MT Good Success V. Federal Republic of Nigeria (2016)

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

The Appellant/Applicant vide a motion on notice dated 22nd April, 2016 and filed 25th April, 2016 sought for an order, to wit, admitting the Applicant to bail on very liberal term, pending the hearing and determination of the appeal against the conviction and order for its forfeiture made by the lower Court. The grounds upon which the application is predicated are as follows:
1. “The Applicant has appealed against the judgment of the lower Court delivered on 30th October, 2015;
2. The appeal raises substantial grounds of law with strong likelihood of success;
3. The Applicant is a Nigerian flagged vessel, and so it cannot run anywhere;
4. The Applicant filed a similar dated 21/12/2011 before the lower, but same could not be heard before the compilation and transmission of the record of appeal to this Honourable Court.
5. It is in the interest of Justice to admit the Applicant to bail on very liberal terms.”

The application is supported by an Affidavit in support dated 25th April, 2016; a Further Affidavit in support dated 7th June, 2016 and another

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Further Affidavit dated 17th June, 2016; deposed by Mike Ogie, a legal practitioner in the law office of Femi Atoyebi & Co., Solicitors to the Appellant/Applicant.

In response, the Respondent filed a Counter-Affidavit dated 22nd April, 2016 and filed 28th April, 2016 and deposed to by on Moses Awolusi, an Investigative Officer with the Economic and Financial Crimes Commission (EFCC).

Both the Applicant and the Respondent filed a written address dated 17th June, 2016 and 25th June, 2016 respectively. In the Applicant’s written address prepared by Femi Atoyebi, SAN; Abosede Akande (Mrs.); Tony Dania Esq.; Gbenga Awoseye, Esq.; of Femi Atoyebi & Co., a sole issue was formulated thus:
“Whether this is a proper case in which this honourable Court should exercise its discretion in favour of the Applicant by admitting her to bail on liberal terms pending the determination of the Applicant’s appeal to the Court of Appeal.”

Rotimi Oyedepo Iseoluwa, Esq., prepared the Respondent’s written address where a sole issue was also nominated thus:
?”Whether from the facts and circumstances of this case as presently constituted, it could

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be said that the Appellant/Applicant as placed sufficient materials before this Honourable Court upon which this Court can exercise its discretion in his favour.”

The issue formulated by counsel are basically the same, save for semantics. The application shall therefore be resolved on the sole issue nominated as enumerated above.

Arguing the sole issue, Applicant’s counsel submitted that the Applicant never breached any of the terms of the bail earlier granted it by the lower Court in the course of the proceedings before it. It is the submission of counsel that the Applicant was convicted for are bailable offences for which this honourable Court has the power to admit the Applicant to bail on very liberal terms vide Section 165 (1) of the Administration of Criminal Justice Act, 2015 and the decision whether to admit the Applicant to bail on very liberal terms is absolutely at the discretion of this Court. He cited DOKUBO ASARI v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320 at 349 to submit that the Applicant has disclosed cogent reasons upon which the Honourable Court ought to exercise its discretion in his favour. Counsel enumerated the five

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exceptional circumstances where it is expected to grant bail to a defendant vide MUNIR v. F.R.N. [2009] 16 NWLR (Pt. 1168) 481 at 497-498; BAMAIYI v. STATE [2001] 8 NWLR (Pt. 715) 270 that the Applicant has placed before the Court material facts upon which the Court is to exercise its discretion and jurisdiction in its favour. He also referred to 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 H-A; Section 35 (4) of 1999 Constitution; ANAEKWE v. C.O.P. [1996] 3 NWLR (Pt. 436) 320 at 330, Paras. F-H; OBEKPA v. C.O.P. (1980) 1 NCR 113 at 119, Line 1-3. Counsel conceded that though it may be argued that the Applicant is no longer innocent but the relevant question is: what happen where its appeal eventually succeeds and it is found innocent at the end of the day? He submitted that for every day the Applicant lay idle at the port, her owners will be paying daily port dues and charges running to $7,000 (Seven Thousand Dollars) and also that at the lower Court, a bank bond in the sum of $24,999,990 was posted as security for the vessel’s bail, which the Applicant procured by issuing a bank