MUSA UMAR v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2014)LCN/7522(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of November, 2014
CA/A/222A/C/2014
RATIO
EVIDENCE: BURDEN OF PROOF; THE BURDEN ON AN APPLICANT FOR BAIL
The answer is in the negative. It is settled that an applicant for bail must place before the court sufficient materials for consideration upon which the court can exercise its discretion. It means therefore that the applicant must satisfy the court the reason for challenging his detention and asking the court to release him on bail. It is only after the applicant has discharged this onus that rests on him that the onus will shift to the prosecution to show cause why bail should not be granted. This the Appellant has failed to do in this case. per. TANI YUSUF HASSAN, J.C.A.
COURT: COURT’S DISCRETION; THE EXERCISE OF THE COURT’S DISCRETION AND THE CRITERIA THAT GUIDES THE COURT IN GRANTING OR REFUSING BAIL
The Supreme Court in the case of Suleiman Vs C.O.P. (supra) defined the word “discretion” as a power or right conferred upon them by law, or acting in certain circumstances according to the dictates of their own Judgment or conscience. It connotes action taken in light or reason as applied to all facts and with a view to the rights of all the parties to an action while having regard for what is right and equitable under all circumstances and law. It follows therefore that a Judge in exercising his discretion is required to arrive at the decision in every case or situation based on facts placed before him and apply the applicable law.
That is why the Court in exercising its discretion is required to exercise it judicially and judiciously. Section 36(5) of the 1999 constitution of the Federal Republic of Nigeria 1999 (as amended) provides that an accused is presumed innocent until proved guilty. It would, I think be strangely inconsistent with the common sense of the law for the appellant to suppose that releasing him on bail is automatic. Even though bail is a Constitutional right it is not granted as a matter of course.
There must be placed before the court sufficient materials disclosing exceptional circumstance to warrant a grant. The court is also guided by certain criteria in granting or refusing bail. The criteria as provided by the Supreme Court in the case of Suleiman Vs C. O. P (supra) are as follows:
- a) The nature of the charge;
- b) The strength of the evidence which supports the charge;
- c) The gravity of punishment in the event of conviction
- d) The previous criminal record of the accused if any;
- e) The Probability that the accused may not surrender himself for trial;
- f) The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
- g) The likelihood of further charge being brought against the accused; and
- h) The necessity to procure medical or social report pending final disposal of the case. per. TANI YUSUF HASSAN, J.C.A.
JUSTICES
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
MUSA UMAR – Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. MOHAMMED NAZEEF YUNUS
3. SALAMI ADBULLAHI (AKA ASTA) – Respondent(s)
TANI YUSUF HASSAN, J.C.A (Delivering the Leading Judgment): The Appeal is against the Ruling of the Federal High Court, Abuja delivered on the 7th day of March 2014 in charge No. FHC/ABJ/CR/13/2014.
The facts of the case are that the Appellant was charged with two others for breach of several provisions of the Terrorism (prevention) Amendment Act 2013, as reflected at pages 1- 3 of the Record of Appeal.
The Appellant as applicant at the trial court applied to be admitted to bail pending the hearing and determination of the charge(s) against him pursuant to sections 34 and 35 of the 1999 constitution (as amended) and section 118(2) of the criminal procedure Act and under the inherent Jurisdiction of the Court. The application is at pages 59 – 70 of the Record. The trial Judge in his considered Ruling refused the application.
The refusal is what gave rise to this Appeal.
Learned Counsel for the Appellant (Ms) Mase Acho adopted the Appellant’s brief of argument dated and filed on 22/04/2014 and the Appellant’s Reply brief dated and filed on 02/07/2014. She urged the Court to allow the Appeal.
The 1st Respondent’s Counsel Mrs. N. B. Jones – Nebo, Chief State counsel of the Federal Ministry of Justice adopted the 1st Respondent’s brief dated and filed on 07/07/2014 and urged the court to affirm the Ruling of the trial Court and dismiss the Appeal.
The Appellant’s counsel in her brief of argument identified one issue for determination as follow:
ISSUE ONE
“Whether the learned trial Court was right to rely on recent event of the last four weeks to determine the Appellant’s Application for bail rather than the material placed before it?”.
Learned counsel for the Appellant Ms Mase Acho submitted on this sole issue that a Judge is not required to consider extraneous matters when determining an application for bail but to rely on materials placed before it. She argued that by section 36(5) of the constitution of the Federal Republic of Nigeria (as amended) every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.
The Court was referred to the case of Amoshima Vs State (2011) LPELR on the interpretation by the Supreme Court that the use of the word “shall” is intended to have a mandatory effect. She submitted that the grant or refusal of bail application is entirely on the discretion of the Judge, but the discretion must be exercised Judicially and Judiciously.
Learned counsel for the Appellant referred to pages 91 – 104 of the Record where the trial court after evaluation in refusing the application for bail took cognizance of incidences of violences and killings on innocent citizens of the nation, which she said does not fall within the consideration expected of the learned trial Judge. She referred to Adamu Suleiman and other C. O. P. (2008) 8 NWLR (Pt 1089) 298 SC. It is her submission that the law is against sentiments in Judgments because it can easily lead to bias. On the exercise of discretion she referred to the cased of Omodara Vs State (2004) 1 NWLR (Pt 853) 80 at 89 paragraphs E – G, and Ahmed Vs C .O. P (2012) 9 NWLR (Pt 1304) 104 at 130- 131 paragraphs D-E
Counsel further submitted that the trial Court in the exercise of his discretion was influenced by extraneous considerations and materials not placed before the Court when he relied on the happenings in Borno and Yobe State in the North Eastern part of the Country. She referred to pages 109 – 110 of the Record and also page 112 of the trial Court’s conclusion in refusing the Appellant bail. The Court was referred to the case of Summerset Vs Stewaft 1 Lofft 1, 1, 98 Eng. Rep. 499 (KB. 1772).
Appellants Counsel finally submitted that the Constitutional provision of presumption of innocence is a living document and can never be sterile.
She referred to the cases of Plateau State Vs A. G. Federation (2006) 3 NWLR (Pt 967) 345 and Bronik Motors Ltd and others Vs Wema Bank Ltd (1983) LPELR 808 SC at pages 44- 45 among others. She said the facts leading to this Appeal calls for this court to interfere with the exercise of the trial Court’s discretion. She referred to University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) SC 143 at 148 paragraph H. among others. That the trials Court refusal to admit the Appellant to bail was not based on the evidence before the Court which led to an error in the exercise of Judge’s discretion. She referred to U. B. N. Plc Vs Astra Builders (W. A.) Ltd (2010) 5 NWLR (Pt 1186) SC 1 and urged the Court to intervene in the exercise of discretion by the trial Court.
The 1st Respondent’s Counsel Mrs. Jones Nebo, Chief State Counsel of the Federal Ministry of Justice in response identified two issues for determination, the 1st issue being identical with Appellant’s sole issues.
ISSUE ONE
“Whether the learned trial Judge relied on extraneous matters in arriving at the ruling, without recourse to the materials placed before him”.
ISSUE TWO
“Whether the learned trial Judge was right in refusing the Appellant’s application for bail”.
Learned Counsel for the Respondent in arguing the two issues together submitted in response that the trial Judge did consider all the guidelines necessary for the grant of bail intended to serve as guidelines in view of the provision of section 118 (1) and (2) of the Criminal procedure Act which conferred the Court’s discretion. She said every Court in ensuring due diligence must take cognizance of the socio-political milieu, the prevalence of the offence to which the society must be ridden of as encapsulated in our criminal Jurisprudence that, Justice is three way traffic for the accused, the victim of crime and the society at large which must be protected from a repeat occurrence. She referred to Godwin Josiah vs State (1985) 9 NWLR (pt 1) 125 paragraphs G -H.
Learned Counsel for the Respondent referred to paragraphs 109 – 111 and page 12 of the Record and submitted that the trial Judge was concerned with a greater need to safeguard national security which surpasses personal liberty or even a presumption of innocense. She submitted further that the court was mindful with the crime of terrorism with which the Appellant is charged. That since the issue of National security was of superior importance among other considerations, the trial Judge did not find it necessary to go into other guidelines. She said the mention of happenings in the North Eastern states of Nigeria was not the basis of the trial court but rather the prevalence of the offences charged and their direct relationship with the security of the Country as a whole.
She referred to Bamaiyi Vs State (2001) 2 ACLR 467 at 484 and Asari Dokubo Vs State (supra)
It is her submission that with the growing trend of terrorism in the Country, no reasonable Court will decide otherwise but to refuse bail. She said the remarks made by the trial Judge at page 11 of the Record is a mere obiter which cannot be appealed against. She referred to prince (Dr.) B. A Onafowokan and other Vs Wema Bank plc and other (2011) LPELR 2665 SC among others.
On the issue of Constitutional presumption of innocence, learned counsel submitted that it is absolute as it does not operate as a blanket or magic wand which an accused can use to command the court to do his bidding. She referred to Mujahid Asari Dokubo Vs FRN (supra) among other and urged the court to dismiss the Appeal in its entirety for lacking in merit.
In determining this Appeal, I also adopt the issue as identified by the Appellant that is “whether the learned trial court was right to rely on recent event of the last four weeks to determine the Appellant’s application for bail rather than the material placed before it”.
The contention of the Appellant is that the trial court dwelled into extraneous matter in refusing the Appellant bail instead of relying on facts before him as required by law. The extraneous matter complained of by the Appellant is that the trial Judge took into cognizance the happenings in Borno, Yobe and Adamawa states of the North Eastern part of Nigeria, specifically, act of terrorism which is the offence with which the Appellant is charged. It is settled that an applicant for bail must first place before the court for its consideration materials upon which to found the exercise of discretion. It is only after the applicant has discharged this onus that rests on him, that the onus will shift to the prosecutor to show cause why bail should not be granted – Ali vs State (2012) 10 NWLR (Pt 1309) 589.
At page 59 of the Record of Appeal it is a motion dated 29/01/2014 for an order admitting the Appellant to bail pending the hearing and determination of the charge(s) against him. The affidavit in support of the motion is at pages 61 – 62 of the Record where it is deposed from paragraph 2 of the affidavit as follows:
2) “That I know as of fact that the 3rd accused (Appellant herein) were arrested and have been in detention for over 45 days as at the time of the making of this application by virtue of the orders of the Federal High Court based on the allegation that the 3rd Respondents are suspected members of the Boko Haram sect and are under investigation by the officers of the State Security Service.
3) From the charge filed by prosecution, there is an affidavit of completion of investigation deposed to at the registry of this Hon. Court on 22nd January, 2014 by one M. U. Idakwo Esq. The affidavit is attached to this application as exhibit MDI. Specifically paragraph 4 wherein the said M. U. Idakwo Esq informed the Court that “investigation into the alleged case of terrorism against the above name persons have been concluded”.
4) The charge has been filed against the accused/Applicant before the Honourable Court for a number of alleged act of terrorism.
5) I also know as of fact that the offence with which the accused/Applicant is charged is a bailable offence.
6) The 3rd accused/Applicant has never committed any offence prior to the current allegation made against him. He is highly religious having only as his undertaking the participation in the contest of the recitation of the Noble Quaran.
7) With the conclusion of the investigation the 3rd accused/Applicant;
a) Cannot in any, neither does he have any intention to interfere with the investigations of the alleged crimes if he is granted bail
b) Will not commit any crime if he is granted bail
c) Will comply with whatever conditions this Court may wish to impose to secure his attendance if he is granted bail”
In all honesty could the above depositions be said to be within the special circumstances placed before the court, to warrant a grant of bail?
The answer is in the negative. It is settled that an applicant for bail must place before the court sufficient materials for consideration upon which the court can exercise its discretion. It means therefore that the applicant must satisfy the court the reason for challenging his detention and asking the court to release him on bail. It is only after the applicant has discharged this onus that rests on him that the onus will shift to the prosecution to show cause why bail should not be granted. This the Appellant has failed to do in this case.
The Supreme Court in the case of Suleiman Vs C.O.P. (supra) defined the word “discretion” as a power or right conferred upon them by law, or acting in certain circumstances according to the dictates of their own Judgment or conscience. It connotes action taken in light or reason as applied to all facts and with a view to the rights of all the parties to an action while having regard for what is right and equitable under all circumstances and law. It follows therefore that a Judge in exercising his discretion is required to arrive at the decision in every case or situation based on facts placed before him and apply the applicable law.
That is why the Court in exercising its discretion is required to exercise it judicially and judiciously. Section 36(5) of the 1999 constitution of the Federal Republic of Nigeria 1999 (as amended) provides that an accused is presumed innocent until proved guilty. It would, I think be strangely inconsistent with the common sense of the law for the appellant to suppose that releasing him on bail is automatic. Even though bail is a Constitutional right it is not granted as a matter of course.
There must be placed before the court sufficient materials disclosing exceptional circumstance to warrant a grant. The court is also guided by certain criteria in granting or refusing bail. The criteria as provided by the Supreme Court in the case of Suleiman Vs C. O. P (supra) are as follows:
a) The nature of the charge;
b) The strength of the evidence which supports the charge;
c) The gravity of punishment in the event of conviction
d) The previous criminal record of the accused if any;
e) The Probability that the accused may not surrender himself for trial;
f) The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
g) The likelihood of further charge being brought against the accused; and
h) The necessity to procure medical or social report pending final disposal of the case.
The Appellant in the instant case is charged with the offence of terrorism. It is a capital offence the punishment of which on conviction is death. From the above criteria in the case of Suleiman Vs C. O. P. (supra) the first three namely (a, b, and c) are relevant to this case. The charge has been filed as shown at page 1 – 3. The nature of the charge is terrorism. The summary of the case is reflected at pages 4 – 5 of the Record which disclosed evidence in support of the charge. The punishment for terrorism is death.
The trial Judge in its Ruling at page 115 of the Record indicated his readiness to give the matter an accelerated hearing within the months of March, April and May 2014. In this circumstance one would have thought the appellant would pursue the commencement of his trial rather than running after his release on bail. Moreso when the prosecution is in compliance with the provision of section 34(5) of the constitution of the Federal Republic of Nigeria, 1999 which provides for trial of an accused within a reasonable time. In considering the seriousness of the offence the prosecution performed its functions timeously and properly because the liberty of a citizen is at stake. And the prosecution having done that, its objection to the grant of bail to the Applicant was in order. The trial court was therefore right in upholding the objection especially as there is no any special circumstance placed before the court. It is my view that this is a situation where the trial court could be said to have exercised its discretion judicially and judiciously taking into consideration the surrounding circumstances in relation to the nature of the charge against the Appellant.
Bail pending trial is not normally granted ex-debito justitia where the offence is a capital offence – see Ali vs State (supra) and section 135(7) of the Constitution of Nigeria 1990. The Supreme Court in Azuh Vs U. B. N. Plc (2014) 11 NWLR (Pt 1419) 580 at 593 held that where criminal charges are pending against an accused person, his right to freedom of movement may be curtailed by the court seized of the matter or by a higher Court depending on the nature of the offence.
The offence with which the Appellant is charged is terrorism, a capital offence which must be taken with caution, because death sentence is the highest of all penalties. I fail to see the wrong committed by the trial Judge in taking judicial notice of the terrorist acts in the North Eastern states of Nigeria, specifically Borno, Yobe and Adamawa State. This is because the court owes a duty to protect the society, and no principle of law demands that crime of terrorism should be ignored. On the contrary a proper regard requires for the security of the nation. Learned counsel for the Appellant cited authorities without any qualification to their relevance to this case at hand. The case of Suleiman vs C. O. P. (supra) relied heavily by the appellant is not of any assistance to the case of Appellant. It is my view that the trial court exercised its discretion judicially and judiciously. This court will not exercise the right of interference in the Ruling of the trial Court.
Accordingly I dismiss the Appeal for lacking in merit and affirm the Ruling of the trial Court delivered on 07/03/2014.
HON. JUSTICE MOORE A. A. ADUMEIN, J.C.A.: I read the Judgment just delivered by my learned brother, – Tani Yusuf Hassan, JCA. His Lordship has in a very concise but decisive manner resolved the issues for determination in this appeal.
I have nothing useful to add to the reasoning and conclusion of my learned brother, save to say that for the reasons given by my learned brother, I also dismiss this appeal as it is completely devoid of any merit.
The decision of the trial Court refusing the appellant’s application for bail is hereby affirmed.
HON. JUSTICE MOHAMMED MUSTAPHA, J.C.A.: I read in draft the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA.
I agree with the reasoning and conclusions of my learned brother.
For the reasons advanced by my learned brother, I also dismiss this appeal for lack of merit and affirm the ruling of the trial court.
Parties should bear their cost.
Appearances
Ms. Mase AchoFor Appellant
AND
Mrs Jones NeboFor Respondent
