ALHAJI FELIX IKHAZUAGBE v. COMMISSIONER OF POLICE
In The Court of Appeal of Nigeria
On Friday, the 30th day of January, 2004
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
ALHAJI FELIX IKHAZUAGBE Appellant(s)
COMMISSIONER OF POLICE Respondent(s)
NGWUTA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court, Auchi striking out the appellant’s summons for bail. Appellant was arrested in May, 2000 on suspicion of murder. Based on his plea of alibi, he was released on police bail the next day. He was however re-arrested on 4th September, 2000 and arraigned with one other person before the Chief Magistrate’s Court Auchi on a two count charge of conspiracy to commit murder and murder punishable under section 516 and 319(1) respectively of the Criminal Code, Cap. 48 Vol.11, Laws of Bendel State of Nigeria, 1976 applicable in Edo State.
The learned Chief Magistrate, notwithstanding the facts that he had no jurisdiction to entertain the matter before him made an order that each of the two accused persons is to be remanded to prison custody for want of jurisdiction. It was not stated from where the court derived the power to make the said order see the lead judgment of Akaahs, J.C.A. in Ogbemhe v. C.O.P. (2001) 5 NWLR (Pt.706) 215, (2001) ACLR 1. The order remanding the appellant was made on 10th October, 2000.
The following day, i.e., 11/10/2000, the appellant, by way of summons, applied to the High Court, Auchi to admit him to bail pending his trial pursuant to section 118(1) and (2) of the Criminal Procedure Law Cap. 49, Laws of Bendel State applicable in Edo State.
In support of the summons for bail is a 40-paragraph affidavit to which are exhibited 15 documents.
In opposing the summons for bail, the respondent filed a 10 paragraph counter-affidavit to which 3 documents are exhibited.
The presiding Judge, Idahosa, J. took the submissions of learned counsel for each side on 16th November, 2000 and in a terse ruling on 27/11/2000 struck out the summons. The ruling is hereunder reproduced:
“I have carefully considered the application and the submission of learned counsel on both sides. In my opinion, the character of the evidence as shown on the exhibits attached to the affidavit is not weak. This evidence cannot be evaluated at this stage as it has not been subjected to cross-examination. In the circumstances of the case and in view of the provisions of S.7(b) and (c) of the Criminal Code, Laws of Bendel State 1976, I am unable to grant the application. The application is hereby struck out.”
Aggrieved by the decision of the lower court, the appellant filed a notice of appeal containing four grounds of appeal from which contrary to settled principle of law and practice, he distilled 6 issues for determination thus:
“1. Whether the learned Judge was right to rely solely or mainly on the exhibits attached to the counter-affidavit in resolving the issue of bail without juxtaposing them with those in appellant’s affidavit in support of summons?.
2. Whether having found that ‘…evidence cannot be evaluated at this stage not having been subjected to cross examination, the learned trial Judge was right in treating the character of the evidence as not weak?. (This issue encompassed grounds 2 and 4 of the grounds of appeal).
3. Whether having found that the character of the evidence as shown on the exhibits attached to the affidavits is not weak. This evidence cannot be evaluated at this stage as it has not been subjected to cross examination, the learned Judge was right in failing to resolve the issue of bail on other grounds?. (This issue is also distilled from ground 3 of the ground of appeal).
4. Whether the proper principles for the grant of bail were applied?. (This issue also encompassed grounds 2 – 3 of the grounds of appeal).
5. Whether the application of section 7(b) and (c) of the Criminal Code applicable in Edo State was improper and prejudicial to the appellant in the light of the holding that ‘…evidence cannot be evaluated at this stage.
(This issue is also distilled from grounds 2 – 4 of the grounds of appeal).
6. Was the learned Judge, notwithstanding the fact that there was no information or formal charge pending against the appellant, right in refusing bail?. (This issue is distilled from ground 4 of the grounds of appeal).”
The respondent did not adopt the issues presented by the appellant but rather formulated the following single issue for determination.
“Was the trial court right in law to have refused the appellant bail?.”
At the hearing, both counsel adopt and relied on their respective briefs. In his brief of argument, learned counsel for the appellant submitted in issue one that the averment in the affidavit in support of the summons were not controverted in the 10 paragraph counter-affidavit. He referred to Azeez v. The State (1986) 2 NWLR (Pt. 23) 541 and argued that any fact not denied in the counter-affidavit is deemed admitted. Citing Ogueri v. The State (2000) 5 NWLR page 28, learned counsel argued that the court should have considered the dispute between the Danesi Ruling family and the Ogiator Ruling family of the Okhoko Ruling House of Iyakpi South Ibie in Etsako West Local Government Area of Edo State. Had the court considered the dispute between the ruling houses and the fact that the appellant belongs to one of the two rivals, the court would have exercised more caution in dealing with the summons for bail.
In issues No.2, counsel relied on Anaekwe v. C.O.P (1996) 3 NWLR (Pt.436) 320 and said the court failed to examine the evidence placed before it. It was wrong for the lower court to deny the application on the ground that the facts needed to be subjected to cross-examination. In issue No.3, learned counsel said the court was not guided by the decisions in Chinemelu v. C.O.P (1995) 4 NWLR (Pt.390) 467, (1995) 1 All CLR 501 at 504 and Eyu v. The State (1988) 2 NWLR (Pt. 78) 602 at 694. In issue No.4, he submitted that the proper principles for the determination of application for bail were not applied by the lower court.
In issue No.5, he challenged the court’s reliance on section 7(b) and (c) of the Criminal Code Law of Bendel State applicable in Edo State. He submitted that the said provision is not one of the issues for consideration in the application before the court. Counsel referred to the dicta of Lord Akin in Evans v. Bartlam (1937) AC 473 at 480-481 and Lord Simon in Blunt v. Blunt (1943) AC 517 at 526-527 and argued that this court has the power and the duty to remedy the injustice in this case, he relied on Enekebe v. Enekebe (1964) 1 All NLR 102 and Olubode v. Oyesina (1977) 5 SC 79 and said that the court should interfere with the finding of the lower court especially as the material on which the lower court exercised its discretion was documentary.
In issue No.6, counsel said the appellant was detained without a formal charge. He referred to section 35(4) of the Constitution and argued that even though the appellant was charged with a capital offence he should not be detained indefinitely. Relying on the State v. Buki (1974) 2 SC 67 at 73-74, counsel argued that this court is entitled to inquire into the exercise of the lower court’s discretion. He urged the court to allow the appeal.
Learned counsel for the respondent urged the court to strike out issues Nos. 5 and 6 in the appellant’s brief as the said issues do not relate to any grounds of appeal. He relied on Idise v. Williams Limited (1995) 1 NWLR (Pt. 370) page 142 and 145; Biocon (Nig.) v. Kudu (2000) 15 NWLR (Pt.691) 493, (2000) 82 LRCN 3332. Dibiamaka v. Prince Osakwe & Anor. (1989) 3 NWLR (Pt.107) 101 and 104. He said that the appellant is challenging the ruling of the lower court on the ground that there is no formal charge against the appellant, but there is no ground of appeal from which that issue can arise. He relied on Sha v. Kwan (2000) 8 NWLR (Pt.670) 685, (2000) 78 LRCN 1645 and Baridam v. The State (1994) 1 NWLR (Pt. 320) 250 and urged the court to strike out the two issues for being incompetent.
On the single issue he formulated, counsel argued that all that was required of the respondent is to show a prima facie case against the appellant, adding that juxtaposing the case of the appellant with that of the respondent is not one of the conditions for granting bail. See Emordi v. Commissioner of Police (1995) 2 NWLR (Pt. 376) 244. He said the lower court has a discretion which it exercised judiciously in rejecting the application for bail. This court should not interfere as the exercise of the lower court’s discretion was not wrong, arbitrary reckless or injudicious- see Oshunrinde v. Akande (1996) 6 NWLR (Pt.455) 383, (1996) 40-41 LRCN; Baridum v. The State (supra); John Akujobi Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt. 88) 257. Learned counsel argued that the court was right to have refused the application for bail as the charge against the appellant is murder. Bail is not usually granted in murder cases. He urged the court to dismiss the appeal.
I will determine at this stage the propriety vel non of issues Nos.5 and 6 in the appellant’s brief. Issue No.5 is alleged to have been framed from grounds 2 and 5 of the grounds of appeal, while issue 6 is distilled, according to counsel for the appellant, from the Ominibus ground, i.e., ground 4. I have considered issues 5 and 6 vis-a-vis grounds 2 and 5 of the grounds of appeal. It is my view that none of the two issues relate to either ground 2 or 5 of the grounds of appeal. Any issue not based on a ground of appeal goes to no issue and ought to be struck out. See Klise v. Hellaim International Limited (Supra) (1989) 4 NWLR (Pt. 116) 646; Buraimoh v. Bamgbose (1989 3 NWLR (Pt. 109) 352; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 and Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.
There is merit in the argument of the learned counsel for the respondent with regards to the said issues 5 and 6. The said issues are hereby struck out. The appellant is left with issues 1 to 4.
Learned counsel for the appellant filed four grounds of appeal. Contrary of settled principle of laws and practice, he split some of the grounds and came up with 6 issues from the 4 grounds. It is wrong for counsel to formulate issues in excess of his grounds of appeal. Short of special cases where the grounds of appeal so dictate, it is undesirable to distill one issue from each ground of appeal see Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128, (1996) 48-41 LRCN, 1387 at 1391 ratio 1. See also Zuth v. Oneyvwe (1981) 2 LRCN 221. The question of issues is excess of the grounds of appeal has received attention in many other cases but it appears we are yet to hear the last of it.
Issues 1 to 4 in the appellant’s brief of argument can be resolved into one issue was the trial court right in law to have refused the appellant bail as formulated by the respondent in its brief of argument.
It has been held that the single purpose of detaining an accused person in close custody is to ensure his trial in due course and in all applications for bail resting in the discretion of a court or of a judicial officer in criminal cases the paramount question should be whether the presence of the accused for trial in due course would be assured if the application were granted. See R. v. Lee (1914) QLR 89 perce 822 Vol. 14 ENGLISH EMPIRE DIGEST.
However, it appears that a court faced with application for bail pending trial is not strictly confined to the issue of availability of the accused to stand trial in due course. In addition the court has to consider whether or not the accused, if admitted to bail will interfere with police investigation or is likely to commit the same offence or one similar to the one with which he is charged.
In the exercise if its discretion to grant or deny application for bail, the court considers the following factors:
(1) the nature of the charge;
(2) the severity of punishment on conviction;
(3) the character of the evidence against the accused;
(4) the criminal record of the accused; and
(5) the likelihood of the repetition of the offence charged.
See Dantata v. I.G.P. (1958) NRNLR 3; Eyu v. The State (1988) 2 NWLR (Pt. 78) 602; The State v. Okafor (1964) ENLR 96.
In the case at hand, the charge is murder and the severity of punishment on conviction is the highest known to law, death. I think the decisive factor in this case is the cogency of the evidence or the facts alleged against the applicant. In R. v. Stephen Butler & Ors. 14 Cox 530 at 531 the court held ‘…from the cogency of the evidence against the accused and the gravity of the offence charged, the probability or improbability of the transverses appearing for their trial may be deduced, the more cogent the evidence, the more serious the consequences of conviction, the greater the probability that they may not appeal at the trial’. Now, what is the quality of the evidence on the strength of which the applicant was arrested, released, re-arrested and subsequently charged with conspiracy to commit murder and the substantive offence of murder. From police interim report referred to as exhibit A in the respondent’s counter-affidavit, there was a chieftaincy dispute between the Danesi and the Ogiator families. A party organized by the youths of the Danesi family to celebrate their victory in court in the dispute was invaded by youths of the Ogiator family resulting in the fight in which the deceased, a member of the Danesi family, was killed on the 21st day of April, 2000.
In the records, the only evidence that purports to link the applicant with the offences of conspiracy to commit murder and the offence of murder is from one source, Alhaji Idrisu Danesi’s statements to the police. In the statement he made on 26/4/2000, he claimed that he saw and heard the applicant in the evening of 22/4/2000 ‘briefing the people on how they are going to carry out the attack on the supporters of Danesi’. See exhibit J in the supporting affidavit. Based on the above statement, the applicant was arrested by the police but when he pleaded alibi and tendered documents in support of his plea, he was released on bail. In the police recommendation of 11/7/2000 the police did not recommend any charge against the applicant and apparently this prompted Alhaji Danesi to write a petition to a higher police authority in which he repeated that he saw and heard the applicant ‘briefing the people on how they are going to carry out the attack on the supporters of Danesi’. See exhibit ‘AA’ in the counter-affidavit. Thus, from the record, the totality of the evidence based on which the applicant was re-arrested, charged with conspiracy to commit murder and the offence of murder and consequently denied bail is the assertion of a member of the opposing family in the chieftaincy tussle to the effect that he, on 20/4/2000 saw and heard the applicant ‘briefing the people on how they are going to carry out the attack on the supporters of Danesi’.
In the affidavit in support of his summons for bail, the applicant provided facts which the lower court should have considered in the determination of the application for bail pending trial. Paragraphs 2, 3, 4, 5, 6, 7, 16, 25, 27 and 31 of the affidavit appear relevant and are hereunder reproduced:
“2. That I was arrested sometime in May, 2000 at Auchi in respect of the death of one Jubril Yahaya Baba Danesi allegedly murdered on 21/4/2000.
3. That I accordingly made statement to the police at the state C.I.D. Benin City.
4. That I told the police in my statement that I was not at Iyakpi on 20/4/2000 and 21/4/2000 but in Benin City.
5. That I also told the police in my statement that I slept at Konkord Hotel Benin City from 19th to 21st Aplil, 2000, a copy of the official receipt issued to me from Konkord Hotel and copy of the Guest Daily Return from Konkord Hotel is attached hereto as exhibits A and AI respectively.
6. That the police accordingly investigated my defence of alibi and subsequently released me on bail the following day.
7. That upon investigation by the police at the state C.I.D. Benin City, 8 persons amongst us (the suspects) were recommended by the police to be charged with the offence of conspiracy to murder, attempted murder and murder respectively, but I was never charged with any offence.
16. That upon the facts contained in paragraphs 14 and 15 of this affidavit, the police did not recommend that I be tried for any offence, a copy of the police recommendation is attached hereto at exhibit K.
24. That I am the secretary to the Ogiator Ruling Family of Okhokh Ruling House, Iyakpi South, Ibie.
25. That upon the facts contained in paragraph 24 above, I do most of the logistics pertaining to the numerous cases pending in courts on behalf of the Ogiator family.
26. That I am diabetic and that I have been attending clinic for the past 7 years and I am on diabetic diet.
31. That I have nothing to do whatsoever with the death of Jubril Yahaya Baba Danesi on 20/4/2000 and 21/4/2000 as I was not at Iyakpi at the material time but in Benin City.”
The 10 paragraphs counter-affidavit did not in any manner challenge or controvert any of the averments in the supporting affidavit. All the respondent had to offer by way of opposition is contained in paragraphs 7 and 8 of the counter-affidavit, hereunder reproduced:
“7. That I know as a fact that some of the suspects are still on the run and releasing this applicant who is said to be the ringleader master planner and supporter of arms will frustrate the arrest of the fleeing felons.
8. That I know as fact that the interest of justice will be served if this application is refused.”
Now, the claim that the appellant was heard briefing people on how they are to attack the supporters of the complainant, without more, is hardly enough evidence on which to charge the applicant with conspiracy to commit murder and murder. It becomes even less so when viewed in the light of the uncontroverted averments in the supporting affidavits which in the circumstances are deemed proved or admitted by the respondent who had every opportunity to controvert same in its counter-affidavit but chose not to do so.
The learned trial Judge appears not to have adverted his mind to the unchallenged facts in the supporting affidavit. There was no finding on whether or not the appellant, a senior citizen of 70 years of age, a diabetic patient on diabetic diet and secretary of his Ruling House, is a flight risk. The lower court did not even allude to the probability that the charge against the applicant/appellant was ill-motivated, given the notorious fact that in ethnic and political disputes in this country, accusations of capital offences are sometimes employed to silence opposition, real or imagined. In view of the fact that the machinery for the Administration of Criminal Justice can be set in motion for improper motive, the lower court should have been extra cautious in reaching a decision.
The lower court appeared to have played to the magic effect of the word murder when it made what would have to pass for a finding of fact, to which I have carefully considered the application and the submission of learned counsel on both sides. In my opinion, the character of the evidence as shown in the exhibits is not weak to justify the opinion that the evidence consisting of the statement of Alhaji Idrisu Danesi and in the light of unchallenged facts is not weak. If the opinion that the evidence is not weak means that the evidence is strong, the strength of the evidence per se cannot be the sole ground for striking out the application for bail. I think that the liberty of a citizen of this country is too serious a matter be dismissed with a casual and terse assertion that the evidence is not weak inspite of abundant material from what the court would have found the needed aid to do justice to the parties.
Even if the lower court were to adopt the erroneous principle propounded by learned counsel for the respondent in his argument that all the respondent is required to do is to show a prima facie case to justify the denial of the bail application, the respondent has not shown a prima facie case of conspiracy to commit murder or the offence of murder. In our criminal law and procedure, the accused is presumed innocent until the contrary is proved irrespective of the nature or gravity of the offence with which he is charged. See S.36(5) of the 1999 Constitution. Denial of bail cannot be used be punish him for the crime with which he is charged and for which he is yet to be tried. See Dogo v. C.O.P (1980) 1 NCR 1.
Court do not make a practice of granting bail in capital offence as a matter of grace. However, once the applicant has provided material from which the existence of special circumstance can be determined, the onus is on the respondent to show why the appellant should not be released on bail. Special circumstances to warrant admission to bail pending trial include but are not limited to weakness in the prosecution’s case, the length of time before the trial begins and the ill-health of the applicant. See Enwere v. C.O.P (1993) 6 NWLR (Pt. 299) 333; Abiola v. FRN (1995) 1 NWLR (Pt.370) 155; Ogbhemhe v. C.O.P. (2001) 5 NWLR (Pt.706) 215, (2001) 2 ACLR 1.
In this case, there is no proof of evidence from which the character of the evidence against the appellant could be determined.
On the contrary, the appellant pleaded alibi and provided documents from which the veracity vel non of his claim that he was not in the vicinity of the alleged crime at the material time could be ascertained. It was not contested that the appellant is a 70 year old diabetic patient and had been for the past seven years or that he is on a diabetic diet.
All the above constitute special circumstances, making it imperative to admit the appellant to bail. Bail is at the discretion of the court but the lower court in glossing over, without due consideration, the overwhelming facts placed before it placed fitters on the judicious and judicial exercises of its discretion in the matter before it. In the face of the unchallenged evidence adduced by the appellant, the court ought to have exercised its discretion in favour of the appellant as the respondent totally failed to advance any reason for the court to deny the application.
Imprisonment awaiting determination of whether that imprisonment is justifiable has precisely the same evil consequences to an individual, whatever legalistic label is used to describe his plight. See Clarkson v. London (1966) 334 – 333 per Justice Black (U.S. Supreme 1988).
In a sense, detaining an accused person pending his trial is akin to keeping him in prison to determine whether it is justifiable to keep him in prison. In our criminal procedure, it is a necessary evil, an aberration of section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and an erosion of the presumption that the accused is innocent until he is proved guilty. It is therefore necessary that court should give due consideration to available materials placed before it and in borderline cases, should err on the side of protecting the liberty of the subject charged with a crime and yet to be tried.
In conclusion, I resolve the issue in favour of the appellants.
Consequently, I allow the appeal, set aside the order of the lower court, striking out the summons for bail and in its place order that the appellant, Alhaji Felix Ikhazuagbe be admitted to bail in the lower court forthwith in the sum of N20,000.00 and one surety in like sum. The surety shall reside ordinarily within the jurisdiction of the lower court at the material times.
AUGIE, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Ngwuta, J.C.A., and I agree with him that the appellant should be admitted to bail. It is true that bail pending trial is not granted as a matter of course where the applicant for bail is charged with a capital offence punishable with death, but special circumstances may arise in any particular case to warrant the exercise of discretion by any High Court trying such an accused person to release him on bail pending his trial – see Atiku v. The State (2002) 4 NWLR (Pt.757) 265, & The State v. Akaa (2002) 10 NWLR (Pt 774) 157. It is afterall trite that judicial discretion should be exercised according to common sense and justice, and no one case can be authority for another in matters of discretion. Since the law presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show in a given case that an applicant is not one that should be released on bail- see Ani v. The State (2002) 1 NWLR (Pt. 747) 217, & Olatunji v. FRN (2003) 3 NWLR (Pt. 807) 406. In this case, I agree with my learned brother that the respondent did not adduce any cogent reason to warrant the court denying the application for bail. It is for this and the other reasons advanced in the lead judgment that I too allow the appeal, set aside the order of the lower court and admit the applicant to bail in the sum of N20,000.00 and one surety in like sum who should be resident within the jurisdiction of the lower court.
AKAAHS, J.C.A.: I read in draft the judgment of my learned brother, Ngwuta, J.C.A. I agree with his conclusion that the appeal should be allowed. I too endorse the order that the appellant should be released on bail in the sum of N20,000.00 and one surety in like sum who should be resident within the jurisdiction of the lower court.
Not statedFor Appellant
Not statedFor Respondent