Ugbabe v Federal Republic of Nigeria (CA/L/200/2016)[2016] NGSC 82 (27 May 2016) (CA/L/200/2016) [1960] NGSC 1 (26 May 2016);

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  • Ugbabe v Federal Republic of Nigeria (CA/L/200/2016)[2016] NGSC 82 (27 May 2016) (CA/L/200/2016) [1960] NGSC 1 (26 May 2016);

 
 
In the Court of Appeal
Holden at Lagos

 

Between

Appellant

ENOCHE UGBABE

and

Respondent

FEDERAL REPUBLIC OF NIGERIA

 

JUDGMENT
(Delivered By TIJJANI ABUBAKAR, JCA)

This is an interlocutory appeal against the decision of the High Court of Lagos State, Ikeja Judicial Division delivered by Ipaye J. on the 4th day of February 2016, refusing AppellantyApplicants application for bail.
The Appellant alongside one other Defendant were arraigned by way of Information dated 25/1/2016 on a 5-count charge. The Appellant (as Defendant) pleaded not guilty to the five count charge, following his plea of not guilty to the charge, application for bail was then filed on his behalf by leaned Counsel via motion on Notice dated 22 January 2016, and the lower Court fixed the motion for hearing on the 4th day of February 2016. At this stage the Appellant/Applicant changed Counsel and this therefore necessitated filing fresh application for bail by the new Counsel. Fresh application dated 1st February 2016 was therefore filed on the same day. Applicant's application was supported by an Affidavit and a written address. The Respondent (as Complainant) filed a counter-affidavit dated the 4th day of February 2016 and a written address in opposition to the application. After hearing both parties, the learned trial judge delivered his ruling on the same day, refusing the application, the learned trial Judge however made an order for accelerated hearing.

The Appellant became aggrieved by the decision of the lower Court and therefore filed Notice of Appeal to this Court dated and filed on the 15th day of February 2016, containing five grounds of appeal, the Notice of appeal was deemed as properly filed and served on the 13th day of April 2016. The Notice of Appeal is at pages 193 - 197 of the records of appeal compiled and transmitted to this Court.

Learned Senior Counsel for the Appellant Professor Taiwo Osipitan SAN filed Appellants brief of argument on the 26th day of February 2016, deemed as properly filed and served on the 13th day of April 2016. Learned Senior Counsel for the Appellant also filed Appellants reply brief on the 4th day of April 2016. Learned Counsel Kayode Oni for the Respondent filed the Respondent's Brief of Argument dated the 18th day of Mach 2016, but filed on the 22nd day of March 2016 and deemed as properly filed and served on the 13th day of April 2016.

On the part of the Appellant, Learned Senior Counsel Professor Osipitan SAN offered two issues for determination; the issues are reproduced as follows:
 
1.Whether learned trial judge was right or wrong in out rightly refusing to grant bail to the Appellant who has no criminal record and who did not abuse administrative bail granted by the prosecuting Agency.
2.Whether learned trial judge was in a position to grant and did grant accelerated hearing of the charge.

The Respondent through learned Counsel Kayode Oni nominated two issues for determination, and the issues are also reproduced as follows:

1.Whether the learned lower court wrongly exercised her discretion in refusing to admit the appellant to bail.
2.Whether the order of accelerated hearing of the case is not in consonance with section 19 (2B) of the EFCC Act 2004, Section 396 (4) of the Administration of Criminal Justice Act 2015.

The above issues are substantially similar, and resolving any set of issues will effectively result in resolving the issues in controversy in this appeal, issues for determination are raised on vital aspects of a Judgment or decision of lower court where errors are perceived, and such errors are also perceived as leading to failure of justice, in keeping with this line of thought, I will adopt Appellants issues as the basis of discourse in this appeal. 

ISSUE ONE
Learned Senior counsel for the Appellant contended that the Appellant who was arraigned for the offence of conspiracy to steal the sum of NI,424,774,000.00, pleaded not guilty to the charge, having pleaded not guilty, the Appellant enjoys the constitutional right to be presumed innocent of the alleged offence until he is found guilty by a competent Court.
Learned Senior Counsel for the Appellant counsel further contended that the materials placed before the lower court in support of the application for bail by the Appellant were uncontroverted. He submitted that there is nothing severe in the offences of conspiracy to steal and Advance Fee Fraud, Forgery and Uttering, they are mere allegations, and even if the allegations are eventually established, they do not attract capital punishment to warrant refusal by the learned trial judge to admit the Appellant to bail.

Learned Senior Counsel further submitted that the proof of evidence filed by the prosecution shows that the said sum of money allegedly stolen by the Appellant was paid into the account of Mobitel Nigeria Limited who is a customer of the Complainant Bank of Industry and not to the account of the Appellant who is not a customer of the Complainant Bank.
Learned senior counsel submitted that the learned trial judge failed to consider and pay attention to relevant materials in exercising his discretion refusing Appellants application for bail. He contended that pre-trial bail should not be withheld, and that bail in non-capital offences is a constitutional right and if it must be denied, the burden is on the prosecution to furnish substantial reasons why the Appellant should be denied bail. He referred this Court to the cases of, SHAGARI Vs. COP [2007] 5 NWLR (Pt. 1027) 272 at 303, and ENEBELI Vs. CHIEF OF NAVAL STAFF [2000] (Pt. 671) 119 at 121.

It was contended on behalf of the Appellant that the seriousness of the offence and severity of punishment alone are not sufficient reasons for depriving the Appellant who is entitled to pre-trial bail having enjoyed administrative bail granted by the Respondent for 4 years without jumping or doing any act to jeopardize the bail granted him. Learned senior counsel said the Appellant has no criminal record, and that the offences alleged against the Appellant are noncapital offences, and that the Appellant is the breadwinner of his family, Learned Senior Counsel referred this Court to SAIDU Vs. STATE [1982] NSCC 70 at 82 and IBORI Vs. FRN [2009] 3 NWLR (Pt. 1127) 94 at 106. Learned Senior Counsel for the appellant then urged this Court to resolve this issue in favor of the Appellant against the Respondent.

In response, Learned counsel for the Respondent contended that although the offences for which the Appellant is standing trial are not capital offences, Section 1(3) of the Advance Fee and other Fraud related offence Act No. 14 2006 provides that if the prosecution is able to prove its case against the Appellant before the Court, the minimum punishment is 7 years and 20 years maximum term of imprisonment. He contended that the offence although bailable is notorious and dented the image of Nigeria locally and globally. He referred to FRN V. OLATUNJI [2003] 3 NWLR (Pt. 807) 406 to submit that the offence charged falls within the category of serious economic crimes and should not be treated with levity.

Learned counsel further submitted that the grant of bail by trial courts calls for the exercise of due common sense based on given set of facts and circumstances in accordance with justice, and that the exercise of discretion must be done judicially and judiciously by the Court. He further submitted that the court cannot be bound by a previous decision to exercise discretion in a particular way because so doing would have the effect of putting an end to the exercise of discretion. On the submission by learned Counsel for the appellant that the Respondent admitted the Appellant to administrative bail, Mr. Oni said bail granted by the Economic and financial Crimes commission cannot be equated with bail granted by a Court because at the time bail was granted to the Appellant by the Respondent there was no formal charge, that the position changed when five count charge was filed against the Appellant in Court. Counsel said the decision to admit Appellant to bail was purely a matter of discretion of the lower Court, and the Court cannot be compelled to follow precedent in matters of exercise of discretion, relying on FRN Vs. BULAMA [2005] 16 NWLR (Pt. 951) 219, BULAMA Vs. FRN [2004] 12 NWLR (Pt. 888) 498, ABACHA Vs. STATE [2005] 5 NWLR (Pt. 761) 638. Learned Counsel for the Respondent said each case is decided on its own peculiar facts, and the lower Court treated the case of the Appellant on its own peculiar facts before denying the Appellant bail, he relied on the decision in ATIKU Vs. THE STATE [2002] 4 NWLR (Pt. 757) 265.

Learned counsel further submitted that an accused is not usually denied bail except where the offence is a capital offence, or where exceptional special circumstances genuinely exist, learned Counsel said, in the consideration of application for bail, Courts are generally guided by some factors, like the nature of the charge, the severity of punishment, character of evidence, criminal record of the accused, likelihood of repetition of the offence, interference with witnesses for the prosecution to prevent their appearance in court to testify, failure by the accused to appear in Court to take his trial, interference with proper investigation of the offence, detention for the security of the accused, necessity to procure medical or social report pending final disposal of the case, learned counsel said these are some of the conditions, but they need not necessarily be all present in each cases. Learned Counsel for the Respondent relied on the following cases to support this submission: BOLAKE Vs. THE STATE [2006] 1 NWLR (Pt. 962) 509, OFULUE Vs. FRN [2005] 3 NWLR (Pt. 913) 571, NWUDE Vs. FEDERAL GOVERNMENT OF NIGERIA [2004] 17 NWLR (Pt. 902) 306, OSAKWE Vs. FEDERAL GOVERNMENT OF NIGERIA [2004] 17 NWLR (Pt. 893) 305 ANAJEMBA V. FEDERAL GOVERNMENT OF NIGERIA [2004] 13 NWLR (Pt. 890) 267, OLATUNJI V. FEDERAL REPUBLIC OF NIGERIA [2003] 3 NWLR (Pt. 807) 406, BULAMA Vs. REPUBLIC OF NIGERIA [Supra]; ABACHA Vs. THE STATE [Supra], ANI Vs. STATE [2002] 1 NWLR (Pt. 747) 217, THE STATE Vs. AKAA [2002] 10 NWLR (Pt. 774) 157, BAMAIYI V. THE STATE [2001] 8 NWLR (Pt. 715) 270, and UDEH Vs. FEDERAL REPUBLIC OF NIGERIA [2001] 5 NWLR (Pt. 706) 312.

Learned counsel further contended that in considering whether or not to admit an applicant to bail, the court must always bear in mind the evidence of the prosecution against the accused, and if the said evidence is strong and direct, the chances of being set free are remote, the Appellant if granted bail may not be available to take his trial, he may jump bail or escape justice, Counsel relied on IKHAZUAGBE Vs. C.O.P. [Supra], OMODARA Vs. THE STATE [Supra], BULAMA Vs. FEDERAL REPUBLIC OF NIGERIA [2004] 12 NWLR (Pt. 888) 498.

Learned counsel further submitted that the presumption of innocence under section 36(5) of the 1999 Constitution does not imply an exemption of a wrong doer from prosecution, rather it means that in a criminal trial, the burden of displacing the fact that an accused person is innocent of the allegation against him is on his accuser who must adduce the evidence of guilt, Learned Counsel relied on the case of EKWENUGO Vs. FRN [2001] 6 NWLR (Pt. 708) 171, in support of this submission, Learned Counsel also relied on the decision in BAMAIYI Vs. THE STATE [Supra], to contend that factors worthy of being taken into consideration in the determination of bail application do not necessarily prejudice the presumption of innocence enjoyed by an accused person during his trial.

Learned counsel relied on the authority of ADENLE V. OLUDE [2002] 18 (Pt. 799) 418 and OLATUNJI V. FEDERAL GOVERNMENT OF NIGERIA [Supra] to submit that in the exercise of discretion to admit an accused person to bail, the court must exercise its discretion judicially and judiciously and not arbitrarily taking into consideration relevant evidence before it in the resolution of questions arising from the case which calls for the exercise of discretion, the decision of the Court must show the basis of the exercise of discretion to grant or refuse application for bail and in advancing reasons for the exercise of discretion the Court must take all relevant evidence into account in the resolution of all questions arising from the application, the Court must also take into account all relevant provisions of the evidence act and other statutes which have bearing on the proper determination of the matter, the decision reached by the Court must flow from a thorough appraisal of the material presented before the Court, and where it appears that the Court failed to take into account relevant factors, the appellate court may be justified in interfering with the decision. Learned Counsel referred again to EKWENUGO Vs. FRN [Supra] to further submit that justice demands that the interest of all the parties must be taken into consideration in the exercise of discretion to grant bail, Counsel said Justice has been acknowledged to be neither a partisan watchdog nor a malleable actor that takes care of the interest of an accused person alone..

Learned counsel for the Respondent contended against the argument canvassed by the Appellant that the Respondent (EFCC) granted the Appellant administrative bail, he submitted that at the time administrative bail was granted, there was no charge against the Appellant in court, he therefore argued that bail at that level is different from bail when formal charge is already filed against an accused person, and that each case must be decided on its own peculiar facts and circumstances.

On the Appellant's contention that the offences are non-capital offences, Respondent's counsel argued that the prevalence of the type of crime has put the Nation into disrepute. He further argued that it is mere sentiment that the Appellant has a family and dependents to cater for, and such sentiment has no place in law. He referred to Appellant's extra-judicial statement contained at pages 71-80 of the Records and Section 7 (a) - (b) of the Administration of Criminal Law of Lagos State 2011.

Learned counsel further submitted that the Appellant is a party to the offence in issue and that the issue is not whether he is the director of Mobitel or signatory to Mobitel's account, and that he has by his judicial statement linked himself to the crime. Learned counsel submitted that the Respondent effectively denied the Appellant's claim that the offences for which the Appellant was charged are non-capital offences. He referred to Paragraph 4(g) of the Respondent's Counter Affidavit at page 173 of the record of appeal and urged this Court to hold that denial is sufficient and adequate in law. He also contended that the Appellant's submission that investigations have been concluded since 2012 were not correct, stating that the Charge sheet dated 21/9/2015 at page 1 of the records of appeal explains why only two accused persons were arraigned because the two other accused persons involved in the alleged crime are still at large, and the Respondent is vigorously looking for them. He urged this Court to resolve this issue in favor of the Respondent against the Appellant.

Learned Senior Counsel for the appellant while discussing the fresh issues arising from the brief of argument of the Respondent drifted a little by re-arguing some of the issues already ably canvassed in the Appellants brief. A reply brief is filed when an issue of law or argument raised by the Respondent appears deserving of reaction by the Appellant, and where it appears necessary to file reply, the Appellant is expected to confine the reply to the new issues arising from Respondents brief of argument. See: OLAFISOYE Vs. FRN (2004) 4 NWLR (Pt. 864) 580.

Opportunity to file Appellants reply must not be converted into convenient forum to re-argue Appellants appeal. Let me go down to Appellants reply as filed.Learned senior counsel for the Appellant submitted that the exercise of discretion to grant bail is not at large; rather it is based on settled principles of law. He contended that there was no evidence before the court below that if granted bail, the Appellant would jump bail. Learned counsel submitted that it is not open for the Respondent who did not file a Respondent's Notice to support the decision of the lower court on grounds different from those relied upon by trial judge. Counsel relied on ONUGHA Vs. EZEIGWE [2011] 13 NWLR (Pt. 1263) 184 at 198, UNITY BANK Vs. OLATUNJI [2013] 15 NWLR (Pt. 1378) 503 at 550.
On the Respondent's argument that the nature of the offences are such that dented the image of Nigeria internationally, Appellant submitted that Respondent's submission is out of place in that it is outside the ruling of the court below and leave of court must be sought or Respondent's Notice filed in order to canvass this argument. Learned Senior Counsel relied on AG BOO LA Vs. UBA PLC [2011] 11 NWLR (Pt. 1258) 375 at 400, PHARMA DEKO PLC V. N.S.I.T.F.M.B. [2011] 5 NWLR (Pt. 1241) 431 at 446.

It was then submitted on behalf of the Appellant that the mere fact that the alleged offences allegedly committed by the Appellant are serious is not sufficient reason for the lower Court to withhold bail in an offence that is non-capital. Learned counsel further argued that even in capital offences, bail was granted in certain cases, citing: EBUTE V. STATE [1994] 8 NWLR (Pt. 360) 66 at 71, SULEMAN V. C.O.P., PLATEAU STATE [2008] 8 NWLR (Pt. 1089) 298. Learned counsel argued further that in cases involving the offences of stealing, money laundering, belonging to a secret society, obtaining by false pretense, forgery and uttering, pre-trial bail was granted. Learned Senior Counsel for the Appellant referred to BOLAKALE V. STATE [2006] 1 NWLR (Pt. 962) 507 at 519, CHEDI V. A.G., FED [2006] 13 NWLR (Pt. 997) 308 at 326, ORJI V. FRN [2007] 13 NWLR (Pt. 1050) 55 at 94, ONYIRIOHA V. IGP [2009] 3 NWLR (Pt. 1128) 342 at 372, NWOKE V. FRN [2005] All FWLR (Pt. 245) 1083 at 1095,and MUNIR V. FRN [2009] 16 NWLR (Pt. 1168) 481 at 496,to submit that it is not correct to assert that seriousness of the offences charged justified the withholding of the exercise of discretion by the court below to grant bail.

Learned counsel argued that Appellant did not jump administrative bail granted him since 2012 as a suspect, and he deposed to affidavit in support of the application to the effect that he will submit himself for trial and will prove his innocence at the trial. Learned counsel submitted that these facts were unchallenged, and the trial court ought not to have ignored the Appellant's depositions, Counsel referred to JIM JAJA V. C.O.P [2011] 2 NWLR (Pt. 1231) 375 at 393, and OTTO V. MABAMIJE [2004] 17 NWLR (Pt. 903) 489 at 506-Learned counsel further contended that since the Complainant Bank's customer Mobitel Nigeria Limited was not charged, then the Information against the Appellant is not properly constituted. He submitted that a finding of stealing or obtaining by false pretense cannot be made against the Appellant without the trial of the beneficiary of the Bank facilities. On the Respondent's submission that investigations were not yet concluded by the investigating Agency, learned Counsel for the Appellant submitted that the trial court held that investigation was concluded since 2012, the Respondent cannot therefore make submissions contrary to the findings of the lower Court in a ruling that is subsisting. In support of his argument, learned Senior counsel referred to NWAOLISAH V.NWABUFOH [2011] 14 NWLR (Pt. 1268) 600 at 630, UBA PLC V. S.A.F.P.U. [2014] 3 NWLR (Pt. 861) 516 at 539. Learned Senior Counsel for the Appellant urged this Court to resolve this issue in favor of the Appellant against the Respondent.

For the purpose of emphasis, let me restate the issue sought to be determined by the Appellant, it reads as follows:

"Whether learned trial judge was right or wrong in out rightly refusing to grant bail to the Appellant who has no criminal record and who did not abuse administrative bail granted by the prosecuting Agency".

I am not in doubt that the lower court has discretion to admit an accused person to bail pending trial, but such discretion must be exercised judicially and judiciously. The term 'Judicial discretion7 is defined in the Black's Law Dictionary, 9th Edition, Bryan Garner Ed., Thomson Reuters, 2009, at page 543 as "the exercise of judgment by a judge or a 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'
Under our legal system, an accused person standing trial is entitled to bail except where the offence committed by the accused person is a capital offence where special circumstances justifying refusal to grant bail genuinely exist. An accused person who is not tried and convicted enjoys presumption of innocence and this presumption entitles him to bail unless there are special reasons in favor of denial of bail. See: ANI Vs. STATE (2002) 1 NWLR (Pt. 747) 217, and EYU Vs. STATE (1988) 2 NWLR (Pt. 78) 602.

The criteria regarding whether to grant or refuse bail pending the trial of an accused person by the trial court is well settled. These criteria have been enunciated in a plethora of judicial decisions from the Supreme Court down to this Court. In considering application for bail pending trial, the Courts take into consideration the following factors:
I.    The nature of the charge;
II.    The strength of the evidence which supports the charge;
III.    The gravity of the punishment in the event of conviction;
IV.    The previous criminal record of the accused, if any;
V.    The probability that the accused may not surrender himself for trial;
VI.    The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
VII.    The likelihood of further charge being brought against the accused;
VIII.    The probability of guilt;
IX.    Detention for the protection of the accused;
X.    The necessity to procure medical or social report pending final disposal of the case.
See: ASARI DOKUBO Vs. FRN NSCC VOL. 4 (2009) 158, BAMAIYI Vs. STATE [2001] 8 NWLR (Pt. 715) 210; ABACHA Vs. STATE [2001] 6 NWLR (Pt. 708) 171, EYU Vs. STATE [1988] 2 NWLR (Pt. 78) 602.

Bail is sureties taken by a person duly authorized, for the appearance of an accused person at a certain time and place to answer and be justified by law. See: Archibold, Criminal pleadings Evidence and Practice 3SFh Edition. In EZE MOSES ONYEABUCHI Vs. FRN (2007), LEPLR-4134, My Learned Brother DONGBAN-MENSEM defined bail as "process by which an accused person is temporarily released from State custody to sureties on conditions given to ensure his attendance in the Court whenever he is required until the determination of the case against him. "The main function of bail is to ensure the presence of the accused at trial. The law is well settled beyond any doubt that bail is not to be withheld merely as a punishment. The requirement as to bail is primarily to secure the attendance of the defendant at the trial. See: R Vs. ROSE (1896) 67 L.J.B.Q 289. Even though re-appearance of the defendant is the primary function of bail, other considerations should be taken into account, considerations touching on the gravity of the allegations, nature of the evidence, severity of punishment if convicted, and the reliability of sureties for the defendant. See: R Vs. BARRONET & ALLAIN, 1 E & B 1, RE:ROBINSON (1854) 23 L.J.Q.B 286, HERMANN Vs. JEUCHER, IS Q.B.D 561 and R Vs. PORTER (1910) 1 K.B 369. The court in deciding whether to grant or refuse bail to an accused person must not gloss over these considerations. I will now scan through the materials considered by the trial Court in determining Appellants application to determine whether the lower court exercised its discretion judicially and judiciously or not.

In the Affidavit in support of the Appellant's motion on notice for bail dated 1st of February 2016 deposed by one Victor Enebeli, biological brother of the Appellant, the deponent said as follows:
"10. That the investigation of the petitions of Bank of Industry by the prosecuting agency began on or about   June, 2012.
11. I am aware that the 3d Defendant/Applicant was invited to the office of the Economic and Financial Crimes Commission on or about l0th July 2012 when he made his first statement. I am aware that he was granted administrative bail by the officials of the EFCC on or about 10th July 2012.
12.    That one of the conditions for the administrative bail was that the 3d Defendant/Applicant should report periodically to sign the register at the Lagos Office of EFCC
13.    That the 3rd Defendant/Applicant did not jump/abuse the administrative bail granted to him by the EFCC as he reported at EFCC office every Month and at various times when his attention was needed.
14.    That I am aware that the 3rd Defendant/Applicant was on 18th January, 2016 invited to the Lagos office of the EFCC on the 20th January, 2016 and he honored the invitation...

23.    That I am aware that the Counts in the Information against the 3d Defendant/Applicant are non-capital and are bailable offences.
24.    That the prosecuting agency has concluded investigation, which it commenced as far back as July, 2012 before arraigning the 3d Defendant/Applicant.
 
25.    That I know as a fact that the 3rd Defendant/Applicant who has constantly maintained his innocence in respect of the allegations leveled against him is very anxious to defend himself and establish his innocence and will therefore co-operate with this Honorable Court in the speedy trial of the information.
26.    The Complainant/Respondent will not be prejudiced in any way of this application is granted."

In opposition to the application filed by the applicant at the trial Court, the Respondent filed a counter-affidavit dated 4thFebruary 2016 deposed by one Seyi Afolabi, a litigation officer with the EFCC wherein he stated as follows:

"3.That I have been informed by Chikezie R. Edozie Esq one of the prosecuting counsel in this matter, in our office at 15A, Awolowo Road, Ikoyi, Lagos around 12 noon on the 3rd February, 2016 and I verily believed him as follows:

a.That I have seen and read the summons for bail seeking to admit the 2Pd Defendant/Applicants'for bail dated the 1st day of February, 2016 and the supporting affidavit deposed by THERESA UGBABE, the wife of the 1stDefendant/Applicant herein and I hereby state that the depositions aside being speculative are also misleading.
b.That the 1stdefendant/applicant on record was arraigned before this Honorable (sic) on the 25th of January, 2016 on a five (5) count charge bordering on offences of stealing, obtaining money by false pretense, forgery and uttering dated the 2$h day January, 2016.
c.That in Response to paragraph 6 of the defendant/applicants affidavit in support, the defendant/applicant is a director of the Company and represented himself to be same at all material times especially when he stood as a guarantor on the Securities/collaterals and presented title documents in respect of 2 residential apartments which was forwarded to the Bank of Industry to facilitates the said loan.
d.Contrary to paragraph 7 of the 1st defendant/applicant's deposition, the offences which the defendant/applicant is standing trial before his Honorable court is not a banker and customer relationship, the 2Pd defendant/applicant conspired with his cohorts at large to procure forged title documents which were used to induce the Bank of Industry in granting a facility to a company (Mobitel Limited) of which the 1st defendant/applicant is a Director.
e.That in response to paragraph 8 of the defendant/applicants deposition, the said credit facility obtained was secured fraudulently as the 1st Defendant/Applicants conspired with his cohorts and induced Bank of Industry the victim in this case to act upon forged securities/collaterals title documents in respect of two residential apartments in disbursing the money in accordance with the loan agreement.
f.Contrary to paragraphs 9 and 10 of the defendant/applicants deposition, the said credit facility which was obtained fraudulently was paid into a Skye Bank account of which substantial part of it was used to off-set its indebtedness to Mobitel Limited as opposed to the purpose of which the facility was granted.
g.That in reaction to paragraph 17,19, 20, 2122, 23, 24 and 25 of the 2Pd defendant/applicants supporting affidavit, the offences for which the defendant/applicant is standing trial are serious offences of which are financial crimes in nature.
h.That in reaction to paragraph 24 of the defendant/applicant' supporting affidavit, the depositions contained in those paragraphs are facts known to the knowledge of the applicant only which are intended to mislead this Honorable Court.

i.That in reaction to paragraph 26 of thef* defendant/applicant's supporting affidavit, the offences which the defendant/applicant is standing trial are serious offences of which are financial crimes in nature.

j. That in reaction to paragraph 27 of the defendant/applicants deposition, it does not lie in the mouth of the applicant to say or determine whether or not the prosecution has concluded with its investigation.
4. Prosecution will be prejudiced by the grant of this application, as the applicant's depositions are frivolous and deliberate attempt to mislead this Honorable court.
5. That if bail is granted, there is every likelihood that the 2nd defendant/applicant would take to his flight."

From the depositions of the Appellant/Applicant forming the above extract, Appellant is contending through the deponent that investigation into the alleged offences commenced as far back as 6th June 2012. Appellant said the Respondent invited him on the 10th day of July 2012, he honored the invitation and offered a statement on the same date, he was then admitted to administrative bail by the Respondent on the same date 10th July 2012, and was required to report periodically to sign a register maintained by the Respondent. Appellant said during the period of the said administrative bail he did not breach any of the terms of his bail. The deponent also said the Appellant was then invited by the Respondent on the 20th day of January 2016, deponent said Appellant was charged to Court following invitation, this therefore means the Respondent has already concluded investigation, that none of the counts of charge against the Appellant constitutes capital offence, in other words all the counts against the appellant are non-capital offences. Deponent said the Defendant pledged to defend the allegations against him, and would not engage in any conduct that will have the effect of prejudicing the Respondent.
 
From the Counter affidavit sworn to by the Respondent, deponent said, the Appellant conspired with his cohorts to obtain fake title documents, that the allegation against the Appellant is a financial crimes and it is serious, that the Appellant is not in a position to determine whether the Respondent has concluded investigation or not, and that if Appellant is granted bail would "take his flight".

The learned trial Judge upon considering the materials presented by parties, refused the application and instead made an order for accelerated hearing. The lower Court agreed that the Appellant was not standing trial for capital offence, but the allegation against him was serious, at page 183 of the record of appeal the learned trial Judge said as follows:

"Considering the applications I have noted that the offences charged falls into the category of what is called a "non-capital" offence. I have noted that both defendants are heads of their family with young children. I have noted that they never once absconded during the period they were on administrative bail as granted by the Commission. Nevertheless, I have noted that the offences charged whilst not capital in nature are very serious financial crimes both the defendants having been alleged to have obtained by false pretense the sum of -N- I.4billion from the Bank of Industry. I have considered that should the prosecution prove her case against the defendants, they face sever (sic) punishment for the 5-count offences charged which I do not consider frivolous having perused the proof of evidence placed before the court."

Apparently, from the extract above in refusing to admit the Appellant to bail, the learned trial Judge was swayed by the nature of the offence alleged against the Appellant, being 'serious financial crime' as well as the severity of the punishment. Perhaps, the learned trial Judge  reached the conclusion on the seriousness of the financial crime having regard to the amount involved in the alleged offence, that the Appellant and some other accomplice obtained by false pretense, the sum of –N- 1.4 billion, from the complainant. With due respect to the learned trial judge, seriousness of a crime is not a matter determined by logical deduction, a crime, does not become serious due to the amount of money involved. Ipso facto, the seriousness of an alleged offence for the purpose of bail proceedings is a matter of law. This position of the lower Court became completely muted when the learned trial Judge noted that the offence alleged against the Appellant falls within the category of 'non-capital offences'. Section 118(2) of the Criminal Procedure Act, Cap 80, Laws of the Federation of Nigeria, 2004 is to the effect that a person charged with a felony other than a felony punishable with death may be granted bail if the court thinks fit. Having clearly held the view that the offence is not a capital offence within the contemplation of the law, the learned trial Judge ought to have brought that consideration within the parameters of the settled position of the law. The Court in considering application for bail is not permitted to predicate its decision on its whims, sentiments, and emotions or formulate its own views of what constitutes serious offences outside the legally established considerations that constitute serious offences, discretion to grant bail by the Court must be exercised judiciously and judicially, in exercising the discretion a Judge is bound to scrutinize the materials before him without considering any extraneous matter See: BAMAIYI Vs. THE STATE, (2001) 4 S.C (Pt. II) 18. The learned trial Judge ought to have taken guidance from the decision in SULEMAN Vs. COP PLATEAU STATE [2008] 8 NWLR (Pt. 1089) 298, where the Supreme Court held as follows:

"The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free of all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused...
The most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail. The bailability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or fails 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.
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. It is a hard matter of law, facts and circumstances, which the court considers without being emotional, sensitive or sentimental.... The main function of bail is to ensure the presence of the accused at trial. That is the cynosure of all the criteria. It is the centerpiece. And so this criterion is regarded as not only the omnibus ground for granting or refusing bail, but the most important."

It is incumbent on the court to examine the evidence presented before it and ensure that there is sufficient evidence from the proof of evidence presented by the prosecution with respect to the charge brought against the Appellant. The mere fact that a prima facie reading of the information reveals that the Appellant is charged with, 'serious financial crime' is not enough ground to warrant the refusal to admit the Appellant to bail. The refusal to admit the applicant to bail should not therefore be seen as punishment.

I must say that a liberal approach should be adopted in the consideration of an accused person's entitlement to bail in non-capital offences having regard to Section 35(1) and Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) with respect to every citizen's right to personal liberty as well as presumption of innocence until an accused person is pronounced guilty by the Court. The presumption of innocence under our Constitution and criminal Justice system implies that no matter how seemingly serious an alleged offence committed by an accused person appears, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the Constitution, every Court has a duty to scrutinize allegations against accused persons, especially where frightening and high sounding counts of charges are read out against an accused person. I am particularly concerned that the Appellant in this appeal, was admitted to administrative bail on the 10th July 2012 by the Respondent, the Respondent did not allege that he breached the terms of the administrative bail granted him until 20th January 2016 when the Respondent invited him and arraigned him in Court. Appellant exhibited sincerity and respect for constituted authority, if Appellant actually had the tendency to escape from justice, I must say, he had all the opportunity on earth to do so. In my view, the Respondent cannot justify any sincere objection to bail in the circumstance. With all due respect to the learned trial Judge, this appellant from the materials before the trial Court gave every indication that he was ready to defend the allegations against him, and did not exhibit traits or tendency to escape trial. Where an accused person voluntarily submits to arrest, his application for bail becomes deserving of positive consideration. See: EBUTE Vs. STATE (1994) 9 NWLR (Pt. 984) 105. Just thinking aloud, why must the Respondent oppose bail in this case, the Appellant spent about four years shuttling between his home and the office of the Respondent, this question is necessary considering what my Lord and learned Brother of those long years ago SULU GAMBARIJCA (Now His Royal Highness HRH) said in EBUTE Vs. STATE (Supra) and I quote.

"In the case of the 6th Appellant, the facts are that he voluntarily submitted himself for arrest by the police. This fact was not adverted to by the learned trial Judge in considering the 6th Appellants bail. Before this Court, the learned Director of Public Prosecutions did not wish to oppose the appeal of the 6th Appellant on this ground. I think this was forthright of him and I commend him. I agree that the 6th Appellants bail ought to have received favorable consideration"

The learned trial Judge ought to have taken in to account the fact that the Appellant in this appeal reported to the Respondent and was admitted to administrative bail, and Appellant did not jump bail or breach the terms of his bail. On the part of the Respondent, learned Counsel for the Respondent ought to have followed the example in EBUTE Vs. STATE (Supra) having regard to the conduct of the Appellant.

The Appellant never absconded during the period he was on administrative bail granted by the Respondent. While I agree with the Respondent's counsel that the administrative bail cannot be equated with bail granted by the court, I am however swayed by the position of the law, which I have earlier emphasized, that since the essence of bail is to secure the attendance of an accused person in court to take his trial, it is only when there are cogent and convincing reasons suggesting that an accused person will abscond during trial or that there is strong likelihood of his committing more offences if granted bail, that bail should be refused. The Prosecution in the instant case did not place any material suggesting to the trial court that the Appellant will either interfere with the proper investigation of the alleged offence or that the Appellant will not attend court to take his trial if admitted to bail.

In the light of the circumstances of the instant case, the refusal to admit the Appellant to bail by the learned trial Judge in the face of available materials before the court, including the depositions of parties is without legal justification and is therefore an improper exercise of the trial court's discretion. An Appellate Court may interfere with the exercise of judicial discretion by the trial Court if it is shown that the discretion is wrongly exercised, or that the trial Court took extraneous and irrelevant materials into consideration in arriving at its decision. I hold the view that the learned trial Judge was injudicious in his exercise of discretion in this instance. This issue is therefore resolved in favor of the Appellant.
 
Appellants second issue dealing with accelerated hearing has in my view become academic, having resolved issue number one in favor of the Appellant.
On the whole, I hold that this appeal is meritorious and is hereby allowed. The Ruling of IPAYE J. of the High Court of Lagos State, delivered on 4th February, 2016 is hereby set aside. The Appellant is hereby granted bail in the following terms:
1. Appellant shall provide two sureties, who are tax-paying residents of Lagos and have landed property each, evidence of tax payment in the last three years to be filed in Court. Title documents evidencing ownership of land to be verified by the Lands Registry of the Lagos State Government before filing in Court.

2. Each Surety shall be bonded in the sum of N100,000,000 if the Appellant jumps bail.
3. Each of the sureties shall swear to an affidavit of means.
4. The lower Court shall ensure that Appellant satisfies the terms of bail.
 
JOSEPH SHAGBAOR IKYEGH, J.C.A. I agree with the judgment prepared by my learned brother, TIJJANI ABUBAKAR, J.C.A., which I had the honour of reading in print.

YARGATA BYENCHIT NIMPAR I had the privilege of reading in draft the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.
I too allow the appeal and I abide by the orders made in the lead judgment.

Counsel

Prof. Taiwo Osipitan SAN with Ayodeji Awobiyide, 0.1. Adisa, Ayodeji Faseun for the Appellant.

Kayode Oni with N. M. Anana for the Respondent