Caleb Ojo & Anor. V. Federal Republic of Nigeria (2006)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

This is a motion on notice brought pursuant to the provisions of section 29(1) of the Court of Appeal Act and under the inherent jurisdiction of this Honourable Court. The single relief prayed for in the said motion is for:

“An order admitting the appellants to bail pending the hearing and determination of the appeal filed by the appellants against the judgment of the lower court delivered on 17th March, 2006.”

In moving the motion, learned SAN for the applicants Chief Fagbohungbe stated that the motion was supported by an affidavit of 28 paragraphs. He relied on all the facts deposed to in the affidavit and urged this court to accept all the facts as true as they had not been controverted in any manner by the respondent. The learned SAN submitted that they filed their notice of appeal and compiled and transmitted the record of appeal. He argued further that all the 8 grounds of appeal are quite arguable and have high prospects of success.

The applicants, learned SAN argued further, are presently serving prison sentences. The sentences started from the 17th of March, 2006. The appellants were to serve a term of one year each in respect of each count though sentences were to run concurrently. The nature of the offences charged were criminal conspiracy and corruption to a public officer.

Learned SAN submitted that if the applicants are not granted bail they will serve the entire prison term of one year in prison before the determination of the appeal. He cited an instance where a case of no case submission lasted for almost two years before it was disposed of. He further referred this court to paragraphs 14 – 20 of the affidavit in support. He cited the case of Jammal v. The State (1996) 9 NWLR (Pt. 473) 384.

The applicants, it was argued, were granted bail by the lower court and they never jumped bail. They were also complying with the order of reporting themselves once in every month. Learned SAN submitted finally that the counter-affidavit filed by the respondent did not counter any of the facts deposed to in the affidavit in support and the offences for which the applicants were convicted were of bailable nature. The applicants, he stated, were first offenders. He applied to abandon paragraph 25 of the affidavit in support. He argued this court to admit the applicants to bail on liberal terms.

Mrs. Onuogu, learned leading counsel for the respondent stated that she was opposing the motion. She filed an eleven paragraph counter-affidavit on same day the motion was heard. She sought to rely on all the paragraphs of the counter-affidavit especially paragraphs 2 – 9. She submitted that the applicants were charged under section 9 of the Corrupt Practices and Other Related Offences Act, 2000, for conspiracy to give gratification of N20,000.00 to an official of the ICPC. The offence, she argued, is severe and attracts seven years imprisonment. The offence is bailable before conviction but after conviction, bail can only be granted on exceptional circumstances such as ill-health. She cited the case of Chief Gani Fawehinmi v. The State (1990) 1 NWLR (Pt. 127) 486 at 488.

Learned counsel submitted that no such special circumstances have been shown for the grant of bail in this case. She cited R. v. Theophilus Adenuga Tunwashe (1935) 2 WACA 236; Jammal v. State (supra).

Learned counsel challenged the prospects of success of the grounds of appeal and that they are not arguable. She urged this court to refuse the application.

Bail, generally, is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody,though, they may, if they will surrender him to the court before the date assigned and free themselves from further responsibility. There are mainly, two types of bail: (a) bail pending trial and (b) bail pending appeal. The present appeal is on the latter. Let me however, quickly, use this forum to draw distinction between the two types of bail. In the case of the former, a court of trial, pursuant to provisions made by the enable law or other statutes which create the offence(s) charged, may admit to bail any person to be tried before it, while he is awaiting trial or during his trial or during his trial. In the latter’s case, after his conviction and sentence, the convict (appellant) who has lodged an appeal, may be admitted to bail pending the determination of the appeal. The circumstances for bail vary in both situations. This is largely due to the fact that before conviction there is a presumption of innocence. After conviction, the convict, save under exceptional circumstances, has no right at all to bail. See Muri v. Inspector General of Police (1957) NRNLR 3 at page 6. But in the case of R. v. Tunwashe (1935) 2 WACA 236, the West African Court of Appeal enumerated and laid down two different sets of conditions governing the grant of bail to a convict. They are as follows:

(i) The existence of special or exceptional circumstances,

(ii) Where the hearing of the appeal is likely to be unduly delayed.

Yet in the same case, the WACA, put the exceptional circumstance in another way: