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

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draft through their bankers, which the Federal Government of Nigeria acting through E.F.C.C. compelled the Applicant’s banker, Messrs FCMB Plc to remit the value of the bail bond into the government account. He referred to ODOGU v. A-G FED. [1996] 6 NWLR (Pt. 456) 508 at 518, G-H. Citing Section 119 of the Criminal Procedure Act and Section 35 (4) of the 1999 Constitution (as amended), he contended that though the offence for which the Appellant was charged and convicted may be grievous, the Court is still vested with the power to grant bail. He relied on DANBABA v. THE STATE [2000] 14 NWLR (Pt. 687) 396 at 411; EYU v. THE STATE [1988) 2 NWLR (Pt. 78) 602; STATE v. OKAFOR (1964) ENLR 96 362 – 363.

?Learned Silk further argued during adoption of written address that the Applicant Vessel is Nigerian flagged and so cannot go anywhere and that the ship is presently a wasting asset and deteriorating each day and that if it is not sold, it will not be useful to the owners in the event of success on appeal. He submitted that the Vessel was involved in a collision with another vessel and poses great danger to other road users. That the vessel should be allowed

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to go and trade.

The Respondent in response submitted that bail pending appeal is not granted as a matter of course and the Applicant must show special and exceptional circumstances upon which the Court can exercise its discretionary power vide ADAMU MURI v. I.G.P. (1957) NNLR 5; JAMMAL v. THE STATE [1996] 6 NWLR (Pt. 472) 352 at 359; MUNIR v. F.R.N. [2000] 16 NWLR 481 at 498. It is the submission of counsel that one of the considerations of the Court is where there is a doubt as to the correctness of the conviction on point of law. He referred to FAWEHINMI v. THE STATE [1990] 1 NWLR (Pt. 127) 486 at 498 before submit that by the provision of Section 1(17) of the Miscellaneous Offences Act under which the Applicant was convicted the sentences upon conviction is life imprisonment. He further submitted that another consideration is whether the duration of the appeal will likely outlast the duration of the sentence imposed on the convict vide MADIKE v. THE STATE (1992) 8 NWLR (Pt. 257) 85. He submitted that in view of the nature of the offence for which the Applicant was convicted, this is a situation for this Honourable Court to dismiss this application

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and that there is a presumption that findings of fact of a trial Court or Tribunal are right or correct and so remains until dislodged by the party who challenges such finding but that the Applicant in the instant appeal has not dislodged the findings of fact made by the trial Court. He cited ATTAH v. STATE [2009] 15 NWLR (Pt. 1164) 284 at 304. He finally submitted that in view of the fact that the Applicant has the cargo on board, it is greatly unsafe for the application to be granted as the Applicant, if released on bail, will sail out of the territorial jurisdiction of this Honourable Court and as such will prejudice the Respondent herein.

During adoption, counsel argued that the Applicant’s application is intended to over-reach the Respondent and that the vessel had already been forfeited to the Respondent vide the judgment of the lower Court and that the application should be refused because the vessel has the potential of sailing out of jurisdiction.

I have carefully examined the sole issue as well as the argument of counsel herein. Now, Section 28(1) of the Court of Appeal Act, 2004 provides that “the Court of Appeal may, if it thinks

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fit, on the application of an Appellant to bail pending the determination of appeal.” While Order 17(13) of the Court of Appeal Rules, 2011 stipulates the conditions to be attached to the bail granted to an Appellant.
A person charged with a felony other than one punishable with death, as in the instant case, may be granted bail if the Court deems it fit. The decision whether or not to grant bail in such cases is a matter within the judicial discretion of the Court. The Black’s Law Dictionary 8th Edition, defines Judicial discretion as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. Thus the judicial discretion must be exercised in accordance with the law and also taking into consideration the facts of the particular case.

Indeed, the factors to be considered in the grant of bail pending trial are undoubtedly different from those considered in the grant of bail pending the determination of appeal. For bail pending trial, the factors to be considered

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in the grant or otherwise of bail to an Applicant include: (a) the availability of the accused to stand trial; (b) the nature and gravity of the offence; (c) the likelihood of the accused committing offence while on bail; (d) the criminal antecedents of the accused; (e) the likelihood of the accused interfering with the course of justice; (f) the likelihood of further charge being filed; (g) detention for the protection of the accused. See also BAMAYI v. STATE [2001] 8 NWLR (Pt. 715) 270; ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638.
While the position of the law in an application of this nature with respect to application to bail pending appeal is that the Applicant must show special and exceptional circumstances. The question then is whether the Applicant has shown special and exceptional circumstances herein? In determining whether there are exceptional circumstances, the Court considers:
1. Whether the Applicant is a first time offender and has been of good behaviour;
2. Whether substantial grounds of law are involved in the appeal;
3. Whether the sentence is manifestly contestable as to whether or not it is a sentence known to law;

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4. Whether a refusal of the Court to admit the Applicant to bail will have the result of the whole or a considerable portion of the sentence being imposed on the Applicant being served before the appeal can be heard;
5. Whether the application is based on ill health and the Applicant cannot get the necessary treatment in prison.
See FAWEHINMI v. THE STATE [1990] 1 NWLR (Pt. 127] 486.

?The relevant facts deposed to in the Affidavits are as follows:
a. The offences for which the Applicant was convicted by the lower Court are bailable, and the Court has the discretionary powers to grant bail to the Applicant on liberal terms, pending the hearing of her appeal.
b. The Applicant was granted bail during the trial of the case before the lower Court, and she did not abuse that privilege.
c. The Bank Guarantee posted to the trial Court for the bail of the Applicant is still valid, authentic and subsisting and same can be called upon, if needed.
d. Since the arrest of Applicant vessel on 19/02/2014, the Respondent acting through the Economic and Financial Crimes Commission (E.F.C.C.) and the Nigerian Navy has been in control of

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the Applicant vessel and the cargo on board her.
e. The cargo of PMS on board the Applicant vessel is a wasting asset that will evaporate from long keeping and the quantity or value of the cargo will continue to diminish.
f. For every day a ship is lying idle at any Nigerian Port, her owners will be paying port dues and charges, which may far exceed the value of both the vessel and the cargo in the event that the vessel is released.
g. If the cargo of PMS on board the Applicant vessel is not sold promptly and the proceeds paid into an interest yielding account in Court, in the name of Chief Registrar, the cargo will continue to evaporate and diminish.
h. The Federal Government of Nigeria currently does not own any vessel, so it cannot be trusted to maintain the Appellant vessel in good order or at all.
i. The Applicant is a Nigerian flagged vessel, and so it cannot run anywhere.
j. It is prudent to sell the cargo and pay the value of both the vessel and pay the proceeds thereof into an interest-yielding account in Court, in the name of the Chief Registrar.
k. The Applicant may end up being confiscated or even sink before her

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appeal is heard/or determined because appeal may take up to a cumulative period of ten (10) years or more especially either party decides to go all the way to Supreme Court.

On the other hand, the relevant paragraphs of the Respondent’s counter- affidavit are:
a. The proprietary right of the Applicant resides in the Federal Government of Nigeria to whom the Applicant was forfeited.
b. The cargo on board the vessel has also been forfeited to the Federal Republic of Nigeria.
c. The Applicant has not shown any exceptional circumstances to justify the grant of the application.
d. The offences for which the Applicant was convicted are grievous economic sabotage against the economic well being of this country.
e. By the practice direction of this Court, the Honourable Court deals with criminal appeal expeditiously.
f. The Applicant did not have any substantial grounds of appeal and there is nothing technical about the Applicant’s appeal.
g. The Applicant is not interested in the expeditious hearing and determination of this appeal.
h. Granting this application will be highly prejudicial to the Respondent and will

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create a bad and dangerous precedent in the administration of criminal justice in Nigeria.

Juxtaposing the above depositions of the Applicant and the Respondent as enumerated, it is instructive to note that the burden here is on the Applicant to establish that she is entitled to be admitted to bail because the presumption of innocence as well as that of liberty is no longer available to the Applicant consequent upon her conviction. See: EYU v. THE STATE (supra); MADIKE v. THE STATE (1992) 8 NWLR (Pt. 257) 85.

A careful consideration of the application, with all the attached, exhibits and written addresses of counsel, has not convinced me that exceptional circumstances exist, to sway the Court to exercise its discretion to warrant the grant of the application. It is beyond dispute that the offence for which the Applicant was convicted is grievous and a look at the Notice of Appeal exhibited by the Applicant in this case shows that same does not involve recondite point of the law. A fortiori, whatever loss being anticipated by the Applicant as enumerated in Paragraphs 6 & 7 of the Further Affidavit in Support filed 17th June, 2016 are to my

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mind speculative, as the Applicant has failed to show how it arrived at the sum calculated therein.

With respect to the argument of Appellant/Applicant’s counsel that the Applicant vessel be released to that it can either be sold or allowed to engage in trading, I must say that it is not only dangerous but it will be indeed be a grave error to release the vessel, which is no doubt an exhibit, allegedly found to have been used to commit a crime and which has been forfeited to the Respondent by virtue of the conviction and order by the lower Court.

?No doubt, nothing has been placed before this Court to sway this Court to exercise its discretion to grant the Applicant bail pending her appeal. A fortiori, by virtue of Paragraph 3(a)(i) of the Court of Appeal Practice Direction, 2013, “all criminal appeals originating from or involving the EFCC, ICPC or any other statutorily recognized prosecutorial agency or person… shall be given priority and accorded accelerated hearing.

?In the circumstances, I hold that the application lack merit and it is hereby dismissed. The appeal is set down for hearing for 27th September, 2016.

Other Citations: (2016)LCN/8929(CA)