ECHO & ORS v. IGP
(2022)LCN/16395(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 23, 2022
CA/ABJ/CR/600/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
1. JOHN ECHO 2. EDWIN APEH 3. SAMUEL OGABA 4. JOHN ATTA APPELANT(S)
And
INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO:
POSITION OF LAW ON BAIL APPLICATION
There is no gainsaying that once a person has not been tried and thereby convicted, owing to the established legal principle of presumption of innocence embedded in the Constitution, an accused person no matter the gravity of the offence alleged against him is presumed innocent unless proven guilty and thereby entitled to bail, unless some circumstances, and or by the nature of the charge against him, entitled to bail as a matter of course. HAMMA AKAWU BARKA, J.C.A.
POSITION OF LAW ON BAIL APPLICATION
The law with regards to bail applications is encapsulated under Sections 158 – 192 of the Administration of Criminal Justice Act, 2015, making comprehensive provisions in respect or in relation to the grant of bail to a person accused and sundry matters, and Sections 161 (1) and (2) in particular, which are germane to the issue under discussion and which had earlier been reproduced in the judgment. HAMMA AKAWU BARKA, J.C.A.
POSITION OF LAW ON JUDICIAL DISCRETION
This too appears to be the decision of the Supreme Court, in Ebe vs. COP (2008) LPELR – 984 (SC), which held that:
“a judicial discretion ought to be founded upon the facts and circumstances presented to Court, from which it must draw a conclusion presented by law. Discretion must be exercised honestly and in the spirit of the law.”
The Court went further to hold that:
“It is well settled that if judicial discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere Saffieddine vs. COP (1965) 1 ALL NLR 54, Solanke vs. Ajibola (1968) 1ALL NLR 46 and Mobil Oil vs. FBIR (1977) 3SC 97.”
Adekeye JSC, in UBN PLC vs. Astra Builders (WA) LTD (2010) LPELR – 3383 (SC), emphasized that an exercise of discretion is an act or deed based on ones personal judgment in accordance with ones conscience, free and unfettered from by any external influence or suggestions. In a manner which appears to be just and proper under a given situation, there being no hard and fast rule as to the exercise of a judicial discretion by a Court. See also Owners of the M.V. Lupex vs. Nigerian Overseas Chartering and shipping Ltd (2003) LPELR – 3195 (SC). HAMMA AKAWU BARKA, J.C.A.
POSITION OF LAW WHERE STATUTE APPEAR CLEAR, UNAMBIGUOUS
……wherever the words of the statute appear clear, unambiguous and to the point, any addition or subtraction will amount to introducing an illegal back door amendment. See Skye Bank vs. Iwu (2017) LPELR – 42595 (SC) per Ogunbiyi JSC, this is because the superior Court has always admonished and chided Courts from making judicial legislation, and thereby avoiding the temptation of making nonsense of the statute in order not to defeat the manifest intention of the legislation. SeeAkanke Olowu vs. Amudatu Abolare & Anor (1993) LPELR – 2603 (SC) per Karibi – Whyte JSC. HAMMA AKAWU BARKA, J.C.A.
PRINCIPLES FOR THE GRANT OF BAIL
In Ugwu vs. The State (supra), the Apex Court per Ariwoola JSC, stated the principles for the grant of bail to include amongst others:
i. The nature of the offence and the punishment attached to it if proved.
ii. The evidence available against the accused.
iii. Availability of the accused to stand trial.
iv. The likelihood of the accused committing another offence while on bail.
v. The likelihood of the accused interfering with the cause of justice.
vi. The criminal antecedents of the accused person and the likelihood of further charges being brought against the accused person.
vii. The probability of guilt.
viii. Detention for the protection of the accused.
ix. Necessity to procure medical or social report pending final disposal of the case. HAMMA AKAWU BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of the Federal Capital Territory in charge with no. FCT/HC/CR/712/2020, between the Inspector General of Police and John Echo and 3 others delivered on the 24th June, 2021, and by the said ruling, Appellant’s application for bail was refused. Dissatisfied with the said ruling, wherein their application for order of Court releasing the appellants to bail was refused, appellants showed their displeasure having filed a Notice of Appeal on the 30th day of June, 2021, predicated upon four grounds of appeal. The appeal having been compiled and transmitted to this Court on the 1st of September, 2021, appellants filed a brief of argument on the 13 September, 2021, and on receipt of the respondent’s brief filed on 12th October, 2021, appellants filed a reply to the respondents’ brief on the 29th October, 2021. On the 21st day of February, 2022, the appeal having come up for hearing, parties adopted their respective briefs, adopted the same and urged the Court to grant their respective prayers.
The appellants’ brief was settled by A.J. Oseyande, wherein four issues were formulated from the four grounds of appeal as follows:
i. Whether the appellants having brought the application for bail under Section 161 (2) (b) of the Administration of Criminal Justice Act, 2015 and fulfilled the condition therein, were not entitled to bail?
ii. Whether the learned trial Judge is justified in bringing factor beyond the provision of Section 161 (2) (b) of the Administration of Criminal Justice Act, 2015 in refusing the Appellants’ bail?
iii. Whether the learned trial Judge has not deprived the Appellants’ right to fair hearing guaranteed by Section 36 (1) of the Constitution as amended by raising and resolving issues of weight of evidence suo motu and using same to deny the appellants’ bail.
iv. Whether the learned trial Judge has not violated appellants’ right to presumption of innocence by raising and resolving suo motu that the proof of evidence discloses prima facie case against the Appellants?
For the respondent, and in the brief settled by Fidelis Ogbobe, two issues were proposed for the resolution of the appeal and they are as follows:
i. Whether the trial Judge exercised her discretion judiciously and judicially in refusing bail application of the appellants.
ii. Whether the learned trial Judge has violated appellants’ rights to presumption of innocence discloses prima facie case against the Appellants’.
I have studied the grounds of appeal and perused the record of proceedings, as well as the submissions of both learned counsels, and my humble view is that all the issues formulated by the parties can be compressed into a single issue which is:
Whether the lower Court was right or wrong refusing to grant the applicant’s application for the bail sought.
Submissions of Counsel
Mr. Osayande, the learned counsel for the appellants, while submitting that appellants’ application, the respondent’s counter-affidavit and the further affidavit in response to the counter-affidavit were all fashioned on Section 161 (2) (b) of the Administration of Criminal Justice Act, 2015, and the learned trial Judge having been duly satisfied that the requirements of the section had been fulfilled, wondered why the Court proceeded to consider the issue of weight of the proof of evidence in reaching its decision refusing bail. He alluded to the findings of the trial Court at page 210 of the record, further submitting that the weight of evidence constitutes a ground for the granting of bail under Section 161 (2) (c) of the same Act, but complained that the trial Court failed to avert his mind to Section 161 (2) (a) – (c) of the Act 2015 on the issue of weight, having held that the provisions therein were disjunctive. In further submission, learned counsel posited that the trial Court having made findings of fact and law to the conclusion that appellants had satisfied the condition for the grant of bail under Section 161 (2) (b) of the Act, 2015, revolted against his finding to state that bail is at the discretion of the Court which must be exercised judiciously and judicially. He argued that the principle of bail being at the discretion of the Court was practiced only in respect of the Criminal Procedure Code exemplified by the case of Cosy Emenike vs. COP (2009) LPELR – 4004, and argued that once there is an application for bail, the Court is only called upon to interpret and to apply the relevant provisions of Section 161 (2) (a) – (c) of the Act, since the issue of weight of proof of evidence has no application under the Act.
Learned counsel further alluded to the case of COP vs. Obasi & Ors (1976) NSCC 7 at 10 per Bello JSC, and Skye Bank Plc vs. Iwu (2017) 16NWLR (pt. 1590) per Ogunbiyi JSC, to aid his submission, contending that in the interpretation of statutes, the words therein must be given its ordinary meaning, maintaining that the Court having found that the provisions of Section 161 (2) (b) of the Act, having been met, had no business introducing other factors, thus illegally amending the Act, which the Courts are not empowered to do. Further still, counsel argued that the Court having introduced the issue of weight and anchored his decision on same violated the applicant’s constitutional right to fair hearing. He referred to the ruling of the Court, complaining that of the entirety of the 8 count charge at nowhere were applicants charged with any allegation on kidnapping. It is his contention that Justice is rooted in confidence, and the Courts should in that regard abstain from doing anything that may erode the root of justice, more so as applicants were not heard on the issue.
Contrariwise, Mr. Ogbobe of counsel for the respondent is of the view that this appeal on the whole lacks merit. He argued contrary to the contention by the appellant’s counsel, that in the exercise of the Court’s discretion on whether to admit or refuse bail, such discretion is very wide. He drew the Court’s attention to the decision of this Court in Kanu vs. FRN (2017) 10NWLR (pt. 1572) 118 to the effect that a Court is empowered in the exercise of its discretion to look at the proof of evidence before it, and also Ugwu vs. The State (2020) 15NWLR (pt. 1746) 1, commanding that there are a number of factors or criteria that must be taken into consideration by the Judge in refusing or granting bail pending trial. He referred the Court to Lawal Vs. FRN (2013) 3NWLR (pt. 1128) 247 at 471 on what connoted discretion, contending that all the section did was to assist the trial Court in the exercise of such discretion.
Further to that, on the contention that the Court raised the issue suo motu without calling on parties, counsel referred to the decision in of Ikenta Best (Nig.) Ltd vs. AG Rivers State (2008) 6NWLR (pt. 1084) 612, and Akeredolu vs. Abraham (2018) 10NWLR (pt. 1628) 510, where the Supreme Court reiterated the fact that the Court an look into the record before it in resolving issues already raised by parties without the necessity of calling on them to address it. He maintained that the Court having acted within the purview of its discretion, the appeal must fail. On the 29th of October, 2021, learned counsel for the appellant filed a response to the respondent’s arguments, which I will refer to where the occasion demands.
The substance of the instant appeal precipitate on a very narrow angle, but before I proceed to identify and consider that angle, permit me to first of all crave an understanding of the provisions of Section 161 of the Administration of Criminal Justice Act, 2015, which stipulated that:
S 161 (1), a suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a judge of the High Court, under exceptional circumstance.
2. For the purpose of exercise of discretion in Subsection (1) of this Section, exceptional circumstance includes:
i. ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a government hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him.
ii. Extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or
iii. Any other circumstances that the Judge may, in the particular facts of the case, consider exceptional.
The Apex Court in Adamu Suleiman vs. COP (2008) LPELR – 3126 (SC) emphasized the point that the accused persons constitutional right to bail pending trial is contractual in nature, the effect of which is not to set the accused person free for all times from the allegations for which he stands trial or ought to stand trial, from the custody of the law, but to entrust him to a third party called the surety or on self-recognizance with the undertaking that the accused or defendant appear to answer to the allegations labeled against him at a specified time, place and occasion. It flows therefrom that the object of pre-trial bail is to grant the defendant freedom from being incarcerated in any facility curtailing his freedom, pending the determination of the case against him. It need not be said that the freedom granted is temporary, as the order granting bail ensures for the period of the trial only, and once the applicant is convicted, or acquitted, that order terminates.
There is no gainsaying that once a person has not been tried and thereby convicted, owing to the established legal principle of presumption of innocence embedded in the Constitution, an accused person no matter the gravity of the offence alleged against him is presumed innocent unless proven guilty and thereby entitled to bail, unless some circumstances, and or by the nature of the charge against him, entitled to bail as a matter of course.
The law with regards to bail applications is encapsulated under Sections 158 – 192 of the Administration of Criminal Justice Act, 2015, making comprehensive provisions in respect or in relation to the grant of bail to a person accused and sundry matters, and Sections 161 (1) and (2) in particular, which are germane to the issue under discussion and which had earlier been reproduced in the judgment.
If I understand the grouse of the appellant before this Court very well from the totality of the four issues under which he made submissions, the aggregate of which is whether the lower Court rightly denied bail to the applicant or not. Whereas applicant to my understanding is heard as saying that the lower Court having concluded that a special circumstance exists, in favor of the applicant before it, the further exercise of delving into other materials enabling it to exercise its discretion judicially and judiciously was in error. If that is the case, my humble opinion would be that appellant failed to read the provisions of Section 161 of the ACJA 2015, dispassionately, and thereby misconstrued the contents thereof.
The interpretation to be given to Section 161 (2) of the ACJA, settles the argument of both counsels, for emphasis the section provides:
2. For the purpose of exercise of discretion in Subsection (1) of this Section, exceptional circumstances include:
Where the section is given its clear literal and unambiguous interpretation, Section 2 (a) – (c) by the usage of the word include means the circumstances under which the Court can term exceptional, have not been closed, and in the same vein, the fact that any or all of the above listed exceptional circumstances are shown to exist does not foreclose the exercise of the Courts discretion in the matter. Indeed Section 161 (1) is qualified by the provision of Section 161 (2) thereof. The applicant’s may be right in submitting that the lower Court did find as a fact that the provisions of Section 161 (2) a-c are disjunctive, and I have no dispute to that, thereby satisfying the proviso in Section 161 (2) (b) of the Act. My humble opinion however is that the Court still had a duty to weigh the circumstance availing the applicant against other factors, commonly termed the discretion of the Court in arriving at a just decision. This too appears to be the decision of the Supreme Court, in Ebe vs. COP (2008) LPELR – 984 (SC), which held that:
“a judicial discretion ought to be founded upon the facts and circumstances presented to Court, from which it must draw a conclusion presented by law. Discretion must be exercised honestly and in the spirit of the law.”
The Court went further to hold that:
“It is well settled that if judicial discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere Saffieddine vs. COP (1965) 1 ALL NLR 54, Solanke vs. Ajibola (1968) 1ALL NLR 46 and Mobil Oil vs. FBIR (1977) 3SC 97.”
Adekeye JSC, in UBN PLC vs. Astra Builders (WA) LTD (2010) LPELR – 3383 (SC), emphasized that an exercise of discretion is an act or deed based on ones personal judgment in accordance with ones conscience, free and unfettered from by any external influence or suggestions. In a manner which appears to be just and proper under a given situation, there being no hard and fast rule as to the exercise of a judicial discretion by a Court. See also Owners of the M.V. Lupex vs. Nigerian Overseas Chartering and shipping Ltd (2003) LPELR – 3195 (SC).
In the case at hand, the trial Court acting judiciously and judicially had recourse to the contents of the proof of evidence placed before him in exercising his discretion declining jurisdiction. I see nothing wrong with that. The case of COP vs. Obasi & Ors (1976) NSCC 7 @ 10. cited by learned counsel for the appellant, as well as the other case law cited, including Skye Bank Plc vs. Iwu (supra) all support the preposition that interpretation of statutes be given their ordinary meaning, and I humbly kowtow, adding that where that is done the argument by the appellant that the satisfaction of the provisions of Section 161 (2) (b) of the ACJA leaves the trial Court with no discretion in the matter is a misconception of the provision and the trial Court right to have proceeded further in exercising the discretion which is endowed on him by virtue of Section 161 (2) of the Act. I did state earlier, that the law has no angle, but straight and it is that in the interpretation of the words of a statute the Court is enjoined giving it its ordinary meaning, which means that wherever the words of the statute appears clear, unambiguous and to the point, any addition or subtraction will amount to introducing an illegal back door amendment. See Skye Bank vs. Iwu (2017) LPELR – 42595 (SC) per Ogunbiyi JSC, this is because the superior Court has always admonished and chided Courts from making judicial legislation, and thereby avoiding the temptation of making nonsense of the statute in order not to defeat the manifest intention of the legislation. SeeAkanke Olowu vs. Amudatu Abolare & Anor (1993) LPELR – 2603 (SC) per Karibi – Whyte JSC.
Appellants assiduously but without reasoning, placed momentous premium on the trial Courts holding at page 211 lines 10 – 20 of the record, to contend that, the Court having proceeded to weigh the proof of evidence against the appellants affidavit, denied appellant his constitutional right to fair hearing enshrined under Section 36 (1) of the 1999 Constitution, and cited the case of Adigun & Ors vs. Attorney – General of Oyo State & Ors (1987) 1NWLR (pt. 53) 678. The reason advanced by counsel was that counsels were not called upon to address on it. The agitation on the issue by learned counsel seems to have been answered by the decision of Akeredolu vs. Abraham (2018) 10NWLR (pt. 1628) 510 @ 532, where the Apex Court drew a distinction between a Court raising an issue suo motu and looking into its record to resolve an issue before the parties. Instantly, there was no need asking parties to address the Court in the exercise of its discretion and the lower Court right to have looked into its records in resolving whether bail ought to be awarded to the appellant or not. This duty of exercising its discretion in the matter according to law cannot be impugned. See Umar vs. FRN (2021) 4NWLR (pt. 1766) 291 @ 303. The further argument that the Court should not be bothered about the seriousness of the allegation against the applicant in granting bail citing Abioye vs. Yakubu (1991) 5NWLR (pt. 190) 130 @ 142 is unavailing in the circumstance. Indeed the case of Patience Okoro Eye vs. FRN (2018) LPELR – 43599 (SC) per Bage JSC, charged with the offences of abuse of office, corrupt practices, fraud and illegal ownership of assets, cannot be said to be capital offences and the issue of their bail not considered under Section 161 of ACJA. Contrary to the submission made on behalf of the applicants, a cursory look at the nine count charge labeled against appellants, bordered on armed robbery, abduction, kidnapping, and theft amongst others. The witnesses listed are mostly the victims of the alleged offences, as well as the statements of the witnesses and the accused persons. See from pages 1 – 52. A calm appraisal of the arguments made by the appellant’s counsel on the issue must therefore fade away in view of the recent decisions of the Apex Court in Ugwu vs. The State (2020) 15 NWLR (pt. 1746) 1 and Umar vs. FRN (2021) 4NWLR (pt. 1766) 291 @ 303, thus knocking out the bottom of the appellants contentions. In Ugwu vs. The State (supra), the Apex Court per Ariwoola JSC, stated the principles for the grant of bail to include amongst others:
i. The nature of the offence and the punishment attached to it if proved.
ii. The evidence available against the accused.
iii. Availability of the accused to stand trial.
iv. The likelihood of the accused committing another offence while on bail.
v. The likelihood of the accused interfering with the cause of justice.
vi. The criminal antecedents of the accused person and the likelihood of further charges being brought against the accused person.
vii. The probability of guilt.
viii. Detention for the protection of the accused.
ix. Necessity to procure medical or social report pending final disposal of the case.
Further to that, a trial Court in the consideration of the application for bail need not limit itself to the affidavit evidence, but can also include the contents of the proof of evidence, and this the trial Court did, and exercised its discretion according to the settled tenets of the law.
It is vivid that the grouse of the appellants mainly centered on the inability of the prosecution to arraign and to timely prosecute them before a Court of law. It is also on record that appellants are not only before the lower Court, and facing prosecution, but that the Court had ordered for the expeditious determination of the case. Upon all the circumstances gauged together, I see no iota of reason why the lower Court’s decision should be impugned in any way. The appeal is devoid of any merit and undeserving of any sympathy, it is hereby dismissed.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, HAMMA AKAWU BARKA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed.
I abide by all the consequential orders.
Appearances:
A. J. Osayande For Appellant(s)
Fidelis Ogbobe For Respondent(s)
