Afolabi Olufemi Johnson V. Federal Republic of Nigeria (2016)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the ruling of the Federal High Court, Ibadan Division delivered on 15th June, 2015 in charge No.FHC/IB/36C/2015.
The Appellant was arraigned on a 5 count charge along with 5 other persons for a variety of offences. The 5 count charge is:-
“COUNT 1
That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the jurisdiction of this Honorable Court, have by virtue of abuse of your office, being employees of Central Bank of Nigeria, contributed to the economic adversity of the Federal Republic of Nigeria when you destroyed a box marked ?Counted Audited Dirty? filled with Newspapers in place of a box containing N10,000,000 (Ten Million Naira) of N1,000 denomination and which activity led to the increase of money in circulation which the briquetting exercise of Central Bank of Nigeria was intended to control and you thereby committed an offence punishable under Section 1(2) and Section
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10(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4 Laws of the Federation of Nigeria, 2004.
COUNT 2
That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on about 5th August, 2014 in Ibadan within the Jurisdiction of this Honorable Court, engaged in corrupt practices when you replaced the content of a box of N1,000 notes denomination in a total sum of N10,000,000 (Ten Million Naira) marked as ?Counted Audited Dirty? meant for briquetting with Newspapers and which sum you converted to your own use and you thereby committed an offence punishable under Section 1(2) and Section 10(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4 Laws of the Federation of Nigeria, 2004.
COUNT 3
That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA AND FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honorable Court being employees of Central Bank of Nigeria, owned asset, to wit: the sum of N10,000,000 (Ten
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Million Naira) being money you took from a box marked ?Counted Audited Dirty? which was meant for briquetting and which you replaced with Newspapers and used for personal purpose which asset is in excess of your legitimate, known and provable income and assets and you thereby committed an offence under Section 7(2) of the Bank Employees etc. (Declaration of Assets) Act. Cap. B1 Laws of the Federation of Nigeria, 2004.
COUNT 4
That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLA BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan with the Jurisdiction of this Honorable Court with intent to defraud, were privy to making false entry in a document to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, Ibadan branch which you submitted to Central Bank of Nigeria, headquarters, Abuja, to the effect that the briquetting exercise was successful without any abnormality when indeed a box stuffed with newspapers are against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September 2014
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and you thereby committed an offence punishable under Section 438(b) of the Criminal Code Act Cap. C38 Laws of the Federation of Nigeria, 2004.
COUNT 5
That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to omitting material particulars from document to wit: the report of your Briquetting exercise that took place at Central Bank of Nigeria, Ibadan branch which you submitted to Central Bank of Nigeria, headquarters, Abuja, to the effect that the briquetting exercise was successful without any abnormality when indeed a box stuffed with newspapers are against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September 2014 and you thereby committed an offence punishable under Section 438(c) of the Criminal Code Act Cap. C38 Laws of the Federation of Nigeria, 2004.”
?The Appellant was the 2nd Accused on the charge sheet. Upon arraignment on 2nd June, 2015, he pleaded not guilty to each of the counts. He was ordered to be remanded in prison custody, along
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with the other co-accused persons. The matter was adjourned to 9/06/15 for hearing of his formal bail application and to 6th and 7th July, 2015 for trial
In a summons for bail dated 01-06-15 but filed on 2nd June, 2015, the Appellant sought for an order of the Lower Court admitting him to bail. The summons was brought pursuant to Sections 35(1) and 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) and under the inherent jurisdiction of the Court. It is supported by a 49 paragraph affidavit deposed to by the Appellant himself with some documents attached as Exhibits. There is also an 8 page written address to support the summons. (See page 474 to 481 of the record of appeal). The Respondent filed a 19 paragraph counter affidavit to oppose the bail application. It was deposed to by one Mr. Olapade Adaran and was filed on 8th June, 2015 with a written address of 16 pages, and now contained at pages 487 to 502 of the record of appeal. Further to the main affidavit in support of the summons, learned counsel, on behalf of the Appellant, filed a further affidavit of 7 paragraphs on 9/6/15. It was deposed to by Mr. Olatunde Odejayi,
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a legal practitioner in the law firm of the Appellant’s counsel.
At the hearing of the application on 9/06/15, respective learned counsel to the Appellant and Respondent each identified, adopted and relied on their written address. On behalf of the Appellant, learned counsel urged that he be admitted to bail, while on behalf of the Respondent learned counsel urged that the prayer for bail be refused and the matter be ordered to proceed to accelerated hearing.
In a ruling delivered on 15th June, 2015, the learned trial judge generally observed at page 9, now at page 532 lines 1-8 of the record of appeal thus:-
?Counsel has (sic) made reference to Sections 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as one of the grounds predicating those applications. I have considered same and it is trite that these Sections of the Constitution are not absolute as same can be curtailed being qualified rights. See DOKUBO ASARI VS. F.R.N. (2007) 12 NWLR (PT.1043) 320 AT 360. In view of the elements considered above Sections 35 and 36 of the Constitution will not assist the cause of those applications.?
?More
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specifically with respect to the Appellant herein, the learned judge of the Federal High Court had the following to say thus:
“The 2nd Accused/Defendant deposed to his ill-health in paragraphs 31-36 of his affidavit in support. He has attached Exhibits A – E in support of his claim. I will order in this regard that the prison authority, Ibadan, carry out an independent medical examination of the 2nd Accused/Applicant and the result of the examination should be filed with the Court within the shortest possible time.?
(See lines 9-15 at page 532 of record of appeal).
In concluding the ruling the learned judge, said thus:-
?—, I hold that the accused persons have not been able to persuade me by strong and cogent reasons why I should exercise my discretion in their favour. The applications fail and same are hereby dismissed.?
(See lines 22 to 25 at page 532 of record of appeal).
The Appellant was dissatisfied with the decision of the Lower Court refusing to grant his application for bail. He appealed to this Court in a notice of appeal filed on 26/06/15. It contains 4 grounds of appeal with detailed particulars.
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shorn of their particulars, the grounds are:-
“GROUND ONE
The Learned trial judge erred in law and caused miscarriage of justice when in exercising his discretion took into consideration evidence that were not established before him by refusing to admit the Appellant to bail.
GROUND TWO
The Learned trial judge erred in law thereby occasioned miscarriage of justice when he refused to admit the Appellant to bail based on his precarious health condition which cannot be adequately treated at the Agodi Prison health facility.
GROUND THREE
The Learned trial judge erred in law when he based his decision on extraneous factors in refusing to admit the appellant bail.
GROUND FOUR
The Learned trial Judge erred in law and therefore occasioned miscarriage of justice when he delved into the substantive matter at interlocutory stage in refusing to admit the Appellant to bail.”
?To argue the appeal learned counsel on behalf of the Appellant, Mr. Bola Alabi filed a brief of argument on 18/2/16. In its response, the Respondent filed a brief of argument on 25/02/16. In his response, Mr. Alabi, of counsel filed a reply brief on 24/3/16
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but same was deemed properly filed and served on 1 11/05/2016.
According to learned counsel Mr. Alabi, there are 2 issues for determination in this appeal. He identified and formulated them as follows:-
“(i) Having regard to the law, facts and circumstances of this case whether the Lower Court properly exercised its discretion judicially and judiciously in refusing to admit the Appellants to bail pending his trial in Charge No: FHC/IB/36C/2015. (Grounds 1 and 3).
(ii) Whether the Lower Court properly evaluated evidence placed before it by the Appellant. If the answer is in the negative, whether it is open to the Lower Court to rely on extraneous factors in refusing to admit the Appellant to bail. (Grounds 2 and 4).
?However, in the opinion of learned counsel to the Respondent, Mr. Rotimi Jacobs, SAN, there is a single issue for determination and he formulated it thus:-
“Whether having regard to the materials placed before the Lower Court, the learned trial judge did not exercise his discretion judicially and judiciously in refusing the Appellants? application for bail as to warrant an interference with the exercise by this
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Honourable Court.”
I have considered the issues formulated on behalf of the Appellant and I am of the view that they are more comprehensive. Their inclusiveness when compared with the grounds of appeal appear more pronounced than the lone issue formulated on behalf of the Respondent. I will therefore proceed to determine this appeal upon the 2 issues formulated and argued on behalf of the Appellant. However, because learned counsel to the Respondent formulated his single issue out of the 4 grounds of appeal, I will at all appropriate stages look into any of his responses that appear relevant.
In arguing the first issue, learned counsel Mr. Alabi explained by way of a prelude, that the essence of granting bail pending trial is to ensure the attendance or appearance of the accused to take his trial. Learned counsel added that this principle accords with Section 36(5) of the 1999 Constitution, as amended (the Constitution), which presumes the accused to be innocent until the contrary is proved. And while relying on the decision in OBEKPA VS. C.O.P. (1982) 2 NCLR 420, learned counsel explained further that it has been decided in many cases that bail
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should not be ordinarily and lightly denied to an accused person charged with a bailable offence. He added that denial of bail in very deserving situations amounts to inflicting punishment on an accused person before his trial and conviction. Also, while relying on the decision of this Court in ADEGBITE VS. C.O.P. (2006) 13 NWLR (PT.997) 252 at 269 F-G, learned counsel Mr. Alabi pointed out that in non-capital offences, as in the instant appeal, the Court should grant bail to an accused when there are sufficient facts before the Court to enable it to act in that behalf, unless some circumstances militating against that are shown to exist.
Against this background, Mr. Alabi, of counsel pointed out that the Respondent never adduced evidence at the Court below to show why bail should not be granted to the Appellant. He maintained that the counter affidavit filed by the Respondent to oppose the summons for bail is breft or shorn of any scintilla of evidence, except for its general statements that the Appellant would interfere with witnesses. He then referred to the decision in ADEBAYO VS. C.O.P., though without any proper citation, to point out that failure
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of the prosecution to produce and or exhibit proof of evidence to its counter affidavit in opposition to an Applicant?s application for bail before a Court constitutes a special circumstance for the exercise of discretion in favour of the Appellant Applicant. He reinforced this explanation by setting out the provisions of Section 162 of the Administration of Criminal Justice Act, 2015 (ACJA).
?In laying foundation for his main argument or submission, learned counsel Mr. Alabi, referred to and set out the averments of the Appellant in paragraphs 4 to 49 of the affidavit in support of the summons for bail. According to learned counsel the gist in these averments are to the effect that:
a) He is suffering from Renal Stone ailment and is a patient at the Federal Medical Centre, Idi-Aba, Abeokuta.
b) That by nature of this Renal Stone ailment, he would not receive special treatment at the Agodi Prison, Ibadan unlike what he receives at the facilities of the Federal Medical Centre, Abeokuta, where he regularly visits as a Patient.
c) He has no criminal record whatsoever since his birth and as an employee of the Central Bank of Nigeria.<br< p=””
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d) He will not commit another offence and would not jump bail.
e) He will be ready to stand trial for the charge filed against him.
f) He will neither interfere with witnesses nor destroy evidence.
g) He is ready to produce sureties satisfactory to the Court upon being admitted to bail.
h) That he never for once abused administrative bail granted by him by the Respondent; Economic and Financial Crimes Commission (EFCC) before his eventual arraignment before the Lower Court.
Against this background, Mr. Alabi, of counsel argued and pointed out that the further affidavit of the Appellant not only challenged some of the key averments in the counter affidavit of the Respondent in paragraphs 7, 8(b), (e), (f), (9), 10(b), (c), 11, 12, 13 to 17 but also maintained that they were false and untrue, while also the Appellant maintained that he did not know the prosecution witnesses at all. He argued that it was erroneous for the learned trial judge to rely on paragraphs 12 and 13 of the counter affidavit to deny bail to the Appellant.
Against the averment of the Respondent in paragraphs 12 and 13 in the counter affidavit, learned counsel
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Mr. Alabi argued that the Respondent patently failed to discharge the burden of proof of those facts as required of it under Section 136(1) of the Evidence Act, 2011. He submitted that there was no evidence before the learned trial judge that the Appellant would interfere with prosecution witness if he was admitted to bail. Also, in what appears to me to be a retracing of his steps, learned counsel on behalf of the Appellant referred to the decision in SULEIMAN VS. C.O.P. PLATEAU STATE (2008) 8 NWLR (PT. 1089) 298 AT 322 D-G where Tobi, JSC held among others that the right to bail is a constitutional right and contractual in nature. His Lordship, learned counsel pointed out, added that the effect of granting bail is not to set the accused free from for all times in the criminal process but to release him from the custody of the law and entrust him to appear at his trial at a specific time and place. Learned counsel also pointed out further that the apex Court in the same case maintained that 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 form of money bail and
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this freedom remains temporary because it lasts only for the period of the trial and stops on conviction of the accused or on his acquittal.
While maintaining that the learned trial judge did not exercise his discretion properly in refusing the Appellant bail, Mr. Alabi, of counsel relied on and quoted extensively from the decisions of this Court in LAWAL VS. F.R.N. (2013) ALL FWLR (PT.671) 1543 AT 1559-1560 D-B and CHUKWUEBUKA VS. F.R.N (2015) ALL FWLR (PT. 769) 1093 AT 1109 C-D. Against these 2 decisions, learned counsel submitted that having not exercised its discretion judicially and judiciously this Court has the power to interfere with that wrongful exercise of discretion to admit the Appellant to bail.
In his response, learned counsel Mr. Jacobs, SAN on behalf of Respondent pointed out in his introductory remarks that the onus is on the Appellant to show that the Lower Court did not exercise its discretion judicially and judiciously. Mr. Jacobs SAN went further to add that this onus is not discharged by merely representing the Appellate Court in the hope that it would exercise its discretion differently. He, upon the foregoing submitted that
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the Appellant had failed to discharge the onus or responsibility the law placed on him to warrant this Court to accept his invitation for a favourable interference with the earlier exercise of discretion.
By way of a recapitulation, learned SAN Mr. Jacobs explained that the power of the learned trial judge to admit the Appellant was discretionary and which must be exercised judicially and judiciously. According to Mr. Jacobs SAN, the law that regulates the granting or refusal of a bail application, as in the instant appeal is now contained in Section 162 of the ACJA. He went on to reproduce Paragraphs (a) to (f) of Subsection 1 of Section 162 in full and pointed out that these provisions are not new or strange to the operations of the criminal justice system. He then added that the provisions of Section 162(1)(f) are very wide and a Court must while considering it also consider or take into account some related or collateral issues such as:-
(a) efficient management of the criminal justice institution;
(b) speedy dispensation of justice;
(c) protection of society from crime; and
(d) protection of the rights of the suspect and the
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victim.
Explaining his position further, the learned SAN remarked that, Section 162(1) is a codification of the settled principles of law in the earlier decisions of our Courts. He specifically referred to the case of BAMAIYI VS. STATE (2011) 8 NWLR (PT.715) 270, DANTATA VS. POLICE (1958) NRNLR 3 AND STATE VS. AKAA (2002) 10 NWLR (PT.774) 157 at 173 etc. Also, according to learned counsel, the requirements of Section 162 have not changed the position of the law since those landmark decisions of the Supreme Court and other Courts. He argued further that Section 162 does not exclude the discretionary power of the Courts to refuse or grant bail based upon the facts before them and upon which such discretion must be exercised.
In his paragraphs 4.08 at page 6 of the Respondent’s brief, learned counsel Mr. Jacobs SAN added that it must be reiterated that once a discretion donated to any particular Court was judicially and judiciously exercised, it would not be interfered with by an appellate Court simply because if it was faced with a similar situation, it would have exercised it differently. In his attempt to re-state the law, Mr. Jacobs SAN remarked
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further that it is the duty of an appellant who had appealed against the exercise of discretion by the Lower Court to satisfy the appellate Court that the Lower Court did not exercise its discretion judicially and judiciously. And while referring to the cases of ALI VS. STATE (2012) 10 NWLR (PT.1309) 589 at 609 A-D and SAPPENDINE VS. C.O.P. (1965) 1 ALL NLR 54, learned counsel argued that in a situation as in the instant appeal which bordered on the exercise of the discretion of a Lower Court, the duty of this Court is simply to look at the compiled and transmitted record of appeal, review same and determine whether the Lower Court exercised its discretion judicially and judiciously having regards to the facts and circumstances of the case.
While referring to the decisions in STATE VS. OZUZU (2009) 3 NWLR (PT.1128) 247 AT 261, TANKO VS. STATE (2009) 4 NWLR (PT.1131) 430 AT 257, BAMAIYI VS. STATE (2001) 8 NWLR (PT.715) 270 AT 292 etc against pages 528-531 of the record of appeal, containing part of the ruling of the Lower Court in this appeal, the learned SAN, on behalf of the Respondent, pointed out that the learned judge of the Lower Court fully
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considered all the factors in Section (162)(1) (supra) against the peculiar facts and circumstances in this appeal as well as the materials placed before it and upon which it fully exercised its discretion and refused bail to the Appellant. He added that the Lower Court left no one in any doubt that one of the relevant factors it considered in arriving at its decision was the proof of evidence placed before it. From his paragraphs 4.10.4 to 4.10.13 at pages 8 to 11 of the Respondent’s brief, learned counsel Mr. Jacobs SAN went into a detailed analysis of some of the factors, he claimed the learned trial judge considered in arriving at his decision to refuse bail to the Appellant. He continued to emphasise that the Lower Court remained faultless in its approach and findings on the materials placed before it.
Before I proceed further to resolve issue one, I would like to pause for a while to consider the submissions on the Appellant’s issue 2 and what appears to me as the reply of the Respondent to same.
?In arguing his issue 2, Mr. Alabi, of counsel began by referring to the documents attached to the affidavit in support. Against this, Mr. Alabi,
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pointed out that these Exhibits along with paragraphs 31 to 36 of the Affidavit in support patently depict the precarious health condition of the Appellant. Learned counsel maintained that the facilities at the Agodi Prison where the Appellant was remanded fall short of medical attention which he receives at the Federal Medical Centre, Abeokuta. According to learned counsel Mr. Alabi, the Respondent did not challenge, controvert or contradict the averments in paragraphs 31 – 36. He then submitted that the law is that where facts in an affidavit were left unchallenged and uncontroverted, a Court is bound to accept them as fully established and deemed admitted. He cited the case of ABACHA VS. FEDERAL REPUBLIC OF NIGERIA (2002) 5 NWLR (PT.761) 638 at 653E and submitted that the Supreme Court stated the law that whenever the health of an applicant is raised as an issue in a bail application, it must be considered as a factor and a special circumstance why bail should be granted. He then maintained that the Appellant herein has shown extreme circumstances to warrant his being admitted to bail.
?Against the backdrop of this, learned counsel Mr. Alabi, faulted
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the remark of the Lower Court on the ill-health of the Appellant and maintained that a Court of law is enjoined to confine itself to the issues placed before it and nothing more. He cited the decision in OGBU & ANOR. VS. THE STATE (2007) 2 SCNJ 319 and submitted that in refusing the Appellant bail, the learned trial judge placed reliance on extraneous factors. He then went on to itemize some of those extraneous factors and argued that in going into those factors, the Lower Court unwittingly misdirected itself by going into the substantive action. He quickly cited and quoted very extensively from the decisions in FEDERAL REPUBLIC OF NIGERIA VS. BANKOLE (2012) ALL FWLR (PT.629) 1150 at 1204, 1205 H-C and NWOKE VS. FEDERAL REPUBLIC OF NIGERIA (2005) ALL FWLR (PT. 245) 1084 at 1097 A – D. He also argued that since an accused is presumed innocent in the eyes of the law as enshrined in Section 36(5) of the Constitution, it is not the law to confine or curtail his freedom of movement based on extraneous factors not placed before the Court. According to learned counsel the extraneous factors considered by the Lower Court in denying bail to the Appellant went
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beyond the scope of facts adduced by the parties. He urged on the Court to evaluate the evidence which the Lower Court failed to and admit the Appellant to bail.
In his response on the issue of the alleged ill-health of the Appellant, learned counsel, Mr. Jacobs SAN, in his paragraph 4.11.1 was quick to set the record as he understood it when he said that it is totally unfounded that the Lower Court failed to consider the alleged ill-health of the Appellant. He also pointed out that even if it were to be so, the Lower Court would have been correct as ill-health is not an outright ground for the grant or refusal of bait as Section 162 ACJA is totally without guidance in that regard. The learned SAN faulted the reliance placed by counsel to the Appellant on the case of ABACHA VS. STATE (Supra) and maintained that its facts and circumstances are inapplicable to the case at hand as bail was refused by the Courts up to the Supreme Court. He therefore argued and maintained that it was quoted selectively and out of con. As an adjunct, Mr. Jacobs SAN referred to portions of the judgment in ABACHA VS. STATE and submitted that the only ground where ill-health
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will be a special ground for grant of bail, is where the illness complained of would pose real threat to others. He added that the Appellant herein had failed to bring his alleged ill-health within such as was contemplated in the decision in ABACHA VS. THE STATE (Supra). While referring to other parts of the judgment of the apex Court, learned counsel pointed out that it can be deduced that some factors that must be considered and taken into account if ill-health is relevant to assist a Court to grant or refuse bail. He put forward such factors as:-
(1) Whether there is concrete evidence that the Applicant is suffering from the ill-health complained of which will usually be deduced from exhibits tendered;
(2) That the exhibits tendered were prepared by a qualified medical personnel who is an expert in the field of medicine of which the illness is complained of.
(3) That the said exhibit was from a well-recognized national hospital; and
(4) That there must be concrete evidence that the prison authorities do not have necessary medical facility to manage the said ill-health.
?In a further effort, Mr. Jacobs SAN referred to Exhibits A to E
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and paragraphs 31 to 36 of the affidavit in support and pointed out that a close look at these would reveal that the only thing that was stated therein is not supportive of the averments that the Appellant was suffering from high blood pressure or renal stone ailment. Learned counsel emphasized that the duty of the State to ensure that the medical needs of persons in custody are met does not create such extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice. He urged on the Court to so hold and discountenance all or any submissions of the Appellant in that behalf.
?Before I go into the resolution of the issues under review, I wish to reproduce what I consider the overall evidential materials placed before the Lower Court and upon which it was invited to exercise its discretionary power and judgment to admit or refuse bail to the Appellant. In this respect, I wish to point out that in the affidavit in support of the summons deposed to by the Appellant himself, after a very short review and insight into his service career with the Central Bank of Nigeria, and a bit of his career progression and work
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schedule as well as the role he played in the events of 4th and 5th August, 2014, which led and culminated in the charge filed against, the Appellant deposed in paragraphs 9 to 36 thus:-
“9. That I attended briquetting exercise in Ibadan between 4th and 8th August, 2014.
10. That I was nominated to attend the Briquetting exercise mentioned in paragraph 9 above as an observer and representing the Director of Internal Audit Department.
11. That on the 5th August, 2014, our team discovered a box of N1,000 Naira denominations stuffed with newspaper which was a strange and abnormal situation.
12. Upon discovery of the stuffed with newspaper, we stopped and operation sent for the Heads Treasury and Security to inform them about our discovery.
13. After proper scrutiny, we discovered that the box was a Counted Audited Dirty from Ibadan branch as stated on the sticker.
14. Upon our discovery, the Head, Treasury, told us that he will not replace the box for us to continue our operation.
15. As an observer, I interfered by insisting that the newspaper box be changed for the operation to continue and this led to heated argument for over
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one and half hour between me (Auditor), the Co-ordinator, the other panel member, and the Head Treasury and Security.
16. We, the briquetters also identify nine other boxes of the same date and markers and requested those boxes with the stuffed newspaper to be changed.
17. After our insistence that the boxes be changed, the Head Treasury now instructed a Treasury assistance to lead the ten (10) identified boxes on the trolley. I and the Co-ordinator followed the Head, Treasury and Assistant Treasury to the treasury for the changes to be made.
18. Myself and the co-ordinator stood at the entrance room when the boxes were taken to the strong room to be changed.
19. That, Head Treasury Department, thereafter gave instruction to the coordinator, myself and another panel member that the remaining boxes should be shredded after we discovered that the stuffed newspaper boxes have not been changed contrary to our instruction.
20. That for some inexplicable reasons, our panel members were persuaded by Heads, Treasury and Security to destroy the exhibits (newspaper) through briquetting.
21. That I overhead Head, Security that the CCTV
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Camera is not working and therefore, our panel would find it difficult to produce evidence of boxes stuffed with newspapers even if we make a report to the CBN on our discovery.
22. That I informed the Co-ordinator of what I heard the Head, Treasury, whilst urging her to verify the authenticity of the statement of nonworking CCTV.
23. That I neither conspire with anybody in the briquetting exercise nor given any money to partake in the exercise.
24. That I was invited to the EFCC office in December 2014 at Abuja to defend the petition submitted against me and the other accused.
25. That I also volunteered statement thereat on 7th January, 2015 and was granted bail some days after.
26. That I also made statement to the EFCC office in Abuja on the 9th January, 2015 bordering on the same allegations.
27. That I was suspended from work on 11th October, 2014 and interrogated by panels set up by the CBN on 26th November and 2nd December, 2014 respectively.
28. That I was dismissed as a staff of the Central Bank of Nigeria (CBN) on 10th February, 2015.
29. That I did not make report of discovery of newspaper in a box of
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N1,000 denomination because I was unable to equip myself with any evidence on the reported discovery.
30. That I know as a fact that the allegations of economic adversity, conversion and defraud in the charges filed against me in this Charge No:FHC/IB/36C/20L5 are ail false.
31. That I am a patient at the Federal Medical Centre, Idi-Aba, Abeokuta. Attached herewith and marked as ‘Annexure A, is a copy of my admission card
32. That I am suffering from Renal Stone ailment which prompted my admission and treatment at the Federal Medical Centre, Idi-Aba, Abeokuta. Attached herewith are copies of Haematology, Microbiology and Chemical Pathology medical reports marked Annexures B, C, D and E.
33. That by the nature of my ailment, I cannot be adequately and properly treated at medical facilities at the EFCC Custody or Agodi prison.
34. That I regularly visit the facilities of Federal Medical Centre for routine treatment of my ailment.
35. That apart from the Renal Stone ailment, I have also been diagnosed of high blood pressure after medical tests conducted on me at the Federal Medical Centre, Abeokuta.
36. That my health
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conditions may become worsen by my continuous detention at the EFCC Custody and or Agodi prison arising from special treatment I receive at the medical facilities of Federal Medical Centre, Abeokuta which are lacking at the EFCC or Agodi medical facilities.”
Against these averments of the Appellant, the Respondent countered with the following averments. They are:-
“4. That I know as a fact and verily believe that on the 3rd day of November, 2014 the Commission received a petition dated the same November, 20t4, 3rd day of wherein the following criminal allegations were made against the Applicant herein and other Accused persons.
a. Criminal conspiracy, Criminal breach of trust and stealing of money out of which N23,000,000:00 (Twenty Three Million Naira only) was discovered to have been pilfered on the basis of an interim report by the CBN Auditors.
b. That the Accused and others being saddled with the responsibility of coordinating the evacuation, supplying, boxing, receiving of deposits from deposit money banks (DMB), payment for withdrawals to the DMB and classification of cash into currency audited clean (CAC) notes or currency audited
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dirty (CAD) notes, at the Ibadan branch of Central Bank of Nigeria and in a desperate bid to conceal, suppress and obscure their carefully thought-out crime, the 1st Accused as the coordinator of briquetting exercise at the CBN Ibadan branch between 4th – 8th August, 2014 conspired with other employees of the Ibadan branch of CBN to destroy parked neatly Newspapers into a box that was ordinarily supposed to have been filled with N10,000,000 mutilated Naira notes.
c. On two occasions, a box of N1000 notes and two (2) boxed of N500 Naira notes (CAD) were stuffed with newspapers, and passed to briquetting panel for destruction and this fraud was only discovered at the point of briquetting.
5. That the said petition dated 3rd November, 2014 was received and that day, suspects were handed over to the Commission by the management of CBN on the same 3rd November, 2014.
6. That as soon as the petition was received and the suspects were handed over to the Commission, investigation commenced on the same day and some of the Accused persons made statements on the said 3rd November 2014.
7. That the aforesaid petition was referred to my team for
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investigation and my team assessed the allegations contained therein and found same to be true and correct.
8. That I know as a fact and I verily believe that our investigation revealed the following earaching findings.
a. On 5th August, 2014, a box of counted and audited dirty currency note N1,000 denominations was discovered to be filled with newspapers and the Head Treasury, Kolawole Babalola, was duly informed and in turn alerted the Head of Security, Fatai Adedokun Yusuf.
b. The briquetting panel of the Central Bank of Nigeria that went to Ibadan for the briquetting exercise of 4th – 8th August, 2014 including the Applicant herein conspired with the then Head Treasury, Mr. Kolawole Babalola and the then Head of Security, Mr. the Fatai Adedokun Yusuf on said 5th August to shred the newspapers in place of a box of N1000 Counted Audited Dirty (CAD)
c. That the coordinator of the briquetting exercise of 4th – 8th August, 2014 the 2nd Applicant and Head of security in a bid to perfect the crime lured out some member of the briquetting panel including Miss Ologundudu A. O. to the office of the Head of Security to allow the auditor and the
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remainder of the panel shred the newspaper without any resistance.
d. That the 1st Accused who was the coordinator of the briquetting exercise held between 4th – 8th August, 2014 in a bid to cover up the fraud committed in the exercise, wrote a report wherein she indicated that all was well with the exercise and submitted same to the CBN head office Abuja upon the completion of the exercise.
e. For in explainable reasons, the panel members i.e. Patience Okoro Eye, Afolabi Olufemi Johnson, (the Applicant) and Ilori Adekunle Samuel agreed with the 4th – 6th Accused persons to destroy the newspapers through briquetting without reporting the incident to the management.
f. The theft of the aforesaid N10, 000,000. 00 was concealed by all the Accused Persons on the said 5th August, 2014 till when the CBN head office discovered the fraud.
9. That I know as a fact that which I verily believe the depositions in the affidavit in the Applicant?s summons for bail sworn to by the 2nd Accused/Applicant are mostly untrue and a gross misrepresentation of the facts of this case
10. That contrary to paragraphs 8 – 49 of the Affidavit in support of
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the Applicant?s summons for bail, I know as a fact and I verily believe as follows:
a. That the facts deposed to in paragraphs 1 – 9 herein are the correct true state of facts.
b. That the Applicant herself in his own handwriting confirmed most of the facts stated above.
c. That the Applicant made a voluntarily confessional statement admitting the facts as stated above.
d. That the Applicant was merely offered an administrative bail on 7th January, 2015 immediately after his statement to enable the Commission conclude its investigation and to avoid infringing on his fundamental right and in view of the volume of work to be done by the prosecution.
e. That immediately the culpability of the Applicant was established and the charged were filed by our prosecutors, the said administrative bail was revoked on 27th May, 2015 and the Applicant was consequently re-arrested and taken back to custody.
11. That it will be in the interest of justice to refuse this application, more so when the proof of evidence before this Honourable Court clearly link the Applicant with the alleged offence.
12. That the Applicant will interfere
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with our witnesses in view of the facts that most of the listed prosecution witnesses are officers of the Central Bank of Nigeria who had at one time or the other worked with the Applicant herein.
13. That in the course of our investigation, three potential witnesses who are employees of the Central Bank of Nigeria were threatened by the 4th and 5th Accused Persons for daring to provide information required by the investigators and the Commission requested the Central Bank of Nigeria to transfer some of those officials from the Ibadan Branch of the Central Bank of Nigeria which they later complied with. The 4th and 5th Accused Persons have discovered where those junior officials were posted to and if granted bail, the life of those officials may be in danger and they may not want to give evidence before this Court.
15. That I know as a fact which I verily believe that there sufficient materials before this Honorable Court upon which the Court can refuse this application.
16. That if the application for bail is refused, the prosecution is prepared and ready to prove its case against the Accused/Applicant within the shortest possible time.<br< p=””
</br<
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17. That I know as a fact and I verily believe that if this application is granted the prosecution who is willing and ready to prove this case expeditiously will be prejudiced.”
Paragraphs 3 and 4 of the further affidavit in support deposed to on behalf of the Appellant are mere barefaced denials of the averments of the Respondent in nearly all the paragraphs of the counter affidavit. I would refer to any of its 7 paragraphs later, if the circumstances permit.
In his paragraph 4.18 at page 10 of the Appellant?s brief of argument, learned counsel had invited this court to put itself in the place of the trial court to re-evaluate the evidence on record with a view to making more appropriate findings in favour of the Appellant. This is by no means strange or unheard of, though I do not fully agree that the Lower Court did not evaluate the affidavit evidence before it properly, there may be a few areas of the affidavit evidence upon which some more findings may be made but which may not necessary be in favour of the Appellant.
?On the question of exercise of discretion by the Lower Court in the instant appeal, I wish to point out that when any
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issue for determination in an appeal pertains to the exercise of discretion, the question to be answered is not how the appellate Court would have exercised it but whether the Lower Court, whose discretion it was, exercised it correctly, i.e. judicially and judiciously, bonafide and in accord with justice and having regard to all the necessary and relevant consideration. See AJOMALE VS. YADUAT (NO.2) (1991) 5 NWLR (Pt.191) 266. Also, it is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial Court, simply because it did not favour one of the parties litigating before it. It is beyond peradventure that this Court will not interfere with exercise of the power of discretion by a Lower Court in the absence of proper and adequate or proper proof that it was wrongly exercised. It has remained settled and well established law that one cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court because the moment that was done, the discretion has become fettered. See ANYA VS. A.N.N. LTD (1992) LPELR – 511 SC.
With respect to bail application, as in the instant appeal, this Court referred to
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the Supreme Court decision inBAMAIYI VS. STATE (Supra) and applied it in ADAMS & ORS VS. ATTORNEY GENERAL OF FEDERATION (2006) LPELR 7713 CA and inter alia held that a trial Court has in most cases discretion to admit an accused to bail pending trial. Further to this general remark, this Court pointed out that in the exercise of the discretion, the following are the most important ingredients which should guide the Court i.e.
(a) the nature of the charge;
(b) evidence by which it is supported;
(c) sentence which by law may be passed in the event of a conviction; and
(d) the probability that the accused will appear to take his trial.
In both decisions of this Court inNWUDE VS. F.R.N. (SUPRA) and ANAJEMBA VS. F.R.N. (Supra) reference and reliance was placed on the Supreme Court decisions the in BAMAIYI VS. STATE (Supra) and ABACHA VS. STATE (2002) 5 NWLR (Pt.761) 638. In the lead judgment in ANAJEMBA VS. STATE (SUPRA) it was held that a Court in consideration an application for bail need not restrict itself to the affidavit evidence but its consideration should include the contents of the proof of evidence. Further, and against
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this background, His Lordship, Oduyemi JCA, added.
?It is the essence of the matter that the evidence available (usually proofs of evidence filed by the prosecution in Court) be examined when considering bail. Further facts and circumstances may be brought forward by way of affidavit evidence. It could well be that it is the likelihood of the accused making himself available to stand trial in any given case that may be of paramount concern. There is authority for saying that is a proper and useful test whether bail should be granted or refused to consider the probability that the accused will appear in Court to take his trial See Oduyemi JCA at pages 283 – 284 H – B.
It is imperative for each case to be decided on its peculiar facts and circumstances. The conditions to be considered or taken into consideration are inexhaustive because discretion is not an indulgence of a judicial whim. Rather, it is the exercise of judicial judgment based on facts and guided by the law or equitable principles.
In a situation such as the instant appeal on the exercising of discretion of a Lower Court, the duty of this Court is simply to look at
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the record, review same and determine whether the Lower Court exercised its discretion judicially and judiciously having regards to the facts and circumstances of the case. In other words, an appellate Court will not interfere with an exercise of discretion by a Lower Court simply because if faced with a similar application it would have exercised it otherwise or differently. See MINISTER OF PETROLEUM AND RESOURCES & ANOR VS. EXPO SHIPPING LINE (NIG.) LTD. (SUPRA).
?Also with respect to this appeal, apart from the usual undertaking by Applicants in similar situations, to provide reasonable and reliable sureties; not to commit other crimes while on bail; not to intimidate or interfere with prosecution witnesses; not to prejudice any further investigation into their alleged crimes; and assurances to the Court that they will appear to face their trial, learned counsel in this appeal, has in addition relied on the ill-health of the Appellant as a special circumstance to warrant a favourable exercise of discretion for him to be admitted to bail. According to his paragraph 27 of the affidavit in support, the Appellant averred that he was suspended from work
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on 11/10/2014, and was interrogated by a panel of investigations into the events of 4th to 8th, August, 2014. The interrogation, according to the Appellant was on 26th November, 2014 and 2nd December, 2014. By his paragraphs 28, he was dismissed on 10th February, 2015. Meanwhile, according to paragraphs 4 to 6 of the counter affidavit of the Respondent, the Appellant was reported to and handed over to the EFCC. On 3rd November, 2014. Investigations into the offences alleged against the Appellant and the other persons involved in various capacities in the events of 4th to 8th August, 2014 at Ibadan, were conducted by the EFCC and substantial findings were made, leading to the Appellant and other staff of the CBN being charged to Court for various and diverse economic crimes.
By his paragraphs 31 to 32, the Appellant introduced Exhibits A to E. In paragraph 32 he averred that he is suffering from Renal Stone ailment which prompted his admission and treatment at the Federal Medical Central, Abeokuta.
?Exhibits A appears to be reference to events between 15/4/2015 to 10/06/2015. The possible events of those dates was for the Appellant to see Dr. Hamzat
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and no more. Exhibits B to E appear to have been made around or on 13/5/2015. There are no other details.
A very close look at these Exhibits, no doubt shows them to be medical papers and nothing more. To a clinician they may be more appealing and helpful in determining the health status of a person by its overall nature, its extent and/or severity, in case of ill-health. However for a judge sitting in Court, and faced with such papers, I doubt if they would be anything more than that they are medical papers from a particulars government hospital. He would be at sea as to the meaning and effects of their content or for him to determine if there was any ill-health, in terms of its extent or severity to enable him to pass a good judgment on such a very crucial question. Apart from medical jargons such as autopsy, so many other medical terms would appear to be rocket science to Judges, including my humble self. No judge, in my humble view, is competent to interprete Exhibits A to E as to make him arrive at a value decision on whether or not to admit the bearer of such papers to bail on health grounds. The Appellant failed to show how his purported health
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challenges were being managed. He failed to indicate if at all any drugs were prescribed to him after the series of visits to Dr. Hamzat.
Learned counsel Mr. Alabi, had argued that the Appellant got good quality medical attention at the Federal Medical Centre, Abeokuta and not comparable to the care at the Federal Prisons, Agodi, Ibadan. This, as a perception, may well be so. It is however, important for learned counsel, Mr. Alabi to recall that Agodi Prison is Ibadan. Let it now be remembered that Ibadan is the home of the foremost public medical institution in Nigeria – UCH – University College Hospital, a top grade public medical facility accessible to members of the public a well-known central of excellence in medical practice. This is an inescapable conclusion. It can be judicially noticed as an established fact. It must be underscored and emphasized that generally speaking a Court must always base its determination of a matter or any conclusions therein on the facts before it and must not discountenance or diminish any relevant established fact.
Earlier on in this judgment, I alluded to the fact that both learned counsel had conceded to the fact
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that the conditions and circumstances a Court may consider when it comes to exercise its discretion to refuse or admit bail are inexhaustive. That is indeed so and it has not derogated from the cardinal objective in adjudication that cases must be decided based upon their peculiar facts and circumstances. This much was reiterated and emphasized by the Supreme Court in DOKUBO ASARI VS. FED. REP. OF NIG. (2007) ALL FWLR (PT.375) 558 where the Court, after reviewing and considering its earlier decisions in BAMAIYI VS. THE STATE (supra), ABACHA VS. THE STATE (supra), EYU VS. STATE (1988) 2 NWLR (Pt.78) 670, decided that:-
?The criteria which a Court shall consider in the exercise of its judicial discretion to arrive at a decision to grant or refuse bail pending trial of an accused by the trial Court include among others the followings:-
(1) the nature of the charge;
(2) the strength of the evidence which supports the charge;
(3) the gravity of the punishment in the event of conviction
(4) the previous record of the accused if any;
(5) the probability that the accused may not surrender himself for trial;
(6) the
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likelihood of the accused interfering with witness or may suppress any evidence that may incriminate him;
(7) the likelihood of further charge being sought against the accused;
(8) the probability of guilt;
(9) the determination for the protection of the accused and
(10) the necessity to procure medical or social report pending final disposal of the case.?
The Learned Justice of the Supreme Court continued:-
?The criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide the required guidelines to a trial Court in the exercise of its discretion or matters of bail pending trial.?
In BAMAIYI VS. THE STATE (supra) Uwaifo JSC had this to say:-
“The bailability 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. The determination of the criteria is very important because the liberty of the individual stands or falls by the decision of a Judge. In performing the function a Judge wields discretionary powers which like other discretionary powers
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must be exercised judiciously and judicially. In exercising the discretion a Judge is bound to examine the evidence before him without considering any extraneous matter.?
The Learned Justice then concluded at page 967 thus:-
?Nigerian criminal justice system has its stipulations and safeguards for the prosecutor, the accused and the victim. In an application for bail pending trial, if there is good reason to believe or strongly suspect that the accused will jump bail, thereby making himself unavailable to stand trial and or will interfere with witnesses, thereby constituting an obstacle in the way of justice, the Court will be acting within its undoubted discretion to refuse bail.?
Suffice it to say that the scope of judicial discretion includes all questions as to what is right, just, equitable or reasonable so far as not to be predetermined by authoritative rules of law and not to give effect to the will of the Judge but to that of the law. See Blacks Laws Dictionary, Centennial Edition at Page 466 to 467.
IN GRIFFITHS VS. J. P. HARRISON (WATFORD) (1963) AC 1 at 19 Lord Denning expressed his views on exercise of
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discretion in the following words, thus:-
?Reasonable people on the same facts may reasonably come to different conclusions and often do juries so do judges. And are not all reasonable men.?
In UBN PLC VS. A. B. (WA) LTD 2010 Vol. 180 LRCN 1 at 20, the Supreme Court held that an exercise of discretion is an act or deed based on one?s personal judgment in accordance with one?s conscience, free and unfettered by any external influence or suggestion?.. There is no hard and fast rule as to the exercise of a judicial discretion by a Court for if that happens, a discretion becomes unfettered. See also STATE VS. OZUZU (2010) (supra) and IDEOZU VS. OCHOMA (2006) ALL FWLR (Pt.308 1183 AT 1207 – 1208 per Tobi, JSC where his Lordship defined the word unfettered to mean unchained, unchecked, unrestrained and unhampered.
The ill-health of an accused person could be a relevant factor in the consideration of this application for bail. However, the mere allegation of ill-health is not sufficient. There must be proof that the accused person is not only ill but that it will be judicious to grant him bail. See ABACHA VS. THE STATE
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(supra) and FAWEHINMI VS. THE STATE (1990) NWLR (Pt.127) 486 where this Court considered the ill -health of the accused person sufficient special circumstance to grant him bail. Other factors may come under consideration as the circumstances of any particular matter may warrant. See BULAMA VS. F.R.N. (Supra) where this Court dismissed the appeal of the Appellant and affirmed the order of the trial Court refusing to admit him bail inspite of his complain of suffering glaucoma, an eye disease.
According to the decision of the Supreme Court inDOKUBO -ASARI VS. F.R.N. (Supra) at 577 – 578 F – A.
“Except where a miscarriage of justice has been established or that there is a violation of some principles of law or procedure; or that the discretion is known to or that the discretion have been wrongly exercised, or where the exercise was tainted with some illegality or substantial irregularity, an Appeal Court seldom interferes with the learned trial judge?s exercise of discretion is of the trial Court and not of the appellate Court hence it cannot substitute its own discretion.?
On the role of this Court if a trial Court refused to grant
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bail to an accused person, the Supreme Court further held that where there is a proper exercise of discretion it is not the business of an appellate Court to interfere with the decision. To do so merely on grounds that the appellate Court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the Appeal Court. With respect to the instant appeal there does not appear, in my humble view, to be any cogent or sufficient and convincing facts to show that the ill-health of the Appellant cannot be very adequately managed without an order admitting him to bail. Exhibit A to E cannot and should not be read to say or mean more than they can bear as documents. Exhibits A to E for example, do not say that the continued stay of the Appellant in prison custody would jeopardize or prejudice his health or aggravate his purported ill-health. It does not also say that he cannot be adequately supplied with and have proper access to his regular or enhanced medications or drug prescriptions. In the lead judgment of Aderemi, JCA (as he then was) in BULAMA VS. F.R.N. (supra) this Court held that where a medical report tendered
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in support of an application for bail is not persuasive and lacks evidential value it would not advance the case of the applicant and the Court may refuse to exercise its discretion to grant bail.
Also as part of its decision in BULAMA VS. F.R.N. (supra) at 509 C – E, this Court held that:-
?The exercise of discretion by the Judge, in the grant or refusal of bail to an accused, is governed by several factors which are not necessarily constant as they do change with changing circumstances and time. They cannot be regarded as immutable and applicable for all times. It must be borne in mind that it is not only the parties in any dispute before a Court that are interested in the outcome but also the larger society of which these parties, biological or artificial, have a stake in every in every decision of a Court of law; and societal fortune may often be determined by such Court decisions.?
With respect to the facts and circumstances in BULAMA VS. F.R.N. the Court remarked that the charge against the Appellant was a serious one which strikes at the foundation of the economic well-being of a nation and granting bail may send a wrong
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signal to the populace.
Against this background, I am unable to see any reason to sufficiently convince this Court to interfere with the exercise of the discretion of learned trial judge in the ruling leading to this appeal. I am fully satisfied that the Lower Court exercised its discretion judicially and judiciously in the circumstances of this appeal upon the Material placed before it. I do not see any steps taken by the Lower Court that could be faulted. Learned counsel to the Appellant has totally failed to show to this Court how the remarks of the learned trial judge on the alleged crimes of the Appellant and the other accused persons standing trial with him having something to do with the Nation?s economy. His Lordship Aderemi, JCA (as he then was) in BULAMA VS. F.R.N. (supra) was equally that forthright or even more pungent in the use of similar words and other words to that effect.
Against all the foregoing issues one and two as formulated and argued by learned counsel on behalf of the Appellant must, in my humble view, be and are hereby resolved against the Appellant and in favour of the Respondent.
?This appeal is dismissed. The
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ruling of the Lower Court denying bail to the Appellant is hereby affirmed.
Other Citations: (2016)LCN/8744(CA)
