Eze Moses Onyebuchi V. Federal Republic of Nigeria & Ors. (2007)

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MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. JP+

In a Ruling pronounced on the 25th day of April, 2007, the Hon. Justice O.K. Oyewole of the Lagos State High Court refused the Appellant’s application for bail pending trial.

The Appellant is distressed and has appealed against the said Ruling upon three grounds of Appeal. The Respondent is opposed to the grant of bail to the Appellant.

The brief facts of the case which led to this appeal are that: – the Appellant was arraigned along with three others before the Lagos State High Court Coram O.K. Oyewole (J) on a sixteen count charge of conspiracy, obtaining money by false pretence, forgery and uttering. The offences if proved are punishable with up to 10 years imprisonment provided in Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act NO.13 of 1995 as amended by Act NO.52 of 1999. Forfeiture of assets and 3 years imprisonment for each of the offence of forgery and uttering are also probable punishment upon conviction.

The parties each adopted their respective briefs of argument at the hearing of the appeal.

In an amended Appellant’s brief, the learned Counsel for the Appellant formulated five issues for determination. It is instructive to state that no relief was stated in the grounds of appeal. However, it is apparent from the grounds and the particulars that the subject matter is bail and since the liberty of a Citizen is involved, we shall not dwell on the omission.

The Appellant’s issues are:

1. Whether the learned trial Judge exercised its discretionary power judicially and judiciously for not granting the Appellant Bail.
2. Whether the offence the Appellant is been charged for is not bailable offence.
3. Whether the trial Judge properly considered the ill health of the Appellant.
4. Whether the constitutional rights of the Appellant wherein he is being presumed to be innocent until proved guilty not existing in this case.
5. Whether the trial of the Appellant would not take considerable period and/or indefinite time to be disposed off.

The Respondent also formulated three issues for determination which are:

1. Whether the lower Court did not judicially and judiciously consider the Appellant’s application for bail in the light of the various affidavit evidence before it.
2. Whether the learned trial Judge considered the ill health of the Appellant and the constitutional presumption of innocent guaranteed under the 1999 Constitution.
3. Whether the trial of the case will not take considerable time to be disposed off.

In my humble opinion, this appeal can be effectively determined upon issue one as formulated by the Appellant. All the other issues including those of the Respondent can be considered as constituting the peculiar facts of the appeal.

The proliferation of the trite issue of bail in this appeal is uncalled for as borne out by the brief of the Appellant. All the five issues are argued in three pages!

Thus, the crucial question in this appeal is whether the learned trial Judge exercised his discretionary power judicially and judiciously in refusing bail to the Appellant.

It is the submission of the learned Counsel to the Appellant that bail is a basic right although the grant is at the discretion of the Court. Citing the case of University of Lagos V Aigoro (1985) 1 NWLR Pt.1 P143 as stating the condition for bail where the Court held that to exercise its discretion properly in favour of an Applicant, the said Applicant must place before it sufficient material to enable it to do so. In compliance with the said condition, the following facts were placed before the trial Court:-

“i. The Respondent granted bail to the Appellant in the year 2005, the Appellant was reporting to the Respondent uptill 27th day of January, 2007, even when he (Applicant) was informed that the Respondent (EFCC) intends arraigning him (the Appellant) in Court, he did not abscond;

That the Respondent in their counter affidavit and argument in the Lower Court did not contradict nor controvert this averment in the Affidavit in Support of Motion for Bail. Refer to page 204 of the Records of Appeal. It is trite law that uncontroverted and/or uncontradicted averments in an affidavit are deemed admitted see the case of Adesina Vs Commissioner (1996) 4 SCNJ 112 at 113, submits Counsel.