Whether Failure to File a Counter Affidavit Will Automatically Lead to The Grant of a Bail Application

CASE TITLE: ANYANWU v. FRN (2023) LPELR-61335(CA)

JUDGMENT DATE: 4TH AUGUST 2023

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: MUHAMMED LAWAL ABUBAKAR, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This is a ruling on an Application for Bail.

FACTS:

This Ruling in respect of a motion on notice filed by the Applicant on May 11, 2023, pursuant to Section 28(1) of the Court of Appeal Act, 2004, Order 17 Rule 12(6), Order 6 Rule 1 of the Court of Appeal Rules 2021 and under the inherent jurisdiction of the court, praying for an order admitting the appellant or applicant to bail pending the hearing and determination of the instant appeal against the conviction or judgment of the High Court of Imo State in charge No. How/IC/EFCC/2020 between the Federal Republic of Nigeria v. Prince Lasbery Okafor Anyanwu, delivered on March 14, 2023, by the lordship, Hon. Justice K.A. Leweanya.

The applicant filed a six-paragraph Affidavit and also advanced seven (7) grounds upon which this application is brought. However, the respondent counsel stated in his oral submission that they are not opposing the said Application as such and have not filed any counter-affidavit, but they have filed a notice of preliminary objection on July 18, 2023, seeking an order dismissing the application for bail as it is an abuse of Court process, having filed a similar Application at the trial Court.

ISSUES FOR DETERMINATION:

The Court determined the application on the sole issue, viz:

“Whether the Applicant is entitled to bail pending Appeal and Whether this Court has the discretion to do so?”

DECISION/HELD:

In the final analysis, the application for bail was granted.

RATIOS:

• PRACTICE AND PROCEDURE – OBJECTION TO JURISDICTION – Whether an objection to the jurisdiction of the court must be taken first
• PRACTICE AND PROCEDURE – ABUSE OF COURT/JUDICIAL PROCESS(ES) – What constitutes abuse of Court process
• COURT – JURISDICTION – Importance of jurisdiction and effect of proceedings conducted where Court lacks jurisdiction
• JURISDICTION – APPELLATE JURISDICTION – Scope of the appellate jurisdiction of the Court of Appeal
• PRACTICE AND PROCEDURE – APPLICATION(S)/MOTION(S) – Whether where an appeal has been filed in a suit, every application in the suit must be made to the appellate Court
• EVIDENCE – AFFIDAVIT EVIDENCE – Effect of uncontroverted facts in an affidavit
• CRIMINAL LAW AND PROCEDURE – BAIL – Factors to be considered in granting bail pending appeal
• CRIMINAL LAW AND PROCEDURE – BAIL – Whether failure to file a counter affidavit will automatically lead to the grant of a bail application
• APPEAL – FILING/ENTRY OF APPEAL – At what point is an appeal deemed to have been entered and effect of same

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