Chukwukere Onyirioha V. Inspector-general of Police (2007)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

This is an Appeal against the ruling of Hon. Justice Kayode Bamisile of Ado-Ekiti Judicial Division of the High Court of Justice Ekiti State.

The Accused/Appellant was arraigned before the court on the 23rd day of May, 2006 along with two others on a ten count charge of Conspiracy, stealing and obtaining money under false pretences contrary to the Advance Fee Fraud and other Related Offences Act NO.13 of 1995, (as Amended by the Tribunals certain consequential Amendments ETC.) Act NO.62 of 1999.

After the Accused persons had pleaded not guilty to the charge, an oral application was made for the bail of the Accused persons. In his Ruling the learned trial Judge ordered as follows:-

“By the provisions of section 13(3) of Decree No. 62 of 1999 stipulated (sic) the condition of bail, that Accused persons be made to Deposit one quarter (1/4) of the total amount involve (sic) in the Chief Registrar account. Consequently in compliance with this provision of section 13(3) of the Decree No. 62 1999, Bail is granted to each of the three accused persons on the condition that they should deposit the sum of Twelve Million, Seven Hundred and Fifty-Five Thousand Naira (N12,755,000.00) which is one quarter of the total of the amount involved in count ten as Fifty-one Million and Twenty Thousand (N51,020,000.00). The sum of N12,755,000.00 (Twelve Million Seven Hundred and Fifty Thousand is to be deposited with the Chief Registrar of Ekiti State Judiciary. In the event that the three persons could not pay this amount, they are to remain in the prison custody.”

On the 23rd day of May, 2006, Victor Mbanaso Esq. of Counsel for the Appellant by a motion on Notice filed same day prayed the court below to review the conditions of the bail granted the Accused/Appellant and for an order cancelling the condition that the Accused persons deposit the sum of N12,755,000.00 or any other sum whatsoever as condition for his bail as the said condition is unconstitutional, null and void.

The motion was supported by a ten-point affidavit deposed to by one Omeoga Chukwu Esq. a legal practitioner of 94 Clegg Street Surulere Lagos. After hearing the submissions of Counsel on the motion the learned trial Judge in a well considered ruling delivered on 28/7/2006 refused the prayers for the review of the condition that the Accused persons deposit the said sum which is equivalent to one quarter of the amount involved in the charge and for the cancellation of the said condition.

Dissatisfied with the said Ruling the Appellant has now appealed to this court by a Notice of Appeal with three Grounds filed on the 19th day of September, 2006 and dated same day.

Shorn of their particulars the Grounds of Appeal are hereunder reproduced as follows: –

GROUND 1: ERROR IN LAW:

“The Honourable High Court of Ekiti State erred in law when it imposed the condition that the Accused/Appellant deposit a quarter of the sum of money he is accused of stealing as condition for this bail, and thereafter refused the Application, to review the conditions of bail removing the said condition.

“2. ERROR IN LAW:

The honourable trial Judge erred in law when he held that he was bound to impose the conditions for bail provided for in the Advance Fee Fraud Act.

“3. ERROR IN LAW:

The honourable High Court of Ekiti State erred in law when it refused to grant the Appellant’s prayer to cancel the condition of the deposit of the percentage of the sum allegedly stolen by the Accused/Appellant when there was no evidence whatsoever indicating that the Accused/ Appellant actually saw or took the sums for which he was charged.”

On the 23rd of April, 2007 following the grant of some interlocutory applications filed by the parties in this court the Briefs of Argument filed by the Appellant and the Respondent were duly adopted with leave of court. Arising from the Grounds of Appeal, the Learned Counsel for the Appellant formulated three issues for determination, which are couched in the following terms and adopted by the learned Director of. Public Prosecutions for the Respondents thus:

“i. Whether the condition that the Accused/Appellant deposit a percentage of the money he is alleged to have stolen is not contrary to the presumption of innocence as enshrined in section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and Article 7 (1) (b) of the African Charter on Human Rights and thus null and void.

“ii. Whether the condition of the deposit of one quarter of the amount alleged to have been obtained under false pretences as condition for bail as imposed by section 18 (1) of the Advance Fee Fraud Act 1995 is mandatory such that it must be imposed by the Judge in all circumstance.

“iii. Whether there were sufficient materials placed before the court to justify the imposition of such condition in the circumstances.”

It would be recalled that on the date the Briefs of Arguments were adopted by learned Counsel for the parties, Mr. Ogunmade the Learned Counsel for the Appellant or any adumbrated some of the submissions made in respect of the issues raised from the grounds of Appeal, which we shall consider in due course.

Arguing on ISSUE ONE the Learned Counsel for the Appellant submitted that the Universal concept of Criminal Law in a civilized society that upholds the rule of Jaw is that freedom, which is the greatest gift of man, should be guaranteed and that the denial of such freedom is always spelt out in the laws.

He cited as instances the presumption of innocence as guaranteed by section 36(5) of the 1999 Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap” 10 Laws of the Federal Republic of Nigeria 1990 in Articles 7 (1) (b). He further cited section 18(1) of the Advance Fee Fraud Act as amended by the Tribunals (certain consequential Amendments etc.) Act of 1999 on the other hand which provides that an Accused arrested and charged under the Act can be granted bail on the condition that he deposits a quarter of the total sum he is alleged to have stolen and that in particular the order of the Lower Court that the Appellant should deposit the sum of N12,755,000.00 with the court Registrar presupposes that the Accused actually committed the offence.

He thus questioned if the Accused is presumed innocent as required by law where he would be expected to procure such sum of money to deposit and procure his bail.

The Learned Counsel for the Appellant then took the view that the imposition of such a condition negates the presumption of innocence as provided for in our laws. To buttress this contention he relied on the authority of COMPTROLLER OF NIGERIAN PRISONS V. DR. FEMI ADEKANYE & ORS (1998) 10 NWLR (PT.623) 400 at 427 paras. A-E to urge the court to hold that the provisions of the Advance Fee Fraud Act as amended by Act No. 62 of 1999 and the order of the court for the deposit of one quarter of the amount allegedly defrauded or stolen are null and void being contrary to the Constitution and Article 7 of the African Charter on Human and Peoples’ Right (Enforcement) Act Cap. 10, Laws of the Federation 1990.

In his reply to the above argument of learned Counsel for the Appellant, L. B. Ojo Esq. the Learned Director of Public Prosecutions, Ministry of Justice Ekiti State on this issue submitted that Section 35 of the 1999 Constitution of the Federal Republic of Nigeria provides for the liberty of every citizen of Nigeria but the provision is however subject to exceptions contained in Section 35 (1) (a-f) thereof.

On the provisions of Section 18(1) of the Advance Fee Fraud Act and the conditions for bail as imposed, he posited that the Judge has the discretionary power to grant bail and that the condition imposed by the learned Judge being statutory, if is a condition precedent to be fulfilled and not an attempt to prevent the Appellant from being granted bail. The case of OBABA V. MILITARY GOVERNOR OF KWARA STATE (1994) 4 NWLR (PT336) 26 at 46 paras. F – G. was cited in support He therefore urged the court to resolve the issue in favour of the Respondent.

ISSUE NO.2

Here the Learned Counsel for the Appellant reproduced the provisions of section 18(1) of the Advance Fee Fraud and Other Related Offences (Amendment) Act and citing EMEKA EKWENUGO V. THE FRN. (2001) 6 NWLR (PT.708) 171 at 185 paras. C-D and the holding of the court that the above provisions of the Act are not mandatory and that they do not fetter the discretion of the court to grant bail to an Accused person and further citing the case of IGNATIUS UDEH VS. F.R.N. (2001) 5 NWLR (PT.706) 312, submitted that from the above decisions it is clear that the provisions of the Act is not mandatory on the issue of bail.

He maintained that the learned trial Judge from the on set never approached the issue of bail from the point of view that it was possible to grant bail without imposing the conditions set out in paragraph 18(1) of the Act and that if he had done so he would have stated the exceptional circumstances which compelled him to impose the condition.

The learned Appellant’ Counsel then urged us to hold that His Lordship of the High court was wrong in his approach and as such we should cancel the condition imposed by the learned trial Judge.

On his part the learned D.P.P. in his reaction to the above submissions conceded that the provisions of Section 18(1) of the Advance Fee Fraud Act is not mandatory but argued per contra that they are not in breach of the Constitution (section 35(4) which vests the court with the discretion to release an Accused on bail either conditionally or upon such conditions as are reasonably necessary to ensure the appearance of the Accused for his trial on a later date.

EKWENUGO V F.R.N. (2001) 6 NWLR (PT.708) 171 at 191 paragraph C-D was also cited to support his position.

The Learned D. P. P. further contended that although the trial Judge has discretionary powers to exercise, Section 18 (1) of the Act is a special condition prescribed to provide guidelines for exercise of the Court’s discretion and that the court cannot wander too far away from the bench mark so provided without under mining the fabric of the legislation.

He finally submitted on this issue that the conditions set out in section 18 (c) of the Act are reasonably necessary to secure the appearance of the Accused on a later date for his trial and that the learned trial Judge exercised his discretion in the imposition of those conditions both judicially and judiciously. We were again urged to resolve Issue Number 2 in favour of the Respondent.

ISSUE NUMBER 3: WHETHER THERE ARE SUFFICIENT MATERIALS PLACED BEFORE THE TRIAL COURT TO JUSTIFY THE IMPOSITION OF SUCH STRICT CONDITION.

The Learned Appellant’s counsel noted here that the grant of bail or its refusal is at the Discretion of the court so are the conditions to be imposed. Relying on EYU VS THE STATE (1988) 2 NWLR (Pt. 78) 602 at 603 Held 6, he enumerated the usual consideration for the grant of bail by a court and the decision of the court that there is a presumption in favour of the Liberty and innocence of an accused person by the law and that the onus is on the prosecution to show facts upon which an Accused should be refused bail.

Furthermore, it was also held in the above-cited case that the sole purpose of bail is to enable the accused to come back for his trial and thus, it is not necessary to introduce pecuniary considerations to attain that end.

Relying again on the case of BONIFACE UKATU VS COP (2001), 6 NWLR (Pt. 710) at 765 he submitted that the court does not exercise its discretion to grant or not to grant bail in vacuo but upon facts placed before it.

In the case at hand he further submitted, apart from the charge sheet the prosecution was said not to have presented anything before the court. According to the Learned Counsel, there was no information, and proof of evidence and that the affidavit in support of the application for the variation of the bail conditions was neither challenged nor countered in any way, the affidavit being the only fact before the court- wherein the accused averred that he never received nor did be see any money he allegedly stole neither had he any asset worth N4,000,000.00 or in cash.

Learned counsel for the Appellant also alluded to the holding of the court below that over 500 persons were involved as Complainants in the offences with which the Appellant was charged to justify the imposition of the conditions for the deposit of one-quarter of the amount allegedly received as according to Counsel no fact supported this holding by the court. He observed that the facts were in support of the Accused that he had been on police bail and bad never failed to appear when required to do so. Thus the prosecution simply filed a charge before the High court under the Advance Fee Fraud Act and hoped to hide under the cloak of the draconian and impossible condition for the bail to keep the Accused incarcerated indefinitely.

Relying again on UKATU V. THE COMMISSIONER OF POLICE and COMPTROLLER OF PRISONS VS ADEKANYE Supra he finally asserted that in an attempt to check crimes civilized, legal methods must be employed. He urged the court to allow the Appeal, set aside the conditions of bail as regards the deposit and order the Accused to present sureties who would execute a bond to ensure his attendance to court to answer to his charge as the Accused is sure of his innocence.

In his reply to the above submissions of the Learned counsel for the Appellant the Learned D.P.P for the Respondent insisted that there were sufficient materials before the trial court to justify the imposition of the conditions under Section 18 (1) of the Act. He conceded that the information and proof of evidence were not made part of the Record of Proceedings but added that they are now filed and already before the Lower court.

He maintained that the facts contained in the information and proof evidence coupled with the extra judicial statement of the Accused/Appellant to the police, revealed that a prima-facie case of Advance Fee Fraud could be sustained against the appellant.

This Hounourable was then urged to hold that the materials presented before the trial Judge are enough for the High Court /trial Judge to impose the conditions stated in section 18(1) of the Act. He finally urged the court to dismiss the Appeal and affirm the ruling of the trial court.

It has to be noted as I have said else where, that by the provisions of sections 35(1) and 36(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria, every citizen of this country is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the constitution or statute.

For instance Section 36(5) provides that:

“(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” Section 35(1) on the other hand stipulates that:

“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and accordance with procedure permitted by law:

(a) …

(b) …

(c) For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a “criminal offence.”

Now the accused person/Appellant is alleged to have {1} committed the offences of Advance Fee Fraud and stealing in that on diverse dates he conspired with his co-Accused persons to obtain money by false pretences at No. 150 Oba- Ajaye Street Irona Quarters, Ado-Ekiti. Precisely, between the 1st and 30th day of November 2004, he was alleged to have (2) Obtained the sum of N5,719,100.00 from one Alhaja Bola Abdulsalam, female the coordinator of Agro Allied Farmers of Ogun state on Cassava under the pre of facilitating their attendance and participation in the farmers promotional Exhibition to be held in Florida U.S.A. knowing that such exhibition was not being organized;

3. That he obtained the sum of Twenty-Eight Million four hundred and sixty Thousand (N28,460,000.00) Naira from one Dr. Ighotse, Coordinator of Agro Allied Farmers of Delta State for the same purpose earlier stated;
4. Obtained N6,390,000.00 (Six million Three Hundred and Ninety Thousand Naira) from Edo State Agro Allied Multipurpose cooperative Ltd. for the same purpose aforesaid.
5. Obtained Four Million Five Hundred Thousand Naira (N4,500,000.00) from Oyo State Agro Allied Multipurpose cooperative Ltd. for the same purpose aforesaid.
6. Obtained the sum of N3,376,000.00 (Three Million Three Hundred and Seventy-Six Thousand) Naira from Anambra State Agro Allied Multipurpose Cooperative Society for the non existent promotional exhibition as earlier stated.
7. Obtained One Million and Twenty-Nine Thousand Five Hundred Naira (N1,029,500.00) from the Lagos State Agro Allied Multipurpose Cooperative Ltd. for the said phantom promotional Exhibition in Florida U.S.A.
8. That he obtained the sum of N754,000.00 (Seven Hundred and Fifty Four Thousand) Naira from Dr. Ighotse for the same promotional Exhibition in Florida U.S.A.
9. That he obtained the sum of N792,000.00 (Seven Hundred and Ninety-Two Thousand) Naira from the Agro Allied Cooperative Multipurpose Union LTD Of Ado Ekiti for the purpose of the same promotional Exhibition in Florida U.S.A.; and
10. That he stole the sum of N51,020,000.00 property of the enumerated cooperative Societies and Unions.

An eleventh count of issuing bounced cheque for the sum of N2,800,000.00 in favour of Alhaja Bola Abdulasalam (female) was also added.

It is also however pertinent to note that the Advance Fee Fraud and other Related Offences Act as amended by the Act No. 62 1999 (now Cap. A6 Laws of the Federation of Nigeria 2004) by section 16 thereof empowers the High court to grant bail to the Accused persons charged with an offence(s) under the Act.

For the avoidance of doubt section 16 States thus:-

“(1) The High Court shall have power to grant bail to an accused person charged with an offence under this act or any other Law triable by the High Court upon such terms and conditions as the High Court may deem fit including-

(a) The payment of One-Quarter of the amount of money involved in the offence.

(b) The provision of a surety or such number of sureties who shall deposit adequate security for the balance of the amount involved in the offence and

(c) The handing over of his passport to the High court of the State Concerned for the duration of the bail”.

Subsection two gives the Police the Discretion to grant bail before an Accused Charged before the High Court upon an offence under the Act is arraigned before the Court. However, such discretion must be exercised subject to compliance with the provisions of subsection (1) (a) -(c).

It is against this background that we shall consider the issues raised in this Appeal. The contention of the Learned counsel for the Appellant is that the condition for the deposit of one quarter of the money allegedly obtained by false pretences or stolen is contrary to the presumption of innocence as enshrined in section 36(5) of the constitution of the Federal Republic of Nigeria 1999 and Article 7(1) (b) of the African Charter on Human and Peoples Rights and thus that imposition and indeed the provisions of section 16 (1) (a)-(c) is null and void. The case of COMPTROLLER OF PRISONS VS ADEKANYE & ORS Supra was cited in support of his position.

On the contrary the Learned Director of Public Prosecutions on behalf of the Respondent countered that the condition imposed by the Learned trial Judge for the deposit of the said amount is statutory and a condition precedent imposed by the Act before an Appellant can be admitted to bail. He relied on OBABA V MILITARY GOVERNOR of Kwara State Supra.

Luckily for us we have been furnished with decided authorities on this vexed issue of Section 16(1) (then Section 18(1) of the Act.

In COMPTROLLER OF NIGERIAN PRISONS V. ADEKANYE (1999) 10 NWLR (Pt.623) 400, the provisions of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 which amongst others ousted the supervisory Jurisdiction of High Courts over the Tribunal set up pursuant to the Decree and in particular Section 26(2) thereof which stated thus: –

“(2) Notwithstanding subsection (1) of this section, the tribunal may grant bail for an amount equal to that involved in the offence, if the person charged with the offence:

(a) deposits half the amount in the tribunal as security for the bail,

(b) provides surety for the balance of the amount; and

(e) hands over the passport to the tribunal for the duration of the bail.”

The above provisions are exact replica of the provisions of Section 16(1)(a-c) of the Advance Fee Fraud and Related Offences Act (as Amended) which is the subject of this appeal.

In the COMPTROLLER OF PRISONS V ADEKANYE’S case one of the issues that called for resolution in the Court of Appeal Lagos Division, was whether the Decree under which the Accused persons were charged and the conditions for bail were not in breach of the African Charter on Human & Peoples Right or even the constitutionally guaranteed presumption of innocence.

Oguntade J.C.A (as he then was) delivering the lead judgment of the Court of Appeal put it beyond peradventure inter alia:-

“I am satisfied that Section 26 of Decree No. 18 in its effect is oppressive and totally destroys the presumption of innocence in favour of an accused. It is too harsh and ensures that a person accused of committing an offence under the Decree does not get bail at all. It is a bad legislation and clearly offends Article 7 (1) (b) of African Charter on Human Rights Cap.10 Laws of the Federation 1990”

The Learned Law Lord had earlier held that when a nation state for the collective good surrenders part of its sovereignty its true import is that it takes the assertion of the Nation State to limit its Sovereignty. Therefore by Article 7 (1) (b) and (d) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 1990 every person is presumed innocent until proven guilty by a competent Court and to be tried within a reasonable time by an impartial tribunal. Furthermore he maintained, by the voluntary subscription to the Charter, the provisions thereof bind Nigeria and accordingly, any municipal Law like the Failed Bank Decree which is in conflict with the Charter on Human & Peoples Rights shall to the extent of it’s inconsistency be null and void. See EYU V THE STATE (1998) 2 NWLR (Pt. 78) 602.

In the case at hand, Section 16 (1) (a)-(c), is patently a draconian piece of Legislation crafted hurriedly by the ‘ancien’ military regime prior to their exit albeit to check the nefarious activities of fraudsters who had become a pain in the ass of gullible Nigerians during and after the said regime. One is also not unmindful of the peculiar circumstances under which the Advance Fee Fraud Act was enacted particularly as Nigerians have been traumatized both nationally and internationally and indeed had acquired the notoriety of being tagged the most corrupt nation in the universe with the attendant pariah status on account of this unwholesome practices by some of her citizens. There is also no doubt that the last regime and the succeeding one had made anti- corruption and transparency as the bastion of their policy. Notwithstanding the fore goings our new democratic dispensation cannot brook draconian and uncivilized modes of enforcing our laws.

I am not oblivious of what Olagunju J.C.A. said in EKWENUGO V F.R.N. (2001) 6 NWLR (Pt. 708) 171 at 190-191 paras. H-A that:-

“It suffices to say that the Advance Fee Fraud Decree is a Special Legislation designed to combat certain enormities in the society with international repercussion. Therefore, I venture to say that for the efficacy of the policy underlying the creation of offences under the Decree the conditions for bail stipulated by subsection 18 (1) therefore provide guidelines for exercise of the court’s discretion, the benchmark from which grant of bail cannot wander too faraway without under-mining the fabric of the Legislation.”

With the greatest respect to the learned D.P.P, the African Charter on Human and Peoples’ Rights was not brought to the attention of their Lordships of the Court of Appeal in the above cited case. I am of the candid view that, where a statute provides for such stringent terms and conditions of bail for a bail able offence, there is the presumption that the Accused is guilty, otherwise if he is presumed innocent, where for instance he has not committed the offence, how does he afford One Quarter of the amount allegedly stolen or fraudulently received to be deposited in Court?

I am afraid again that the case OBABA VS MILITARY GOVERNOR OF KWARA STATE Supra does not help us in this case. In that case Iguh J.S.C. held that payment of N10,000,00 non-refundable sum under the Kwara State Edict Number 3 of 1998 did not ipso facto vest the High Court with the Jurisdiction to invalidate or set aside the Edict but that the payment was a condition precedent, which conferred the Appellant with access to the Court of the land and no more, That was a chieftaincy case brought under the civil Jurisdiction of the Court in a military dispensation. I wonder whether the Learned Law Lords of the present Supreme Court would in this dispensation approve a Law, which clearly constituted an impediment to aggrieved parties in a chieftaincy matter.

I am of the view that the Learned Counsel for the Appellant was on sound ground when he submitted that section 18 (1) now 16 (1) of the Advance Fee Fraud is in breach of the African Charter on Human and Peoples Rights (Ratification) Act Cap. 10 Laws of the Federation 1990 and accordingly that Section may the order of the Trial Judge, is null and void and of no effect whatsoever.

With this Issue (Number One) resolved in favour of the Appellant this Appeal should have been laid to rest.

However, as an intermediate Court we shall proceed to consider the other two issues.

ISSUE NUMBER 2. WHETHER SECTION 18 (1) of the Decree Number 13 of 1995 is mandatory. Here both Counsels are ad idem that the said provision is not mandatory. The Learned Counsel for the Appellant and Learned D.P.P for the Respondent have mutually cited the case of EKWENUGO V F.R.N. (2001) 6 NWLR (Pt. 708) 171 at 185-6 paras C-A and 191 paras C-D.

At pages 185-186 paragraph D-C, Fabiyi .I.C.A. held as follows: –

“I should state it that I am not one with the Learned Trial Judge in his stand that the provisions of the Decree are mandatory. Section 18 (1) (a) (b) and (c) of the Advance Fee Fraud Related offences Decree No. 13 of 1995, as amended y Decree No. 62 of 1999 provides:

“The Trial Judge to my mind had an unfettered discretion in the matter. This is beyond doubt when the above is read along with Section 35 (1) (c) of the 1999 constitution of the Federal Republic of Nigeria which stipulates as follows:- If there is reasonable suspicion that a person has committed an offence, his liberty may be impaired temporary. In the same vein a person’s liberty may be tampered with so as to prevent him from committing an offence. In short, it is clear that no citizen’s freedom or liberty is absolute. The freedom of a citizen ends where that of the other man starts. This must be well considered and balanced by a Judge when considering the question of bail.”

From the fore goings, there is no doubt that the Learned Justice of the Court of Appeal stated the correct position of the Law. Thus in considering the provisions of the Act as regards bail the court is expected to exercise his discretion judiciously and judicially taking into consideration in this case the interest of the Accused who is presumed innocent, the complainant who have been deprived of a whopping sum of N51 Million Naira and above all the overall interest of the public. This case becomes even more intriguing in that the majority of the victims of the alleged fraud are State Government agents and their respective Agencies.

To temporarily impair the liberty of the Appellant there must be reasonable suspicion that he committed the offence. Since parties have agreed that the provisions of Section 18 (1) of the Act are not mandatory, the natural question that will follow is whether the Learned Trial Judge in the exercise of his undoubted discretion under the Act to grant or refuse bail, has embarked on a judicious and judicial exercise of that discretion. The answer will then turn on the resolution of ISSUE NUMBER 3 which is whether sufficient materials were placed before the court below to justify imposition of such strict conditions.

As was ably argued by the Learned Counsel for the Appellant citing IGNATIUS UDEH VS F.R.N. (2001) 5 NWLR (Pt. 706) at 312 particularly at 324 paragraph F-G the Court has to consider the totality of the terms as contained in paragraphs (a) (b) and (c) of Section 18 (I) and the peculiar facts and circumstances of the case in order to see which of the terms shall apply in a given case. In ABACHA V. THE STATE (2002) 5 NWLR (Pt. 761) 628 at 674 paras. B-C; Ayoola J.S.C delivering the lead judgment of the Supreme Court emphasized the relevant criteria to be considered in the g rant or refusal of an application for bail thus: –

“In the exercise of the discretion to grant bail to an accused person pending trial, the Court has to consider the following: –

(a) The nature of the charge;

(b) The character of the evidence;

(c) The severity of the punishment;

(d) The criminal record of the Accused;

(e) The likelihood of the repetition of the offence;

(f) Evidence that should applicant be granted bail, the witnesses for the prosecution maybe interfered with or prevented from appearing to testify; and

(g) Whether if the applicant is granted bail, he would fail to attend court to face his trial; OBASEKI V POLICE (1959) NWLR 149; DANTATA VS POLICE (1958) NWLR 3.”

See again EYU V THE STATE (1988) 2 NWLR (Pt. 78) 602 at 604 where the Court held that the presumption of Law is in favour of the liberty of the Accused as well as his innocence and the burden is on the Prosecution to show that the Accused is not the one that should be released on bail with liberal conditions.

Although in this case the question of refusal of bail does not arise, where, the conditions imposed on the Accused by the trial court are stringent and onerous to the extremes, it is as good as denying him bail. The onus is still on the prosecution to show that he deserves such harsh conditions of bail as provided for under Section 18 (1) of the Act. Here, it would be proper to remind us of the dictum of ABDULAHI J.C.A. in ABIOLA V. F.R.N (1995) 4 NWLR (Pt. 370) 55 at 179 where he posited: –

“It is when the applicant has placed some materials for the consideration of the Court that the onus will move to the door steps of the prosecution to show cause why bail should not be granted” See CHINEMELU V COP (1995) 4 NWLR (Pt. 390) 467 at 472 and ANAEKWE VS COP. (1996) 3 NWLR (PT. 436) 320.

The Learned Counsel for the Appellant has submitted that the prosecution has placed nothing before the court as there was no information or proof of evidence and the Affidavit in support of the Application for Review of Bail Condition was not challenged even where the Accused averred that be had never owned or possessed up to N4, 000,000.00 in asset or cash. Furthermore, it was not stated by the prosecution that the money was given to the Appellant and as such the Appellant in his affidavit remained unchallenged.

What then are the materials placed before the court by the Applicant so as to warrant the court below – nay this court to exercise their discretion in his favour.

Paragraph 5-9 of the Appellants Affidavit state that:-

“5. That the honourable court in granting the application for bail gave as the condition that the Accused/Applicant along with other two Accused persons deposit with the Court one quarter (1/4) of the amount they are alleged to have stolen in the charge sheet which came to about N12,755,000.00 (Twelve Million Seven Thousand) Naira. This is in accordance with the provisions of the Law under which they are charged.

“6. That I am informed by the Accused person and I verily believe him that he never committed the offence for which he was charged as he never collected or even saw the amount of money contained in the charge.

“7. That I am also informed by the Accused person and I verily believe him that he has never owned or possessed up to N4,000,000.00 (Four Million) Naira either in cash or in assets and no member of his immediate or extended family owns that amount of money.

“8. That the said bail condition imposed presumes the guilt of the Accused person for the offence charged which conflicts with Section 36 (5) of the 1999 Constitution of Nigeria.

“9. That in the circumstances it is in the interest of Justice that the Application be granted to cancel that condition and the prosecution will not be prejudiced if this application be granted”

On the other hand the Respondent filed no Counter affidavit. They only objected to the application on grounds of law. In other words, they had accepted the truth of the averments of the Applicant/Appellant since none of such averments was neither controverted nor challenged. However, their contention appears to be that whether what the applicant/ Appel1ant had deposed to, in the affidavit in support of the Application for review of the condition of bail was true or not, the Learned Trial Judge in the exercise of his discretion to grant bail must include the conditions as stipulated by Section 18 (1) of the Act, which conditions must be fulfil1ed before the Accused/Applicant/Appellant can be granted bail.

The Learned Counsel for the Respondent had cited EKWENUGO’S case which had already been considered as holding that the provisions of Section 18 (1) are not mandatory but only serve as a guide in the exercise of discretion by the Court. To hold as the Learned Counsel for the Respondent and indeed the Lower Court did would tantamount to a travesty of the provisions of the Constitution and the African Charter on Human and Peoples Rights as regards the presumption of innocence. In other words, the Accused/Applicant/Appellant had been presumed guilty before he was tried.

Whereas, in this case, the prosecution has not placed anything before the Court to displace the presumption of innocence as enshrined in the constitution, it cannot be said that there is prima facie evidence that the accused person committed the offence or that there is reasonable suspicion tying him to the offence so as to deprive him of his liberty pending his trial. Thus, although the nature of the offences allegedly committed is Advance Fee Fraud, the criteria laid down in ABACHA V THE STATE supra have not been met.

For instance, there was no proof of evidence at the trial Court as well as this Court so as to know the nature and character of the evidence that was /is to be adduced against the Accused thus warranting the imposition of such harsh conditions as stipulated in Section 18 (1) of the Act. Furthermore, it has not been disclosed that the Accused has a previous criminal record or that he has the reputation for committing offences of the like nature with the one for which he is standing trial and that if released on bail on liberal terms he would likely repeat the commission of the offence.

There is also no evidence that if the Accused were released on liberal terms he would tamper with or interfere with the prosecution’s witnesses or prevent them from appearing to testify against him.

Finally, it has not been disclosed by the Respondent that if the Accused were granted bail on liberal terms he would vamoose and fail to attend Court again to face his trial. See OBASEKI VS POLICE (1959) NWLR 149 and DANTATA V POLICE (1958) NWLR 3. Rather the Appellant who was granted bail by the police prior to his being arraigned in court has been shown to have voluntarily submitted himself for trial before the learned Judge who imposed the rather impossible condition of bail.

Although it is a notorious fact that there is a high incidence of Advance Fee Fraud in this country and the punishment for such an offence is prohibitive, where the Act stipulates that the Accused should deposit one quarter of the money involved in the offence, there must be sufficient materials placed before the Court by the Prosecution in order for the Court to impose such a harsh condition for bail since such condition is discretionary.

In this case, there being nothing before the court to warrant the imposition of such harsh terms, I am of the candid opinion that the Court’s exercise of its discretion was injudicious. In UKATU V COP (2001) 6 NWLR (Pt. 710) at 765 particularly at page 773. Akpabio J.C.A. (as he then was) quoted with approval the dictum of Tobi J.C.A. (as he then was), in ANAEKWE V COP (1996) 3 NWLR (Pt. 436) 320; where the High Court Onitsha refused bail on the ground that the accused was charged with murder and the matter went up to the Court of Appeal Enugu Division, inter alia:

“Where prosecution merely parades to the court the word ‘murder’, without tying it with the offence, a Court of Law is bound to grant bail. And the only way to intimidate the Court not to grant bail is to prefer information and proof of evidence to show that there is prima facie evidence of commission of the offence. Thus, although bail is normally not granted to a person accused of murder, a situation where there is no material before the trial Court to show that the Appellant is facing a charge of murder, including proof of evidence, certainly qualifies as special circumstance in which the court can grant bail. Oladele V. STATE (1993) (Pt. 269) 294; Emordi V. Cop (1995) 2 NWLR (Pt. 376) 244 distinguished; Chinemelu V. Cop (1995) 4 NWLR (Pt. 390) 467, ENWERE VS COP (1993) 6 NWLR (Pt. 299) 333 referred and followed.”

It is clear from the above authority that the Lower Court applied the provisions of Section 18 (1) of the Advance Fee Fraud Act from the mere parade by the prosecution of the charge of Advance Fee Fraud without the prosecution intimating (or is it intimidating) the Court of/with the preferment of information and proof of evidence. Indeed the Learned Director of Public Prosecutions admitted much of this fact when at page 3 of his Respondent’s Brief he stated: –

“The information and proof of evidence though are not made part of the record of appeal but are now filled and already before the trial Court.

The facts revealed in the information and proof of evidence coupled with extra-judicial statement of the Appellant to the Police revealed that a prima facie case of Advance Fee Fraud could be sustained against the Appellant.

This honourable Court is urged to hold that the materials presented before the trial judge are enough for the trial judge to impose the conditions stated in Section 18 (1) of the Act.”

I am afraid that what the Learned Director of Public Prosecutions is urging us to do is to ask us to speculate on the contents of a document not before us which luxury this Court cannot afford.

At page 25 of the Record of proceedings the learned trial Judge had held quoting OLUGBUSI V. COP & ANOR (1970) ALL N.L.R. 1 AT 4 AND DANTATA VS POLICE (1958) N.R.N.L.R. 3, that by the nature of the charge, the severity of the punishment and the character of the evidence against the Accused person and the fact that if he proceeded to grant the application for review there was the likelihood of the Accused jumping bail notwithstanding that the Respondent Counsel did not file any counter affidavit, he was refusing the application.

His Lordship proceeded from the standpoint that he could not exercise his discretion below the provisions of the Advanced Fee Fraud. In other words, he felt that the statutory provisions must be strictly adhered to notwithstanding the discretion granted him by the same statute. Where did the learned trial Judge get the prima facie evidence and the fact that if the Accused conditions for bail were reviewed, the Accused would jump bail? I am of the view that the trial Judge did not exercise his discretion judiciously and judicially and it would appear that he considered extraneous or irrelevant matters while ignoring material issues. In other words, the discretion was illegal, mala-fides and was inconsistent with the ends of justice. See DANBABA VS THE STATE (2000) 14 NWLR (Pt. 687) 396 at 408 Para E-F per Galadima J.C.A. who quoted Iguh J.C.A. (as he then was) in ECHAKA CATTLE RANCH LTD VS NACB LTD (1998) 4 NWLR (Pt. 547) 526 at 544 inter alia:-

“While it is the Law that the exercise of discretion by the trial Court may be reviewed on appeal, an appellate Court must not interfere unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was mala- fides, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was exercised in a manner that was inconsistent with the ends of justice.”

In the instant case, the learned trial Judge having arbitrarily and without looking at the information and the proof of evidence exercised the injudicious discretion, this court on the authority earlier cited could intervene to ameliorate the bail conditions imposed on the Accused.

Accordingly, issue No. 3 is also resolved in favour of the Appellant. His appeal, which is pregnant with a lot of merit, is hereby allowed. In accordance with the provisions of order 4 Rule 6 of the Court of Appeal Rules, 2002, I vary the conditions of bail granted the Accused as follows: –

1. That Accused be granted bail in the sum of N12,755,000.00 with one surety in the like sum. The surety shall swear to an affidavit of means and must either be the Chairman of the Accused/Appellant’s Local Government Area or member representing his constituency either in the House of Assembly or in the National Assembly.
2. That the Accused shall deposit his traveling documents with the Court pending the determination of the case against him.
3. The bail conditions of the trial Court, which ordered the Accused to deposit one quarter of the amount allegedly stolen, is hereby cancelled. I make no order as to costs.

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Other Citations: (2007)LCN/2454(CA)