in the ground of appeal, not because some infinitesimal facts edify the law. Let Courts of law not over blow this aspect of our adjectival law which is really fluid and therefore difficult to apply in practice. A little grain of fact in the law should not tilt the position to straight mixed law and fact.

That will leave our adjectival law in this area highly polarized and cannot be policed or handled effectively.”
See also FIRST DEEPWATER DISCOVERY LTD vs. FAICECK PETROLEUM LTD (2020) LPELR (49783) 1 at 6-19. UGOCHUKWU ANTHONY OGAKWU, J.C.A

THE EXERCISE OF DISCRETION BY THE COURT SHOULD BE BASED ON MATERIALS PROVIDED

In a purported consideration of the bail application, the lower Court merely stated that if it had jurisdiction to entertain the application, then it would adopt the decision given in the earlier proceedings. Section 115 (2) and (3) of the Administration of Criminal Justice Law of Lagos State provide, inter alia, that the Court shall admit a defendant to bail if it thinks fit and unless it sees good reason to the contrary. The exercise of discretion should be based on materials provided and the exercise of discretion has to be for a reason connected to the case. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8. The manner of exercise of discretion is the prerogative of the judex and there are no hard and fast rules as to the manner of exercise of discretion. It was therefore an abdication of its judicial responsibility for the lower Court to adopt the non-existent decision in the earlier proceedings, consequent upon the venire de novo. In the circumstances, it is a proper occasion for the exercise of the general powers of this Court under Section 15 of the Court of Appeal Act. UGOCHUKWU ANTHONY OGAKWU, J.C.A

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of Hon. Justice O.A. Taiwo of the High Court of Lagos State sitting in Ikeja delivered on 11/6/2019 in Suit No. ID/6722C/2017 – Federal Republic of Nigeria vs. Chester OnyemaechiUkandu and Anor. The brief set of facts at the lower Court is that the Appellant (then 1st Defendant at the lower Court) and one other was initially arraigned before Hon. Justice A.O. Williams on a charge of conspiracy to forge documents and forgery of documents contrary to Sections 409, 393(1) and 361(1)(a) of the Criminal Law of Lagos State of Nigeria, 2011. On their arraignment, the Appellant and the other accused at the lower Court applied for bail, and they were granted bail. In the course of the trial, new set of facts arose wherein the Respondent (then complainant at the lower Court) applied for the bail of the Appellant to the revoked. Consequently, the bail of the Appellant was revoked. The matter was subsequently reassigned to Hon. Justice A.O. Taiwo to commence de novo, upon the retirement of Hon. Justice A.O. Williams. When the Appellant and the other accused person werere-arraigned, they applied for bail, hence, the ruling of 11/6/2017 which formed the basis of this appeal. The lower Court in denying the Appellant’s bail application in its ruling found on pages 723-728 of the record of appeal (pages 1-6 of the ruling) held thus on pages 727 – 728 of the record:
“In the instant case, Hon. Justice Olusola Williams’ Court and this Court are of co-ordinate jurisdiction; therefore this Court does not have the necessary vires to upturn orders or revisit orders given by Hon. Justice Olusola Williams within her legitimate powers under the relevant law. Granting of bail to the Defendants and revoking same in respect of 1st Defendant is within the jurisdictional powers and relevant law of both Courts.
The Defendants were re-arraigned on the same charges before this Court in accordance with the relevant law however the bail application is one already considered by my Learned Brother Judge and I see no reason to reconsider her decision on the matter. As stated by M.S. Owede for the Prosecution, the Defence Counsel cannot approbate and reprobate.
On the one hand, Counsel seeks in open Court theCourt’s leave to allow the 2nd Defendant to continue in his previous bail granted by Hon. Justice Williams and on the other hand, he submitted that all previous orders and proceedings before Hon. Justice Williams are null and void.
Assuming this Court does have the jurisdiction to hear afresh application for bail in view of the re-arraignment of the Defendants before this Court, I am inclined to adopt the decision of my Learned Brother Judge Hon. Justice Williams on the issue. The bail of the 2nd Defendant stands while the bail of the 1st Defendant remains revoked. I however order accelerated hearing of this matter.”

Based on the ruling of the lower Court, the Appellant herein filed this appeal vide a notice of appeal dated 13/6/2017 but filed on 17/6/2017. The notice of appeal containing four (4) grounds of appeal is found on pages 729-733 of the record of appeal. The grounds are as follows:
Ground 1:
The learned trial Judge erred in law when he held that he had no jurisdiction to entertain the Applicants application for bail in a matter transferred to His Lordships Court to re-arraign the Appellant and commence trial de novo on the ground that the bail had been revoked by his Learned Brother, Honourable Justice O.A. Williams on the 8th day of May 2019 and can only be reversed on appeal.
Ground 2:
The Learned trial Judge erred in law when he relied on Elder S.A. Soyinka v. Dr Olaiya Oni (2011) LPELR-4096 CA and Mrs. Ann Atim Bassey Eyo v. Hon Alice Ekpenyong&Ors (2011) LPELR-4549 CA to decline jurisdiction to entertain the Appellant’s bail application which said cases were subsequently reviewed by the full Court of Appeal in Ngige v Obi (No 2) (2012) 1 NWLR (Pt. 1280) 87 and Nana v Ningi (2018) LPELR-46399 CA and found not to be the true state of the law on the issue of de novo and as being in conflict with Ngige v Obi (No. 2).
Ground 3:
The learned trial Judge erred in law when he held that a trial de novo does not permit him to review or override the order revoking the Appellant’s bail by Honourable Justice O.A. Williams on the 8th day of May 2019.
Ground 4:
The Learned trial Judge erred in law when he held thus “Assuming this Court does have jurisdiction to hear afresh application for bail in view of the re-arraignment of the defendants before this Court, I am inclined to adopt the decision of my Learned Brother Judge Hon. Justice Williams on the issue.”

The Appellant based on the said grounds of appeal, seek the following reliefs:
i. An order setting aside the decision of Honourable Justice O.A. Taiwo declining jurisdiction to entertain the Appellant’s application.
ii. And, consequent upon the order setting aside the Ruling of Honourable Justice O.A. Taiwo, the hearing of the Appellant’s application for bail dated the 14th day of May 2019 pursuant to Section 15 of the Court of Appeal Act.
iii. An order admitting the Appellant to bail pursuant to the said Appellant’s application dated the 14th day of May, 2019.
iv. An order declaring that the Learned trial Judge ought to have entertained the bail application of the Appellant.

The Appellant brief filed 24/7/3029 but deemed on 27/5/2020 was settled by Paul I. Okon, Esq. Appellant in his brief raised two issues for determination before this honourable Court to wit:
1. Whether the Learned Trial Judge had jurisdiction to entertain the Appellant’s application for bail in amatter that started de novo before him and after re-arraignment
2. Whether the Learned Trial Judge was right in adopting the earlier ruling of Honourable Justice Williams revoking the Appellant’s bail in a matter that started de novo before him and the consideration of which application required the exercise of discretion by the Court.

On issue 1, it is the position of counsel that it is undisputed that the criminal charge in the Court below started de novo and the accused persons were re-arraigned on the 27th day of May, 2019. It is the further position of counsel that the matter having started de novo and the Defendants re-arraigned before the Court anew, the Defendants were free to apply afresh for bail and that was what the Defendants did on the 27th day of May 2019. The Appellant’s counsel relying on the cases of Soyinka vs. Oni (2011) 13 NWLR (Pt. 1264) 294 CA and Mrs. Ann Atim& Anor vs. Hon. Alice Ekpenyong (2011) LPELR-4549 (CA) cited by the lower Court in declining jurisdiction to deal with the bail application being that the issue had been dealt with by a Court of coordinate jurisdiction; argued that where a discretion isinvolved (as in this case) the new Judge seised of the matter can decide on an issue of discretion without deference to the earlier Court. It is the submission of counsel that the application for bail in the Court below required the exercise of discretion which the learned trial Judge declined to exercise. Counsel also relied on Nana vs. Ningi (2018) LPELR-46399 (CA), which case was decided long after the case of Mrs. Ann Atim Bassey Eyo vs. Hon. Alice Ekpenyong (supra). It is further submitted by counsel that the cases relied on by the lower Court on the issue of trial de novo run contrary to the accepted legal position on the issue of trial de novo. For this position, learned counsel cited Ngige vs. Obi (No. 2)(2012) 1 NWLR (Pt. 1280) 68 @ 80-85; Omisore vs. State (2005) 12 NWLR (Pt. 940); FRN vs. Bulama (2005) 16 NWLR (Pt. 951) 219 @ 249. On the strength of his argument, Counsel urged this Court to allow the appeal, the lower Court having gravely fallen into grave errors which errors impinge on the right of the Appellant to personal liberty pending trial as the offences he is charged with are bailable. He cited Orji vs. FRN (2007) 13 NWLR (Pt. 1050) 55 @ 88.It is the argument of counsel that the lower Court did not consider the Appellant’s application neither did the Court state any conduct that justifies the denial of the Appellant bail. He therefore urged this Court to invoke Section 15 of the Court of Appeal Act by allowing the appeal and admitting the Appellant to bail. He relied on Obi vs. INEC (2007) 11 NWLR (Pt. 1046) 565 @ 639.

On issue 2, it is the contention of learned counsel for the Appellant that had the learned trial Judge looked at the facts presented to His Lordship vis-à-vis the facts before Honourable Justice Williams, the wholesale adoption or even taking the position of Honourable Justice Williams would have been avoided and would have exercised his discretion differently as he was bound to do. It is the further contention of counsel that the facts relied on by Honourable Justice Williams to revoke the bail do not prove that the Appellant was holding himself out as a director after the grant of bail on the 12th day of February, 2018 and the same documents were before Honourable Justice Taiwo. Counsel argued that the Respondent in the counter-affidavit to the Appellant’s bail application tried to hinge its objection on tampering with evidence and preventing a witness from attending Court which accusations have criminal imputations. It is further argued by counsel that the Respondent tried to say that the Appellant and the 2nd Defendant tried to prevent one Mr. Friday Etim from attending Court and that the evidence of the telephone conversation was attached as an exhibit to their counter-affidavit; whereas no exhibit was attached to that effect. It is the submission of counsel that the wholesale adoption of the ruling of Honourable Justice Williams by the learned trial Judge without considering the facts before him was a denial of the Appellant’s right to fair hearing as the exercise of discretion is personal to the Judge seised of the matter and not based on precedents or issue estoppel. Counsel further submitted that if the learned trial Judge had looked at the application of the Appellant, he would have discovered that the Appellant did not hold himself out as a director after his arraignment before Honourable Justice Williams. Going further, Appellant’s counsel submitted that before and afterthe arraignment of the Appellant before Honourable Justice Williams, there was no such conduct of tampering with the evidence of witnesses by the Appellant and it is therefore legally wrong to adopt a decision based on the discretion of another Judge when the facts and circumstances do not support such earlier decision.

It is the contention of learned counsel that the letters written by the Appellant which the Respondent allege was written by the Appellant in his capacity as a director; against the terms of his bail, relate to concluded civil matters at the National Industrial Court as against the assertion of the Respondent that the letters relate to the present criminal proceeding. Counsel relying on Sections 91 and 92 of the Criminal Law of Lagos State and the American case of State vs. Straley 139 Ohio St 3d 339, 2014-Ohio 2319 posited that destroying evidence and preventing witnesses from attending Court are offences which involves proof by the Respondent and which was not the case here.

Learned counsel submitted that the learned trial Judge was in error when he adopted the ruling of Honourable Justice Williams which was founded on discretion.

He cited the cases of Orji vs. FRN (supra); FRN vs. Bulama (supra). It is the further submission of counsel that the learned trial Judge having failed to exercise his discretion judicially and judiciously, this Court has the power to intervene to redress the wrong or injustice. For this position, counsel relied on N.A.A. vs. Okoro (1995) 6 NWLR (Pt. 403) 510; ANPP vs. Albishir (2010) 2 MJSC 83 @ 100; Anajemba vs. FGN (2004) 36 WRN 83 @ 100. He urged this Court, relying on Section 15 of the Court of Appeal Act and the case ofInakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 @ 612-614 to admit the Appellant to bail as the refusal to hear his application has led to injustice and a miscarriage of justice.

The Respondent counsel in his brief raised a preliminary objection to the appeal of the Appellant and urged this Court to dismiss the appeal in limine for being incompetent. The grounds upon which the preliminary objection was brought are as follows:
1. The Notice of Appeal is incompetent for being signed by the Appellant’s Counsel rather than the Appellant by virtue of Order 4 Rule (1) of the Court of Appeal Rules, 2016.

2. The Appellant’s appeal is an interlocutory appeal that emanated from a ruling refusing the bail application of the Appellant herein in Charge No: ID/6722C/2017 delivered by Hon. Justice O.A. Taiwo sitting at the High Court of Lagos State, Ikeja Judicial Division on the 11th of July 2019 which requires prior leave of the trial Court and/or this honourable Court before it can be brought under Sections 241(1) and 242(1) of the Constitution.
3. The grounds of appeal are all grounds of facts or mixed fact and law being an appeal against the discretionary decision of the trial Court refusing to grant bail to the Appellant, which requires the leave of this Honourable Court which the Appellant did not seek or obtain.

On ground 1 of the preliminary objection, Respondent counsel posited that the Notice of Appeal is the foundation of a proper appeal and where the notice of appeal is null and void as in this case, there can be no valid appeal pending before the Appellate Court. Counsel referred to Paragraph 1 of the definition Section of the Court of Appeal (Fast Track) Practice direction (2014) on the definition of Appellant while contending that it is notany innovation; and that this same definition cannot be used to change the law established in a long line of Supreme Court cases that a notice of appeal must be signed by the Appellant himself and not his counsel. It is the contention of counsel that under the provisions of the Order 4 Rule (1) of Court of Appeal Rules, 1981 which is now Order 17 Rule 4 of the Court of Appeal Rules, 2016 interpreted by the Supreme Court in several cases, up to as recent as 2018, only the Appellant can sign the Notice of Appeal and the provisions of Paragraph 1 of the definition Section of the Court of Appeal (Fast Track) Practice Direction (2014) cannot be interpreted as amending or having any effect contrary to the position in this case. It is submitted by counsel that the Notice of Appeal is bad and incurably bad and any proceeding which is founded on it is also bad and incurably bad as having been signed by Counsel and not the Appellant. He relied on Umezinne vs. FRN (2018) LPELR-46334 (SC); Iwunze vs. FRN (2014) LPELR-22254 (SC); Ralph Uwazurike&Ors. vs. Attorney-General of the Federation (2007) LPELR-SC. 209/2006.

It is the further submission of counsel thatthe Notice of Appeal can only be signed by the Appellant’s counsel if it was proved that the Appellant’s counsel had no access to the Appellant, which in this case, there is no evidence placed before the Court for failure to sign his notice of appeal by himself.

On this point, it is the final submission of counsel that the appeal is incompetent and on this fact alone the notice of appeal is a nullity and the Court has no jurisdiction to hear this appeal as the apex Court warned counsel not to come up to the apex Court with an appeal on this issue again as it is settled.

On ground 2, it is the Respondent counsel’s submission that bail being at the discretion of the Court, the decision of the Court on matters which involve the exercise of the Court’s discretion can only be appealed with the leave of the trial Court or the Court of Appeal when same is refused at the trial Court. He placed reliance on World Carrier Corporation vs. The M.T. “Mother Benedicta” & Anor (2018) LPELR-44542 (CA). It is the final submission of counsel that the said decision of the lower Court being a ruling on the bail application of theAppellant herein is an interlocutory decision of the Court refusing bail to the Appellant and it is also conceded by the Appellant that the trial Court’s decision on bail is discretionary, which means it is based on facts and law, which requires prior leave of Court to file and the Appellant did not seek or obtain any.

On ground 3, Counsel relied on Okpe vs. Fan Milk Plc & Anor (2016) LPELR-42562 (SC) in stating the trite principle of law that a Notice of Appeal is the live wire of an appeal and where it is shown to be invalid or defective, it would mean that there is no valid appeal before the Court to be determined. It is submitted by counsel that where a party seeks to appeal against an interlocutory decision of a Court, he must require the leave of the Court first before he can file his notice of appeal commencing the appeal therein and where a party fails to seek leave and goes ahead to file, such a notice of appeal will be deemed incompetent and defective and liable to be struck out. For this position, counsel cited Aerobell (Nig) Ltd vs. N.D.I.C (2017) 5 NWLR (Pt. 1558) 203. He further made reference to Kente vs. Ishaku (2017) 15 NWLR(Pt. 1587) 94 in urging the Court that the Appellant should not be allowed to circumvent due process of law.

Furthermore, counsel relied on Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in submitting that where a party desires to appeal to this honourable Court on grounds of fact alone or mixed law and fact and where the appeal challenges an interlocutory judgment, he is required to either seek the leave of the lower Court or this honourable Court and failure to do so, robs the Court of the requisite jurisdiction to entertain the appeal. He relied on Ekemezie vs. Ifeanacho (2019) LPELR-46518 (SC). Counsel referred this Court to pages 729-732 of the record of appeal in pointing to the fact that all the grounds of appeal are of mixed law and fact and therefore caught up with the provisions of Sections 241(1) and 242 of the Constitution, 1999 (as amended) which requires leave to confer jurisdiction on this Court. He therefore urged this Court to decline jurisdiction to hear the appeal.

Finally, learned counsel urged this Court to hold that the appeal is incompetent as the grounds of appeal are of mixed law and facts and leave of Court must be sought and obtained, before the appeal can be instituted.

The counsel that settled the brief of the Respondent is A.B.C. Ozioko Esq. In its brief, Respondent raised two issues for determination by this honourable Court. The issues are:
1. Whether the Learned trial Judge had jurisdiction to entertain the Appellant’s application for bail in a matter that started denovo before him and after re-arraignment.
2. Whether the learned trial judge was right in agreeing with the exercise of discretion of Honourable Justice Williams revoking the Appellant’s bail as proper judicial and judicious and a good reason to refuse the Appellant’s bail application.

On issue 1, it is the submission of counsel that the trial Court was right when it held that it lacks jurisdiction to review its own order(s) and decision(s). It is further submitted that it is only the Court of Appeal that has the jurisdiction to review the order of the trial Court revoking the bail granted to the Appellant. Counsel argued that the argument of the Appellant that the matter is starting de novo and that orders earlier made are not valid is a gross misconception of the position of the law. He relied on Elder Soyinka vs. Dr. Olaiya Oni &Ors (2011) LPELR-4096 (CA); CBN vs. Sun & Paddy Int’l Group (Nig) Ltd &Ors (2018) LPELR-44766 (CA); Mr. Akinfela Frank Cole vs. Mr. Adim Jibunoh & Ors (2016) 4 NWLR (Pt. 1503) 499 @ 521; Chief Gani Fawehinmi vs. A.G. Lagos State No. 1 (1989) 3 NWLR (Pt. 112) 707 @ 724. It is the contention of counsel to the Respondent that the Supreme Court has had need to caution Courts of coordinate jurisdiction not to give conflicting decisions that have the effect of eroding the confidence of the populace on the judiciary. For this, he cited Nigeria Intercontinental Merchant Bank Ltd vs. Union Bank of Nig. Ltd &Ors (2004) 12 NWLR (Pt. 888) 599. It is submitted by counsel that it is much more the case where the decision in issue is the decision of the same Court as in this case, and the Court is bound by its own decisions whether or not that decision is right or wrong unless it is set aside by a competent Appellate Court. He relied on Mr. Reuben Izeze vs. Independent National Electoral Commission &Ors (2018) LPELR-44284 (SC). Counsel cited the case of Mrs. Ann Atim& Anor vs. Hon. Alice Ekpenyong& 3 Ors (2011) LPELR-4549 in submitting further that when a trial is starting de novo, it does not mean that processes already filed would be filed afresh but that all processes filed and orders remain valid and the orders can only be challenged on appeal to the higher Court. On this note, counsel contends that the Appellant did not appeal against the decision, and as such the learned trial Judge cannot revoke the orders made by his learned brother in respect of the bail application of the Appellant.

On issue 2, it is the contention of Respondent’s counsel that the lower Court did consider the application for bail of the Appellant before adopting the decision of his learned brother. It is the further contention of counsel that all the cases cited by counsel to the Appellant did not say that the latter Judge cannot agree with the way the earlier Judge exercised his discretion. Counsel submits that the Court cannot invoke Section 15 of the Court of Appeal Act as it is not applicable to this case as it is a matter of discretion of a trial Court. He relied on NJC vs. Dakwang&Ors.(2019) LPELR-46927 (SC) and urged this Court to dismiss the appeal in all respect as lacking in merit with substantial cost.

The Appellant in answering to the new issues raised by Respondent in its brief filed a reply brief dated and filed 6/11/2019 but deemed on 27/5/2020.

It is the submission of Appellant counsel that the Respondent’s preliminary objection in paragraph 3.1 of the Respondent’s brief of argument is totally misconceived and should be dismissed by this honourable Court. It is the contention of counsel that the said objection is a complete misunderstanding of the new Rules of this Honourable Court. He made reference to Order 4 Rule 4 of the 2001 Rules and Order 17 Rule 4(1) of the 2011 Rules which is in difference to Order 17 Rule 4(1) of the 2016 Rules which makes it possible for either Appellant to sign the notice of appeal by himself or through his legal representative. He also referred to Order 1 Rule 5 of the said Rules on the definition of legal representative. It is the further submission of counsel that the cases cited by the Respondent counsel were either not determined based on the 2016 Court of Appeal Rules orbased on the Supreme Court Rules which did not define a “legal representative”.

On the objection of Respondent’s counsel as it relates to leave to appeal, it is the contention of Appellant counsel that the Respondent counsel completely misunderstood the difference between an appeal as of right and an appeal with leave of Court in an interlocutory appeal. It is the further contention of counsel that this appeal has nothing to do with the exercise of discretion by the lower Court but is a complain against a total refusal to adjudicate in the bail application which borders on lack of fair hearing and adoption of the ruling of a brother Judge wherein the brother Judge exercised his own discretion in arriving at his decision. It is therefore submitted by counsel that it is not every interlocutory appeal emanating from an interlocutory decision of the High Court or Federal High Court that must in all cases require the leave of either the Court below or of this Honourable Court. Counsel cited Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is the further submission of counsel that all the grounds aregrounds of law, and so by virtue of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) no leave is required before an Appellant can file his notice of appeal; as he files the appeal as of right. Learned counsel relied on Gboko vs. State (2007) 17 NWLR (Pt. 1063) 272 @ 293; BAICO vs. Edema-Sillo (1993) 2 NWLR (Pt. 2777) 567 @ 576; Adetona vs. Edet (2001) 3 NWLR (Pt. 699) 186 @ 190; Ngige vs. Obi (supra), Eneh vs. NDIC (2018) 16 NWLR (Pt. 1645) 355 @ 368-369; NNSC vs. Establishment Sima of VaduzSC137/1989.Counsel referred this Court to pages 729-733 of the record of appeal and the cases ofMetal Construction(West Africa) Ltd vs. Migliore (1990) All NLR 142; Ogbechie vs. Onochie (1986) 2 NWLR (Pt. 23) 484 in determining whether the grounds of appeal are of law or not. He therefore urged this Court to dismiss the Respondent’s preliminary objection in its entirety and determine the appeal on its merits.

With respect to the Respondent’s argument on the merits of the appeal, it is the submission of counsel that the grounds for the refusal of the Appellant in hearing the case were predicated on a wrongapplication of the law in cases being heard de novo. He therefore urged this Court to allow the appeal and grant the reliefs sought by the Appellant. It is the further submission of counsel that the matter has started de novo and the Appellant until conviction is entitled under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to fair hearing. Counsel placed reliance on Orji vs. FRN (supra). It is contended by learned counsel that the trial Judge having declined jurisdiction to entertain the bail application based on an erroneous application of the law lacked the vires to go into the merits of the application.

In conclusion, it is submitted by counsel that the lower Court having abdicated its adjudicatory role on the issue, this honourable Court is enjoined pursuant to Section 15 of the Court of Appeal Act to put aright that which the lower Court refused to do.
Counsel have finished ventilating their legal arsenals, now my turn.

The Appellant was originally arraigned for the criminal offence of forgery. This was before His lordship Hon. Justice Williams. He was granted bail before His Lordship but his bailwas canceled or revoked by the Court. The criminal matter started de novo before Hon. Justice O.A. Taiwo (Mrs). The Appellant decided to bring a fresh bail application before Hon. Justice Taiwo. The fresh bail application was refused by the Hon. Justice Taiwo principally on the premise that a Court of coordinate jurisdiction having revoked the bail earlier granted the Appellant makes it improper and illegal for His Lordship to grant bail on the same charge. The position of the lower Court was that it lacked jurisdiction to revisit the decision of another Judge of the High Court of Lagos State as that will amount to reconsidering the decision of the lower Court. Based on this, the lower Court held that the bail of the Appellant remains revoked. The Appellant filed this appeal to challenge the ruling of the lower Court. Both counsel in the briefs of the parties raised two issues each for determination formulated from the grounds of appeal contained in the notice of appeal. The formulated issues are materially the same. I will however adopt the issues formulated by the Appellant in this appeal for determination. I will reproduce them later in this judgment when Iaddress the merit of the appeal if need be. For now, I will be looking at the preliminary objection raised by the Respondent to this appeal.

The Respondent raised a preliminary objection to the appeal in raising an objection to the effect that the appeal is incompetent. The two main grounds are that, the notice of appeal was signed by the counsel instead of the Appellant himself against the rules of the Court and that the Appellant needed to seek leave to appeal being an interlocutory appeal and more so when the grounds of appeal are not purely on grounds of law. The Respondent raised and argued the objection on pages 3-11 of the Respondent’s brief. In the light of the preliminary objection, the law requires me to first determine the preliminary objection because whether this Court will decide the appeal on the merit depends on the decision of the Court on the preliminary objection. If this Court upholds the objection, there will be no need to consider the merit of the appeal as the success of a preliminary objection terminates the further determination of the appeal on merit as this will be unnecessary and make any such effort a wasteful exercise.In Petgas Resources Ltd vs. Mbanefo (2018) 6 S.C (Pt. VIII) 49, the Supreme Court per Ogunbiyi, JSC driving home this point held:
“As a first line of action in this appeal, It is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondents brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9.
In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at216 is extant wherein this Court held:-
“The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.
Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:-
“A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.”
The same foregoing principle of law was applied also in the case of Alege v. Governor Oyo State (2012) All FWLR (pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:-
“However vague or minute a Preliminary Objection is, it must be first considered before the Court can go forth, since thecompetence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.”
Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237; and Yaro V. Arewa Construction Ltd &Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603.
On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore, it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation.
In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successfulought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal.
It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Ntuks V. NPA (2007) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney -General, Federation (2007) All FWLR (Pt. 367), 834.
The Blacks Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.”

The first ground of the preliminary objection is that the Notice of Appeal was signed by the Appellant’s counsel and therefore the notice of appeal is incompetent. The notice of appeal found on pages 729-733 of the record was signed by the Appellant’s counsel and not by the Appellant himself. Is this act damaging to the notice of appeal and by necessary implication to the appeal itself?

The Respondent’s counsel submitted that the procedure is contrary to the rules of this Court and therefore damaging to the appeal and affects the competence of the appeal. The Appellant submitted to the contrary. Both of them cannot be right as one will be wrong and the other right. As to determine who is right and who is wrong we need to look at the rules of this Court and the case law on the subject. The Respondent raising the objection referred to Order 17 Rule (4) of the Court of Appeal Rules 2016. It will be appropriate at this stage to reproduce the said order. It provides thus:
“Every notice of appeal or notice or notice of application for leave to appeal or notice of application for extension of time which such notice shall be signed by the Appellant himself or by his legal representative except under the provision of Sub-rule ( (5) and (6) of this rule.”
This provision is clear and unambiguous as to who can sign a notice of appeal. The notice of appeal can be signed by either the Appellant himself or his legal representative. This is not open to double interpretation. It is as simple as that. The Supreme Court clearly made this point clear in the case of Okpe vs. Fan Milk Plc & Anor (2017) 2 NWLR (Pt. 1549) 282. The apex Court per Muhammud, JSC held thus:
“The English word “notice, my Lords’ originates from the Latin word “Nortia” which connotes knowledge, information” “intelligence and or ‘notice (see: Blacks Law Dictionary Fifth Edition St. Paul Minn West Publishing Co, 1579 p.959 ). In its general day to day usage, therefore, the word notice represents knowledge of the existence of a fact or state of affairs. It is the means of knowledge. It presupposes intelligence by whatever means communicated. Notice is thus, knowledge of facts which would naturally lead an honest and prudent person to make inquiry. And, a person “notifies or gives another a notice or notification by taking such steps as may be reasonably laid down by law or practice and required of him to inform the other in ordinary course whether or not that other actually comes to know of it.
Thus, in legal proceedings, a Notice of Appeal is a document giving notice of an intention to appeal filed with the appellate Court and served on the opposing party. It is an originating document. In Okotie v Olughor(1995) 5 SCNJ, 217, this Court held that Notice of Appeal is the foundation of a proper appeal and where the notice of appeal is null and void, there can be no valid appeal pending before the appellate Court. An appeal is deemed to have been brought upon filing of the Notice of Appeal in the registry of the Court below or the Court from which the appeal emanated. See IBWA v Pavex International (2000) 4 SCNJ 200 AT P.277. A valid Notice of Appeal shall contain all the necessary requirements provided by Rules of Court regulating that appeal. Such requirements include but not limited to the signing of the Notice of Appeal by the appellant himself or by a lawyer of his own choice where the appellant is a body corporate, the usual practice is for an officer or a legal representative of that body to sign the Notice of Appeal. In criminal appeals, the appellant shall sign the Notice of Appeal. Where the person signing the Notice of Appeal is a qualified legal practitioner, he should append his signature along his name with which he has been registered as a legal practitioner licensed to practice law in the Federal Republic of Nigeria See: Okafor v Nweke (2007) 10NWLR (Pt. 1043) 521, Alawiye v. Ogunsanya (2013) 5 NWLR (Pt.1348) 570; Nigerian Army v. Samuel &Ors (2013) 14 NWLR (Pt. 1375) 466; SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) 317.”
See Contract Resource (Nig) Ltd vs. U.B.A. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo vs. UBA Plc (2011) 16 NWLR (Pt. 1274) 614.
The Respondent’s counsel seems to agree with the position that a notice of appeal can be signed by either the Appellant himself or his legal representative. Learned counsel however entered a caveat on the circumstances upon which the counsel of the Appellant can sign the notice of appeal. The caveat according to counsel is when it is clear that the counsel had no access to his client, the Appellant. The Respondent counsel made reference to the case of Ralph Uwazurike & Ors vs. Attorney General of the Federation (2007) LPELR-3448 (SC) to buttress his submission. The submission of counsel does not represent the current legal position. If counsel only did some little research on the matter, counsel would have realized that the case referred to was decided under the Court of Appeal Rules of 1981 particularly Order 4 Rule 1.

The said provision is not on all fours with the current provision of Order 17 Rule 4 of the current Court of Appeal Rules 2016, which makes clear provision that the notice of appeal can be signed by the legal representative of the Appellant. Learned counsel to the Respondent also made reference to Charles Umezinne vs. FRN (2018) LPELR-46334 (SC). It is also of note that the above case was decided under the Court of Appeal Rules 2004 since the appeal to the Court was filed on 19/10/2006. Clearly, the notice of appeal in the Umezinne case was not filed under the 2016 rules of this Court. The point I am trying to make is that the decision of the Supreme Court decided under a provision of a law or rule of Court under a repealed law or rule cannot be a binding force on a lower Court except the provisions are the same, that is, if the repealed law has the same provision with the current law. In the circumstance, the above case cannot be used as an authority for the case before this Court. The law is clear and it is that cases can be used as an authority if the facts are materially the same. SeeIhesi vs. Arinze & Anor (2006) LPELR-5461 (CA); Skye Bank & Anor vs. Akinpelu (2010) LPELR-3073 (SC).
The above cases cannot be used as authority for the position of the Respondent’s preliminary objection since the law under which they were decided was not under the relevant Court of Appeal Rules, that is, 2016 Rules. The present and relevant rule expressly make provision that the notice of appeal can be signed by the Appellant himself or his legal representation. In the light of the express provision of the applicable rules of Court and the fact that the cases learned counsel to Respondent referred to where not decided under the relevant rules, the first ground of objection cannot sustain the preliminary objection.

The second and third grounds for the objection is that the Appellant did not obtain leave of Court to appeal being an interlocutory appeal and the grounds of the appeal are not purely on point of law. The position of the law is settled and indeed trite which is that the Appellant in an appeal can only appeal as of right when it is an appeal against the final judgment of the lower Court and if it is an interlocutory appeal, the grounds of appeal must be purely based on law. If it is aninterlocutory appeal which grounds of appeal are on fact or mixed fact and law, the Appellant cannot appeal without seeking the leave of Court. See Nikagbate vs. Opaye& Anor (2018) 9 NWLR (Pt. 1623) 85; Dankofa vs. FRN (2019) LPELR-46539 (SC); Ekemezie vs. Ifeanacho&Ors (2019) LPELR-46518 (SC). In Obayuwana&Ors vs. Adun (2020) LPELR-49377 (SC), the apex Court drove home these points in these words:
“…where the Ground of Appeal involves questions of fact or of mixed law and fact, leave to Appeal must be obtained from the Court of Appeal or this Court. Failure to obtain the requisite leave renders the Appeal filed incompetent – see Garuba V. Omokhodion (supra), Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337 and Akpasubi V. Umweni (1982) 11 SC 113, where Eso, JSC, observed:
The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No Appeal on questions of fact lies to this Court without such leave. In other words,
where – – question of fact has been brought before this Court withoutleave, the Court has no jurisdiction.

Simply put, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained – see Ukpong V. Comm., for Finance and Econ. Dev. (supra), wherein Onnoghen, JSC (as he then was) explained –
Where an appeal is to be with leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same.”

The appeal before this Court is obviously an interlocutory appeal and what is also clear is that the Appellant never sought the leave of either the lower Court or this Court before filing this appeal. In the circumstance of the above clear facts not disputed the only way, the appeal will be competent before this Court is if the ground of appeal is grounds of law. A ground of appeal will be properly a ground of law when the error complained of deals with the law and the application of the law. When the lower Court misdirects itself as to the application and the understandingof the law, any complaint against such a conduct is a complaint against the law. This means any appeal against the understanding and the application of the law is an appeal on ground of law. The Supreme Court in Obayuwana&Ors vs. Adun (2020) LPELR-49377 (SC) in bringing out what grounds of appeal will amount to grounds of fact, mixed law and fact and grounds of law held per Augie, JSC thus:
“In this case, the question that rears its head is whether the two Grounds of Appeal raised in the Appellants Notice of Appeal are grounds of law, as they said, or grounds of fact or mixed law and fact, as contended by the Respondent, I must say that this is not an easy question to answer because there is a very thin line that runs between the said two categories, which makes it difficult to decipher a question of law from a question of fact.
However, this Court has laid down guidelines in numerous cases, which set out parameters, for finding answers to the said question – see Board of Custom & Excise V. Barau (1982) NSCC (Vol. 13) 358, wherein this Court per Eso, JSC, aptly observed –
The Court of Appeal has to decide first, as a matter of lawthat a trial Court failed to make use of the advantage it has of seeing the witnesses… before proceeding to substitute as a matter of fact, its own finding made on the printed evidence… it is only where there is a wrong application of such facts that a Court of Appeal interferes. Where, however the Court of Appeal finds as a matter of law that the facts have been correctly applied, it does not interfere. The Court does not proceed any further to deal with facts – – This fine distinction is very important for it goes into the jurisdiction, which a Court of Appeal, exercises under the Constitution. While appeal to the Court of Appeal on the issue of law is as of right, an appeal on the facts is with leave of the Court from where the appeal lies or the Court to which the appeals lies. …Where a trial Court fails to apply the facts, which it found, correctly to the circumstances of the case, and there is an appeal to a Court of Appeal, which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law and not of fact. When the Court of Appeal finds such application to be wrong and decides to make its findings, such findings made by Court of Appeal are issues of fact and not law. Where the Court of Appeal interferes – – and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground of appeal alleging such misdirection by a lower Court of Appeal is a ground of law and not of fact. It is only where there is an appeal against the finding made by the Court of Appeal in this exercise that issues of fact arise and leave will be required.
See Dairo V. Union Bank (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide:-
Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground of appeal is a ground of mixed law and fact – Maigoro V Garba (1999) 10 NWLR (Pt. 624) 555.
i. A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact is a ground of mixed law and fact – see Maigoro V. Garba (supra).
ii. Where the evaluation of facts established by the trial Court before the lawin respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and fact. See Maigoro V Garba (supra).
iii. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter – Ogbechie V Onochie (1986) 2 NWLR (Pt .23) 484.
iv. Where it is alleged that the trial Court or an Appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter. See Nwadike &Ors. V Ibekwe&Ors (1987) 12 SC (Pt. 1)164.
v. It is a ground of law if the adjudicating Tribunal or Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors.
See O’Kelly v. Trusthouse Forte P.L.C. (1983) 2 ALLER 456 at 486; Nwadike &Ors. V. Ibekwe&Ors. (supra) pp. 491-492.
vi. Several issues that can be raised on legal interpretation of deeds, documents, term of all, words or phrases, and inferences drawn from therefrom are grounds of law -Ogbechie V. Onochie (supra).
vii. It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See Nwadike &Ors. V Ibekwe&Ors. (supra).
viii. Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law. See Ogbechie V. Onochie (supra) where ESQ., JSC, citing an article by C.T Emery in Vol. 100 LQR held:
If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur it is question of law.
See also Metal Const. W.A. Ltd. V. Migliore (supra), wherein this Court per Obaseki, JSC, expatiated on the principles, as follows:
Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation.

An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify or permit by the rules of Court a particular decision or disposal of the case – – in a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.”
At this point, we need to look at the grounds of appeal to determine whether the grounds of appeal are grounds of law or not. Let me hasten to add that if only one ground of appeal among the four grounds is a ground of law, the appeal can be sustained on that ground alone as the law is that a single ground of appeal can sustain an appeal. See Mohammed &Anor vs. Olawunmi (1990) 4 S.C 40; Ekunola vs. CBN &Ors (2013) 15 NWLR (Pt. 1377) 224. I had earlier stated the grounds of appeal but for completeness I will reproduce them again here:
Ground 1:
The learned trial Judge erred in law when he heldthat he had no jurisdiction to entertain the Applicants application for bail in a matter transferred to His Lordships Court to re-arraign the Appellant and commence trial de novo on the ground that the bail had been revoked by His Learned Brother, Honourable Justice O.A. Williams on the 8th day of May, 2019 and can only be reversed on appeal.
Ground 2:
The Learned trial Judge erred in law when he relied on Elder S.A. Soyinka v. Dr Olaiya Oni (2011) LPELR-4096 CA and Mrs. Ann Atim Bassey Eyo v. Hon Alice Ekpenyong&Ors (2011) LPELR-4549 CA to decline jurisdiction to entertain the Appellant’sbail application which said cases were subsequently reviewed by the Full Court of Appeal in Ngige v Obi (No 2) (2012) 1 NWLR (Pt. 1280) 87 and Nana v Ningi (2018) LPELR-46399 CA and found not to be the true state of the law on the issue of de novo and as being in conflict with Ngige v Obi (No. 2).
Ground 3:
The learned trial Judge erred in law when he held that a trial de novo does not permit him to review or override the order revoking the Appellant’s bail by Honourable Justice O.A. Williams on the 8th day of May 2019.
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Ground 4:
The Learned trial Judge erred in law when he held thus “Assuming this Court does have jurisdiction to hear afresh application for bail in view of the re-arraignment of the defendants before this Court, I am inclined to adopt the decision of my Learned Brother Judge Hon. Justice Williams on the issue.”
From the grounds of appeal stated above, I have no difficulty in holding that grounds 1, 2 and 3 are clearly grounds dealing with the misdirection, misapplication and misunderstanding of the law. Any ground of appeal dealing with jurisdiction is obviously a ground of appeal on law and not on fact or mixed law and fact. It is purely a ground of law. In the circumstance, this appeal is competent and the preliminary objection fails and therefore the preliminary objection is resolved in favour of the Appellant against the Respondent.

Having disposed of the preliminary objection, I will now deal with the merit of the appeal and in so doing as mentioned earlier I am adopting the two issues for determination as formulated by the Appellant. I reproduce them here for ease of reference:
1. Whether the Learned Trial Judge had jurisdiction toentertain the Appellant’s application for bail in a matter that started de novo before him and after re-arraignment.
2. Whether the Learned Trial Judge was right in adopting the earlier ruling of Honourable Justice Williams revoking the Appellant’s bail in a matter that started de novo before him and the consideration of which application required the exercise of discretion by the Court .

The facts culminating to this appeal I had earlier mentioned in this appeal, I will not repeat same, suffice however to say that the lower Court did not consider the merit of the application primarily on the premise that since an earlier Court presided over by Justice Williams had decided the issue of the bail of the Applicant it will be out of place for the same Lagos State High Court to reconsider the issue of bail. The lower Court in effect declined jurisdiction to determine the merit of the bail application filed by the Appellant on 14/5/19. The first issue for determination is whether the lower Court was right in declining jurisdiction to determine the bail application on the premise stated therein. Ordinarily, a Court has jurisdiction to entertainapplications filed before it if the Court is properly constituted, the processes are properly filed and the power to decide on the subject matter is conferred by the statute setting up the Court or by any other law. See Broadband Technologies Ltd vs. Airtel (2018) LPELR-46659 (CA); ACN & Anor vs. INEC &Ors (2013) LPELR-20300 (SC).
The lower Court therefore, has jurisdiction ordinarily to consider the application of the Appellant but there is a twist which the lower Court feels, robbed it of jurisdiction and this is that a Court of coordinate jurisdiction had earlier decided on a similar bail application. The Respondent in agreeing with the lower Court held the view that the fact that the matter started de novo did not change the legal position that a Court of coordinate jurisdiction cannot overrule the decision of another Court. Putting in legal parlance, a Court cannot sit on appeal over its decision or the decision of another Court that has coordinate jurisdiction. See Eneh vs. NDIC & Ors (2018) LPELR-44902 (SC); Cole vs. Jibunoh & Ors (2016) LPELR-40662 (SC).
The Appellant on the other hand holds the view that in as much as this represents the legal position, this will not constitute an appeal when a case starts de novo as in the case involved in this appeal. Before I address the specific issue, a little excursion into the case law will not be out of place or a wasteful venture. It is necessary so as to lay the foundation for the decision of the Court. The law clearly states that in appropriate circumstances, a Court can set aside its own judgment, and in fact by necessary implication, a Court of coordinate jurisdiction can set aside the decision of another Court if the circumstance so suggests in line with the law. Such circumstance is when the decision is null and void ab initio and when there is a fundamental defect in the proceedings which vitiate and renders the proceeding incompetent and invalid. See AnamelechiIteogu vs. Legal Practitioners Disciplinary Committee (2018) 2-3 S.C (Pt. 1) 50; APC vs. Engineer George T. Nduul&Ors (2017) 2 NWLR (Pt. 1602) 1. The power of a Court to set aside its own judgment cannot be invoked except a party applies for same. The application before the lower Court which is before this Court is not for an order to set aside the judgment or theruling. I will therefore not go there. The issue here is whether the lower Court had the power to exercise jurisdiction over a matter or an issue that a Court of coordinate jurisdiction has decided on merely because the matter has commenced de novo. Without making this an academic paper, it will aid the understanding of this judgment if we look at the meaning of trial de novo and the legal implication of trial de novo. The word de novo means anew. This means a new beginning for a case that was before a Court. It is like a new life given to a case which for any reason would have died a natural death. The Black Law Dictionary, 8th Edition, 1999 on page 1544 defined trial de novo in these words:
“A new trial on the entire case.. that is, on both questions of fact and issues of law…. Conducted as if there had been no trial in the first instance.”
See Kajubo vs. State (1988) 1 NWLR (Pt. 73) 721; Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465.
This Court per Onyemenam JCA in Nana &Ors vs. Ningi&Ors (2018) LPELR-46399 (CA) expressed the meaning and implication of trial de novo on the previous proceeding. This is what HisLordship said:
“By Wex Legal Dictionary, DE NOVO means from the new. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a new trial by a different Tribunal. The Latin word means afresh, a new, beginning again. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: BLACKS LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. THE STATE (2014) LPELR 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judges findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of…This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of PHIPSON ON EVIDENCE 12TH EDITION AT PAGE 706 ARTICLE 704 (last paragraph) stated: “In new trials, the case must be reproved de novo,and the evidence and verdict given, and the Judge’s findings at the first trial are inadmissible. This meaning and purport of a de novo trial can by no means be thwarted.”
The apex Court drove home this point in the case of Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd &Ors (2007) 13 NWLR (Pt. 1050) 1131 per Muhammad JSC at pages 31-32 of (2007) LPELR-698 (SC) held thus:
“The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Blacks Law Dictionary, de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ Court hears matter as Court of original and not appellate jurisdiction … that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.”
See the case of Biri v. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G.
This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with approval, the dictum of Oputa, JSC in Kajubo v. The State (supra):
“The expressions “a new trial” “trial de novo” “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments. This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given.”
The consequence of a retrial order or a de novo (a VENIRE DE NOVO), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance.
See: Kajubo v, The State (supra). In 1978 this Court per Idigbe, JSC; in the case of Fadiora v. Gbadebo (1978) NSCL (Vol.1) 121; (1978) 3 SC 219 had cause to make the following observation.
“We think that in trials denovo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.”
When a case starts de novo, the legal consequence or implication is that all the proceedings and decision or order of the previous Court is null and void and of no effect and does not bind the Court which is starting the case de novo. See Ngige vs. Obi (No. 1) (2012) 1 NWLR (Pt. 1280) 40. In this respect, the decision of this Court in FBN Plc vs. Tsokwa (2004) 5 NWLR (Pt. 866) 271 is instructive. This Court held:
“Where the hearing of a matter commences de novo, any action done or proceedings taken by or before the former Judge becomes abated and as such has no relevance. In the instant case, hearing commenced de novo before Audu, J. Any action done or proceedings taken before Bansi, J., therefore became abated and is of no relevance to the instant appeal. The trial by Audu, J., is a fresh trial independent of that by Bansi, J.”
The lower Court in my firm view had jurisdiction to consider the bail application filed before it on14/5/19 since the matter commenced de novo before it and indeed the lower Court would not be breaking any legal rule or principle to assume jurisdiction over the bail application. I resolve this first issue in favour of the Appellant.

The second issue for determination is whether the lower Court was right to have adopted the ruling of the previous judge on the issue of bail. On page 6 of the ruling found on page 725 of the records, the lower Court held:
“Assuming this Court does have jurisdiction to hear afresh application for bail in view of the re-arraignment of the Defendants before this Court. I am inclined to adopt the decision of my learned Brother Judge Hon. Justice Williams on the issue.”

From the decision of the lower Court above, his Lordship did not consider the merit of the application but rather adopted the decision of the previous Court. This obviously is against the spirit of cases starting de novo. I agree entirely with the submission of the counsel to the Appellant that the granting or refusing of a bail application is entirely based on the discretionary power of a Court which discretion is to be exercised judicially and judiciously. See Okomoda vs. FRN &Ors (2016) LPELR-40191; Patience Okoro Eye vs. FRN (2018) 1 S.C. (Pt. 11) 1; Alhaji Dokubo-Asari vs. FRN (2007) 4 FWLR (Pt. 395) 6747. I also agree with the submission of Appellant counsel that discretions are peculiar to the particular judge and therefore the discretion of one judge should not be mandatory on another judgment. If discretion is made mandatory on another judge the whole essence of discretion is defeated. The Supreme Court made this position clear in Hon. Mr. Justice Kalu Anyah vs. African Newspaper of Nigeria Limited (1992) 6 NWLR (Pt.247) 319 in these words:
“Where a Judge has no discretion in a matter or under a rule, the strict provision of the rules must be complied with. A discretion will cease to be one if it can only be exercised in one particular form.”
In the same case, Wali, JSC held as follows:
“It is not in all cases that an appeal will interfere with the exercise of discretion by a trial Judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of the discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do not do that, the discretion is fettered. See Jones v. Curling 13 Q.B.D 262.”
The previous Court presided over by Hon. Justice Williams exercised his own discretion, His Lordship Hon. Justice Taiwo (Mrs) should have considered the merit of the application and exercised his discretion. The lower Court was therefore wrong to have adopted the decision of Hon. Justice Williams without considering the merit of the application. I resolve this issue in favour of the Appellant.

The two issues are held in favour of the Appellant. Having so held I will now assume the position of the lower Court as provided for in Section 15 of the Court of Appeal Act to consider the bail application on the merit. See Chukwuemeka vs. The State (2018) LPELR-47076 (CA).

The Appellant is charged for the offence of conspiracy to forge documents and forgery contrary to Section 409, 361 (1), and 363(1) of the Criminal Law of the Lagos State of Nigeria. The Appellant has applied for bail which he supported with a 19 paragraph affidavit and a further affidavit. The Respondent filed a counter affidavit of 12 paragraphs. I will now consider the application. The point must however be made that forgery is a bailable offence and in considering whether to grant bail or not, I will exercise the discretion that the lower Court should have exercised judicially and judiciously. The principles a Court should consider on the issue is settled beyond all doubt.
Let me take a brief excursion to the principle of law in relation to bail application. As a preliminary point of law, it must be stated that the main essence of bail is to secure the accused presence in Court to stand trial for the offence in which he is charged with. See Dokubo-Asari vs. FRN (2007) 4 FWLR (Pt. 395) 6747; Okomoda vs. FRN &Ors (2016) LPELR-40191 (CA); State vs. Ibrahim &Ors (2014) LPELR-23468 (CA). Corollary to this point is the fact that it is a constitutional right guaranteed to the accused person by virtue of Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) which presumes an accused person innocent until proven guilty and Section 35(4) which guarantees a person’s rightto personal liberty. In Suleman & Anor vs. COP Plateau State (2008) LPELR-3126 (SC); (2008) 2-3 S.C (Pt. 1) 185, the apex Court held:
“The Right of bail, a Constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, thesureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212.” In considering bail, the law is settled as to what a Court should consider in its decision to grant bail or refuse same. These criteria are not necessarily mutually inclusive as the decision of the Court is mostly based on the criteria more appealing to the Court. This Court per Awotoye, JCA itemized the principles a Court will consider in granting bail. This is in the case of Ahukanna vs. State (2017) LPELR-42619 (CA), his lordship held as follows:
“The law is settled on guiding principles in the grant of bail in non-capital offences. In DOKUBO-ASARI v FRN (2007) 12 NWLR (PT. 1048) 320, Tobi J.S.C. explained the principles thus:
The general criteria for granting bail at the trial Court are as follows:
(a) The availability of the accused to stand trial.
(b) The nature and gravity of the offence.
(c) The likelihood of the accused committing offence while on bail.
(d) The criminal antecedents of the accused.
(e) The likelihood of the accused interfering with the cause of justice.
(f) Interference with investigation
Tanko Muhammad J.S.C. in his own contribution had this to say:
The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail the trial Judge is bound to consider the weight of facts pleaded to in an affidavit evidence placed before him. Other considerations enumerated earlier such as the strength of the evidence which supports the charge the gravity of the punishment in the event of conviction, the likelihood of the accused interfering with the proposed witness or may suppress any evidence that may incriminate him, the likelihood of further charge being brought against him and the probability of guilt are weighty issues in his case that the trial Court cannot gloss over. See also SULEMAN v. C. O. P. PLATEAU STATE (2008) 8 NWLR (PT 1089) 298.”
I will also refer to the Supreme Court’s case of Bamaiyi vs. State &Ors (2001) LPELR-731 (SC) where the Court held:
“The learned trial Judge listed out a number of factors or criteria that may be taken into consideration by a Judge in granting or refusing bail pending trial. These include (1) the evidence available against the accused, (2) availability of the accused to stand trial, (3) the nature and gravity of the offence, (4) the likelihood of the accused committing another offence while on bail, (5) the likelihood of the accused interfering with the course of justice, (6) the criminal antecedents of the accused person, (7) the likelihood of further charge being brought against 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. Generally, these are some of the factors that may be taken into consideration. It is by no means expected that all will be relevant in every case. I do not also think they are exhaustive. It may well be anyone or others may be applied to determine the question of bail in a particular case. The learned trial Judge realised this when be said: “The bail ability of an accused depends largely upon the weight a Judge attached to one or several of the criteria open to him in any given case.” This is eminently a correct view.”

The main consideration in my view is whether the Applicant will be available to stand his trial. All other considerations in bail application are all subject to the consideration of whether the Applicant will be available to stand his trial. The point I am trying to make is that all the other conditions the Court will look at, for instance, the gravity of the offence, etc are all subject to the availability of the Applicant to stand trial. No matter the gravity of the offence and the punishment the offence attracts, once the Court is convinced that the Applicant will be available to stand trial, he will be granted bail. On the other hand, no matter how minor the offence could be, if the Court is of the view that the Applicant will not be available to stand his trial, bail will be refused. See Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495.
In a bail application, therefore, whether pending trial or pending appeal, the responsibility on the Applicant is to show that he will not jump bail and that he will be available to stand his trial, while the duty on the Respondent is to debunk that fact in showing that the Applicant will not be available to stand his trial. See Abiola vs. FRN (1995) 1 NWLR (Pt. 370) 155. Bail application can either be bail pending trial or bail pending appeal. The former is in line with the constitutional provision that an accused person is presumed innocent until proven guilty. See Section 35(4) of the Constitution of the Federal Republic of Nigeria (as amended). The latter on the other hand arises where the accused person has been denied bail in the trial Court. This he can do prior to his conviction or after his conviction by lodging an appeal in the Appellate Court. See Section 28(1) of the Court of Appeal Act. In Okafor vs. State (2015) LPELR-25681 (CA) this Court per Ogunwumiju, JCA exhaustively in my view dealt with both types of bail and the principles or conditions a Court should consider in these words:
“An Applicant can apply for bail pending trial where he has been accused of committing a bailable offence. Likewise, a convict can apply for bail pending appeal after conviction. In this case, the trial at the lower Court is still ongoing while the Applicant has appealed against the ruling of the trial Court which over-ruled his no case submission. Bail pending trial, and bail pending appeal are unique in their own right and thus, it is important to differentiate between the two. An application for bail pending trial is usually done by the accused’s counsel after the arraignment of the accused at the trial Court. There are various factors to consider when applying for bail whether pending trial or appeal. These include; the nature of the offence and punishment, quality of the evidence against the accused, possibility of the accused interfering with further investigation or prosecution if bail is granted, prevalence of the offence, safety of the accused if granted bail, possibility of the accused repeating the same offence, criminal history of the accused, health of the accused, etc. See Anaeke v C.O.P (1996) 3 NWLR (Pt. 436) 320. Dantata v C.O.P (1958) NRNLR 3, Danbaba v State (2000) 14 NWLR (Pt.687) 396, Ajudua v FRN (2005) All FWLR (Pt. 246) 1274, Nnogu v State (2002) FWLR (Pt. 103) 482, Eyu v State (1988) 2 NWLR (Pt. 78) 602, Ani v State (2001) FWLR (Pt.81) 1715. In applications for bail pending appeal, there are additional considerations which include; the nature of the appeal, the physical or mental well-being ofthe appellant, the length of the sentence passed on the appellant, if the appellant is a first time offender, if the appellant had been granted bail at the course of trial and did not jump bail. See Munir v FRN (2009) All FWLR (Pt 500) 775 at 785-787, Chukwunyere v Police (1975) 5 ECSLR 44, Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486, Olamolu v FRN (2009) All FWLR (Pt. 485)1800. In this particular instance however, we are concerned with bail pending the conclusion of trial. This is a hybrid situation in that the Court has overruled his no case submission which is by no means a conviction. The circumstances here are similar to the facts in Abacha v State (2002) LPELR-15 (SC), (2002 5 NWLR (Pt. 761) 638. There being in that case no conviction of the Applicant at the time he applied for bail to the Supreme Court. There, the Supreme Court on Pg 7-8 of the LPELR-15 (SC) per Ayoola JSC as follows: It is thus not necessary to range all over the field to consider the multifarious circumstances in which bail may be granted to an accused person. It suffices to note that the considerations that may determine the exercise of discretion to grant bail will often dependon the stage of criminal proceedings at which bail is sought. Different considerations may apply where bail is sought before conviction in the trial Court from those which may apply where bail is sought in the appellate Court after conviction. In this case, bail is sought not at the trial Court but in an appellate Court before conviction and not by way of appellate review of a discretion exercised by the Court of Appeal. The Appellant/Applicant has to show and prove the special circumstance which he intends to rely upon.”

Now, let me look at the affidavit evidence as shown in the record of appeal. The motion on notice filed on 14/5/2019 is on pages 487-493 of the records. The application was supported by a 19 paragraph affidavit and a further affidavit of 7 paragraphs. The Respondent filed a counter affidavit of 12 paragraphs found on pages 546-551 of the records. The affidavit evidence shows that the Appellant was earlier granted bail but the said bail was revoked by Hon. Justice Williams. The reason for the revocation of the bail is well stated in the affidavit in support and the counter affidavit. The main issue is that the Appellant while on baildid things that amounted to interfering with the witness of the Respondent. The Appellant made a complaint to the Nigerian Bar Association (NBA) over one of the witnesses of the prosecution and is also alleged to have threatened another witness. This is found in paragraphs 5 (h)(i)(r)(s)(t)(u) of the counter-affidavit. Among the criteria for a Court to consider in granting or refusing bail, the one the Respondent is relying on is the interference with the witness of the prosecution. The Respondent has no problem with the Appellant’s availability to stand his trial. This much the Respondents averred to in the counter-affidavit. The Appellant in the Affidavit in support deposed to by Geoffrey Opurum on his behalf has shown that he did not jump bail while he was granted administrative bail or granted bail by the Court until his bail was revoked. In this respect, paragraphs 4(j)(k)(p)(s)(y)(z)(aa) of the affidavit in support are apt. The Respondent in paragraph 4 (v) admitted this fact when he averred as follow:
“That while the Defendant/Applicants have not jumped bail they engaged in a more grievous acts of interfering with the prosecution’s witnesses.”

This admission works in favour of the Appellant. The Respondent has admitted that the Appellant never jumped bail. This is a great point in my view in support of the application of the Appellant and weighs heavily on my mind in considering this application for bail. That is not to say that the point of interference with witnesses is not important. It is, but the point must be made that the burden is on the Respondent to prove such an interference. The Respondent in paragraphs 5 (h)(i)(r)(s)(t)(u) of the counter-affidavit has made averments to that effect. What evidence has the Respondent to prove the interference? For the threat on Mr. Friday Udoh Etim, the Respondent in paragraph 5 (s) had averred that extracts of the conversation between the Appellant and the said Mr. Friday Udoh Etim is attached. This was however not attached. In the circumstance and in view of averment by the Appellant in paragraphs 3,4,5, and 6 of the further affidavit, the Respondent has not been able to prove that the Appellant threatened Mr. Friday Udoh Etim. Looking through the affidavit evidence, the Appellant did not deny that he wrote a petition against Mr. Adetayo Ogunbanjo to the NBA. Can this be referred to as interfering with the witness of the Respondent? It is my thinking that a legal or legitimate act done by a person standing trial to a witness in the case cannot be termed an interference with the witness. It is my firm view that to amount to interference with the witness, the act will have to be an illegal or illegitimate act. I do not think the Respondent has successfully opposed the application for bail. The Appellant in paragraph 18 of the affidavit has clearly averred that he will not interfere with the witnesses. I reproduce the averment in paragraph 18:
“That the applicant undertakes not to do any act that will interfere or impede the trial of this case if granted bail and further undertake not to breach the bail conditions.”
Taking into cognizance the affidavit evidence as contained in the record of appeal and the position of the law, I cannot see my way clear to refuse bail to a person who the Respondent agrees will make himself available for trial and will not jump bail simply because he took a legitimate step against a conduct he complains over a witness. That in myopinion is not a good reason to deny the Appellant bail for an offence which is ordinarily bailable.
This appeal has merit and it is hereby allowed. The preliminary objection is dismissed and the decision of Hon. Justice O.A. Taiwo (Mrs) in Suit No: ID/6722C/2017 – FRN vs. Chester Onyemaechi& Anor is hereby set aside. Exercising the power of this Court under Section 15 of the Court of Appeal Act, bail is granted to the Appellant for the sum of N5,000,000,000 (Five Million Naira) with two sureties in like sum, one of whom must be the owner/occupier of a landed property within the jurisdiction of this Court. The sureties are to swear to an affidavit of means and show evidence of tax payment which is to be verified by the Deputy Chief Registrar of this Court. The Appellant is to submit his international passport to the Deputy Chief Registrar of this Court.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft, the leading judgment of my learned brother, Ebiowei Tobi, JCA, which has just been delivered. The Notice of Appeal filed by the Appellant was signed by his counsel. The Respondent has made this one of the grounds of its preliminary objection, contending that the appeal was incompetent since being a criminal matter, the Appellant was to sign the Notice of Appeal personally. Indeed, prior to the 2016 Rules of this Court, for a criminal appeal to be competent, the Appellant had to personally sign the Notice of Appeal: UMEZINNE vs. FRN (2018) LPELR (46334) 1 at 7 -20, IWUNZE vs. FRN (2014) LPELR (22254) 1 at 18 and UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 9-11.
However, Order 17 Rule 4 (1) of the Court of Appeal Rules, 2016 has introduced a new legal regime. By the said provision, the Notice of Appeal may be signed by the Appellant or his legal representative. Order 1 Rule 5 of the Court of Appeal Rules, 2016 defines legal representative to mean a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court. So the Notice of Appeal signed by the Appellant’s counsel is valid and the appeal is eo ipso competent.The further ground on which the Respondent challenged the competence of the appeal is on the basis that the appeal is an interlocutory appeal and that the Appellant did not obtain the leave of Court before appealing on grounds of mixed law and facts. My learned brother, Ebiowei Tobi, JCA, has in the leading judgment meticulously considered the grounds of appeal against the background of the guiding principles in determining whether a ground of appeal is one of law, fact(s) or mixed law and facts. I am allegiant to the conclusion that grounds 1, 2 and 3 of the grounds of appeal are grounds of law only and suffice to save the appeal
The proceeding before the lower Court was for a venire de novo. The legal import of this is that the earlier proceedings are as if they never took place and the judex was to conduct the proceedings afresh, anew, without reference to what transpired in the earlier proceedings: FADIORA vs. GBADEBO (1978) 3 SC 219, KAJUBO vs. THE STATE (1988) 1 NWLR (PT. 73) 721 and FBN PLC vs. TSOKWA (2004) 5 NWLR (PT. 866) 271. The lower Court was therefore in error when it declined jurisdiction to entertain the Appellant’s application for a bail on the ground that the Appellant’s bail had been revoked in the earlier proceedings. That does not represent the legal position being a venire de novo, the lower Court had the jurisdiction to entertain the bail application and exercise discretion in respect thereof, one way or the other.

In a purported consideration of the bail application, the lower Court merely stated that if it had jurisdictionto entertain the application, then it would adopt the decision given in the earlier proceedings. Section 115 (2) and (3) of the Administration of Criminal Justice Law of Lagos State provide, inter alia, that the Court shall admit a defendant to bail if it thinks fit and unless it sees good reason to the contrary. The exercise of discretion should be based on materials provided and the exercise of discretion has to be for a reason connected to the case. SeeERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8. The manner of exercise of discretion is the prerogative of the judex and there are no hard and fast rules as to the manner of exercise of discretion. It was therefore an abdication of its judicial responsibility for the lower Court to adopt the non-existent decision in the earlier proceedings, consequent upon the venire de novo. In the circumstances, it is a proper occasion for the exercise of the general powers of this Court under Section 15 of the Court of Appeal Act.
Having considered the processes filed in respect of the application for bail, I agree with my learned brother, Ebiowei Tobi, JCA, that it is fitto admit the Appellant to bail as there are no good reasons why the Appellant should not be admitted to bail. It is for the foregoing reasons and the more elaborate reasoning articulated in the leading judgment that I equally dismissed the Respondent’s preliminary objection and allowed the appeal. The decision of the lower Court is hereby set aside and I join in admitting the Appellant to bail on the same terms as set out in the leading judgment.

Appearances:

…For Appellant(s)

…For Respondent(s)

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