In The Supreme Court of Nigeria
On Friday, the 19th day of January, 2018
Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
PATIENCE OKORO EYE –Appellant
THE FEDERAL REPUBLIC OF NIGERIA –Respondent
SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant Mrs. Patience Okoro Eye and five others, namely Afolabi Olufemi Johnson, Ilori Adekunle Sunday, Asemota Augustina, Kolawole Babalola, Olaniran Muniru Adeola and Fatai Adedokun Yusuf were on 2nd June, 2015 arraigned before the Federal High Court, Ibadan Judicial Division, charged with abuse of office, corrupt practices, fraud and illegally owning assets. The particulars of the offence charged are as follows:
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY. KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, have by virtue of abuse of your office, being employees of Central Bank of Nigeria, contributed to the economic adversity of the Federal Republic of Nigeria when you destroyed a box marked “Counted Audited Dirty” filled with Newspapers in place of a box containing N10,000,000 (Ten Million Naira) of N1000 denomination and which activity led to the increase of money in circulation which the briquetting exercise of Central Bank of Nigeria was intended to control and you thereby committed an offence punishable under Section 1(2) (b) and Section 10(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004.”
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA ANd FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, engaged in corrupt practices when you replaced the content of a box of N1,000 notes denomination in a total sum of N10,000,000 (Ten Million Naira) marked as “Counted Audited Dirty” meant for briquetting with Newspapers and which sum you converted to your own use and you thereby committed an offence punishable under Section 1 (2) (a) and Section 10(1) of the Recovery of Public Property (Special Provision) Act Cap. R4 Laws of the Federation of Nigeria, 2004.”
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, ASEMOTA AUGUSTINA, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, being employees of Central Bank of Nigeria owned asset, to wit: the sum of N10,000,000.00 (Ten Million Naira) being money you took from a box marked “Counted Audited Dirty” which was meant for briquetting and which you replaced with Newspapers and for your personal purpose which asset is in excess of your legitimate, known and provable income and assets and you thereby committed an offence under Section 7 (2) of the Bank Employees etc, (Declaration of Assets) Act Cap. B1 Laws of the Federation of Nigeria, 2004.”
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON and ILORI ADEKUNLE SUNDAY, on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to making false entry in a document, to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, headquarters, Abuja, to the effect that the briquetting exercise was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(b) of the Criminal Code Act Cap, C38 Laws of the Federation of Nigeria, 2014.”
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON 1st – 3rd and ILORI ADEKUNLE SUNDAY on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to omitting material particulars from a document to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, Ibadan branch which you submitted to Central Bank of Nigeria headquarters Abuja, to the effect that the briquetting exerciser was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(c) of the Criminal Act Cap, C38, Laws of the Federation of Nigeria, 2004.”
The Appellant pleaded not guilty to all the counts of the charge and the trial proceeded. On 2nd June,
2015, an oral application was made on behalf of the
Appellant for bail and same was refused, thereafter, on the same day, a formal application was filed accompanied by an affidavit in support and a written address.
On the 8th June, 2015, the respondent filed its counter affidavit and a written address in opposing the bail application. In refusing the bail, the learned trial judge in his Ruling delivered on 15th June, 2015 held as follows:
“…. I hold that the accused persons have not been able to persuade me by strong and cogent reasons why I should exercise my discretion in their favour. The application fail and same are hereby dismissed. Alternatively, I enter an order for accelerated hearing and in making this order, the Court will tolerate frivolous application particularly on adjournment either from the prosecution or defence counsel.”
Dissatisfied with the Ruling of the trial Court, the appellant filed an appeal. It was heard by the Ibadan Division of the Court of Appeal. The Court on 9th December, 2015 affirmed the decision of the trial Court when it said:
“l remain of the firm view that the learned trial Judge was painstakingly enough in considering all the most relevant materials before him, in terms of the affidavits of the Appellant and the counter affidavit of the Respondent as well as the proofs of evidence and applicable well established principles governing the granting or refusal of the application in the instant appeal. I am unable to see, in this appeal, any strong reason to fault any of the steps taken by the learned trial judge in the exercise of his discretion. I am not convinced that there is any good reason to call for this Court to accept or accede to the request to interfere with the exercise of the discretionary power of the lower Court in the instant appeal with respect to its refusal of the application for bail. I am fully satisfied that the learned trial judge in the circumstance exercised his power to grant or refuse bail to the Appellant judicially and judiciously.”
This appeal is against that judgment. In accordance with Rules of this Court, briefs of argument were duly filed and served. The appellant’s brief was filed on the 26th September, 2016, while the respondent’s brief was filed on the 23rd October, 2017 was deemed duly filed and served on 26th October, 2017.
Learned counsel for the appellant formulated three issues for the determination of his appeal.
“1. Whether the Court below was correct in all the circumstances to have upheld the decision of the Trial Court in refusing the Appellant bail after finding as it did, that there were “procedural Missteps” taken by the Trial Court in reaching its ruling? Ground 1 and 5.”
“2. Whether the Court below was correct in accepting as unchallenged paragraphs 9, 11, 12, 13, and 18 contained in Respondent’s Counter Affidavit in opposition to the Appellant’s bail application and act on the story as set out by the Respondent? – Ground 2.
“3.Whether the Court below was correct in affirming the decision of the trial Court in the light of the provisions of Sections 158 and 162 of the Administration of Criminal Justice Act, 2015 as well as Sections 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as Amended)? – Grounds 3 and 4.”
Although learned counsel for the appellant formulated 3 issues for determination, learned counsel for the respondent respectfully submitted that only two issues call for determination in this appeal and the issues are;
1. Whether the Court of Appeal was not right in refusing to interfere with the exercise of discretion of the learned trial judge refusing to admit the Appellant to bail pending her trial (See grounds 2, 3 and 4).”
2. Whether the Counter Appeal was not right in holding that the procedure adopted by the learned trial Judge in the consideration of the Appellant’s application for bail did not occasion any prejudice or miscarriage of justice to warrant the setting aside of the decision of the trial Court. (See ground 1 and 5).”
After a careful perusal at the issues formulated by both the appellant and the respondent, the view of this Court is that a lone issue arise for the determination of this appeal to wit:
“Whether the lower Court was right in refusing to interfere with the exercise of discretion of the learned trial judge refusing to admit the appellant to bail pending the determination of her trial.”
Learned counsel for the appellant submitted that where an offence carries a sentence exceeding 3 years imprisonment, bail in such a case is not a mere matter of course, but rather, at the discretion of the Court which must be exercised judicially and judiciously.
Learned counsel argued that, the Administration of Criminal Justice Act, 2015 has obviated the need to make the grant of bail substantially subject to the discretion of the trial Judge.
Counsel cited Section 158 of the Administration of Criminal Justice system as follows:
“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this part, be entitled to bail.”
Learned counsel argued that, the word “shall” inserted into the drafting of the provision of the law cited above removes the discretionary tone in admitting to bail a defendant. Counsel submitted that in TABIK INVESTMENT LTD. & ANOR. VS GUARANTY TRUST BANK PLC (2011) LPELR this Court held that;
“The word “Shall” connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law that requirement must be met. The word shall may have other meanings, for when used in legislation, it may be capable of translating into a mandatory act giving permission or direction. See NNONYE VS ANYICHIE & ORS. (2005) 2 NWLR PT. 910 page 623. The use of word shall in the case at hand, to my mind conjures mandatoriness, the conditions of which must be met and satisfied.”
Learned counsel also cited Section 118(2) of the Criminal Procedure Act which provides thus:
“Where a person is charged with any other felony other than a felony punishable with death, the Court may if it thinks fit, admit him to bail.”
Counsel submitted that the wordings of Section 118(2) above, indicate that the Court “may” used in Section 118(2) above, indicate that the Courts were given total discretion as to the granting of bail to a defendant.
Learned counsel argued that the appellant had in paragraph 23 of her affidavit in support of the application for bail at pages 465 of the record stated that she would regularly attend Court to stand for her trial if admitted to bail. The averment which was not contradicted by the respondent in its counter affidavit at pages 483 to 487 of the record of appeal.
Learned counsel further submitted that there is no evidence before the trial Court indicating that the appellant would commit another offence or attempted to evade her trial.
Counsel argued that the provision of Section 162 do not permit mere speculation when opposing the granting of bail. He further argued that the respondent counter affidavit was bereft of any facts or solid evidence alluding to an attempt by the appellant to run foul of any of the provisions in Section 162 save for feeble averment in paragraph 12.
In his final argument, learned counsel for the appellant submitted that it is settled law that legislation is to be given its ordinary interpretation and effect, most especially where words used are straight forward and unambiguous he cited TORIOLA VS WILLIAMS 1982 7 SC. 27 and LAWAL VS G. B. OLLIVANT 1972 3 SC.
He urged the Court to hold that the lower Court was incorrect in upholding the decision of the trial Court in light of Section 158 and 162 of Administration of Criminal Justice Act 2015 and Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
On the other hand, learned counsel for the respondent argued that there is a concurrent finding of fact by Federal High Court, Ibadan and the Court of Appeal that the appellant is not entitled to bail having regards to the materials presented before the Court. He submitted that the attitude of this Court over the years is that it would not interfere with the concurrent findings of facts of both the High Court and the Court of Appeal unless it is shown by the appellant that such findings are perverse. He cited SOBAKIN VS THE STATE (1981) 5 SC 375.
Learned counsel observed that although the power of the trial Court to admit the appellant to bail in respect of the offences for which she is standing trial, is discretionary, such discretionary power must be exercised judicially and judiciously, counsel submitted that since appellant’s appeal is against the exercise of discretion, the appellant needs to satisfy this Court that the lower Court did not exercise its discretion judicially and judiciously.
Learned counsel argued that in a situation such as the instant appeal, which borders on the exercise of the discretion, the duty of this Court is simply to look at the record, review same and determine whether the trial Court and the Court below exercised the discretion judicially and judiciously having
regards to the facts and circumstances of the case, he cited ALI VS THE STATE (2012) 10 NWLR (Pt. 1309) 589 at 609 Paras A – D and SAFFIDINE vs C.O.P. (1965) 1 All NLR 54.
Learned counsel submitted that the requirements set out under Section 162 of the Administration of Criminal Justice Act has not changed the position of the law with regard to the factors that the Court would consider in refusing or granting bail, according to him, it has also not removed the discretionary power of the Court to refuse or grant bail.
Counsel observed that the gravity of the offence involved is of paramount importance to a trial Court in deciding on the grant or refusal of bail. He further argued that the offences being alleged against the appellant attract the maximum sentence of twenty (20) years imprisonment, it is like capital offence against the nation’s economy. So, if released on bail, the severity of the punishment which conviction would entail would make the appellant to evade her trial if released on bail at this stage.
Learned counsel submitted that it is settled law that the more cogent the evidence before the Court, the greater the possibility that the defendant may attempt to evade his trial or may refuse to appear at his trial.
Learned counsel finally urged this Court to hold that there is no miscarriage of justice in the approach adopted by the two lower Courts.
On the part of this Court, Section 118(2) of the Criminal Procedure Act, in my view makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in an affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously.
See BAMAIYI VS THE STATE (2001) 8 NWLR (Pt. 715) 270 EKWENUGO vs F.R.N. (2001) 6 NWLR (Pt. 708) 171 DANTATA VS POLICE (1958) NRNLR 3.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. I must say that, it is a hard matter of law, facts and circumstances which the Court considers without being emotional sensitive or sentimental.
See ADAMU SULEIMAN & ANOR VS C.O.P. PLATEAU STATE, 33 NSCQR (Pt. 2) 735 at pp. 758 -759.
In EKWENUGO VS F.R.N. Supra the Court held that:
“The issue of grant of bail by a trial Court calls for due exercise of discretion which entails the application of common sense based on a given set of facts and attendant circumstances in accordance with justice. The discretion must be exercised not only judicially, but judiciously as well.”
See also UNIVERSITY OF LAGOS VS OLANIYAN (1985) 1 NWLR (Pt. 1) 156 SAFFIDINE vs C.O.P. (1965) 1 All NLR 54 UGBOMA VS OLISE (1971) All NLR 8 and ODUSOTE VS ODUSOTE (1971) All NCR 219.
It is well settled that if judicial discretion has been exercised bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere. But there are exceptions whereby this Court is entitled to impeach the exercise of judicial discretion by the lower Court. Thus, an appellant Court may interfere with exercise of judicial discretion if it shown that there has been a wrongful exercise of the discretion such as where the trial Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere.
See ENEKEBE VS ENEKEBE (1964) 1 All NLR 102 at 106, DEMUREN VS ASUNI (1967) 1 All NLR 94 at 101, MOBIL OIL VS FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 97 at 141, SOLANKE VS AJIBOLA (1968) 1 All NLR 46 at 52.
Learned trial judge in his Ruling at page 533 of the record stated that:
“I have considered and reflected on the proof of evidence. They are mind boggling and weighty. I have not been persuaded by the applications and submissions made before to think otherwise.”
It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
“In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case.”
The appellant in the instant case, had deposed to his affidavit at page 465 of the record as follows:
“I have also been in the custody of the EFCC since Wednesday the 27th day of May, 2015 till the date of filing this application after I obediently reported to the office of the EFCC when I received a call from one of the investigating officers to report at their office in Abuja.
I know as a fact that I never breached the conditions of my bail when I was granted administrative bail by the EFCC before I was further detained for several days and before formally charging me to Court.
I know that I neither stuffed any box with newspapers nor colluded with anybody to stuff the box with newspapers. I know as a fact that I have never been convicted of any criminal offence in my life.
I have responsible people who could stand as sureties for me if I was granted bail by this Honourable Court.
I never tempered with the investigation conducted by the EFCC while I was granted administrative bail.
I will regularly come to Court to stand trial in the charge filed against me if I was granted bail by this Honourable Court.
I verily believe all Preliminary investigations have been concluded before filling this charge against me.
I make this solemn declaration conscientiously, believing same to be true and in accordance with the Oaths Act.”
The respondent, on the other hand, has also filed a counter affidavit. As I have stated earlier, the leaned trial judge dwelt so much on the proof of evidence which he dealt with extensively thereby ignoring the affidavit evidence by the appellant.
A judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by law. A discretion must be exercised honestly and in the spirit of the law.
See UNIVERSITY OF LAGOS & ORS VS C.I.O. OLANIYAN (1985) 1 S.C 295 at 344.
It must be borne in mind that the essential difference between an arbitrary or wrongful exercise of discretion, on the one hand, and judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all or with wrong or insufficient, correct and convincing reason. While judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.
In the final analysis, and as stated earlier on, and from the particulars of the offences charged, the offences are bailable in law, and the learned trial judge ought to have exercised his discretion in favour of the Appellant, in view of the content of the affidavit evidence before him. The Court of Appeal also ought to have looked at that affidavit evidence where the trial Court had failed to do so. The sole issue for determination in this appeal is hereby resolved in favour of the appellant. The appeal is meritorious and it is hereby allowed.
The Appellant is granted bail with a bond to provide two sureties in the sum of N100.000:00k each, and each one of them to submit one title document from any part of Nigeria, to be verified by Chief Registrar Supreme Court.
OLABODE RHODES-VIVOUR, J.S.C.: My lords, I have had the advantage of reading in draft the leading judgment of my learned brother, Bage JSC wherein his lordship granted the appellant bail, despite the refusal by both Courts below. I agree entirely with his lordship reasoning and conclusion.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to register that support, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division or lower Court or Court
below delivered on the 9th December, 2015. Which affirmed the Ruling of the Federal High Court delivered on 15th June, 2015 wherein the learned trial judge dismissed the appellant’s application for bail on the ground that there were no strong and concrete reasons why the Court could exercise its discretion in favour of the appellant.
The fuller facts leading to this appeal are well captured in the lead judgment and so dispensing of the need to repeat them save for when it becomes necessary to make reference to any part of those facts in the course of this deliberation.
On the 26th October, 2017 date of hearing, learned counsel for the appellant, Ken Ahia adopted the brief of argument settled by Awa U. Kalu SAN and filed on 26th September, 2016 and the reply brief filed on 25th October, 2017 and deemed filed on 26th October, 2017. The learned Senior Advocate identified three issues for determination which are thus:
1. Whether the Court below was correct in all circumstances to have upheld the decision of the trial Court in refusing the appellant bail after finding as it did, that there were ‘Procedural missteps’ taken by the trial Court in reaching its ruling? (Ground 1 and 5).
2. Whether the Court below was correct in accepting as unchallenged paragraphs 9, 11, 12, 13 and 18 contained in respondent’s counter affidavit in opposition to the appellant’s bail application and act on the story set out by the respondent? (Ground 2).
3. Whether the Court below was correct in affirming the decision of the trial Court in the light of the provisions of Sections 158 and 162 of the Administration of Criminal Justice Act, 2015 as well as Sections 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) Grounds 3 and 4.
Adebisi Adeniyi of counsel for the respondent adopted its brief of argument filed on 23rd October, 2017 and deemed filed on 26th October, 2017. In it, were raised two issues for determination which are as follows:
1. Whether the Court of Appeal was not right in refusing to interfere with the exercise of discretion of the learned trial Judge refusing to admit the appellant to bail rending her trial. (Grounds 2, 3 and 4),
2. Whether the Court of Appeal was not right in holding that the procedure adopted by the learned trial judge in the consideration of the appellant’s application for bail did not occasion any prejudice or miscarriage of justice to warrant the setting aside of the decision of the trial Court. (Grounds 1 & 5)
From the issues as crafted on either side, I see issue one of the appellant as adequate for use in the determination of this appeal and I shall so utilise it.
Whether the Court below was correct in all the circumstances to have upheld the decision of the trial Court in refusing the appellant bail after finding as it did, that there were “procedural missteps” taken by the trial Court in reading its ruling.
Learned counsel for the appellant contended that consolidation of suits or applications is generally made for expediency and convenience such that suits or applications having same and common characteristics of law or facts or arising from common transactions may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and costs. That it must be stated however that when a Court gives an order to consolidate suits or applications, it automatically creates a duty on itself, which it must discharge and so does not lose sight of the distinct identity of each applicant and his application in relation to other applicants and respective application. That each application remains separate and distinct and its judgment or ruling must be given separately at the end of the common trial. The reasoning being that the consolidation of suits or applications does not render evidence accepted in one evidence in the other. He cited Dugbo v Kporoaro (1958) SCNLR 180; Diab Nasr v Complete Home Enterprises (Nig.) Ltd (1977) 5 SC 1 e.t.c.
That it is for the principle above that in this instance, the trial Court erred when it fused the applications and delivered a single ruling in respect of all applications and in doing so failed to consider the affidavit and further affidavit of the appellant before refusing her bail application.
Learned counsel for the appellant contended that it is not the decision that matters but the procedure adopted in reaching the decision which is flawed as it raised the issue of a lack of fair hearing. That since the right to fair hearing of the appellant was compromised the decision cannot be sustained. He cited Inogha Mfa & Ors v Mfa Inongha (2014) LPELR 22010 (SC) per Kekere – Ekun JSC.
For the appellant, Learned Senior Counsel stated that the major criterion for granting bail is for the accused to attend his/her trial and it is on this criterion that all other reasons hang. He cited Adamu Suleman & Anor v COP, Plateau State (2008)- LPELR-3126 SC (pt. 21).
Learned counsel for the respondent submitted that the appeal is against the concurrent findings of facts of both the Federal High Court and Court of Appeal on the ground that the appellant is not entitled to bail having regard to the materials presented before the Court and in line with the attitude of the Supreme Court over the years, this Court should not interfere with those findings being not perverse. He referred to Sobakin v State (1981) 5 SC 375; University of Lagos v Olaniyan (No. 1) (1985) 1 NWLR (pt.1)156 at 163; Minister. P.M.R v E.L. (Nig) Ltd (2010) 12 NWLR (pt. 1208) 261 at 292.
What is at play is the issue of what a Court must do when it consolidates suits and what it entails when an order of consolidation is made. A journey back in time into the facts of this case would assist and that is, that the learned trial judge on the 9th day of June, 2015 consolidated the applications for bail of all the defendants including the herein appellant and heard then. It is necessary to state that it is permissible in law to consolidate suits or applications so as to get a speedy resolution of the nagging issues and possibly remove bottlenecks or handles that might impede the main suit which would not happen where the applications and suits are to be handled separately. To get to the decision to order consolidation, the Court gets to that position satisfied that there are common questions of law or facts arising in both or all the causes or matters or even the rights to relief which are claimed in respect of or arise out of the same transactions or for some other reasons in which it makes it desirable to make an order under the rules of Court. Therefore consolidation so to speak of suits or applications is generally made for expediency and convenience such that those suits or applications having same common characteristics of law or facts or stemming from a common transaction may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and costs.
To embark on consolidation of suits or applications, the Court doing so has a bounden duty which it must discharge and that is, that each of the suits or applications must be resolved in their individual or distinct identity in that common trial. In other words, consolidation does not take away the separate identity of a particular suit or application within that grouping. Also evidence accepted in one suit or application is not evidence in any of the others. This scenario the Court must bear in mind and in sight throughout, from the beginning of the consolidation till the conclusion at the judgment stage or ruling Point. I refer to Dugbo v Kporoaro (1958) SCNLR 180; Diab Nasr v Complete Home Enterprises (Nig) Ltd (1977) 5 SC 1; Iloabuchi v Ebigbo(2000) 8 NWLR (Pt. 668) 197.
The guiding principle above stated, it turned out that in the case in hand the trial Court fused the applications and delivered a single ruling in respect of all six applications. In this error, the learned trial judge failed to consider the affidavit and further affidavit of the appellant before rejecting her bail application and this happened because that Court missed its way and referred to what was not in the affidavit of the appellant and the counter affidavit against the application. Also entered into submissions that were non-existent as counsel for the appellant made no such. The circumstances that arose showed that the Court of first instance having jumbled all the applications and treating them as one utilised facts or evidence that had no relationship or relevant to specific application of the appellant. The fall out therefore is that the right of fair hearing of the appellant had been clearly breached and the correctness of the decision was neither here nor there. This is because the proceedings having been fundamentally flawed on account of this failure to adhere to the rule of natural justice
The dictum of my learned brother, Kekere-Ekun JCS in Inogha Mfa & Ors v Mfa Inongha (2014) LPELR-22010 (SC) is apt for my use and I follow it. He stated thus:
“It is also well settled that any proceedings conducted in breach of a party’s right to fairhearing jeopardised the proceedings and nothing could come out of it.
Any hearing, no matter how well conducted would be rendered a nullity. See Tsokwa Motors (Nig) Ltd v U.B.A Plc (2008) ALL FWLR (pt. 403) 1240 @1255 A-B; Adigun v A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor v A.G. Anambra State (1991) 3 NWLR (pt. 200) 59; Leaders & Co. Ltd. v Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in recent decision of this Court in Abubakar Audu v FRN (2013) 53 NSCOR 456 @ 4691; “The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v Onuma (1990) 3 NWLR (Pt.136) 22.
The effect of a denial of fair hearing is trite in law. In order words, once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.”
The situation is well cut out and clearly with the proceedings that have come unhinged, the decision of the trial Court has nothing to hang on and so the Court of Appeal was wrong to have sustained that flawed decision.
In the light of the foregoing and the better reasoning in the lead judgment, I also allow the appeal and abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: The facts of this case have been spelt out clearly in the lead judgment. The appellant is seeking bail before conviction. The determining factor is whether the appellant will avail himself for trial if bail is granted him.
It is trite law that the granting of bail in such situation is not a matter of course but is at the discretion of the Court having regard to the circumstance of the case before it.
My learned brother, Bage, JSC had dealt adequately with the case at hand and I have no reason to decide otherwise. I therefore adopt his judgment as mine and also resolve the sole issue raised in favour of the appellant.
The appeal has merit and is allowed. I hereby grant bail in terms of the lead judgment of my learned brother.
AMIRU SANUSI, J.S.C.: This appeal is against the judgment of the Court of Appeal, Ibadan division (lower Court), delivered on 9th December, 2015. In the said judgment, the lower Court affirmed the decision of Federal High Court Ibadan (trial Court) delivered on 15th day of June, 2015 which refused to admit the appellant, then applicant to bail.
The appellant as applicant at the trial Court was along with her four other colleagues arraigned before the trial Court on various allegations of crimes as adumbrated in the lead judgment. After pleading not guilty to each of the five counts, the appellant applied for bail. At the close of arguments by counsel on the application, the learned trial judge refused to grant her bail, and instead, ordered accelerated hearing.
Aggrieved by the trial Court’s refusal to admit her to bail, she appealed to the lower Court which endorsed and affirmed the Ruling of the trial Court refusing the bail. She again became disenchanted with the lower Court’s refusal to admit her to bail and then further appealed to this Court.
Briefs of argument were filed and exchanged by learned counsel to the parties. In the appellant’s brief of argument settled by Awa Uwa Kalu SAN, three issues were raised for the determination of the appeal, whereas Mr. Adebisi Adeniyi of learned counsel for the respondent had in his respondent’s brief identified two issues for the determination of this appeal. As both sets of issues had been set out in the lead judgment. I feel it will be repetitive to reproduce them here again.
Considering the circumstance of this case, I feel the germane issue calling for determination in this appeal is simply whether the lower Court acted rightly by refusing to interfere with the decision of the trial Court in refusing to admit the present appellant to bail or to put it in another way, whether the refusal to exercise the discretion to grant bail to the accused/applicant, (now appellant) by the trial Court, was correctly affirmed by the lower Court.
Section 158 of the Administration of Criminal Justice Act 2015 provides as follows:
“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this Act, be entitled to bail.”
The above provision appear to be in tandem with the provisions of Section 118(2) of the Criminal Procedure Act which states that person charged with a felony other than a felony punishable with death, could be admitted to bail. There is no gain stating that the offence the appellant was facing trial on, is certainly not one attracting death punishment. With the use of the article “shall” in Section 158 of the Administration of Criminal Justice Act 2015, that presupposes that the appellant is mandatorily entitled to be granted bail by the Court right from the out set. Again, Section 162 of the same Act provides that where the offence which an applicant/accused is facing trial on or accused of committing exceeds three years punishment, as in this instant case, he shall still be admitted to bail except on some specified circumstances spelt out in Paragraphs (a) – (f) of the said sections, namely:
(a) If there is reasonable ground that the accused will commit another offence or offences.
(b) Whether he will evade trial;
(c) Whether he will influence, with influence, interfere with, intimidate witnesses and or interfere with the investigation of the case.
(d) attempt to destroy evidence,
(e) prejudice the investigation of the offence; or
(f) he will undermine or jeopardize the objective, purpose or function of criminal justice administration including bail system.
Notwithstanding the above listed conditions, the Courts are still given discretionary powers to grant or refuse bail under Section 163 of the Act. It must however be emphasized that the Bench mark of the exercise of discretion by Courts is that the decision to use discretionary powers must be exercised judiciously and judicially too. See Bamaiyi v The State (2001) 3 NWLR (pt. 715) 230; Dantata vs COP (1958) NRNLR 3 Or (2001) 4 SC NJI 126.
Thus, from the cumulative effect of the above provisions of the Act and of course, the Criminal Procedure Act, in exercising the discretion to grant bail to an applicant, the Court has a duty to consider the nature of the charge, the severity of the punishment, the character of the evidence, the applicant’s criminal record as well as the likelihood of him repeating the offence and including all the elements mentioned in Section 162 of the Act as stated supra. The trite position of the law is that in exercising the discretion to grant or refuse bail, a trial Court must consider the weight of facts deposed to in an affidavit evidence placed before it and all other requirements as highlighted supra. In this instant case, the applicant now appellant had in the affidavit sworn to by her, deposed to some far reaching averments (as shown on page 465 of the record) the conditions or requirements of Section 162 which she averred that she would refrain from committing or contravening if granted such bail. Such averments were not in any way controverted or challenged by the learned respondent’s counsel.
It is rather bizarre to note that the learned trial judge based his reason for refusing to grant bail to the applicant/appellant not on the affidavit evidence, but he merely dwelt on the proof of evidence and totally ignoring to consider the averments which are crucial and relevant for exercising his discretion whether or not to grant the bail application.
If he had duly examined, assessed and evaluated such affidavit evidence placed on his table, he would have arrived at a different conclusion.
The lower Court on its part had unfortunately, failed to advert its mind to or consider the averments in the applicant’s affidavit before affirming and endorsing the trial Court’s decision refusing to grant the bail. It merely glossed it over. I must say that there were justifiable reasons placed before the lower Court to warrant its querying, disturbing or tampering with the trial judges exercise of judicial discretion in refusing the application before him in this case.
Apropos of the above, I also see merit in this appeal. It is meritorious and is accordingly allowed by me. I am at one with the reasoning and conclusion arrived at by my learned brother Sidi Bage, JSC for allowing this appeal.
I abide by the consequential orders made in the lead judgment.
Ken Ahia with him, E. C. Ani, C. I. Okoro and L. Onyenipa – For Appellant
Adebisi Adeniyi with him, O. A. Atolagben – For Respondent