Suraju Gasali V. Federal Republic of Nigeria (2016)
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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This is a bail application dated 22nd of February, 2016 filed on the 23rd February, 2016 on behalf of SURAJU GASALI admitting him to bail on very liberal terms pending the determination of the appeal against his conviction and sentencing to 12 years imprisonment by the lower Court, on four grounds that there is an existing appeal, which raises substantial grounds of law and that the applicant had been on bail before the conviction in the lower Court and did not jump bail or interfere with the prosecution of the case. Also, that similar application had been filed before the lower Court but could not be heard before the appeal was entered in to the Court of Appeal, and finally it is in the interest of justice to admit the applicant to bail.
The application is supported by a ten paragraph affidavit deposed to by Mike Ogie, a legal practitioner in the law office of Femi Atoyebi & Co. filed together with an enrolled order of the judgment, and a notice of appeal of 30 grounds. The application is further supported by a six paragraph further-affidavit of 17th June 2016. Attached to
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it is the application filed at the lower Court (Federal High Court) and a 2nd further affidavit of seven paragraphs dated 17/6/2016, accompanied by a written address.
The Respondent filed a counter affidavit of seven paragraphs against the application on 23/6/2016 and a written address.
The sole issue identified by both parties is similar and can be summed up thus:
“Whether this is a proper case in which this Court should exercise its discretion in favor of the Applicant by admitting him to bail on liberal terms pending the determination of the appeal.”
Learned silk, Femi Atoyebi SAN, for the Appellant/Applicant submitted that the applicant has never breached the terms of bail granted by the lower Court pending conviction and that the offence is not a capital one but bailable on liberal terms. He referred to Section 165 (1) of the Administration of Criminal Justice Act 2015 which states that bail shall be at the discretion of the Court with due regard to the circumstances of the case and shall not be excessive. He referred toDOKUBO-ASARI v. F.R.N. (2007) 12 NWLR (Pt. 1048) 349; MUNIR v. F.R.N. (2009) 16 NWLR (Pt. 1168) 481-498;
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BAMAYI v. STATE [2001] 8 NWLR (Pt. 715) 270; MOHAMMED ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638; SULEIMAN v. C.O.P. (2008) 8 NWLR (Pt. 1089) 298 at 322-323, paras A-H on exceptional circumstances for grant of bail pending appeal and that paragraphs 3 (g), (h), (j) and (k) of the Affidavit shows same.
On constitutionality of bail, he referred to Section 35(1) of the Constitution; ANAKWE v. C.O.P. (1996) 3 NWLR (Pt. 436) 320 at 330, paras F-H. Counsel further submitted that grant of bail must be speedy. He relied on OBEKPA v. C.O.P. (1980) 1 NCR 113 @ 119 LINE 1-3; ODOGU v. A.G, FED. (1996) 6 NWLR (Pt. 456) 508 at 518, G-H; DANBABA v. STATE (2000) 14 NWLR (Pt. 687) 396 at 411; EYU v. STATE (1988) 2 NWLR (Pt. 78) 602.
On the need to adopt liberal approach and discretion to be exercised judicially and judiciously, he relied on DOKUBO-ASARI v. F.R.N. (supra); STATE v. OKAFOR (1964) ENLR 96 362-363.
He submitted that the purpose of granting bail is to enable an accused come back to face his trial and that the Applicant has given an undertaking to continue to be available for the hearing of the appeal. In conclusion, he submitted that there
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were no medical grounds but that conditions exist which could persuade the Court to grant the application.
The Respondent counsel, Rotimi Oyedepo Iseoluwa, Esq. vehemently opposed the application and relied on his counter affidavit dated 22nd April 2016, filed 28th April sworn to by Moses Awolusi an Investigating Officer with the Economic and Financial Crimes Commission.
He submitted that the contents of the affidavit have been discredited by those of the counter affidavit. He relied on ADAMU MURI v. INSPECTOR GENERAL OF POLICE (1957) NNLR 5; JAMMAL v. THE STATE (1996) 9 NWLR (Pt. 472) 352 at 359; MUNIR v. F.R.N. (supra) to submit that bail pending appeal is not granted as a matter of course but in exceptional circumstance upon which such discretion is given. He relied on FAWEHINMI v. THE STATE (1990) 1 NWLR (Pt. 127) 486 at 498 to submit that the specified sentence for conviction by virtue of Section 1(17) of the Miscellaneous Offence Act is life imprisonment but the lower Court sentenced him to 10 years.
Respondent counsel further submitted that a major consideration is whether the duration of the appeal will outlast the duration of
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the sentence imposed on the convict. He referred to MADIKE v. THE STATE (1992) 8 NWLR (Pt. 257) 85. He submitted that the appeal cannot last that long, that in view of the nature of offence the appeal shall be heard expeditiously and that the application ought to be dismissed. He contended that there is a presumption that the facts are correct. He referred to ATTAH v. STATE (2009) 15 NWLR (Pt. 1164) 284 at 304 to submit that the Applicant was among the crew members found on board with 1,459 metric tons of premium motor spirit (PMS) without appropriate license or authority upon arrest.
In answer to whether the applicant has placed sufficient materials before the Court, Oyedepo, Esq. submitted in the negative that all that has been placed are intended to whip up sentiments, which has no place in the consideration of bail pending appeal by the Court. He referred to UWAJEH v. UWAJEH (2009) ALL FWLR (Pt. 458) 287 at 304; ABACHA v. STATE (2002) 5 NWLR (Pt. 761) SC 638; BAKER MARITIME NIG LTD v. CHEVRON NIG. LTD (2006) 6 SC; PLATEAU STATE v. A.G. FEDERATION (2006) 3 NWLR (Pt. 967) SC 346 at 420.
The applicant was arrested on board the ship together
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with the crew along with 1459 metric tons of premium motor spirit (PMS) without appropriate license or authority, having gone through trial upon the charge he was found guilty and convicted for dealing in petroleum product without license and sentenced to ten years imprisonment on counts 1, 2, 3, 4 and two years on the 5th count.
It is pertinent to state that the application is for bail pending appeal and the criteria are quite different from bail pending trial. In JOSEPH UGBOR v. THE STATE (2010) LPELR-5047 (CA), this Court held that factors to be considered in granting bail pending appeal and after conviction, include that unusual or exceptional circumstances must be shown to the satisfaction of Court in the affidavit in support of the application to enable the Court exercise discretion judicially and judiciously. See DURO AJAYI & ORS v. THE STATE (1977) FCA 1.
The applicant in paragraph 3(c), (d), (e), (f), (g), (n), (o) of the Affidavit in support stated inter alia that they have filed an appeal with substantial grounds and had being granted bail before at the lower Court and did not jump bail, that they might end up serving a
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substantial part of the sentence because cumulatively an appeal may last 10 years. Furthermore, that there is a likelihood of success of the appeal.
On the other side the counter affidavit is to the effect that the offences though bail-able are predicated on economic sabotage and that the grounds are not substantial or technical and that by the practice direction, the appeal which is criminal in nature can be expedited.
It is in the light of the above that the merit of the application will be examined. It is trite that the conviction by a lower Court is correct until subsequently set aside on appeal. Furthermore, bail after conviction is not as of right to a convict because at that the stage, the presumption of innocent does not exist in favour of the accused consequent upon his conviction. See CHIEF OLABODE GEROGE & ORS v. FEDERAL REPUBLIC OF NIGERIA (2010) LPELR-4194 (CA); ENEBELI v. CHIEF OF NAVAL STAFF (2000) 9 NWLR (Pt. 219) 119.
In UGBOR v. THE STATE (supra) the Court held that when considering an application for bail pending appeal the Court has a duty to be circumspect and not jump into the arena of the substantive appeal by
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making comments or deciding issues that would prejudge the issues on appeal. See alsoODUNTAN v. GENERAL OIL LTD (1995) 4 NWLR (Pt. 387) 1.
Therefore, I shall refrain from commenting on the viability or success of the grounds of appeal. I have perused the entire affidavit, further affidavit, 2nd further affidavit and have not found exceptional circumstances to warrant the grant of bail. The sentence against the Applicant is 12 years and I believe that with the measures in place in this Court, hearing relating to criminal appeal does not exceed one year upon exchange of briefs unless the Appellant decides to go to sleep and not pursue the appeal.
I agree with the Respondent that the Court of Appeal Practice Direction, 2013 in Paragraph 3 (a) makes rules for criminal appeals to be accelerated and that is what should be done in the instant case.
The application is dismissed and the appeal set down for hearing for 27th September, 2016.
Other Citations: (2016)LCN/8932(CA)
