ABDULBASIT OHIZE v. COMMISSIONER OF POLICE
(2014)LCN/7217(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of May, 2014
CA/A/321c/2012
RATIO
GRANTING AND REFUSAL OF BAIL AT THE DISCRETION OF THE COURT
What is clear is that the decision to grant or refuse an application for bail is at the discretion of the court. However, such a discretion must be exercised judicially and judiciously having regard to the right of the accused person to his personal liberty until he is proved guilty to the crime alleged, while weighing it with the need for the society to be protected from grievous criminal acts. – Dokubo-Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320; Bulama v. FRN (2004) 12 NWLR (Pt. 888) 498.
In the proper exercise of a court’s discretion the judge must act on the material facts supplied by the parties. With respect to application for bail, the facts upon which the judge is to act can be garnered from the affidavits and counter-affidavits before the court. per TINUADE AKOMOLAFE-WILSON, J.C.A.
CONSIDERATIONS IN THE GRANT OF BAIL
One of the important factors the court usually examines in the consideration of whether the applicant will be available to stand his trial is the nature of the offence and the attendant punishment prescribed. Where the offence the accused/applicant is standing trial is of a very serious nature, and the punishment is very high, like in capital offences, the highest punishment known to law, the courts are slow in granting bail, except special circumstances are established. In fact Section 341(1) of the Criminal Code Cap 30, Laws of the Federation of Nigeria, 2004 specifically provided that a person charged with a capital offence should not be granted bail. The rationale of the reluctance of the court generally, to grant bail is the factor that because of the gravity of the offence and the severity of the punishment, there is the likelihood that the accused/applicant may flee from answering the charge against him. See Anajemba v. F.G.N. (2004) 13 NWLR (Pt. 890) 267 at 283; Abacha v. State (supra). per TINUADE AKOMOLAFE-WILSON, J.C.A.
WHEN A COURT HAS EXERCISED ITS DISCRETION WRONGLY.
A court is adjudged to have exercised its discretion wrongly if the exercise was arbitrary illegal either by considering extraneous matters or failing to consider material issues. A trial court has also not exercised its discretion judicially and judiciously where it applied wrong principles of law, considered extraneous matters in disregard of relevant matters. In Ahmed v. C.O.P. Bauchi State (2012) 9 NWLR (Pt. 1304) page 130-131 para. G-H. This court held that:
“It will only intervene where the exercise of discretion by the lower court has been wrongly exercised, based on wrong or erroneous premise or perverse. It will also intervene where there is a violation of some principles of law or procedure, such as where the lower court took irrelevant materials into consideration or fail to consider relevant materials in arriving at its decision and thereby occasioning miscarriage of justice.” per TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
ABDULBASIT OHIZE Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of the Federal Capital Territory, Abuja delivered by Honourable Justice M. E. Anenih on the 13th day of February, 2012 whereby the appellant was arraigned for the alleged criminal offence of 1 count charge of causing death by negligent conduct contrary to Section 225 of the Penal Code Law.
The brief facts of the case are that the Appellant was in September 2011 arrested by the Respondent in Abuja and the Respondent’s officers obtained the statements of the Appellant and detained him. The Respondent refused the Appellant police bail after several requests. The Appellant spent over 4 months in the custody of the Respondent before he was arraigned on the 1st of February, 2012.
The Appellant was arraigned for the alleged criminal offence of 1 (one) count charge of causing death by negligent conduct contrary to Section 225 of the Penal Code Law. The Appellant denied the charges in the sole count and was remanded at Kuje Prison Abuja by the lower court and the Appellant’s counsel filed a motion on notice on the 27th of January, 2012 for the bail of the Appellant. The Respondent opposed the application and filed a 10 paragraphed counter-affidavit dated 17th February, 2012. The lower court took arguments of both counsels. On the 13th February 2012, the lower court delivered its ruling and refused the bail application and ordered that the Appellant be remanded in prison custody.
The Appellant herein being dissatisfied with the ruling filed a Notice of Appeal containing 3 grounds of appeal and is seeking that the appeal be allowed and admitting the Appellant on bail pending the final determination of the substantive suit at the lower court.
The grounds of appeal are –
Ground One:
The learned trial judge erred in law by refusing to grant bail to the Appellant and shifting the burden on the accused/appellant when he held:
“The applicant reason was not supported with necessary evidence and is the duty and the onus is on the applicant to place reason before the court and such error occasioned a miscarriage of justice.”
Ground Two:
The learned trial Judge erred in law when he refuse to grant bail to the Appellant and exercise his discretion wrongly by holding that the Applicant place insufficient grounds before the court and such error occasioned a failure of justice.
Ground Three:
The learned trial Judge failed to properly evaluate and ascribe probative value to the facts contained in the affidavit of the Appellant when he held that the mere fact that the Applicant is married is not enough ground to grant bail and such failure occasioned miscarriage of justice.
In the Appellant’s brief of argument settled by Abdulhamid Mohammed Esq., filed on 29/11/2012, two issues were formulated for determination and they are:
1. Whether the Appellant ought to be admitted to bail pending trial by the High Court and whether the High Court thereby exercise its discretion judicially and judiciously in its determination for the application for bail in view of the facts and circumstances of the case (Grounds 1 and 2).
2. Whether the learned trial Judge evaluated the facts contained in the two affidavits for and against the application for bail and ascribe probative value to them (Grounds 3).
The Respondent did not file his brief of argument despite the fact that he was served with Appellant’s brief and all other court processes. The motion to hear the appeal on the Appellant’s brief of argument alone, filed on 20/3/13 and served on the Respondent on 12/10/12 was granted on 25/11/12. From the court record, it is clearly shown that the Respondent was served again on the 14th February, 2014 with hearing notice of this appeal.
Order 18 Rule 4(1) of the Court of Appeal Rules 2011 provides that the Respondent shall within thirty days of the service of the brief for the Appellant on him file the Respondent’s brief which shall be duly endorsed with an address or addresses for service. Order 18 Rule 10(1) provides for the consequences of failure to file brief. It is to the effect that if the Respondent fails to file his brief, he will not be heard in oral argument. See Ejiofor v. Uzodike (2008) 17 NWLR (Pt. 1117) page 470 at 480 paras. C-F that –
It has been established through plethora of cases that every material point canvassed in an Appellant’s brief which is not countered in the Respondent’s brief is deemed to have been conceded to the Appellant.
In this appeal, on the 14th February, 2014 Respondent was served with Appellant’s brief and all other court processes yet has failed to file his brief. Therefore, based on the authorities cited above the Respondent will not heard in oral argument and is deemed to have conceded to every material point canvassed in the Appellant’s brief.
However, irrespective of failure of the Respondent to file a brief, the court still has the onerous task to determine whether the decision of trial judge was proper. I will therefore proceed to consider the merits of this appeal. I adopt the two issues raised by the Appellant and will argue them together.
Issue one
Whether the Appellant ought to be admitted to bail pending trial by the High Court and whether the High Court thereby exercise its discretion judicially and judiciously in its determination for the application for bail in view of the facts and circumstances of the case (Grounds 1 and 2)
Issue two
Whether the learned trial Judge evaluate the facts contained in the two affidavits for and against the application for bail and ascribe probative value to them.
The argument advanced by learned counsel for the Appellant is that from the charge sheet, the offences for which the applicant was charge are not ordinarily bailable and under Section 341(2) of the Criminal Procedure Code, the court has a discretion to release the Appellant on bail pending final determination of the criminal case if the court consider three important factors:
(1) That by reason of granting the bail, proper investigation of the offence would not be prejudiced.
(2) That no serious risk of the accused escaping from justice would be occasioned and
(3) That no grounds exist for believing that the accused, if released would commit an offence.
Learned counsel further submitted that having left the issue of bail to the discretion of the court, the discretion has to be exercised judicially and judiciously. The discretion of the learned trial judge must be guided by the affidavit evidence before the court and having regard to the facts and circumstances of the case. Further in exercising the discretion, the fundamental provisions of Section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria 2011 (As Amended) has to be considered. He cited in support Adegbite v. C.O.P. (2006) 13 NWLR (Pt. 997) page 252 at 270 paras. D-E and page 271 paras. E-F and Onu Obekpa v. C.O.P (1981) 2 NCLR page 420 at 422.
Learned counsel further made reference to the ruling of the lower court at pages 45-69 of the records. He opined that the discretion of the lower court was not exercised judicially and judiciously by the learned trial judge. He submitted that the learned trial judge shifted the onus on the Appellant to place sufficient materials or establish that he is entitled to the bail (page 67 of the record of appeal). See also the case of Musa v. C.O.P (2004) 9 NWLR (Pt. 879) page 483 at 500 paras. A-B page 501 paras. E-F.
Further, learned counsel submitted that since the law presumes in favour of the liberty of the Appellant and the constitutional presumption of innocence of the Appellant until found guilty the onus is on the prosecution (the Respondent) to show in a given case that an accused person is not the one to be released or granted bail. See Eyu v. State (1988) 2 NWLR (Pt. 78) Page 602. See further the following cases:
(1) Ahmed v. C.O.P. Bauchi State (2012) 9 NWLR (Pt. 1304) page 104 at 125 paras. b and d, page 130-131.
(2) Chedi v. A.G. Federation (2006) 13 NWLR (Pt. 997) page 308 at 324 at 326 paras. F-G.
(3) Iwuji v. Federal Commissioner for establishment (1985) 1 NWLR (Pt. 3) page 497.
It is the submission of learned counsel for the appellant that if the discretion is not properly exercised in accordance with dictates of justice and equity, the result is that whatever findings or conclusion reached would be perverse. The wrong exercise of discretion may lead to failure to properly appraise the evidence or facts before the court.
It is the contention of the Appellant that the lower court failed to properly evaluate the facts in support of the affidavit of the Appellant and ascribed probative values to them:
(a) That investigation into the case has been concluded
(b) That the Appellant undertakes or deposed to always attend his trial.
(c) That he will provide or produce credible sureties or comply with conditions of bail.
Learned counsel noted that the depositions of the Respondent are bare assertions not supported by any tangible evidence to convince the court to exercise its discretion one way or the other. He stated that in the whole counter affidavit there is nothing to suggest that the Appellant will interfere with Respondent’s investigation or the non availability of the Appellant to stand his trial. In addition to the above, he submitted that in adjudicating application for bail, the court is also called upon to take judicial notice of the environment and conditions of prisons in Nigeria. See the case of Jammal v. State (1996) 9 NWLR (Pt. 472) page 352. Also that in the affidavit for the application for departure from the Rules, the Appellant annexed a medical report from the Kuje Prison FCT Abuja, which indicates that the Appellant is a diabetic patient.
In conclusion, learned counsel for the Appellant submitted that the lower court exercised its discretion wrongly and not judicially or judiciously in refusing the Appellant’s bail because the court did not take the following into consideration:
(a) The clear provision of Section 341(2) of the Criminal Procedure Code which gave the court wide discretion on bail vis-a-vis the provision of Section 35(4) of the 1999 Constitution (as amended).
(b) The court shifted the burden on the Appellant to place materials to warrant the grant of the bail, when the Appellant enjoys the constitutional presumption of innocence in criminal trial. The provision of Section 35(4) a and b further provides that if the trial will exceed 2 or 3 month, the applicant may be release conditionally or unconditionally to ensure he appears for trial at a later date. And that if the discretion is not properly judicially and judiciously exercise, this Honourable Court has the power to intervene in the interest of justice, equity and fairness.
Finally learned counsel urged this Honourable Court to allow the appeal, set aside the ruling of the lower court and admit the appellant to bail on liberal terms.
The two issues for determination can properly come under the umbrella of whether the learned trial judge properly exercised his discretion in his refusal to grant the applicant bail.
The Criminal Procedure Code, as opposed to the Criminal Procedure Act, specifically made provisions for the factors guiding the grant of bail. Section 341 Criminal Procedure Code provides –
“(1) Persons accused of an offence punishable with death shall not be released on bail.
(2) Persons accused of an offence punishable with imprisonment for a term exceeding three years shall not ordinarily be released on bail; nevertheless the court may upon application release on bail a person accused as aforesaid if it considers –
(a) that by reason of the granting of bail the proper investigation of the offence would not be prejudiced; and
(b) that no serious risk of the accused escaping from justice would be occasioned; and
(c) that no grounds exist for believing that the accused, if release would commit an offence.
3) Notwithstanding anything contained in subsections (1) and (2), if it appears to the court that there are no reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for further inquiry, such person may pending such inquiry, be released on bail.”
It is clear from these provisions that an accused person generally, and usually, is not to be denied bail, except where the offence is a capital offence.
In the facts leading to this appeal, the Appellant was charged under Section 225 of the Penal Code for death caused when intention is to cause hurt only. It provides –
“Whoever causes the death of any person by doing any act not amounting to culpable homicide but done with the intention of causing hurt or grievous hurt, shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.”
The Appellant was charged under a non-capital offence. The consideration for his bail therefore falls under S.241(2) (a)-(c) of the Criminal Code. The provisions of the law make it clear that bail is not automatic. The court may release an accused/applicant for bail upon some conditions stipulated under the law and some that have received judicial pronouncements. Thus in considering whether to grant or refuse bail to an accused person, the court is guided by the following factors:
“(a) nature of the charge;
(b) the severity of the punishment in the event of conviction:
(c) The strength of the evidence by which the charge is supported;
(d) the criminal record of the accused, if any;
(e) the likelihood of the repetition of the offence;
(f) the probability that the accused may not surrender himself for trial, thus not bringing himself to justice;
(g) the risk that, if released, the accused may interfere with witnesses or suppress the evidence likely to incriminate him, and
(h) the necessity to procure medical treatment or social report pending the disposal of the case.”
Suleiman v. C.O.P. (2008) 162 LRCH 155, Bamaiyi v. State (2001) SCNJ 103, Abacha v. State (2002) 5 NWLR (Pt. 761) 638, Bulama v. FRN (Supra), Ozougwu v. State (2006) 9 NWLR (Pt. 985) 243.
It must be borne in mind that in all these factors, the most important for consideration or the most proper test whether bail should or not be granted is the probability of whether the accused/applicant will appear to take his trial and will do nothing to frustrate same – Bamaiyi v. State (Supra), Abacha v. State (Supra).
What is clear is that the decision to grant or refuse an application for bail is at the discretion of the court. However, such a discretion must be exercised judicially and judiciously having regard to the right of the accused person to his personal liberty until he is proved guilty to the crime alleged, while weighing it with the need for the society to be protected from grievous criminal acts. – Dokubo-Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320; Bulama v. FRN (2004) 12 NWLR (Pt. 888) 498.
In the proper exercise of a court’s discretion the judge must act on the material facts supplied by the parties. With respect to application for bail, the facts upon which the judge is to act can be garnered from the affidavits and counter-affidavits before the court.
The learned trial Judge in her ruling (pages 45-50 of the Record of Appeal) made references to appropriate principles of law and decided cases on the issue of bail. The main complaints of the Appellant however are that the lower Court Judge exercised its discretion wrongly in that the learned trial Judge wrongly shifted the burden to prove why he should be released on bail and that the court did not properly evaluate the evidence before it. It is true, as rightly posited by the learned trial Judge that as a general rule, the duty lies first on the applicant to support his application by bringing all necessary facts before the court to enable the court exercise its discretion – Ojo v. F.R.N. (2006) 9 NWLR (Pt. 984) 103 at 122; Dokubo-Asari v. F.R.N. (supra).
However, once the accused/applicant places some materials before the court for consideration of his application, the onus shifts to the prosecution. The law imposes a duty on the prosecution to contradict or controvert the claim of the applicant for bail why he should be granted bail and that he would not interfere with any prosecution witness or jump bail. Where the prosecution fails to produce strong evidence to contradict the applicant’s claim; the court would have no basis to refuse bail. – Bolakale v. State (2006) 1 NWLR (Pt. 962) 507. Thus, the prosecution has to supply sufficient facts to contradict or controvert the assertion made in the affidavit in support of the application for bail before the court will refrain from exercising its discretion in granting bail to an applicant.
The time of the ruling of the lower court erroneously placed the onus on the Appellant to satisfactorily convince the court that he is entitled to be released on bail. In the circumstance, the learned trial Judge wrongly exercised her discretion in placing the onus of proof on the applicant.
On valuation of evidence, the facts can be gleaned from the affidavit of the Appellant in support of his application for bail at pages 22-25 in comparison with the counter-affidavit of the Respondent in opposition to bail at pages 34-35. A clam examination of the depositions therein made positive averments in consideration of the three important factors to be considered by the court pursuant to S. 341(2) CPC. These I will restate for emphasis –
“(1) That by reason of the granting of bail the proper investigation of the offence would not be prejudiced; and
(2) That no serious risk of the accused escaping from justice would be occasioned; and
(3) That no grounds exist for believing that the accused, if release would commit an offence.”
I am in full agreement with Mr. Mohammed for the Appellant that the depositions of the Respondent are bare assertions not supported by tangible evidence to convince the court to refuse to exercise its discretion in favour of the Appellant. As I have said earlier, the principal factor in the consideration of bail is the availability of the applicant to stand his trial. In fact all other factors revolve around this main requirement. In Dokubo-Asari v. FRN (2007) All FWLR (Pt. 375) 588 the Supreme Court held as follows:
“The main function of bail is to ensure the presence of the accused at the trial. This criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above. As a matter of fact, all other criteria are parasitic on the omnibus criterion of availability of the accused to stand trial.”
The Appellant deposed severally in his 19 paragraph affidavit that he will not jump bail. See (pages 22-23 of the Record). The flimsy counter depositions are in paragraphs 5 and 7 of the counter-affidavit (page 34) to the effect “that he repeatedly declared, while in police custody of his desire to live (sic) Abuja if released and that he will tamper with prosecution witnesses as he lives and stays the same locality with them”. These are bare assertions, not supported by any concrete evidence. The uncontradicted depositions in paragraph 6 and 8 of the affidavit of the Appellant in support of his application for bail are positive averments to be considered in favour of the Appellant.
“6 that after the incident that lead (sic) to this trial he voluntarily submitted himself to the police arrest and his statement was obtained.
8. That since the 8th of September, 2011 when he voluntarily submitted himself to the police….”
After all the main function of bail is to ensure the presence of an accused person at the trial. This criterion has in fact been described as “the mother of all the criteria.” It is the prosecution that is in the best position to advise or establish to the court on the antecedents, probability or even the tendency of an applicant to jump bail – Omodara v. State (2004) 1 NWLR (Pt. 835) 80.
One of the important factors the court usually examines in the consideration of whether the applicant will be available to stand his trial is the nature of the offence and the attendant punishment prescribed. Where the offence the accused/applicant is standing trial is of a very serious nature, and the punishment is very high, like in capital offences, the highest punishment known to law, the courts are slow in granting bail, except special circumstances are established. In fact Section 341(1) of the Criminal Code Cap 30, Laws of the Federation of Nigeria, 2004 specifically provided that a person charged with a capital offence should not be granted bail. The rationale of the reluctance of the court generally, to grant bail is the factor that because of the gravity of the offence and the severity of the punishment, there is the likelihood that the accused/applicant may flee from answering the charge against him. See Anajemba v. F.G.N. (2004) 13 NWLR (Pt. 890) 267 at 283; Abacha v. State (supra).
In this appeal, the Applicant was charged under Section 225 Penal Code a non-capital offence. See paragraph 5 of the applicant’s affidavit. However a cursory examination of the Rule of the lower court seems to suggest the consideration of an “offence of murder”, which “the law provides that a person charged with a capital offence should not ordinarily be granted bail”. (See page 46 of the Records). In my view, the court did not take these important facts, as enunciated above into cognizance in the exercise of its discretion, and thereby arrived at a wrong decision by refusing to grant bail to the Appellant. The wrong exercise of its discretion occasioned a miscarriage of justice.
The guiding principle of discretion is that discretion being judicial must at all times be exercised, not only judicially but also judiciously on sufficient materials before the court.
It is settled principle of law that generally, an appellate court will not interfere with the discretion of a lower court. However an appellate court will intervene where it can be shown that the discretion was not exercised judicially or judiciously.
A court is adjudged to have exercised its discretion wrongly if the exercise was arbitrary illegal either by considering extraneous matters or failing to consider material issues. A trial court has also not exercised its discretion judicially and judiciously where it applied wrong principles of law, considered extraneous matters in disregard of relevant matters. In Ahmed v. C.O.P. Bauchi State (2012) 9 NWLR (Pt. 1304) page 130-131 para. G-H. This court held that:
“It will only intervene where the exercise of discretion by the lower court has been wrongly exercised, based on wrong or erroneous premise or perverse. It will also intervene where there is a violation of some principles of law or procedure, such as where the lower court took irrelevant materials into consideration or fail to consider relevant materials in arriving at its decision and thereby occasioning miscarriage of justice.”
In the instant case, as espoused above, the lower court failed to take into consideration the material facts before it and erroneously considered the wrong principles of law in the exercise of its discretion thereby occasioning a miscarriage of justice. The exercise of discretion was neither judicial nor judicious.
This court in the circumstances has the right to intervene and upturn its decision.
It is unfortunate that the Appellant has been incarcerated since 8th September, 2011 when the law presumes his innocence until proved otherwise. The constitutional right to personal liberty of a person is sacrosanct, even for an accused person.
The issues formulated are hereby resolved in favour of the Appellant. The appeal is meritorious and it is hereby allowed. The Ruling of Honourable Justice M. E. Anenih delivered on 13th February, 2012 is hereby set aside. The Appellant is hereby granted bail in the sum of N100,000.00 and two sureties in the like sum who must be resident and have property within jurisdiction. One of the sureties must not be less than the equivalent of level 9 officer in a public office. The bail must be recommended by a private legal practitioner.
AMIRU SANUSI, J.C.A.: Having perused in draft form, the judgment just rendered by my learned brother, T. Akomolafe-Wilson, JCA. I find myself in entire agreement with the reasoning and conclusion arrived at in the lead judgment that the appeal is meritorious.
I too hereby allow it and set aside the judgment of the lower court. I abide by the orders made in the lead Judgment.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother, Tinuade Akomolafe-Wilson, JCA.
I agree with the reasoning and conclusion of my learned brother that this appeal has merit and it should be allowed. I also allow this appeal and abide by the bail granted to the appellant under the conditions specified in the lead judgment.
Appearances
Moukhtar I. Nasale Esq.For Appellant
AND
Parties absent – Respondent was servedFor Respondent
