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In The Supreme Court of Nigeria
On Friday, the 7th day of March
2008
Before Their Lordships
S.C.
19/2005
Between
And
Judgement of the Court
Delivered by
Sunday Akinola
Akintan JSC
The two appellants were arrested and
detained at Garga Police Station in Plateau
State for armed robbery sometime in October, 2002. They were later
transferred to Jos Police Headquarters and then
to Jos C.I.D where
they were detained for quite sometime before they were arraigned before the
Chief Magistrate Court, Jos on 11th
December, 2002. They then caused to be issued a summon
to admit them to bail pending trial at the Jos
High Court. The application was supported with a 5 paragraph affidavit.
Paragraph 3 of the supporting affidavit
deposed to by one Serah Ibrahim, Litigation
Secretary, in the law firm of the appellants' counsel, read as follows:
"3.
That I have been informed by the Applicants in
Jos Prison on 9/3/2003 at 12.00 noon while briefing
A.A Sangei Esq. of
Counsel and verily believe their information to be true:
(a)
That the Applicants were arrested and detained at
Garga Police Station for alleged offence of
Armed Robbery sometimes in October, 2002.
(b)
That they were later transferred to Jos
Police Headquarters and finally transferred to Jos
C.I.D. where there were detained for a long
time.
(c)
That the Applicants did not commit the alleged offence on the F.I.R.
A copy of the F.I.R. is hereby annexed and marked as Exhibit "A".
(d)
That the Applicants were subsequently arraigned before the Chief
Magistrate Court 11, Jos on the 11/12/2002 after
staying at C.I.D. Jos
for a long time.
(e)
That the Chief Magistrate Court 11 Jos
ordered for the remand of the Applicants at the Jos
Prison. The proceedings are annexed hereto and market as exhibit "B".
(f)
That the Applicants have been in prison since 11/12/2002.
(g)
That the Respondent is not willing to prosecute the applicants. That
the Respondent only want the applicants to be
detained in prison custody without prosecution.
(h)
That the Applicants will not jump bail, they will also appear in
court for their case.
(i)
That the Applicants will not interfere with proper police
investigation in case any is remaining.
(j)
That the
Applicants will
provide credible and reliable surety/sureties as this Honourable
Court may order."
The application was opposed and to that end,
a 15 paragraph counter affidavit deposed to by one Joseph
Chinda, an Assistant Superintendent of Police
(ASP) attached to the Special Anti-Robbery Section, C.I.D Plateau State
Police Command, Jos. The facts relied on are
contained in paragraphs 1 to 11 of the counter-affidavit which read as
follows:
"1.
That I am the sectional head of the team of Police Officers
Investigating the case of criminal conspiracy, Armed Robbery and culpable
Homicide Offences that the applicants and other culprits now at large are
standing trial for, by virtue of the said position I am very conversant with
the facts deposed to herein.
2.
That I have read through the summons to admit the applicants to bail
pending their trial as well as supporting affidavit and I know as a matter
of fact that paragraph 3 (c, g, h, I and j) are not true.
1.
That Police investigating into the case is still in progress with the
view of arresting the co-cohorts of the applicants that are still at large,
and that should the applicants be released on bail, they (applicants) will
not only elope justice but that they may tamper with Police investigation.
2.
That the applicants have made useful statements to the Police to be
effect that they are members of a gang of armed-robbers
that have committed series of armed robberies within
Dengi-Kanam and its environs and Plateau State in particular in the
recent past as well as neighbouring Bauchi
State.
3.
That working on the above information given to the Police by the
applicants, the detectives have since gone into action with the view of
arresting the remaining culprits from their hide cuts.
4.
That based on further clues discovered by the Police against the
applicants and others into the case, they (Police) shall substitute the
initial First Information Report (F.I.R) with new one to include the other
offences that were not included in the old First Information Report (F.I.R)
against the applicants.
5.
That this will be done as soon as the investigating Police Officers (I.P.Os)
who are in possession of the case file diary return from their special
assignments in connection with this very case that the application for the
application for bail is been sought by the applicants.
6.
That the delay in the arraignment of the applicants before the court
all these while is not unconnected with the constant strike actions by both
the Federal Civil Servants and Plateau State in particular, Ministry of
Justice Plateau State, Jos inclusive since
2002/2003 and of late, the recent Nigerian Labour Congress (N.L.C) as a
result of the fuel prices that were increased by the Federal Government of
Nigeria.
7.
That the Ministry of Justice Plateau State , Jos
who is to file the necessary application before the High Court for leave to
prefer a charge against the applicants was not left out of the strike stated
in paragraph 8 above and the current Nigerian Bar Association (N.B.A)
Plateau State, Jos Branch law week.
8.
That now the strike action have been suspended by both Federal and
State Civil Servants, I verily believe that the Ministry of Justice Plateau
State, Jos, will make the necessary application
to the High Court of Justice Plateau State, Jos
for leave to prefer a
charge against the applicants.
9.
That since the arrest and detention of the applicants there had been
a rapid decline of robbery incident in Shuwaka
Garga village of
Dengi-Kanam Local Governemt Area of
Plateau State and Plateau State in general."
The application thereafter came up for
hearing before Damulak, J. sitting at
Jos High Court, After taking submissions from
learned counsel for the parties, delivered his reserved ruling on 20th
October, 2003. The learned Judge, after reviewing all the issues
raised in the matter, came to the conclusion that
there was no merit in the application.
He therefore dismissed it. He said as follows in the concluding
paragraph of his said ruling:
"In
the circumstances, I find that the application does not succeed and is
hereby dismissed. It is ordered that investigation into the matter be
stepped up and the applicants be charged before the High Court forthwith."
The appellants were dissatisfied with the
ruling and their appeal to the Court of Appeal Jos
Division was dismissed. This is an appeal from the judgment of the Court of
Appeal (hereinafter referred to as Court below). The parties filed their
briefs of argument in this court. The following two issues are formulated in
the appellants' brief which were also adopted by the respondent in the
respondent's brief: ,
"1.
Whether or not the Court of Appeal exercised its discretion
judicially and judiciously when it dismissed the appellants' appeal
2.
Whether or not the Court of Appeal was right when it upheld the
decision of the trial court which refused to be bound by
the decision of the Court of Appeal in
Anaekwe v. C. O. P. (2004) 17 NWLR (Pt 901)1; and Musa v.
C.O.P. (2004) 9 NWLR (Pt 879);483."
It is submitted in the appellants' Issue 1
that the learned Justices of the Court below were in error when they
affirmed the decision of the trial High Court which is said not to have been
exercised judicially and judiciously having regard to the circumstances of
the case as depicted by the depositions of the parties. The court below is
specifically accused of disregarding the appellants' right to presumption of
innocence as envisaged by Section
36(5) of the 1999 Constitution. It is further submitted that the
applicants having deposed to specific facts in paragraph 3 (c) to (k) which
facts are not denied, the court below is said to be in error in dismissing
the appeal.
It is submitted in the appellants' Issue 2
that the court below was in error when it affirmed the decision of the trial
court which refused to be bound by the decisions of the Court of Appeal in
some named cases where such applications were granted. Particular reference
was made to the case of Oshinayo v.
Commissioner of Police (2004) 17
NWLR (Pt. 901) 1 which was a case involving armed robbery where bail was
granted to the accused person.
It is submitted in reply, in the
respondent's brief that the criteria that should guide the courts in
deciding whether to grant or refuse an application for bail are well laid
down by this court in numerous decisions of this court, particularly in
Dokubo-Asari
v. Federal Republic of Nigeria
(2007) All FWLR (Pt. 375) 558;
at 572; and
Bamayi v. The
State (2001) FWLR (Pt, 46) 956 at 984. It is also argued
that the bailability of an accused depend
largely on the weight the judge attached to one or several of the criteria
open to him in any given case. The court below in this case is said to have
exercised its discretion judicially and judiciously when it dismissed the
appellants' appeal having regard to the facts tendered in the case.
It is further submitted that the presumption
of innocence does not make the grant of bail automatic since there is always
the discretion to refuse bail if the court is satisfied that there are
substantial grounds for believing that the applicant for bail pending trial
would abscond or interfere with witnesses or otherwise obstruct the course
of justice. The crucial factor is said to be the existence of substantial
ground for the belief that he would do so.
It is submitted in reply on Issue 2 that
since the issue of grant or refusal of bail is a discretionary matter,
previous decisions are not of much value. They are therefore said not to be
binding but can only offer broad guidelines as each exercise of discretion
depends on the facts of each case.
The question to be resolved in this appeal
is whether the Court of Appeal was right in its decision to dismiss the
appeal before it and affirming the order of the trial High Court by which
the appellants' application for bail was refused. It is not in doubt that
the decision whether to grant or refuse an application for bail involves
exercise of judicial discretion in every case. The word “discretion” when
applied to public functionaries, a term which includes judicial officers, is
defined in Black Law Dictionary,
6th edition, 1990,
page 466 as meaning:
"A power or right conferred upon them by law
of acting in certain circumstances, according to the dictates of their own
judgment and conscience, uncontrolled by the judgment or conscience of
others. It connotes action taken in light or reason as applied to all facts
and with view to rights of all parties to action while having regard for
what is right and equitable under all circumstances and law."
The criteria to be followed in taking a
decision in cases of this nature as laid down by this court
include :
(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; and
(x)
the necessity to procure medical or social
report pending final disposal of the case.
See
Bamaiyi v.
The
State
(2001) 8 NWLR (Pt. 715) 270;
Dokubo-Asari
v.
Federal Republic of Nigeria
(2007) All FWLR (Pt. 375) 558;
Abacha v. The
State (2002) 5 NWLR (Pt.
761) 638;
Ani v. The
State (2002) 1 NWLR (Pt. 747) 217;
Ekwenugo v. Federal Republic of Nigeria
(2001)
6 NWLR (Pt. 708) 9;
and Eyu v. The
State (1988) 2 NWLR (Pt. 78) 607.
It follows, therefore, that a judicial
officer saddled with the responsibility of exercising a
discretion is required to arrive at the decision in every case or
situation based on the facts placed before him in the very case and apply
the applicable law. His decision is therefore likely to vary from case to
case since the circumstances in each case may vary. The question of
stereotype or strict application of the rule of judicial precedent would not
be of importance.
Thus from the facts of this case as set out
in the affidavit evidence filed by the parties, the appellants were first
arrested and detained for armed-robbery sometime in October, 2002. As at the
time of their arrest, there was a wave of armed-robberies in the
Jos area and the police told the court of the
need to detain the appellants pending their efforts to arrest the remaining
members of the gang of robbers terrorizing the area.
This was the situation as at the time when
the appellants were arraigned before the Chief Magistrate Court,
Jos who ordered their detention in prison
custody. It will therefore be totally out of place to say that the trial
High Court who refused their application for bail failed to properly
exercise its judicial discretion judiciously and judicially having regard to
the above facts presented to him.
Similarly, the court below could not be
blamed for upholding the decision of the trial Court by dismissing the
appellants' appeal. This is because there were no justifiable reasons placed
before it to warrant querying or tampering with the trial Judge's exercised
of his judicial discretion by refusing the application before him in the
case. The learned trial Judge went further when he ordered in the concluding
paragraph of his ruling that: "investigation into the matter
be stepped up and the applicants be charged
before High Court forthwith."
The ruling of the High Court was delivered
on 30th October, 2003 while the judgment of the Court of Appeal
was delivered on 8th December, 2004. On 13th December,
2007 when this appeal came up for hearing in this court, the order of the
learned trial Judge made on 30th October, 2003 that the police
should step up their investigation into the and charge the appellants before
the High Court forthwith had not been complied with. This is because we were
told that the appellants were still being remanded in prison custody on the
order of the Jos Chief Magistrate. The flagrant
breach of that order on the part of the Police has given credence to the
averment in paragraph 3 (g) of the affidavit in support of the appellants'
application where it is averred:
"That the respondent is not willing to
prosecute the applicants. That the respondent only wants the applicants to
be detained in prison custody without prosecution."
The disclosure that the appellants are yet
to be arraigned before the High Court since their arrest in October, 2002 is
totally unacceptable and cannot be justified under the guise that the police
are yet to complete their investigations.
In the result, there is absolute
justification in not allowing the continued detention in prison custody of
the appellants as ordered by the Jos Magistrate
Court. The appeal is therefore allowed. It is hereby ordered that the
appellants be allowed on bail each in the sum of
The sureties are to be resident in
Jos area and supply proof of ownership of
residence property in the Jos area.
Judgment Delivered by
Niki
Tobi, JSC
The appellants were arrested in connection
with the attack on Alhaji Hassan
Madugu and his family with cutlasses and sticks
by inflicting injuries on the head of Alhaji
Hassan Madugu. There was also an allegation that
the appellants made away with
The appellants applied for bail pending
trial before the High Court. The learned trial Judge dismissed the
application. He said in the last two paragraphs of his Ruling at page
24 of the Record:
"In the case, there is no proof of evidence
exhibited or annexed to the application. Can that per se tantamount
the grant of bail to an accused person facing the charge of armed robbery? I
do not think so more so that the appellants did not deny the contention in
the counter-affidavit of the respondent. The averments in the
counter-affidavit are rather serious considering the rampant occurrence of
incidents of armed robbery in this part of the country particularly in
Kanan area. In view of the magnitude of the
offence alleged the severity of the punishment and the rampant occurrence of
the crime coupled with the fact that investigation is still in progress and
the failure of the applicants to counter the averments of the respondent, my
discretion is in favour of refusing rather than granting the application. In
the circumstances I find the application does not succeed and is hereby
dismissed. It is ordered that investigation into the matter be stepped up
and the applicants be charged before the High Court, forthwith."
An appeal to the Court of Appeal failed.
That court dismissed the appeal. Quoting part of the above statement of the
learned trial Judge, the Court of Appeal said at page 63 of the Record:
"I agree with the learned trial Judge. I
would in the circumstances also resolve Issue No. 2 against the
Appellants and also dismiss grounds 2 and 5 of the grounds of appeal from
which the issue was distilled. In the final analysis, this appeal fails and
it is hereby dismissed, being without merit. The Ruling of
Damulak, J. delivered on 30th
October, 2002 is therefore affirmed."
Dissatisfied, the appellants have come to
the Supreme Court. Briefs were filed and duly exchanged. The appellants
formulated the following issues for determination:
"1.
Whether or not the Court of Appeal exercised its discretion
judicially and judiciously when it dismissed the appellants' appeal
(distilled from Grounds 1, 3, 5 and 6).
2.
Whether or not the Court of Appeal was right when it upheld the
decision of the Trial Court which refused to be bound by the decisions of
the Court of Appeal in
Anaekwe
v. COP (1996) 3 NWLR (Pt. 436)
320;
Oshinaya v. COP (2004) 17
NWLR (Pt. 901) 1 and Musa v. COP
(2004) 9 NWLR (Pt. 879) 483 (distilled from Grounds 2 and 4)."
Respondent adopted the above issues
formulated by the appellants.
Learned counsel for the appellants, Mr. A.
A. Sangei, submitted on issue No 1, that
the Court of Appeal was in error by affirming the decision of the trial
Court, a decision which contravened the appellants' right to presumption of
innocence in the Constitution. He vehemently attacked the allegation by the
respondent that the appellants made useful statements in the matter. He
argued that the useful statements alleged by the respondent, being official
documents and proceedings, the originals or certified true copies ought to
have been produced. He cited
Ezemba
v. Ibeneme
(2004) 14 (Pt. 894) 617;
Fashanu
v. Adekoya
(1974) 6 SC 83;
Kimdey
v. Military Governor of Gongola State
(1988) 2 NWLR (Pt. 77) 445;
Agagu
v. Dawodu (1990) 7 NWLR
(Pt. 160) 56 and sections 111(1)
and 132(1) of the Evidence Act.
He also cited section 149(d) of
the Evidence Act on the failure
of the respondent to place before the court the alleged useful statements.
Taking Issue No. 2, learned counsel
submitted that the Court of Appeal was in error when it affirmed the
decision of the trial court which refused to be bound by the decisions of
that court in
Anaekwe v. Commissioner of
Police, supra; Musa v.
Commissioner of Police (2004) 9 NWLR (Pt. 879) 483;
Oshinaya
v. Commissioner of Police (2004)
17 NWLR (Pt. 901) 1 and
Ogueri
v. The State
(2002) 2 CLRN 14. He
argued that the Court of Appeal was bound by its previous decisions. He
urged the court to allow the appeal.
Learned counsel for the respondent, Mr. Bola
Olotu, enumerated ten criteria for granting bail
and contended that the bail ability of an accused depends upon the weight a
Judge attaches to one or several of the criteria open to him in any given
case. He cited
Asari
v. Federal Republic of Nigeria
(2007) FWLR
(Pt. 375) 558 and
Bamaiyi
v. The State
(2001) FWLR (Pt. 46) 956. He submitted that the Court of Appeal
exercised its discretion judicially and judiciously and did not disregard
the appellants' right to presumption of innocence.
Reacting to the submission of learned
counsel for the appellants on the issue of useful statements made by the
appellants, counsel argued that a statement need not necessarily be in a
document and there is nothing from the respondent suggesting that the
statements were in a document to necessitate their being exhibited.
On issue No. 2, learned counsel
submitted that the issue of grant or refusal of bail is a discretionary
matter and in matters of discretion, previous decisions are not of much
value, thus not binding but can only offer broad guidelines, as each
exercise of discretion depends on the facts of each case. He cited
Asari
v. Federal Republic of Nigeria, supra and
Abacha
v. The State
(2002) FWLR (Pt. 98) 863. He urged the court to dismiss the
appeal.
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.
The contractual nature of bail is provided
for in section 345 of the
Criminal Procedure Code. The
section provides that before any person is released on bail, he must execute
a bond for such sum of money as determined by the police or the court on the
condition that such a person must attend at the time and place mentioned
therein until otherwise directed. And if the person is released on bail, the
sureties must execute the same or another bond or other bonds containing
conditions to the same effect. See generally
Local Government Police v.
Abiodun
(1958) WRNLR
212.
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 bail ability 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 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.
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 general criteria for granting bail are;
(a)
the availability of the accused to stand
trial,
(b)
The nature and gravity of the offence,
(c)
The likelihood of the accused committing offence while on bail,
(d)
The criminal antecedents of the accused,
(e)
The likelihood of the accused interfering with the course of justice.
The above general criteria apart, the
criteria for granting pre-trial bail or bail by trial court include
(a)
Likelihood of further charge being brought,
(b)
The probability of guilt,
(c)
Detention for the protection of the accused,
(d)
The necessity to procure medical or social report pending a final
disposal of the case.
I will not consider all the above criteria.
I will only deal with the two which are relevant to this appeal. They are
the availability of the accused to stand trial and the nature and gravity of
the offence. First, the availability of the accused to
take his trial. The main function of bail is to ensure the presence
of the accused at the trial. That is the cynosure of all the criteria. It is
the centre-piece. And so this criterion is regarded as not only the omnibus
ground for granting or refusing bail, but the most important.
The second criterion, as I have mentioned,
is the nature and gravity of the offence, it is the belief of the law that
the more serious the offence, the greater the incentive to jump bail,
although this is not invariably or for all times true. For instance, an
accused person charged with murder, as in this case, is more likely to flee
from the jurisdiction of the court then one charged with affray. The
distinction between capital offences and non-capital offences in one way
"crystallized from the realization that the atrocity of the offence is
directly proportional to the probability of the defendant absconding." See
"Notes: Judicial Discretion in
Granting Bail", (1952) 27 St. John's Law Review, page 64. The above is
subject to the qualification that there may be less serious offence in which
the court may refuse bail, because of its nature.
I should now consider three cases where bail
was granted in murder offences. In
Enwere
v. Commissioner of Police
(1993) 6 NWLR (Pt. 299) 333, the Court of Appeal granted a murder
accused bail on the ground that the prosecution did not bring to the notice
of the court facts on the alleged murder. Onu,
JCA (as he then was) said at page 341:
"In the case of
Dogo v. Commissioner of Police
(1980) 1 NCR 14
at page 17, it was emphasized
that it is the duty of the court to consider whether to grant bail once an
accused person has pleaded not guilty to a charge. Such a situation clearly
arises where an information or charge is laid before the trial court. Not so
in the case in hand where no information or charge was laid by the
prosecution. Hence, in the absence of facts which the prosecution was duty
bound to supply justifying the appellant's detention in police cell, the
trial Judge was bound to let appellant go from the police cell."
In
Chinemelu
v. Commissioner of Police (1995)
4 NWLR (Pt. 390) 467, the Court of Appeal also granted bail pending
trial to a murder accused, in the light of the special circumstances of the
case. And the special circumstances were the absence or lack of facts
justifying the continued detention of the accused.
Ejiwunmi, JCA (as he then was) in his
concurring judgment said at page 489:
"The only evidence about the case before the
lower court and this court remains the affidavit filed by the inspector
involved with the investigation of this case. And he only made references to
what he considered to be the eye witnesses of the offence for which the
appellant stands charged. However, there is nothing that can be likened to a
complete proof of evidence from the witnesses themselves. For the respondent
to justify the continued detention of the appellant I think it is only right
for the respondent to produce such evidence for the consideration of the
court."
Adamu,
JCA, also provided a helping hand when he said
at page 491:
"In the instant case, the appellant had
presented sufficient averment in the affidavit evidence at the lower court
to take care of the first condition by showing that he would neither
prejudice the investigation (or) prosecution of the case nor would he escape
justice by jumping bail. It is also clear both from the records and from the
briefs of counsel in this appeal that no proof or evidence or information
has up till now been filed against the appellant at the lower
court ..... It is true that bail pending trial is
not normally granted ex-debito
justitiae where the offence is a
capital offence as in the present case. However special
circumstances may exist to warrant the grant of bail pending trial in a
capital offence as in
Enwere
v. COP (1993) 6
NWLR (Pt. 299) 333. The
special circumstance in the present case is the prosecution's delay or
failure to prepare the proof of evidence or to file an
information against him for the alleged murder."
In
Anaekwe
v. Commissioner of Police (1996)
3 NWLR (Pt. 436) 320, the Court of Appeal also granted bail pending
trial to a murder accused on the same ground as in
Enwere and
Chinemelu.
In Anaekwe,
I said at pages 331 to 333:
"It is common ground in this appeal that the
learned trial Judge heard the application of the appellant without an
information and proof of evidence. It was after the refusal of the
application that the Judge ordered the filing of the proof of evidence
within the next 75 days .... How can a court
process filed after the Notice of Appeal retrospectively affect the legal
regime on which the appeal is based? Can that be a fair hearing to the
appellant who in the course of preparing the grounds of appeal did not
anticipate the allegedly filed proof of evidence? That will be clear
injustice and this court cannot be a party to it. The six letter-word of
murder comes with it so much fear as the law prescribes the death penalty.
But like every other offence in our criminal law system, there is nothing
magical in the word per se. But
there is so much to fear in the offence because of the death penalty.
Therefore, where the prosecution merely parades to the court the word
'murder' without tying it with the offence, a court of law is bound to grant
bail. And the only way to intimidate a court not to grant bail is to proffer
an information and proof of evidence to show that there is prima facie
evidence of commission of the offence .....
in my view, although bail is not normally granted
a murder accused, a situation where there is no material before the trial
court to show that the appellant is facing a charge of murder, including
proof of evidence; certainly qualifies as a special circumstance in which
this court can grant bail. In the light of the foregoing, I have no
alternative than to set aside the 21st December, 1994 Ruling of
the lower court. I admit the appellant to bail upon the following
conditions..."
Akintan,
JCA (as he then was) put the position better in
the case at page334:
"The main question raised in this appeal is
whether from the facts of the case, the learned Judge could be said to have
exercised his discretion in the matter judiciously. A court before such an
application is made is expected to examine the evidence placed before it and
ensure that there is sufficient evidence, from the proof of evidence
produced by the prosecution in opposing the application, to support the
charge of murder preferred against the applicant. The mere fact of just
reading from the charge sheet that the offence for which the applicant was
charged was that of murder is just not enough to warrant refusal of the
application. The duty is on the Judge entertaining such an application for
bail to ensure that the applicant's continued detention is well supported
and justified by the evidence disclosed in the proof of evidence placed
before him. There is nothing magical in the word 'murder charge' to justify
failure of the court from enquiring if the charge was not cooked up merely
to ensure the detention of an innocent person. A court that fails to look
into the facts relied on in support of such charge cannot be said to have
exercised its discretion judiciously."
I have gone this length because of the
failure, or better, refusal of the High Court and the Court of Appeal to
follow the above decisions. In the affidavit in support of the application
for bail pending trial, Sarah Ibrahim deposed inter alia:
"That I have been informed by the applicants
in Jos prison on 9/3/2003 at 12.00 noon while
briefing A. A. Sangei, Esq
of counsel and verily believe their information to be true:
a.
That the applicants were arrested and detained at
Garga Police Station for alleged offence of
armed robbery sometimes in October, 2002.
b.
That they were later transferred to Jos
Police Headquarters and finally transferred to Jos
CID where they were detained for a long time.
c.
That the applicants did not commit the alleged offence on the FIR. A
copy of the FiR is hereby annexed and marked as
Exhibit 'A'."
In
his counter affidavit,
Joseph Chinda, Assistant Superintendent of Police, deposed inter
alia:
"2.
That I have read through the summons to admit the applicants to bail
pending their trial as well as the supporting affidavit and I know as a
matter of fact that paragraphs 3 (c, g, h, I and j) are not true.
3.
That Police investigation into the case is still in progress with the
view of arresting the co-accused of the applicants that are still at large,
and that should the applicants be released on bail, they (applicants) will
not only elope justice but that they may tamper with Police investigation.
4.
That the applicants have made useful statements to the Police to the
effect that they are members of a gang of armed robbers that have committed
series of armed robberies within Dengi-Kanam and
its environs and Plateau State in particular in the recent past as well as
neighbouring Bauchi State.
5.
That working on the above information given to the Police by the
applicants, the detectives have since gone into action with the view of
arresting the remaining culprits from their hideouts.
6.
That based on further clues discovered by the Police against the
applicants and others into the case, they (Police) shall substitute the
initial First Information Report (FIR) with new one to include the other
offences that were not included in the old First Information Report (FIR)
against the applicants.
7.
That this will be done as soon as the investigating Police officers
(IPOs) who are in possession of this case file diary return from their
special assignments in connection with this very case that the application
for bail is been sought by the applicants.
8.
That the delay in the arraignment of the applicants before the court
all these while is not unconnected with the constant strike actions by both
the Federal Civil Servants and Plateau State in particular, Ministry of
Justice Plateau State, Jos inclusive since
2002/2003 and of late, the recent Nigerian Labour Congress (NLC) as a result
of the fuel prices that were increased by the Federal Government of Nigeria.
9.
That the Ministry of Justice Plateau State, Jos,
who is to file the necessary application before the High Court for leave to
prefer a charge against the applicants was not left out of the strike stated
in paragraph 8 above and the current Nigerian Bar Association (NBA) Plateau
State, Jos Branch law week.
10.
That now the strike action have been suspended by both Federal and
State Civil Servants, I verily believe that the Ministry of Justice Plateau
State, Jos, will make the necessary application
to the High Court of Justice Plateau State, Jos
for leave to prefer a charge against the applicants."
It is clear to me from the counter-affidavit
that the respondent rushed to court without any proof of evidence on the
part of the prosecution. This is clear from paragraphs 3, 5, 6, 7 and 9 of
the counter-affidavit. As both counsels have dealt with the deposition in
paragraph 4 of the counter-affidavit, I will take it here. That paragraph
appears to be the only paragraph in the affidavit that the respondent seemed
to rely upon.
The paragraph deposed that the applicants
made "useful statements to the Police to the effect that they are members of
gang of armed robbers that have committed series of armed robberies within
Dengi-Danam and its environs and Plateau State
in particular in the recent past as well as neighbouring
Bauchi State." Both counsels understandably took
opposing views on the "useful statements" deposition in the
counter-affidavit. While counsel for the appellants insisted on the document
in which the "useful statements" were made, counsel for the respondent
argued that a statement need not necessarily be in a document. Curiously,
counsel did not tell this court what format or content the useful statements
took. Were they made orally? If I know the Police tradition and the Police
workings in the interrogation room (and I know a bit of it) statements of
accused persons are made and taken in writing. They are not made orally. The
police will never accept an oral statement from a suspect or an accused. In
my view, learned counsel decided to play with words and I am not ready for
that. No, not at all. The "useful statements"
expression is a regular police phraseology which by now is a cliché or an
aphorism and does not in most cases of usage serve any useful practical
purpose and utilitarian value, as it relates to the unfriendly activities of
the Police in the interrogation room. In most cases, the expression is
designed to capture the sympathy and co-operation of the Judges who are by
now wiser and their wisdom grow everyday in their experience with the
Police.
Learned counsel for the respondent in his
argument relied on the First Information Report as basis for the appellants
committing the offence. This to me, is quite on
the joking side. It is not a serious submission. The First Information
Report as the name implies, is just a Report that an offence is committed.
It is no more than a charge in the Southern States. A charge is an
allegation or accusation of crime. It is not tantamount to proof of evidence
that the crime was committed or likely to have been committed.
I go along with the submission of learned
counsel for the appellants that the so-called useful statements if they
exist, are official documents which ought to have been deposed to in the
counter-affidavit; it is the general principle of law that where there is a
document, oral evidence is inadmissible. The document must be produced. I am
also with learned counsel for the appellants when he urged this court to
invoke section 149(d) of the
Evidence Act, which is to the
effect that the respondent failed or refused to produce the so-called useful
statements because if they were produced, they would have been unfavourable
to him. I very much doubt the existence of the so-called useful statements.
If they existed the police will be the first to depose to them, with all the
alacrity.
Murder is a capital offence; a most heinous
offence. Therefore before an accused is charged with murder, there must be
sufficient materials by way of proof of evidence to justify and back up the
offence. The court should be able to see at a mere glance of the proof of
evidence that the accused is properly charged of the offence, I must say
that at this stage the consideration is not whether the accused will be
convicted of the offence of murder but whether a prima facie case is made
out on the proof of evidence that the accused is properly charged of the
offence, if the offence of murder is camouflaged like a smoke-screen to
deceive the court to punish an innocent person, the court has the competence
to remove the veil and decide accordingly. I am unable to determine that now
as the proceedings are still at the level of granting or refusing bail. What
is more, this court is not competent to decide that at this stage.
And that takes me to issue No. 2.
Under the doctrine of precedent, decisions of superior courts are binding on
inferior courts. In the hierarchy of the court system in Nigeria, decisions
of the Supreme Court are binding on all other courts. Next in the hierarchy
is the Court of Appeal. Decisions of that court are binding on all other
courts. I can still go further. The next in the hierarchy is the High Court.
Decisions of the High Courts are binding on all other Courts, including
Magistrate Courts, Area Courts and Customary Courts; I will not deal with
hierarchy in the Sharia Court system because
Sharia is not involved here.
What is binding on a Judge's decision as an
authority is the principle upon which the case was decided. That is the
ratio decidendi; not the obiter dictum.
There are however instances when an obiter dictum of the Supreme Court
could be binding on inferior courts. We are not there and so I will not go
there. It is the complaint of
the appellants that the learned trial Judge refused to be bound by the
decisions of the Court of Appeal examined above. The learned trial Judge,
Damualk, J., after quoting what I said above in
Anaekwe,
reacted to the judgment as follows at page 24 of the Record:
"In the instant case, there is no proof of
evidence exhibited or annexed to the application. Can that
per se tantamount to the grant of
bail to an Accused person facing the charge of Armed Robbery? I do not think
so more so that the Appellant did not deny the contention in the
Counter-Affidavit of the Respondent. The averments in the Counter-Affidavit
are rather serious considering the rampant occurrence of incidents of Armed
Robbery in this part of the country particularly in
Kanan Area. In view of the magnitude of the offence alleged the
severity of the Punishment and the rampant occurrence of the crime coupled
with the fact that investigation is still in progress and the failure of the
Applicants to counter the averments of the Respondent, my discretion is in
favour of refusing rather than granting the application."
With the greatest
respect to Damualk.
J., he got it completely wrong. Apart from the fact that by his refusal to
follow Anaekwe,
he has thrown in the dust bin the well established principles of stare
decisis, the reasoning which resulted in his
failure to follow the decision is faulty and wrong. It is clear from his
opening sentence that the case is not distinguishable from
Anaekwe,
when he said: "In the instant case, there is no proof of evidence exhibited
or annexed to the application." That was the position in
Anaekwe
and he had no choice than to follow that decision, his personal decision
that the decision was wrong, notwithstanding.
Anaekwe is a decision of
the Court of Appeal and he, Damualk, J. was
bound to follow it. I do not want to say that it was judicial impertinence
and arrogance on his part. He had no power to do what he did. It is a pity
that he did what he did. I will say no more.
I now take his reasoning for not following
Anaekwe.
First, the counter-affidavit. In his view, the
averments in the counter-affidavit "are rather serious considering the
rampant occurrence of incidents of Armed Robbery in this part of the country
..." With respect, there is not much in the counter-affidavit when applied
to the legal position in
Anaekwe and the group of
cases. The only averment which should have assisted the respondent is
paragraph 4 thereof; a paragraph I have examined above, in the light of the
submission of both counsel in this appeal. I do not want to repeat myself.
The so-called useful statements deposed to in paragraph 4 of the
counter-affidavit were not before Damualk, J.
Another reason the learned trial Judge gave
for not following
Anaekwe is the rampant
occurrence of incidents of armed robbery in the part of the country. With
respect, that is clear sentiment which is not available to
Damualk, J., the Judge that he is. The law goes
against sentiments in judgments because that can easily lead to bias, or
land the Judge to bias; a position that is forbidden by a Judge; a no-go
area. It is good law that Judges should not give judgments based on
sentiments or on their whims and caprice but on the law and the law alone.
And the law in this appeal was provided for in the cases I have examined
above. I think they number three. Could the Court of Appeal have gone wrong
in all the three cases that Damualk, J. ought
not to have followed in his mind and brain? It beats me hollow and hands
down, if trial Judges fail or refuse to follow decisions of appellate courts
in the context and spirit of stare
decisis,
what right or moral courage do we have in the Judiciary to
condemn parties, particularly the Government for not obeying court orders?
Let somebody provide an answer for me.
I leave Damualk,
J. and move to the decision of the Court of Appeal. It is the general
position of the law that a court is bound by its own decision. In
Fatola
v. Mustafa (1985) 2 NWLR (Pt. 7)
438, the Court of Appeal held that it was bound to follow its own
decision under the rules of stare
decisis.
Mohammed, JCA (as he then was) followed the earlier decision of
the Court in
Olagbegi v.
Attorney-General of Ondo State,
Suit No. FCA/B/82 delivered on
17/1/83 (Unreported). In
Dawodu
v. Danmole
(1962) 1 All NLR 702, the Federal
Supreme Court held that it was "bound by its decision in
Douglas v. The
Federal Public Trustees.
When I say the above, I should not forget to complete the picture by saying
also that a court of law is competent to review its own decision. For
instance, where a court of law is faced with two conflicting decisions of
its own, it can resolve it by taking one of the decisions. That is not the
position here. I only wanted to complete the picture and I drop it now that
I have done so.
The Court of Appeal, unlike the learned
trial Judge, made efforts to distinguish the decision of
Anaekwe
and the group of cases. Nzeako,
JCA, in trying her hand on distinguishing the
case, said at page 58 of the Record:
"The decision of the Court of Appeal to
grant bail pending trial where the High Court had refused to do so, such as
in Anaekwe's
case, a murder case, is based on the absence of or insufficient evidence
before the court below. In that case, Tobi,
JCA (as he then was) identified insufficient
probability of guilt on the part of the accused because there was no proof
of evidence’ before the court."
The learned Justice of the Court of Appeal
had earlier said on the same page:
"In this case there is in the affidavit
evidence prima facie evidence of committing an offence and prospect of
committing more offences."
While the Court of Appeal properly positioned the decision in Anaekwe, the court, like the trial Judge, with respect got it wrong on the counter affidavit. The counter affidavit does not contain prima facie evidence of the appellant committing the offence. Paragraph 4 deposed to an uncompleted story in the sense that the so-called "useful statements" were not annexed to the affidavit. While I agree with the learned trial Judge that there is no material or meaningful distinction between Anaekwe and this case, I part ways with the Court of Appeal which saw distinction. But I cannot blame or fault the Court of Appeal in the way 1 have blamed or faulted the learned trial Judge because the Court of Appeal genuinely believed that a distinction existed between Anaekwe and this appeal. And |