Legalpedia Citation: (2023-06) Legalpedia 07594 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Mon Jun 26, 2023

Suit Number: CA/LAG/CR/1220/2022

CORAM

JIMI OLUKAYODE BADA JCA

ABDULLAHI MAHMUD BAYERO JCA

MUHAMMAD IBRAHIM SIRAJO JCA

PARTIES

ABUBAKAR ALI PETERS

APPELLANTS

1. THE FEDERAL REPUBLIC OF NIGERIA
2. NADABO ENERGY LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, FINANCIAL CRIMES, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

Briefly the facts of the case are that the Appellant and Nadabo Energy Limited are standing trial before the trial Court for the offences of obtaining money by false pretences, forgery, and uttering of forged documents since 2015.

The Appellant brought a motion before the trial Court seeking the release of his International Passport to him to enable him travel abroad for Medical Treatment. The 1st Respondent opposed the application and in a considered ruling, the trial Court refused the application.

Also, without any application the trial Court suo motu revoked the perfected bail the Appellant had enjoyed since the commencement of his trial and the conditions which he had never violated.

The Appellant who is dissatisfied with the ruling of the trial Court appealed the revocation of bail and the ruling on his application.

 

HELD

Appeal dismissed

 

ISSUES

1. Whether the unsolicited revocation of the Appellant’s bail by the trial Court in the course of determining an application for the release of his International Passport to travel abroad to take care of his health was in accord with the dictates of Justice and the existing law and whether this decision did not hereby breach the Appellant’s right to fair hearing and presumption of innocence guaranteed by Section 36 of the 1999 Constitution?
2. Whether the trial Court was correct in law particularly the provisions of the 1999 Constitution when it ceded its judicial powers to the Prosecution to assume an adjudicatory role and thereby participate in the determination of the strictly judicial question of whether the Appellant has fulfilled the bail conditions granted by the Court?
3. Whether the trial Judge failed to properly exercise her discretion when she refused the grant of the Appellant’s application praying for a temporary return of the Appellant’s Passport to him so that he could proceed abroad for urgent medical consultation?

RATIONES DECIDENDI

BAIL – WHEN COURTS HAVE JUDICIAL DISCRETION TO GRANT BAIL

It is settled law that bail, is to secure and ensure the presence of an accused person at the trial of his case.

By virtue of the Administration of Criminal Justice Law, a person charged with a felony other than one punishable with death may be granted bail if the Court deems it fit. The decision whether or not to grant bail in such cases is a matter within the judicial discretion of the trial Judge. – Per J. O. Bada, JCA

REVOCATION OF BAIL – DISCRETIONAL POWERS OF COURTS IN REVOCATION OF BAIL

Section 128 of the Administration of Criminal Justice Law of Lagos State 2011 (as amended) empowers the trial Court to suo motu revoke the bail of the Appellant standing trial before it.

The said Section 128 of the ACJL provides thus:-

“If at any time after a recognizance has been entered into, it appears to the Court that for any reason the surety or sureties is/are unsuitable, the Court may issue a summons or warrant for the appearance of the defendant and upon his coming to Court may order him to execute a fresh recognizance with other surety or sureties as the case may be.”

As could be seen from the provision above, the revocation of bail by the trial Court did not in any way violate the right of the Appellant under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The said Section 128 of the ACJL empowers the Court to revoke bail of an Applicant without proffering any reason.

The keyword under the Section is – “…….if it appears to the Court that for any reason the surety or sureties is/are unsuitable……..”

In FAWEHINMI VS. I. G. P. (2002) 7 NWLR PART 767 PAGE 606 it was held amongst others thus:-

“Unless a statute which confers power or impose duties expressly or by necessary implication exclude the exercise of discretion, or the duty demanded is such that leaves no room for discretion, discretionary powers are implied and whenever appropriate exercised for salutary ends.” – Per J. O. Bada, JCA

 

BIAS – MEANING OF JUDICIAL BIAS AND WAYS OF ESTABLISHING JUDICIAL BIAS

In this case, the Police Officer assigned by the Court to verify the residential address of the sureties to the Appellant is neither a member of the team that investigated the case nor a member of the Prosecuting team, therefore I agree with the submission of the Learned Counsel for the 1st Respondent that verifying the address of surety by a Police Officer assigned to a Court does not make such officer a party to the case and therefore does not affect the neutrality of the trial Judge.

In KAYODE BABARINDE & OTHERS VS. THE STATE (2014) 3 NWLR PART 1395 PAGE 568. On the meaning of “Judicial Bias” and “Bias” it was held amongst others as follows:-

“In WOMILOJU VS. ANIBIRE (2011) 10 NWLR PART 1203 PAGE 545 AT 571 PARAGRAPHS G – H His Lordship Adekeye, JSC considered the term “Judicial Bias” and “Bias” as defined in Black’s Law Dictionary 8th Edition thus:- “A Judge’s bias towards one or more of the parties to a case over which the Judge presides.

Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the Judge’s bias must be personal or based on some extrajudicial reason.

In the case of KENON VS. TEKAM (2001) 14 NWLR PART 732 PAGE 12 bias is defined as – “An opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale “(Emphasis supplied) His Lordship went to consider the test for determining the real likelihood of bias by referring inter alia to the case of Metropolitan Properties Co. (F. G. C.) Ltd. vs. Lannon (1969) Q. B. 527 at 599. Also in Womiloju’s case (supra) I.T. Mohammed JSC stated at page 566 G. “The question (whether there is a real likelihood of bias) is always answered by inference drawn from the circumstances of the case. The reason for this attitude of the Court is that it would be unseemly for the Court to purport to pry into the state of mind of any judicial officer. See – ABIOLA VS. FEDERAL REPUBLIC OF NIGERIA (1995) 7 NWLR PART 405 PAGE 1.”

The effect of these decisions is that where the conduct of a trial Judge is impugned, a Court looking into the matter would be guided by the inference that could be drawn by an ordinary bystander observing the proceedings.” – Per J. O. Bada, JCA

 

BIAS – MEANING OF JUDICIAL BIAS AND WAYS OF ESTABLISHING JUDICIAL BIAS

“In this case, the Police Officer assigned by the Court to verify the residential address of the sureties to the Appellant is neither a member of the team that investigated the case nor a member of the Prosecuting team. Therefore, I agree with the submission of the Learned Counsel for the 1st Respondent that verifying the address of a surety by a Police Officer assigned to a Court does not make such officer a party to the case and therefore does not affect the neutrality of the trial Judge.

In KAYODE BABARINDE & OTHERS VS. THE STATE (2014) 3 NWLR PART 1395 PAGE 568, the meaning of “Judicial Bias” and “Bias” was elucidated. Amongst other points, it was held:

“In WOMILOJU VS. ANIBIRE (2011) 10 NWLR PART 1203 PAGE 545 AT 571 PARAGRAPHS G – H, His Lordship Adekeye, JSC considered the term “Judicial Bias” and “Bias” as defined in Black’s Law Dictionary 8th Edition thus: “A Judge’s bias towards one or more of the parties to a case over which the Judge presides. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the Judge’s bias must be personal or based on some extrajudicial reason.

In the case of KENON VS. TEKAM (2001) 14 NWLR PART 732 PAGE 12, bias is defined as – “An opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale “(Emphasis supplied). His Lordship went to consider the test for determining the real likelihood of bias by referring inter alia to the case of Metropolitan Properties Co. (F. G. C.) Ltd. vs. Lannon (1969) Q. B. 527 at 599. Also in Womiloju’s case (supra) I.T. Mohammed JSC stated at page 566 G. “The question (whether there is a real likelihood of bias) is always answered by inference drawn from the circumstances of the case. The reason for this attitude of the Court is that it would be unseemly for the Court to purport to pry into the state of mind of any judicial officer. See – ABIOLA VS. FEDERAL REPUBLIC OF NIGERIA (1995) 7 NWLR PART 405 PAGE 1.”

The effect of these decisions is that where the conduct of a trial Judge is impugned, a Court looking into the matter would be guided by the inference that could be drawn by an ordinary bystander observing the proceedings.” –Per J. O. Bada, JCA”

COURTS – CONDUCT OF THE COURT AND PARTIES IN CURTAILING UNNECESSARY DELAYS IN ADJUDICATION

“One of the reliefs being sought by the Appellant is to transfer the case from the trial Court to another Court. We are now in 2023. I am of the view that the hearing in this case has been unnecessarily delayed and it would be further delayed if transferred to another Court to start hearing de novo. The Appellant should be interested in the prompt determination of his case instead of pursuing interlocutory appeal.

The Supreme Court in DARIYE VS. FRN (supra) condemned this type of practice when the Court observed, per Rhodes-Vivour JSC, at page 358, as follows:

“It has been the practice since the Third Republic commenced in 1999 for well-to-do individuals who face criminal cases to ensure such trials never proceed. This is done by filing in Court relevant and irrelevant applications, appeals all designed to stop the trial from proceeding to conclusion. This is a disturbing trend that has been allowed to fester for too long. The Courts should rise and stop this disturbing trend in our Criminal Justice System. Happily, both Courts below and this Court have done so in this case.”-Per J. O. Bada, JCA”

SPECIAL CRICUMSTANCES – DUTY OF PARTY TO SHOW SPECIAL CRICUMSTANCES

“I am of the view that it is only when the Appellant shows by medical tests and reports that his ailment cannot be handled by these hospitals in Nigeria that he can apply to travel abroad for such medical treatment.

It is necessary for the Appellant to show special circumstances before this type of application can be granted. See – GEORGE VS FRN (2010) 11 NWLR PART 1206 PAGE 531. – FAWEHINMI VS STATE NO. 2 (1990) 1 NWLR PART 127 PAGE 486.-Per J. O. Bada, JCA”

BAIL – THE JUDICIAL DISCRETION OF THE JUDGE TO GRANT BAIL

As I said earlier in this judgment, the decision whether or not to grant bail is a matter within the judicial discretion of the Judge. Judicial discretion has been defined by the Black’s Law Dictionary 8th Edition – as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of Law. – Per J. O. Bada, JCA

CASES CITED

NIL

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Administration of Criminal Justice Law of Lagos State 2011 (as amended)
3. Court of Appeal Act 2004

 

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