ALHAJI MUJAHID DOKUBO-ASIRI V. FEDERAL REPUBLIC OF NIGERIA(2006)

ALHAJI MUJAHID DOKUBO-ASIRI V. FEDERAL REPUBLIC OF NIGERIA

(2006)LCN/2161(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of June, 2006

CA/A/245/M/2005

RATIO

CRIMINAL LAW PROCEDURE: FACTORS A JUDGE IS EXPECTED TO TAKE INTO CONSIDERATION BEFORE A BAIL IS EITHER GRANTED OR REFUSED

Bail is granted or refused entirely at the discretion of the trial judge and in exercising that discretion the Judge is expected to take into consideration the following factors or criteria: 1. the evidence available against the accused, 2. availability of the accused to stand trial 3. the nature and gravity of the offence 4. the likelihood of the accused committing another offence while on bail 5. the likelihood of the accused interfering with the course of justice 6. the criminal antecedents or the accused person 7. the likelihood of further charge being brought against the accused 8. the probability of guilt 9. detention for the protection of the accused 10. the necessity to procure medical, or social report pending final disposal of the case. See Bamaiyi v. State (2001) 4 SC (Pt.1) p. 18, (2001) 2 NWLR (Pt.698) 435; Eyu v. State (1988) 2 NWLR (Pt. 78) p. 602. These factors are not exhaustive. Other factors not mentioned may be relevant to determine bail in a particular case. Where, as in this case pre trial bail was refused, the appeal court is expected to examine affidavit evidence, the charge, statements and the information if available in line with the factors listed above to see if the Judge exercised his discretion judicially and judiciously. PER RHODES-VIVOUR, J.C.A.

APPEAL: INSTANCES WHERE AN APPELLATE COURT WILL NOT INTERFERE WITH THE WAY A TRIAL JUDGE EXERCISE HIS DISCRETION

Before Their Lordships

OLUFUNLOLA OYELOLA ADEKEYEJustice of The Court of Appeal of Nigeria

AMIRU SANUSIJustice of The Court of Appeal of Nigeria

OLABODE RHODES-VIVOURJustice of The Court of Appeal of Nigeria

Between

ALHAJI MUJAHID DOKUBO-ASIRIAppellant(s)

AND

FEDERAL REPUBLIC OF NIGERIARespondent(s)

RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment): After hearing arguments on 9/5/06 judgment was reserved. It was thereafter fixed for delivery on 24/5/06, but on that day counsel on both sides were not in court. Judgment was then adjourned for delivery on 6/6/06.
I now deliver Judgment.
The appellant, by way of summons on notice moved for pre trial bail. The learned trial Judge Hon. Justice P. E. Olayiwola heard arguments and in a considered ruling refused bail.
Dissatisfied with the ruling refusing bail, the appellant has appealed to this court and has asked that his appeal is determined on the two issues, which read:
“1. Whether it is a judicial and judicious exercise of discretion for the learned trial Judge to have refused bail to the appellant when the respondent admitted that the so called proof of evidence was incomplete, the matter was still under investigation and the prosecution was still looking for the evidence to support the charge.
2. Whether from the totality of the evidence contained in both the prosecution and accused affidavits the lower court ought not to have granted bail to the accused person.”
The respondent in its brief of argument formulated a sole issue for determination, and it is:
“1. Whether the learned trial Judge judicially and judiciously exercised his discretion in view of the totality of the affidavit evidence placed before him for consideration in the circumstances of the application for bail before the court.”
I have carefully studied the issues formulated in both briefs and I must observe that Issue No.2 in the appellant’s brief and the sole issue in the respondent’s brief are the same, although the respondent’s sole issue is more comprehensive.
For the determination of this appeal I am comfortable with the appellant’s Issue No.1 and the respondent’s sole issue.
A formal information has not been filed but pending in the Federal High Court Abuja is a five count charge. The appellant is involved in all the counts. Two of them relate to treasonable felony to  remove the President of Nigeria from office otherwise than by constitutional means; taking up arms in order to intimidate  and overawe the President and Government of Nigeria.
Two counts relate to forming an unlawful society known as Niger Delta Peoples Volunteer Force (NDPVF) for the liberation of the Ikwere people with objective of: levying war on the government of Nigeria, encouraging the killing and injuring of persons, subverting or promoting the subversion of the Government of Nigeria and its officials, interfering with, resisting, encouraging interference with or resistance to the administration of law; and disturbing and encouraging the disturbance of peace and order in the Niger Delta States of Rivers; Edo of the Federal Republic of Nigeria.
Finally, one count of publishing a statement, rumour, report which is likely to cause fear and false alarm to the public, granted interview to the Independent Newspaper that was published on 10/9/05 wherein the appellant said:
“Nigeria is an evil entity. It has nothing to stand on and I will continue to fight and try to see that Nigeria dissolves and disintegrates and I am ready to hold on to the struggle to see to this till the day I will die. I do not see any reason why I should continue to live with people that have no relationship with me whatsoever.”
Affidavit evidence in support of the application for bail reads in part as follows:
“3(f) that the accused has no criminal record and has never been tried for any offence before;
(g) that the accused will not commit any similar offence or any at all if granted bail;
(h) that the accused will not impede any further investigation of granted bail;
(i) that the accused will not jump bail and will make himself available for trial;
(j) that the accused is worth enough to be granted bail in self recongnizance and alternatively can provide credible sureties for his bail.
4. That there is no prima facie evidence that the accused has committed the offence for which he is charged.
5. That it will be in the interest of justice to grant this application.”
The counter affidavit reads:
“5(a) That if the accused/applicant is released on bail the prosecution of the charge against him will be at risk.
(b) That most other suspects in the case are still at large.
(c) That the accused/applicant have had access to, and can on grant of bail have access to dangerous weapons …
(f) That the accused/applicant is from the riverine area of the Niger Delta of Nigeria.
(g) That the Niger Delta is an area consisting of mangrove Swamp, numerous creeks and an extremely difficult terrain to access.
(h) That if granted bail the accused/appellant will commit similar offences, interfere with the investigation of the case and not make himself available for trial.
6. That after the arrest of the accused/applicant his statement  was obtained wherein he confessed to the commission of the crimes ………….
10. That it will be prejudicial of National Security to grant bail to the accused/applicant.”
In reply it was deposed on behalf of the appellant,
“4. That no other person has been declared wanted by the Federal Government in  relation to this charge.
5. That there is no proof of evidence filed with charge as such the court has nothing upon which to decide about the nature of the evidence in this case.
6. That the accused/applicant has no access to dangerous weapons.
7. That the accused/applicant is prepared to provide sureties from Rivers State who know the creeks, mangrove swamps and who can locate him anytime, even though he is not prepared to escape from his trial.
8. That the accused/applicant has never confessed to the commission of any offence.”
The charge, affidavit evidence and the statement of the appellant were before the trial Judge. He considered them, refusing bail had this to say:
“….. in my view, the security fear envisaged by the prosecution in this case has not been assuaged by the accused in this application and it also weighs in the mind of the court in the light of the other circumstances highlighted above, the court would therefore refuse the application to admit the applicant to bail pending trial.”
Bail is granted or refused entirely at the discretion of the trial judge and in exercising that discretion the Judge is expected to take into consideration the following factors or criteria:
1. the evidence available against the accused,
2. availability of the accused to stand trial
3. the nature and gravity of the offence
4. the likelihood of the accused committing another offence while on bail
5. the likelihood of the accused interfering with the course of justice
6. the criminal antecedents or the accused person
7. the likelihood of further charge being brought against the accused
8. the probability of guilt
9. detention for the protection of the accused
10. the necessity to procure medical, or social report pending final disposal of the case. See Bamaiyi v. State (2001) 4 SC (Pt.1) p. 18, (2001) 2 NWLR (Pt.698) 435; Eyu v. State (1988) 2 NWLR (Pt. 78) p. 602.
These factors are not exhaustive. Other factors not mentioned may be relevant to determine bail in a particular case. Where, as in this case pre trial bail was refused, the appeal court is expected to examine affidavit evidence, the charge, statements and the information if available in line with the factors listed above to see if the Judge exercised his discretion judicially and judiciously.

It must be noted that an appellate court will not interfere with the way a trial Judge exercises his discretion unless:
(a) the discretion is known to have been wrongly exercised,
(b) the exercise was tainted with some illegality or substantial irregularity. See Anyah v. A.N.N. Ltd (1992) 6 NWLR (Pt.247) p. 319; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) p. 124; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) p. 143.
The appeal was heard by us on the 9th of May, 2005.
Learned counsel for the appellant adopted his brief filed on 10/3/06 and observed that it was wrong to deny the appellant bail while the respondent is still investigating.
Learned counsel for the respondent adopted his brief filed on 5/5/06 and urged us to uphold the Ruling of the trial court and dismiss the application.
On Issue No. 1 learned counsel observed that the respondent has still not prepared an information thus making the proofs of evidence incomplete and weak.
He urged that it was wrong for the trial Judge to refuse bail despite clear evidence before it that the Police were still conducting investigation into the matter. He submitted that refusal of bail is contrary to Section 35(4) of the Constitution. Reference was made to: Anaekwe v. C.O.P. (1996) 3 NWLR (Pt.436) p. 320.
It is important that the appellant is served the information forthwith, but the record of appeal shows that the appellant was served some of the material contained in an information; the charge, interim police report, statement of the accused person, exhibit (accused/appellant’s statements made to the media), the list of witnesses and their statements have not been given to the appellant, but a trial can proceed with the information available on the accused person and it is more than enough for considering the bail application.
Section 35 of the Constitution contains provisions to protect the personal liberty of the individual. A charge of treasonable felony is a very serious offence. It is definitely prejudicial to National Security. In the course of this judgment, I shall comment on individual or personal rights in relation to or in comparison with National Security.
On issue No.2 learned counsel for the appellant argued that on proper evaluation of affidavit evidence the trial Judge ought to have granted bail to the appellant. Referring to: Iheanaeho & Co. v. Chigere & 2 Ors. (2004) 17 NWLR (Pt. 901) p. 130; Adebayo v. Adusei (2004) 4 NWLR (Pt. 862) p. 44.
He submitted that learned counsel for the respondent was unable to show the court why bail should not be granted.
In his brief of argument learned counsel for the respondent observed that the trial Judge considered all the relevant criteria for the grant of bail and rightly found that all the requisite conditions for the grant of bail did not co-exist. Referring to: Anajemba v. FGN (2005) 1 NCC p. 390, (2004) 13 NWLR (Pt.890) 267; I. E. Nwude v. FGN (2005) 1 NCC p. 196, (2004) 17 NWLR (Pt.902) 306.
Concluding, learned counsel for the respondent contended that the appellant was unable to show that if granted bail proper investigation would not he prejudiced or that he would not escape from justice.
The learned trial Judge took some of the factor into consideration in refusing bail such as the facts that proper investigation would be prejudiced and there was the risk of the appellant escaping from justice along with security considerations and concluded that the security fear envisaged by the respondent in the case had not been assuaged by the appellant.
Indeed the depositions in the affidavit and interview granted the Independent Newspaper on 10/9/05 are ominous and very disturbing. For example the appellant grunted interview to the press wherein he says that he will continue to fight until Nigeria disintegrates. Evidence available to the trial Judge and to us shows beyond doubt the threat to National Security.
A close scrutiny of the charge and documentary evidence available reveals offences that are a real threat to National Security. They involve creating a situation where the government of the Federal Republic of Nigeria could yield to force or expose the public to serious danger.
Indeed paragraph 10 of the counter affidavit supports that fact. It states that it would be prejudicial to National Security to grant bail. I agree. This deposition easily covers all the counts against the appellant.
My lords, where National Security is threatened or there is the real likelihood of it being threatened Human rights or the individual rights of those responsible take second place. Human rights or individual rights must be suspended until the National security can be protected or well taken care of.
In the light of the above the learned trial Judge was right in refusing the application for bail by the appellant.
This court will not interfere with the decision of the learned trial Judge.
I find no merit in this appeal and I hereby dismiss it.

ADEKEYE, J.C.A.: I had the privilege to read before now the judgment just delivered by my learned brother O. Rhodes – Vivour J.C.A .
It is well settled that granting of bail pending trial particularly in grave offences, which attract severe punishments, is not as a matter of grace, but the practice rests squarely on the discretion of court.

In many decided cases the courts have listed guidelines that may be taken into consideration by a judge in granting or refusing bail pending trial.
These factors have been enumerated in the lead judgment. It is however important to note that the lists are not exhaustive. It is not necessary that all or many of these factors must apply in any given case. The application shall be considered according to the peculiar circumstance of any given case.
Bamaiyi v. The State (2001) 4 SC (pt.1) pg 18, (2001) 2 NWLR (Pt.698) 465;
Nwude v. F.G.N. (2004) 17 NWLR (Pt.902) pg 306;
Chinemelu v. C.O.P. (1995) 4 NWLR (Pt.390) pg 476;
Danbaba v. The State (2000) 14 NWLR (Pt.687) pg 369;
Olatunji v. F.R.N. (2003) 3 NWLR (Pt.807) pg 406;
Jimoh v. C.O.P. (2004) 17 NWLR (Pt.902) pg 389;
Ogbembe v. C.O.P. (2001) 5 NWLR (Pt.706) pg 215.

The applicant has the first onus of placing such materials before the court for its consideration to show that he is entitled to be released on bail. Thereafter the onus shifts on the respondent to show that the applicant is not entitled to bail. Ani v. State (2002) 1 NWLR (Pt. 747) p. 217.
Both parties in the instance of this case placed facts in support and against this application for bail pending trial before the lower court and even before this court the appellants/applicants counsel canvassed that it was wrong to deny the appellant bail while the respondent is still investigating. The peculiar situation in this application is that in the exercise of its discretion to grant bail the court have to compare and balance incidence of personal liberty of an individual with a threat to National Security.
Obviously the trial court also took into consideration the severity of the punishment for the offences with which the appellant was charged, and the nature of the offences charged, the risk of the appellant/applicant jumping bail and the security fear in contemplation of the respondent. There are documentary evidence which ex facie constitute a threat to the Federal Government of Nigeria.
The learned trial judge had in the circumstance judicially and judiciously exercised the discretion to refuse bail to the appellant properly. It is trite that where a trial court having regard to the facts of a case, properly exercised its discretion an appellate court will not interfere with that discretion.
Odusote v. Odusote (1971) 1 All NLR (Pt. 219);
University of Lagos v. Olanlyan (1985) 1 NWLR (Pt. 1) p. 156;
Olatunji v. F.R.N. (2003) 3 NWLR (Pt. 807) p. 406
Likita v. C. O. P. 2002 11 NWLR (Pt. 777) p. 145.
With fuller reasons given in the lead judgment – I also find no merit in this appeal- I dismiss it accordingly.

SANUSI, J.C.A.: I read in draft form, the ruling just delivered by my learned brother Rhodes-Vivour JCA. I am in agreement with the reasoning contained therein and the conclusion he arrived at. I wish to however comment on some salient points raised in the instant application.
There is no gainsaying that in an application for bail pending trial, a trial court has discretion to grant or refuse bail. Such discretion must be exercised judicially and judiciously too. In exercising such discretion the court must consider some factors.
These include the following:-
(a) The summary of the evidence furnished by the prosecution in form of proof of evidence, some of which is intended to be used at the main trial against the accused.
(b) Whether the accused will make himself available at the trial.
(c) The nature, gravity and seriousness of the offence or charge the accused is facing or will face.
(d) Likelihood of the accused to interfere with the investigation,
(e) Likelihood of the accused to commit any or similar offence.
These factors are however not exhaustive as there are some that could feature depending in the surrounding circumstance of each case. See Bamaiyi v. State (2001) 4 SC (Pt.7) 18, (2001) 2 NWLR (Pt.698) 465; Eyu v. State (1988) 2 NWLR (Pt.78) 602. A clear and dispassionate consideration of the averments in the affidavit and the counter affidavit, the documentary evidence leaves one in no doubt that the offence(s) the appellant is facing trial on is are very serious ones since they involve a real threat to the security of the country. Also from the affidavit evidence contained in the record, there is strong fear, that if granted bail at this stage when investigation has not been finally concluded, he may interfere with such investigation and may also escape or commit similar or other offences.
Having said so, I am also of the view that the trial court rightly exercised its discretion by refusing to grant the appellant bail at this stage.
Thus, for the fuller and more detailed reasons contained in the lead ruling of my learned brother, I also adjudge the appeal unmeritorious and I accordingly dismiss it.

Appearances

Festus Keyamo (with him, Chief O.T.K. Amakri, Esq., D.O. Arikpo Esq., N. Asari Dokubo [Mrs.], K. E. Okoro, Esq.,
Miss N. T. Olawejie, N. Nwude Esq.For Appellant

AND

I. P. Hamman, Legal Officer, Federal Ministry of JusticeFor Respondent