KASALI QUADRI v. THE STATE OF LAGOS (2013)

KASALI QUADRI v. THE STATE OF LAGOS

(2013)LCN/6425(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of July, 2013

CA/L/548/13

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

KASALI QUADRI – Appellant(s)

AND

THE STATE OF LAGOS – Respondent(s)

RATIO

WHETHER OR NOT THE COURT OF APPEAL HAS THE DISCRETION TO GRANT BAIL

Without any undue waste of time, by Section 28(1) of the Court of Appeal Act 2004, this court has the discretion to grant bail irrespective of whether the Applicant has been convicted and sentenced or not provided that there is a pending appeal before the court at the time of the hearing of the application. The Section provides:
“28(1) The Court of Appeal may, if it thinks fit, on the application of an appellant, admit the Appellant to bail pending the determination of his appeal.”
The provision has been given a very wide interpretation so that the nature of the appeal pending before the court is immaterial. It could be an appeal against conviction and sentence or an appeal against refusal to grant bail. What is important is that there is an appeal pending. See Orji vs. FRN [2007] 13 NWLR (Pt. 1050) 55 @ 78-79 E-G. PER IYIZOBA, J.C.A.

THE POSITION OF THE LAW WHEN AN APPEAL IS SAID TO BE PENDING

FACTORS TO BE CONSIDERED BY THE COURT IN EXERCISING ITS DISCRETION TO GRANT A BAIL APPLICATION

Whether or not to grant bail is usually a matter at the discretion of the court before which the application is brought. The discretion must of course be exercised judiciously in accord with the rules of reason and justice and not arbitrarily. See Odusote v. Odusote (1971) 1 All NLR 219.The Applicant herein is standing trial for, as claimed by the Prosecution attempted murder. It is not a capital offence and is therefore a bailable offence. The Applicant is a first offender. Section 118(2) of the Criminal Procedure Act provides that “where a person is charged with any felony other than a felony punishable with death, the court may, if it thinks fit, admit him to bail.” In exercising its discretion in deciding whether or not to grant bail, the court usually considers the following:
1. The nature of the charge;
2. The severity of the punishment;
3. The character of the evidence;
4. Availability of the accused to stand trial;
5. The likelihood of the accused committing another offence while on bail;
6. The likelihood of the accused interfering with the cause of justice; and
7. The criminal antecedents of the accused person.
These conditions are not exhaustive and may not be relevant in all applications for bail. See Dantata v IGP (1957) NRNLR 3; Bamiyi v State (2001) 8 NWLR (Pt. 715) 270; Abacha v State (2002) 5 NWLR (Pt. 761) 638
The grounds as stated in this application for bail are that:
1. By virtue of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria, the Appellant/Applicant is guaranteed his fundamental right to liberty;
2. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria the Appellant/Applicant is presumed innocent of the offence with which he is charged
3. On the strength of the decision in Eyu v. State (1988) 2 NWLR (Pt. 78), Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) and Ogbemhe v. C.O.P (2000) 19 W.R.N 40 @ 53 there is a presumption in favour of the Appellant/Applicant’s liberty
4. The offence with which the Appellant/Applicant is charged is bailable.
5. Contrary to the provision of s. 35(4) (a) the Appellant/Applicant has been in custody since March 5, 2012. PER IYIZOBA, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Lead Ruling): On the 5th day of March, 2012, the Appellant was arraigned before the Lagos State Magistrate Court holden at Tinubu on a single count charge which read as follows:
“That you QUADRI KASALI ‘M’ on the 1st March 2012 at about 14.20 hrs at Moloney Street, Lagos Island in the Lagos Magisterial District being a driver-in-charge of a commercial Vanagon Bus with Registration Number XA242KLK did drive the said vehicle in such a deliberate manner with intent to kill one Justice Adeniji Adebanjo by hitting him with the vehicle thrice while the said Justice Adeniji Adebanjo challenged him for obstructing other road user and as a result of which he sustained severe injury on his right arm and thereby committed an offence contrary to and punishable under Section 228(2) of the Criminal Code, Laws of Lagos State of Nigeria 2011”
After the charge was read and interpreted to the Appellant, he elected summary trial and pleaded not guilty. His Counsel, A.O. Opete Esq. applied for bail as the offence was a bailable one. The IPO Sgt Akorede Agunrege informed the Court that the Appellant’s driver’s licence had expired. The presiding Magistrate M.A. Ladipo (Mrs) C.M.1 refused bail. After several adjournments, on 19/6/12, the Prosecutor informed the Magistrate Court that he intends to substitute the charge sheet pending before the court and on 9/7/12 the single count charge was substituted with a five count charge which read as follows:
“COUNT 1: That you QUADRI KASALI ‘M’ on the 1st day of March 2012 at about 11.20 hrs at Moloney Street, Lagos Island in the Lagos Magisterial District being a driver-in-charge of a commercial Vanagon Bus with Registration Number XA242KLK drove the said vehicle in such a deliberate manner thereby attempted to unlawfully kill one Justice Adeniji Adebanjo when he was crossing the road and thereby committed an offence contrary to and punishable under Section 228(2) of the Criminal Code, Laws of Lagos State of Nigeria 2011.
COUNT II:Â Â That you QUADRI KASALI ‘M’ on the same date, time and place in the aforementioned Magisterial District did unlawfully intent to harm Hon. Justice Adeniyi Adebajo by hitting him with Commercial Vanagon Bus with Reg. No. XA242KLK and as a result caused injury to his arm and thereby committed an offence contrary to and punishable under Section 242 of Criminal Code Laws of Lagos State of Nigeria 2011.
COUNT III:Â Â That you QUADRI KASALI ‘M’ on the same date, time and place in the aforementioned Magisterial District did unlawfully cause grievous harm to Hon. Justice Adeniyi Adebajo by hitting him with commercial Vanagon Bus Reg. No. XA242KLK and thereby committed an offence contrary to and punishable under Section 243 of Criminal Code Laws of Lagos State of Nigeria 2011.
COUNT IV:Â Â That you QUADRI KASALI ‘M’ on the same date, time and place in the aforementioned Magisterial District being a driver in charge of Commercial Vanagon Bus Reg. No. XA242KLK did drive same on a public Highway in a dangerous and reckless manner without due regard and attention to other road users and caused injury to Hon. Justice Adeniyi Adebajo ‘M’ and thereby committed an offence punishable under Section 29 of the Road Traffic Act, Laws of Lagos State of Nigeria 2011.
COUNT V:Â Â That you QUADRI KASALI ‘M’ on the same date, time and place in the aforementioned Magisterial District being a driver in charge of Commercial Vanagon Bus Reg. No. XA242KLK drove said vehicle on a Public Highway without drivers licence and thereby committed an offence contrary to Section 7(1) of Road Traffic Act, Laws of Lagos State of Nigeria, 2011.
The new five count charge was read over to the Appellant on that 9/7/12 but his plea was not taken. The Prosecutor then submitted an application to the Magistrate praying that the Appellant be further remanded in Ikoyi Prison. The application was vehemently opposed by learned counsel for the Appellant. The Magistrate in his ruling stated that he had no jurisdiction to entertain the charge and remanded the Appellant in prison for a further period exceeding one month from 9/7/12 to the adjourned date of 13/8/12.
Further development in the case was not disclosed in the processes filed save that the Appellant applied for bail at the Lagos State High Court on 13/3/13. The application was refused in a considered ruling delivered on 5/6/13 on the ground inter alia that he was a commercial bus driver and likely to abscond. The Appellant thereupon on the 17th day of June 2013 filed a notice of appeal against the ruling. Pending the compilation of record of appeal, the Appellant filed an application on 26/6/13 praying for the following reliefs:
1. AN ORDER enlarging the time within which the Appellant/Applicant shall seek to apply that the Appellant be admitted to bail.
2. AN ORDER of this Honourable Court admitting the Appellant/Applicant to bail on liberal terms pending the hearing and determination of his appeal.
3. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The grounds for the application were set out on the motion paper. The application was further supported by a 20 paragraph affidavit with several exhibits. In opposition to the application, the Respondent filed a 28 paragraph counter affidavit with exhibits. Exhibit AS1 is a motion on notice filed by the appellant in the lower court for an order striking out or quashing the charge brought against the Appellant in its entirety and discharging him on the ground that the proof of evidence disclosed no prima facie case of attempted murder, affidavit and written address in support of the application.
The present application was heard on the 11th of July 2013. In moving the application, learned counsel for the applicant, Femi Falana SAN prayed the court to grant the applicant bail pending the hearing and determination of the appeal filed against the decision of the trial court. Learned Counsel referred to the ruling of the lower court refusing bail, Exhibit E of the affidavit in support of the application and the notice of appeal, Exhibit F and submitted that the main reason of the lower court for refusing bail was that the Appellant would jump bail because he was a commercial bus driver. Counsel submitted that bail is a basic right of every person standing trial and that the onus is on the prosecution to convince the court as to why an accused should not be granted bail.
He relied on M. K. Abiola vs The Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155 and Eyu vs The State (1988) 2 NWLR (Pt. 78). He urged the Court to exercise its discretion in favour of the Applicant.
Mr. Femi Adamson, Assistant Chief State Counsel, Ministry of Justice Lagos State for the Respondent by way of preliminary objection submitted that the application is incompetent. He argued that the application is for an order enlarging time within which the applicant shall seek to apply that the Appellant be admitted to bail and an order for bail pending hearing and determination of his appeal. Counsel submitted that there is no appeal pending and therefore the application is incompetent. He relied on Akoh vs Abuh [1988] 3 NWLR (Pt. 85) 696 @ 720.
In the event of the court finding no merit in the preliminary objection, counsel submitted that they filed a 28 paragraph counter affidavit with exhibits. He contended that the exhibits attached to the Applicant’s affidavit are public documents which ought to be certified. He further contended that unless the court sees the entire record of proceedings, it is not in a position to determine whether the discretion of the court below was exercised rightly. He urged the court to dismiss the application as the learned trial Judge had already granted accelerated hearing of the case and hearing had actually commenced.
On points of law learned counsel for the Applicant submitted that an application for bail pending appeal can be made before the records are entered. He further submitted that Section 15 Court of Appeal Act empowers the Court to make any order which the lower court could have made. He relied on Fawehinmi v The State [1990] 1 NWLR (Pt. 127) 486 and urged the court to grant the application.
I shall first consider the preliminary objection raised by Mr. Adamson. Without any undue waste of time, by Section 28(1) of the Court of Appeal Act 2004, this court has the discretion to grant bail irrespective of whether the Applicant has been convicted and sentenced or not provided that there is a pending appeal before the court at the time of the hearing of the application. The Section provides:
“28(1) The Court of Appeal may, if it thinks fit, on the application of an appellant, admit the Appellant to bail pending the determination of his appeal.”
The provision has been given a very wide interpretation so that the nature of the appeal pending before the court is immaterial. It could be an appeal against conviction and sentence or an appeal against refusal to grant bail. What is important is that there is an appeal pending. See Orji vs. FRN [2007] 13 NWLR (Pt. 1050) 55 @ 78-79 E-G.

When is an appeal said to be pending? In the case of Oyelese & Ors vs. INEC & Ors (2011) LPELR-CA/I/M.36/2011 it was held that:
“An appeal is pending as soon as Notice of Appeal is filed in the Court of trial or in any other place designated for that purpose by the Rules……”
See also Ogunremi v. Dada (1962) 1 All NLR 563; Lekwot & Ors v Judicial Tribunal etc. (1997) 8 NWLR (Pt. 515) 22 and Akinyemi v Professor Soyanwo (2006) 13 NWLR (Pt 998) 496 @ 514-515.
The matter of when an appeal is said to be pending must not be confused with when an appeal is said to have been entered. While an appeal is pending as soon as notice of appeal is filed, an appeal is entered when the record of appeal is compiled and forwarded to the Appellate Court and received by that court and entered in the court in accordance with the Rules of the Court. See the authorities cited above.
Based on the above, the notice of appeal herein having been filed on 17/6/13 and the application for bail having been filed on 26/6/13, this court has the competence by virtue of Section 28(1) of the Court of Appeal Act to hear the application for bail pending the determination of the appeal, notwithstanding that the pending appeal is one against the refusal of the lower court to grant bail to the Appellant. I have read the case of Akoh vs. Abuh [1988] 3 NWLR (Pt. 85) 696 @ 720 which Mr. Adamson relied on. The appeal to the Supreme Court which concerned a land dispute dealt with the power of the Inspector Area Court to stay proceedings and transfer suit to another court, whether hearing is still in progress in the case of a judgment of court written and undelivered and establishment of likelihood of bias in judicial proceedings. I do not see its relevance to the instant application. The preliminary objection is misconceived and is hereby disallowed.
It is right then to conclude that the applicant is not necessarily seeking bail by way of appellate review of the discretion exercised by the lower court but as a fresh application as is allowed under Section 28(2) of the Court of Appeal Act as long as there is an appeal pending. The Respondent’s contention that unless the court sees the entire record of proceedings, it is not in a position to determine whether the discretion of the court below was rightly exercised is consequently of no moment.
Whether or not to grant bail is usually a matter at the discretion of the court before which the application is brought. The discretion must of course be exercised judiciously in accord with the rules of reason and justice and not arbitrarily. See Odusote v. Odusote (1971) 1 All NLR 219.The Applicant herein is standing trial for, as claimed by the Prosecution attempted murder. It is not a capital offence and is therefore a bailable offence. The Applicant is a first offender. Section 118(2) of the Criminal Procedure Act provides that “where a person is charged with any felony other than a felony punishable with death, the court may, if it thinks fit, admit him to bail.” In exercising its discretion in deciding whether or not to grant bail, the court usually considers the following:
1. The nature of the charge;
2. The severity of the punishment;
3. The character of the evidence;
4. Availability of the accused to stand trial;
5. The likelihood of the accused committing another offence while on bail;
6. The likelihood of the accused interfering with the cause of justice; and
7. The criminal antecedents of the accused person.
These conditions are not exhaustive and may not be relevant in all applications for bail. See Dantata v IGP (1957) NRNLR 3; Bamiyi v State (2001) 8 NWLR (Pt. 715) 270; Abacha v State (2002) 5 NWLR (Pt. 761) 638
The grounds as stated in this application for bail are that:
1. By virtue of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria, the Appellant/Applicant is guaranteed his fundamental right to liberty;
2. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria the Appellant/Applicant is presumed innocent of the offence with which he is charged
3. On the strength of the decision in Eyu v. State (1988) 2 NWLR (Pt. 78), Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) and Ogbemhe v. C.O.P (2000) 19 W.R.N 40 @ 53 there is a presumption in favour of the Appellant/Applicant’s liberty
4. The offence with which the Appellant/Applicant is charged is bailable.
5. Contrary to the provision of s. 35(4) (a) the Appellant/Applicant has been in custody since March 5, 2012.
On the basis of the above presumption of innocence of the Applicant until found guilty and the paramouncy of the liberty of the applicant, the prosecution bears the burden of proving that the Applicant does not deserve to be granted bail. I have carefully perused the counter affidavit filed on behalf of the Respondent in opposition to the grant of bail. There is no averment therein directed towards convincing the court that the Applicant does not deserve to be granted bail; apart from paragraph 13 where it was deposed that the lower court clearly stated the reasons for refusal of bail in Exhibit E attached to the Applicant’s application. The learned trial Judge of the lower court in his ruling refusing the Appellant/Applicant bail appeared to have placed the burden on the Appellant/Applicant instead of the Respondent. His words:
“It is noted that the charge against the Applicant consist of a serious offence of attempted murder. It is alleged that the Appellant is a commercial Bus Driver and this court has noted this assertion and that he is likely to be very mobile….
It is the considered view of this Court that by the nature of the charge against the Applicant, the strength of the evidence which supported the charge and the gravity of the punishment in the event of conviction suggest that the Applicant is not likely to attend Court for his trial if granted bail and they weigh heavily against the grant of this application. Apart from the general and perfunctory remarks that the applicant will attend Court for his trial if granted bail, the Applicant did not present this court with any cogent, credible and concrete grounds to believe that he would be present in court for trial if this application is granted. An applicant seeking the exercise of the Court’s discretion in his favour has the duty to support his application with all necessary evidence that tilt the balance of justice to his side and it is the corresponding duty of the Court to determine whether the Applicant had discharged his duty in that regard. If he fails, it will be just and right if that Court should refuse to exercise its discretion in his favour….”
The relevant averments in the affidavit in support of the application for bail are as follows:
12. I am informed by the Applicant at the Lagos State High Court on 5th day of June, 20134 at about 10:00 am and I verily believe him as follows:
a. On the 1st day of March, 2012 he drove his commercial bus from Oyingbo to Obalende and on getting to Obalende he discharged his passengers after which he took another trip back from Obalende to Oyingbo but somewhere on Moloney a commercial motorbike suddenly overtook his vehicle which caused him to apply his brake albeit to no avail as his vehicle hit the commercial motorbike.
b. In the midst of the commotion he tried to move his vehicle away but one man which he later discovered after his arraignment to be Honourable Justice Ebenezer Adeniyi Adebajo got in front of his vehicle and the vehicle hit him.
c. He is the breadwinner of his family and his wife just put to bed sometime in May, 2012.
d. His wife resides at No. 22, Jos Street, Oyingbo, Lagos with him prior to his detention at Ikoyi Prisons and has not been able to provide the basic necessities of life for the newly born baby as the Applicant who is the breadwinner is still in custody.
e. He has responsible and reliable members of his family who are ready, willing and able to stand as surety for his bail.
f. He has never been involved in any crime.
g. He will not jump bail if he is admitted to bail.
h. He will not in any way or manner interfere with the case of the prosecution or the witness (es) of the prosecution neither will he commit any offence while on bail.
These averments having been deposed to on behalf of the Applicant, the burden is on the Respondent to debunk them and adduce before the Court reasons to convince the Court not to exercise its discretion in favour of the Applicant. As stated earlier, there was no averment in the counter affidavit of the Respondent directed towards convincing the court that the Applicant does not deserve to be granted bail. The main reason given in the ruling of the lower court for refusing bail is that the Applicant as a commercial bus driver is always on the move and may not make himself available for his trial. This clearly is not good enough. The fact that the Applicant is a commercial bus driver is no reason for concluding that he will not make himself available for his trial especially where he has deposed that his wife just put to bed in May 2012 and that he has reliable members of his family who are ready, willing and able to stand as surety for his bail. Considering also the nature of the charge and the affidavit evidence that the accident may have resulted from brake failure, there is no compelling reason why the Applicant should not be given the benefit of the doubt.
In the case of Tanko Mohammed Rajab & Anor v. The State (2010) LPELR-5001(CA) it was held that:
“A Prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See Adams vs. Attorney General of the Federation (2006); Bolakale vs. State (2006) 1 NWLR (Pt. 962)507; Anakwe vs. Commissioner of Police (1996) 3 NWLR (Pt. 436) 320.”
The Appellant/Applicant has been detained in prison for over one year now for an offence which is bailable, contrary to the presumption of innocence as enshrined in the Constitution. In the absence of any evidence contradicting the averment in the affidavit of the Applicant that he will not jump bail if admitted to bail; that he will not interfere with the case of the prosecution and will not commit any offence while on bail, I think he is entitled to be admitted to bail and I so order pending the determination of the appeal. Bail is hereby granted the Applicant in the sum of N100, 000.00 with two sureties in like sum. The sureties must be owners of landed property and they must file affidavits of means.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the Ruling prepared by my learned brother, Iyizoba, J.C.A. and I adopt it as mine with nothing useful to add.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the Ruling of my learned brother Chinwe Eugenia Iyizoba JCA, just delivered this morning.
I agree with his reasoning and conclusions therein. I also grant bail to the Applicant, and abide by the consequential orders of my learned brother.

Appearances

Femi Falana SAN with Dare Falana Esq., Audu Augustine Esq., Adedotun Osobu Esq., Tolu Agbona Esq., and Kehinde Solomon Esq. For Appellant

AND

Femi Adamson Esq., (Asst Chief State Counsel, Min. Of Justice, Lagos) and H. F. Owokoniran (Principal State Counsel) For Respondent