CORAM
Ali abubakar Babandi Gumel Justice Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
PARTIES
DR. JAMES TERSEE KORINJO
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, CONSTITUTIONAL LAW, HUMAN RIGHTS, BAIL APPLICATION, JUDICIAL DISCRETION, APPEAL, PRACTICE AND PROCEDURE, CRIMINAL PROCEDURE, EVIDENCE
SUMMARY OF FACTS
The Appellant, Dr. James Tersee Korinjo, was arraigned before the High Court of Borno State in Charge No. BOHC/MG/CR/96/2024 on charges of criminal intimidation and voluntarily causing hurt, punishable under Sections 379(b) and 223(1) of the Penal Code, Laws of Borno State, 2023. After pleading not guilty, the Appellant applied for bail, which the Respondent opposed.
In a terse ruling, the lower Court dismissed the bail application, stating only that the Appellant was charged with serious offenses and that it was not inclined to exercise its discretion to grant the application. The Court ordered an accelerated hearing but did not indicate what factors informed its exercise of discretion.
Dissatisfied with this decision, the Appellant immediately appealed against the ruling. The parties filed and exchanged briefs of argument, which were adopted at the hearing of the appeal on January 27, 2025.
HELD
2. The decision of the lower Court was set aside.
3. The Appellant was admitted to bail on specific terms, including:
o Bail in the sum of N20 million with two sureties in like sum
o Sureties must be resident and gainfully employed within the court’s jurisdiction with proof of tax payment
o One surety must own landed property valued at not less than N25 million
o Verification of sureties’ addresses and property by the Court’s Deputy Chief Registrar
o Surrender of the Appellant’s international passport
o Written recommendation of sureties by Appellant’s counsel
ISSUES
Whether going by the facts and circumstances of this appeal, the Appellant is entitled to be admitted to bail pending the hearing and final determination of the charge.?
RATIONES DECIDENDI
EXERCISE OF DISCRETION — JUDICIAL AND JUDICIOUS EXERCISE OF DISCRETION
“The grant of bail is discretionary, which discretion like all judicial discretions is exercised judicially and judiciously. While the lower Court stated that it is not inclined to exercise discretion in granting the application, it did not indicate what factors informed this manner of exercise of discretion.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRIMARY OBJECT OF BAIL — ENSURING ATTENDANCE AT TRIAL
“The primary object of bail is to ensure that the accused person will attend Court to stand his trial.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
MEANING OF JUDICIAL AND JUDICIOUS — DISCRETION TO GRANT OR REFUSE BAIL
“The grant of bail is at the discretion of the Court. But as with all instances of judicial discretion, the discretion to grant or refuse bail must satisfy the concurrent requirements of what is ‘judicial’ and ‘judicious’ to avoid the arbitrariness of an unpredictable personal decision. ‘Judicial’ means that the discretion must be exercised within the precincts of law, whilst ‘judicious’ implies that the exercise of discretion must take into cognisance all the facts and surrounding circumstances of the case at hand and be replete with intellectual candour and tenacity of mind and purpose. By its very character, judicial discretion does not brook any capricious exercise of power according to private fancies, whims and affections.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
INTERPRETATION OF SECTION 167 — LIBERALIZATION OF BAIL
“By the stipulations of the Borno State Administration of Criminal Justice Law, 2023, the grant of bail has become so liberalised that a lot of burden to show why an accused person should not be admitted to bail is now on the Prosecution. But, notwithstanding these liberal provisions, the grant of bail is never a right or to be taken as automatic as every Court seised of a criminal charge in which the accused person applies for bail, is entitled to apply the judicially laid down guidelines in exercising its discretion, and the most fundamental of these guidelines is the probable prospect that the Defendant will be available to face his trial.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ADMINISTRATION OF CRIMINAL JUSTICE LAW SECTION 167 — APPLICATION TO BAIL
“The above stipulation, properly contextualized is translucent that notwithstanding the use of the phrase: ‘shall on application to the Court, be released on bail’; a Court faced with an application for bail, where the said section applies, still has the discretion to grant or refuse such application because the Court is to determine whether or not the circumstances enumerated in the sub-sections thereto apply to the case before it.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
NATURE OF BAIL RIGHT — CONTRACTUAL RIGHT
“The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for 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.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EXPLANATION OF JUDICIAL DISCRETION — MANNER OF EXERCISE
“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously… The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties. But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ARGUMENT OF APPEAL — CIRCUMSCRIBED BY GROUNDS OF APPEAL
“It is hornbook law that the argument of an appeal is not at large, the argument in an appeal is circumscribed by the grounds of appeal filed and the issue(s) distilled therefrom.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUMPING BAIL — NOTICE OF ABSENCE
“I have insightfully considered the affidavits exchanged at the lower Court. The Appellant in paragraph 4 (a) — (d) of his further affidavit (see pages 38-40 of the Records of Appeal) deposed that he wrote to the Police authorities, notifying them on his inability to attend the Police station on the fixed date as he had to attend his father’s obsequies. The documents in this regard are attached as Exhibits A and B. This is not a conduct that could by any stretch of imagination be construed as jumping bail. A person who intends to jump bail, does not give notice that he would do so.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPELLATE INTERVENTION — WHEN AN APPELLATE COURT WILL INTERFERE WITH DISCRETION
“An appellate Court does not lightly interfere with the exercise of discretion by a trial Court. This is so because no one case can be an authority for the other in matters of discretion, for if it were otherwise that would put an end to the exercise of discretion. Thus, where a trial Court has exercised its discretion properly in accordance with established principles, an appellate Court will not lightly interfere merely on the ground that it would have exercised the discretion differently. However, where the exercise of discretion is premised on extraneous matter or the Court fails or neglects to consider something it ought to have taken into consideration, an appellate Court will interfere.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PURPOSE OF BAIL — NOT PUNISHMEN
“The bounden duty of a Court at the stage of application for bail pending trial, is not to punish the accused person for the offences with which he is charged: [see IKHAZUAGBE vs. C.O.P. (2004) 7 NWLR (PT 872) 346 at 363], but to prescribe bail conditions that will ensure his attendance in Court at the trial.” — Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
BURDEN OF PROOF — APPLICANT’S INITIAL BURDEN
“I, however, wish to add that the law is settled and well established that an applicant, as the Appellant in the instant appeal, for bail in a criminal offence punishable by more than three years imprisonment, has to place such materials before the Court to show that he is entitled to it. The first burden is thus placed on him and the prosecution must thereafter by some prima facie evidence, show that the case against the accused is strong and that he is not likely to appear to stand his trial if he is admitted to bail and/or there is the likelihood that he will engage in similar or other criminal activities or that he will tamper with or interfere with prosecution witnesses etc.” — Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.
THOROUGH CONSIDERATION — REQUIREMENT FOR PROPER EXERCISE OF DISCRETION
“In other words, the exercise of a discretionary power must be done devoid of sentiments but must be fair, unprejudiced, not arbitrary, whimsical or capricious but after a VERY THOROUGH (capitalisation is for emphasis) consideration of all the relevant requisite factors.” — Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Penal Code, Laws of Borno State, 2023
• Borno State Administration of Criminal Justice Law, 2023