TIJANI v. FRN

CITATION: (2018) LPELR-45844(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 9TH MARCH, 2018Suit No: CA/L/1513/2017

Before Their Lordships:

TIJJANI ABUBAKAR Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal

BetweenALHAJI OLA ALANI TIJANI - Appellant(s)

AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will not interferewith the exercise of discretion of a lower Court to grant or refuse bail"I am of the view that this appeal needs to be considered and determined on a very narrow compass. The issue in this appealis not that the Appellant was denied bail, but a case of Appellant being granted bail, having become nettled by the terms wentback to the same Court and asked for the review of the terms of bail, and it was not that the lower Court refused to review theterms, the lower Court reviewed the terms, but Appellant still felt aggrieved and made for this Court seeking for further reviewof terms of bail.Both parties in this appeal have already agreed that granting bail to an applicant is a matter within the discretion of the Court.On what is meant by discretion, taking off from the case of AMAKA ANAJEMBA v. F.R.N. (2005) 1 NCC 390 at 403, this Court perMUHAMMAD (JCA) (As he then was) held as follows and I quote:"Discretion in general is the exercise of power or right to act in certain circumstances according to personal judgment andconscience. Judicial discretion in particular is the exercise of judgment or decision making by a Judge or Court based on whatappears fair under the circumstances and guided by the rules and principles of law. It is a Courts power to act or refuse to actwhen a litigant is not entitled to demand the act as a matter of right. In the exercise of such powers, discretion is normally thatof the trial Court and not of the Appellate Court hence the latter cannot substitute its own discretion. See: EFETIROROJE v.OKPALEFE II (1991) 5 NWLR (Pt. 193) 577..... Thus unless exercise of discretion by the trial Court leads to injustice andmiscarriage of justice, the appellate Court will not normally set aside or interfere with the exercise of discretion of the trialCourt once it is clear that it was exercised on just and legal reason that is judicially and judiciously exercised. See: RoyalExchange Assurance (Nig.) Ltd v. Aswani Textiles Ltd (1992) 3 NWLR (Pt. 227) 1 at 5, Saraki v. Kotoye. (1990) 4 NWLR (Pt. 743)144 at 151.''Again in ADAMU SULEMAN & ANOR v. C.O.P. PLATEAU STATE 33 NSCQR (Pt. 2) 735 at 757. AKINTAN (JSC) said as follows:"It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion inevery case. The word "discretion" when applied to public functionaries, a term which includes judicial officers, is defined inBlack's Law Dictionary 6th Edition, 1990, page 466 as meaning:"A power or right conferred upon them by law in certain circumstances, according to the dictates of their own judgment andconscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to allfacts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstancesand law"It is not unusual or unprecedented for an accused person to approach the Court of appeal for review of terms of bail if termsimposed by the trial Court are in the opinion of the accused person excessive onerous and unattainable, see: EYU v. THE STATE(1988) 2 NWLR (Pt. 78) 602.As I stated earlier in this Judgment, the Appellant was granted bail and he found the terms unattainable and returned to thelower Court, the lower Court reviewed the terms, still appellant felt dissatisfied and approached this Court for further review.?At the proceedings of 13th December 2017, at page 117 of the records of appeal, the learned trial Judge granted theAppellant bail and said as follows:"... The defendant is granted bail in the sum of N50 Million Naira Only. This is to be by way of a bond from a Bank in the sameamount. He will provide 2 sureties each in like sum with tax clearance certificates. Both sureties must live within thisjurisdiction..."The Appellant became dissatisfied with the terms and returned to the lower Court on the 20th day of December 2017, seekingto vary the terms, at the proceedings of the lower Court on 20th December, 2011, found at pages 146-147 the following tookplace:'Parties absent.Olatunbosun Adekunle for the Applicant.Adekunle: We have a motion dated 15/12/17. We have served the Respondent on the 15th of December 2017. We also wrote aletter on the 19th of December 2011 informing them of today's date.We apply that the bail conditions be varied by cancelling the Bond for N50 Million Naira stipulated by the Court and to stipulateone surety instead of two sureties. We rely on the affidavit and adopt written address.Court: I have examined the application brought by the Applicant. It is to be noted that adequate consideration was observed inrelation to the charged (sic) before the bail conditions were issued.The Court will therefore consider reducing the Bond to 10 Million Naira instead of a total cancellationThe second condition regarding number of sureties will not be varied either.Case is adjourned to 27/2/2018.SGDC.M.A. OLATOREGUNJUDGE20/2/2017.'?The law is very well settled from all I said that the decision to grant or refuse bail to an applicant falls within the discretion ofthe Court, this Court has no business to interfere with exercise of discretion unless it is found that the exercise of discretionwas manifestly wrong, arbitrary, injudicious, or contrary to natural justice equity and good conscience. Let me also add thateven where this Court were to exercise such discretion otherwise if it were in the position of the trial Court, it will be improperto tinker with the exercise of such discretion by the lower Court. See: IMONIKHE v. A.G. BENDEL STATE (1992) NWLR (Pt. 248)page 396, and the decision in BRAITHWAITE & ORS v. DALHATU (2016) LPELR-40301 (SC) Pg.24-25, paras. B-A where KEKERE-EKUN, JSC explained that:"... The principle is that the attitude of the appellate Courts to the exercise of discretion by the lower Courts is not dissimilar tothat adopted over the issue of finding of facts, which is that unless the exercise of discretion by a Court of first instance or by alower Court is manifestly wrong, arbitrary, reckless or injudicious, an appellate Court would not interfere merely because facedwith similar circumstances it would have reacted differently."I am of the view that in the instant appeal, the terms of bail set out by the lower Court are not outlandish, contrary to thesubmissions of the Appellant, the learned trial Judge properly and rightly too exercised discretion in admitting the Appellant tobail, and even where the Appellant felt the bail conditions were excessive, harsh and outlandish, he came back, and the lowerCourt graciously reviewed the terms by reducing the amount of Bond, I think the lowerCourt was generous and exercised all reasonable care in managing the right of the Appellant to bail and the exercise of itsdiscretion. The reviewed terms of bail are not onerous, harsh, excessive or outlandish. I therefore find no slightest evidence ofmisuse of discretion by the lower Court, I cannot therefore disturb the exercise by the Court of it's discretion in thecircumstance.Appellant's appeal for further review of terms of bail is lacking in merit, it is accordingly dismissed, the decision of the lowerCourt varying terms of bail on the 20th day of December 2017 in charge No. FHC/L/121C/2017 is affirmed."Per ABUBAKAR,J.C.A. (Pp. 9-16, Paras. F-D) - read in context

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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading

Judgment): This is an appeal emanating from the Ruling

delivered by Olatoregun J., of the Federal High Court on

the 20th day of December, 2017 in respect of Appellants

application seeking to vary the terms of bail in charge

number FHC/L/121C/2017 granted by the lower Court.

It is important to set out the facts grounding this appeal.

The Appellant was charged to Court and arraigned on the

13th day of December. 2017, on allegations of obtaining

money by false pretenses and stealing the sum of N50

million (Fifty Million Naira), an offence contrary to and

punishable under Section, 1(1) of the Advance Fee Fraud

and Other Related Offences Act, 2006 and Section 390 (8)

(B) of the Criminal Code Act Cap 38 Laws of the Federation

of Nigeria 2004.

Upon arraignment, the Court below admitted the Appellant

to bail in the sum of N50 Million Naira, by way of provision

of Bond to guarantee the appearance of the Appellant to

take his trial, the bond is in addition to two sureties who

must provide evidence of

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payment of tax, provide bond in like sum and must be

resident within jurisdiction. These conditions did not go

down well with the Appellant, in other words the Appellant

found the conditions harsh, excessive and unattainable.

Appellant quickly found his way back to this Court, to

express his discontent and then asked for total cancellation

of the terms, and instead asked for one surety ordinarily

resident within jurisdiction and must provide evidence of

payment of tax in the last three years.

The lower Court upon hearing the application, varied the

terms of bail from N50 million Naira Bond to N10 Million

Naira Bond, the requirement for two sureties was not

varied by the Court. The Appellant became nettled by this

decision and therefore filed Notice of appeal in this Court

containing two grounds of appeal on the 27th day of

December 2017, the Notice of appeal is at pages 148-I51 of

the records of appeal.

Learned Counsel for the Appellant Olatuneosun filed the

appellant's brief of argument on the 4th day of January

2018, while Vivian Aigbadon learned Counsel for the

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Respondent filed the Respondent's brief of argument on the

25th day of January, 2018.

The Appellant through learned Counsel submitted the

following sole issue for determination.

"Whether the bail conditions/terms prescribed by the

Learned Trial Judge when she granted the appellant

bail on the 13th December 2017 and subsequently

varied same on the 20th day of December, 2017 are

not excessive and stringent".

The Respondent also crafted sole issue for determination, I

must be quick to add that the issue is substantially similar

to Appellant's issue for determination. Respondents sole

issue for determination reads as follows:

"Whether the trial Judge exercised his discretion

judicially and judiciously when he made an order

varying the Appellants bail condition/terms on the

20th day of December, 2017".

SUBMISSIONS OF COUNSEL

Submitting on Appellant's sole Issue, Counsel said bail is

premised on presumption of innocence of the defendant

relying on the provisions of Section 118(3) of the Criminal

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Procedure Act, Counsel also submitted that the essence of

granting bail to a defendant is to ensure that he appears to

take his trial at a later date. Counsel said the center piece

for granting bail is the assurance that defendant will be

available to attend trial, this consideration according to

learned Counsel is the most important point in considering

application for bail, he cited the case of ADAMU

SULEMAN & ORS v. COMMISSIONER OF POLICE

(2008) 5 SCM 200, he further submitted that the burden

of proof lies on the prosecution to establish that bail must

not be granted to a defendant, relying on the case of

IGNATIUS UDEH v. F.R.N. (2001) 5 NWLR (Pt. 705)

312.

Submitting on terms of bail, learned Counsel said, where

the Court goes ahead to impose stringent and onerous

terms, so doing is as bad as denying the defendant bail.

Counsel cited the case of EYU v. STATE (1988) 2 NWLR

(Pt. 78) 602, to submit that where the law imposes

stringent terms of bail, there is the presumption that the

defendant is guilty.

Appellant's Counsel cited the decision in TEIDI v. F.R.N.

CA/L/29C/2014 and submitted that granting bail by

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the Court is discretionary, such discretion must be

exercised judicially and judiciously, the exercise of

discretion must be dictated by the rule of law, sound

judgment common sense, and fairness, the exercise of

discretion must not be arbitrary or influenced by irrelevant

considerations, he relied on the decision in UNIVERSITY

OF LAGOS v. AIGORO (1985) 1 NWLR (1) 143,148.

Learned Counsel said where discretion is exercised

properly, the Court of Appeal has no duty to interfere with

such proper exercise of discretion, but where the Court

acted under misapprehension of facts or relied on facts that

are irrelevant or omitted to take into account relevant facts

in arriving at a decision, the Court of Appeal may interfere.

Counsel also submitted that trial Courts are enjoined to be

liberal in their approach to issues of bail, Counsel also

submitted that following the decision inMADU v. THE

STATE (2011) LPELR-3973, it is against the spirit of the

law to impose stringent and excessive conditions for bail as

so doing would amount to refusal.

Learned Counsel further enumerated what he considered

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as reasons why the bail conditions given to the Appellant

were seen to be excessive. Appellant has been in Custody

since 13th December 2017, the N50 Million Bond, and the

number of sureties could not be produced by the Appellant,

that Appellant had already started paying the complainant.

That Appellant had already paid the sum of N13 Million,

and N3,500,000.00 into Zenith Bank Account 2000659468,

and parties were already planning on amicable settlement

agreement, which would eventually lead to withdrawal of

the case from the Court. That the land subject matter of the

case had already been put up for sale by the Appellant to

pay off the complainant. That the Appellant was on bail

before he was re-arraigned at the Federal High Court.

Counsel also submitted that the entire case arose from

contractual transaction between the Appellant and the

complainant.

Learned Counsel also relied on the case of BAMAIYI v.

THE STATE (2001) 2 NWLR (Pt. 598) 435 to submit

that where terms of bail are harsh and excessive, the terms

will be subject to review, or in some instances attract the

intervention of the Court of appeal.

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Learned Counsel for the Appellant said the terms of bail are

stringent, excessive and unattainable, the terms constitute

a hurdle the Appellant may not successfully cross unless

this Court grants gracious intervention. Counsel urged this

Court to allow the appeal.

On the part of the Respondent, learned Counsel said the

decision to admit an applicant to bail involves exercise of

judicial discretion by the Court relying on the decision in

SULEMAN v. C.O.P. (2008) ALL FWLR (Pt. 425) Pg.

1627 at 1649, THE STATE v. OZUZU (2009) ALL

FWLR (Pt. 454) 1581 at 1598. Counsel also submitted

that in considering application for bail, the Courts take into

consideration the nature or seriousness of the offence, the

evidence to sustain the charge, the likelihood of the

applicant appearing to take his trial and the prospect of

repetition of the offence by the applicant. Learned Counsel

also referred this Court to Sections 158 and 162 of the

Administration of Criminal Justice Act 2015 dealing with

bail. Counsel said the learned trial Judge is completely at

liberty to consider any of the factors listed in Section 162 of

the Act in

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the exercise of his discretion to grant bail, or vary the

terms of bail.

On the meaning of judicial discretion, learned Counsel

referred this Court to ALH. MOHAMMED WAZIRI v.

IBRAHIM TAHIR GUMEL (2012) 9 NWLR (Pt. 1304)

185 and MUSA UMAR v. F.R.N. CA/A/222A/C/2014.

Counsel also submitted that in matters of exercise of

discretion no one authority is binding on the other, that

judicial discretion is exercised honestly and in the spirit if

the law and statute relying on the decisions in

AMOSHIMA v. STATE (2011) ALL FWLR (Pt. 597) 601

at 617, SUNDAY v. STATE (2011) ALL FWLR (Pt. 558)

922 at 940. Learned Counsel for the Respondent then

submitted that the learned trial Judge took into

consideration the facts and circumstances of the case

before arriving at a decision to review the bail conditions

earlier imposed by the Court, Counsel referred to page 147

of the records of appeal to submit that the lower Court

clearly indicated that the facts and circumstances of the

case were taken into account in arriving at a decision.

Counsel said judicial discretion is always exercised

judicially and judiciously relying on the

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decisions in OSUJI v. EKEOCHA (2009) ALL FWLR (Pt.

490) 614 at 647, N.D.I.C. v. GLOBUS ENTERPRISES

LTD (2011) ALL FWLR (Pt. 578) 1008 at 1018.

Learned Counsel for the Respondent said it is completely

without doubt that the learned trial Judge acted judicially

and judiciously in exercising discretion to vary the terms of

bail. Counsel therefore urged this Court to dismiss this

appeal and refuse to further vary the terms of bail.

RESOLUTION

I considered the two issues for determination crafted by

both the Appellant and the Respondent in this appeal, I

think the issue nominated by the Respondent will be apt for

the purpose of setting the stage for discourse and eventual

determination of the real issue in this appeal, the issue to

resolve therefore is "whether the trial Judge exercised his

discretion judicially and judiciously when he made an order

varying the Appellant's bail conditions/terms on the 20th

day of December 2017".

I am of the view that this appeal needs to be considered

and determined on a very narrow compass. The issue in

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this appeal is not that the Appellant was denied bail, but a

case of Appellant being granted bail, having become

nettled by the terms went back to the same Court and

asked for the review of the terms of bail, and it was not that

the lower Court refused to review the terms, the lower

Court reviewed the terms, but Appellant still felt aggrieved

and made for this Court seeking for further review of terms

of bail.

Both parties in this appeal have already agreed that

granting bail to an applicant is a matter within the

discretion of the Court. On what is meant by discretion,

taking off from the case of AMAKA ANAJEMBA v. F.R.N.

(2005) 1 NCC 390 at 403, this Court per MUHAMMAD

(JCA) (As he then was) held as follows and I quote:

"Discretion in general is the exercise of power or

right to act in certain circumstances according to

personal judgment and conscience. Judicial discretion

in particular is the exercise of judgment or decision

making by a Judge or Court based on what appears

fair under the circumstances and guided by the rules

and principles of law. It is a Court's power to act or

refuse to act when a litigant is not entitled to demand

the act

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as a matter of right. In the exercise of such powers,

discretion is normally that of the trial Court and not

of the Appellate Court hence the latter cannot

substitute its own discretion. See: EFETIROROJE v.

OKPALEFE II (1991) 5 NWLR (Pt. 193) 577..... Thus

unless exercise of discretion by the trial Court leads

to injustice and miscarriage of justice, the appellate

Court will not normally set aside or interfere with the

exercise of discretion of the trial Court once it is clear

that it was exercised on just and legal reason that is

judicially and judiciously exercised. See: Royal

Exchange Assurance (Nig.) Ltd v. Aswani Textiles Ltd

(1992) 3 NWLR (Pt. 227) 1 at 5, Saraki v. Kotoye.

(1990) 4 NWLR (Pt. 743) 144 at 151.''

Again in ADAMU SULEMAN & ANOR v. C.O.P.

PLATEAU STATE 33 NSCQR (Pt. 2) 735 at 757.

AKINTAN (JSC) said as follows:

"It is not in doubt that the decision whether to grant

or refuse an application for bail involves exercise of

judicial discretion in every case. The word

"discretion" when applied to public functionaries, a

term which includes judicial officers, is defined in

Black's Law Dictionary 6th

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Edition, 1990, page 466 as meaning:

"A power or right conferred upon them by law in

certain circumstances, according to the dictates of

their own judgment and conscience, uncontrolled by

the judgment or conscience of others. It connotes

action taken in light or reason as applied to all facts

and with view to rights of all parties to action while

having regard for what is right and equitable under

all circumstances and law"

It is not unusual or unprecedented for an accused person to

approach the Court of appeal for review of terms of bail if

terms imposed by the trial Court are in the opinion of the

accused person excessive onerous and unattainable, see:

EYU v. THE STATE (1988) 2 NWLR (Pt. 78) 602.

As I stated earlier in this Judgment, the Appellant was

granted bail and he found the terms unattainable and

returned to the lower Court, the lower Court reviewed the

terms, still appellant felt dissatisfied and approached this

Court for further review.

At the proceedings of 13th December 2017, at page 117 of

the records of appeal, the learned trial

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Judge granted the Appellant bail and said as follows:

"... The defendant is granted bail in the sum of N50

Million Naira Only. This is to be by way of a bond

from a Bank in the same amount. He will provide 2

sureties each in like sum with tax clearance

certificates. Both sureties must live within this

jurisdiction..."

The Appellant became dissatisfied with the terms and

returned to the lower Court on the 20th day of December

2017, seeking to vary the terms, at the proceedings of the

lower Court on 20th December, 2011, found at pages

146-147 the following took place:

'Parties absent.

Olatunbosun Adekunle for the Applicant.

Adekunle: We have a motion dated 15/12/17. We have

served the Respondent on the 15th of December

2017. We also wrote a letter on the 19th of December

2011 informing them of today's date.

We apply that the bail conditions be varied by

cancelling the Bond for N50 Million Naira stipulated

by the Court and to stipulate one surety instead of

two sureties. We rely on the affidavit and adopt

written address.

Court: I have examined the application

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brought by the Applicant. It is to be noted that

adequate consideration was observed in relation to

the charged (sic) before the bail conditions were

issued.

The Court will therefore consider reducing the Bond

to 10 Million Naira instead of a total cancellation

The second condition regarding number of sureties

will not be varied either.

Case is adjourned to 27/2/2018.

SGD

C.M.A. OLATOREGUN

JUDGE

20/2/2017.'

The law is very well settled from all I said that the decision

to grant or refuse bail to an applicant falls within the

discretion of the Court, this Court has no business to

interfere with exercise of discretion unless it is found that

the exercise of discretion was manifestly wrong, arbitrary,

injudicious, or contrary to natural justice equity and good

conscience. Let me also add that even where this Court

were to exercise such discretion otherwise if it were in the

position of the trial Court, it will be improper to tinker with

the exercise of such discretion by the lower Court. See:

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IMONIKHE v. A.G. BENDEL STATE (1992) NWLR (Pt.

248) page 396, and the decision in BRAITHWAITE &

ORS v. DALHATU (2016) LPELR-40301 (SC) Pg.24-25,

paras. B-A where KEKERE-EKUN, JSC explained that:

"... The principle is that the attitude of the appellate

Courts to the exercise of discretion by the lower

Courts is not dissimilar to that adopted over the issue

of finding of facts, which is that unless the exercise of

discretion by a Court of first instance or by a lower

Court is manifestly wrong, arbitrary, reckless or

injudicious, an appellate Court would not interfere

merely because faced with similar circumstances it

would have reacted differently."

I am of the view that in the instant appeal, the terms of bail

set out by the lower Court are not outlandish, contrary to

the submissions of the Appellant, the learned trial Judge

properly and rightly too exercised discretion in admitting

the Appellant to bail, and even where the Appellant felt the

bail conditions were excessive, harsh and outlandish, he

came back, and the lower Court graciously reviewed the

terms by reducing the amount of Bond, I think the lower

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Court was generous and exercised all reasonable care in

managing the right of the Appellant to bail and the exercise

of its discretion. The reviewed terms of bail are not

onerous, harsh, excessive or outlandish. I therefore find no

slightest evidence of misuse of discretion by the lower

Court, I cannot therefore disturb the exercise by the Court

of it's discretion in the circumstance.

Appellant's appeal for further review of terms of bail is

lacking in merit, it is accordingly dismissed, the decision of

the lower Court varying terms of bail on the 20th day of

December 2017 in charge No. FHC/L/121C/2017 is

affirmed.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the

privilege of reading in draft the lead judgment of my

learned brother TIJJANI ABUBAKAR J.C.A., just delivered

with which I agree and adopt as mine. I have nothing more

to add.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother

TIJJANI ABUBAKAR, J.C.A. afforded me the

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opportunity of reading in draft before today the lead

judgment just delivered and I agree with the judgment and

join my learned brother in dismissing the appeal for being

unmeritorious.

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Appearances:

Olatunbosun Adekunle with him, A. K.Abdulkareem For Appellant(s)

Vivian Aigbadon For Respondent(s)

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