Olugbenga Adeniyi V. Federal Republic Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA MOH’D TSAMMANI, J.C.A. (Delivering the lead ruling)

The Appellant/Applicant and others were arraigned before the Federal High Court, Ado-Ekiti on an eight (8) count charge alleging that they committed offences contrary to Sections 43(a), 43(b), 43(e), 44(d), 44(e) of the Federal Inland Revenue Service Act, No: 13 of 2007, which are offences which if proved, carry punishments of imprisonment for a period not exceeding 3 years with an option of fine. Upon his arraignment, the Appellant/Applicant applied for his bail and which application was refused by the learned Trial Judge of the Federal High Court, Being dissatisfied with the Ruling of the lower court, he filed a Notice of Appeal against that Ruling. The said Notice of Appeal has been annexed to the affidavit in support of this application as exhibit F.I.R 4. Upon the filing of the Notice of Appeal, the Appellant/Applicant filed the instant application seeking for the following reliefs:

1. AN ORDER of this Honourable court admitting the Appellant/Applicant person to bail upon such terms and conditions as this Honourable Court may deem fit to impose Pending the determination of his Appeal against the decision of the Federal High Court, Ado-Ekiti, delivered by Hon. Justice Emmanuel A. Obile on 27th day of July, 2010, in charges No: FHC/AD/14c/2010, between Federal Republic of Nigeria Vs Apanisile Idowu and 3 ORS.
2. AND FOR SUCH FURTHER or other orders as this Court may deem necessary to make in the circumstances of this case.

The ground upon which the application is predicated is that:

(i) The charge NO: FHC/AD/14c/2010 was preferred against the applicant in this Court.

(ii) The offences disclosed on the face of the charge are ordinarily bailable.

(iii) The lower court ordered that the Applicant and 2 others named in this charge be remanded in prison custody.

(iv) The Court ordered that, it would not countenance, oral application for bail, hence this application.

(v) The lower court after considering a formal application for bail refused same on the ground that the evidence attached to the charge is strong.

The Appellant/Applicant supported this application with an affidavit of 23 paragraphs deposed to by his wife, Mrs. Bosede Adeniyi, to which he exhibited Certified True Copies of the Charge Sheet, List of Exhibits, or Proofs of Evidence, the Bail application before the lower court, the Ruling of the lower court thereon and the Notice of Appeal. He marked them as exhibits FIR1, FIR2A, FIR2B, FIR3 and FIR4 respectively. The Appellant/Applicant also filed a written Address in Support of the Application.

The Respondent opposed this application and in so doing filed a counter Affidavit of 18 paragraphs deposed to by one Bashir Muhammed Hamis, a staff of the Federal Inland Revenue service (FIRS); Investigation and Enforcement Unit (Abuja). The Respondent also filed a written Address in support of her opposition to the application.

At the hearing of the application, Mr. R.O. Balogun of Learned counsel for the Appellant/Applicant adopted the Appellant/Applicant’s; written Address dated the 20/10/2010 and filed the 22/10/2010, and urged us to grant the application. The cases of OKOYE V CENTRE-POINT MERCHANT BANK LTD (2008) ALL F.W.L.R (Pt. 441) P.810 at P. 834 PARAGRAPHS B-C and ODUSOTE V ODUSOTE (1971) 1 ALL W.L.R., P.219 were further cited in support of the application, similarly; Miss I.M Salihu of learned counsel for the Respondent; adopted and relied on the Respondent’s written Reply Address dated the 29/10/2010 and filed the 01/11/2011 and urged us to dismiss the application.

In arguing the application, the Appellant/Applicant formulated two issues for determination as follows:

1. Whether or not this court is by statute and by the Rules of Court can (sic) entertain this application.
2. whether or not the Appellant/Applicant had placed sufficient facts and materials before the Court that will entitle him to the relief sought on his application

The respondent on the other hand formulated three issues for determination. They are:

1. Whether uncontroverted evidence of the threats to the live Or limbs of material prosecution witnesses before the lower court is a crucial factor to be considered by this Honourable, Court in the determination of the Appellant/Applicant’s motion on Notice filed on the 9th day of August, 2010.
2. Whether or not the interim relief sought by the Appellant/Applicant’s motion on Notice filed 9th August, 2010 are not the same with or pre-empt the determination of the reliefs sought in the main Appeal in this case.
3. Whether there are features in the Appellant/Applicant’s motion on Notice filed 9th August, 2010 to rob this Honourable Court of the jurisdiction to hear and determine it.

I have carefully studied the issue as formulated by the parties in this application. After such consideration, I am of the view that, issue two (2) of the Respondent can be considered alongside issue one (1) as formulated by the Appellant/Applicant, while issue one (1) of the Respondent can go along with the Appellant/Applicant’s issue two (2).The 3rd issue formulated by the Respondent appears to challenge the competence of, the motion itself for the reasons stated in the argument of counsel. Since it seems to touch on the jurisdiction of this Court to hear and determine the application, I propose to consider it first. I shall adopt the two issues as formulated by the appellant/Applicant in determining this application