CHIKA MADU v. THE STATE
(2011)LCN/4738(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of July, 2011
CA/PH/447/2010
RATIO
FORMULATION OF ISSUES FOR DETERMINATION: POSITION OF THE LAW ON FORMULATION OF ISSUES FOR DETERMINATION
It must be remembered at all times that an issue for determination is a combination of facts and circumstances and includes the law on a particular point which, when decided one way or the other, affects the fate of the particular appeal. Issues are formulated in general yet practical terms and so tailored to the real questions in controversy in the case. An issue for determination in an appeal that is large and too wide is liable to be struck out as same is unworthy of the appellate court’s consideration. After all, the duty of the appellate court is to determine in what respect and manner the lower court erred if at all. It is for this very principle that appellant’s second issue that does not target and seek to solve the real question in controversy between the parties herein will be discountenanced. The issue is simply very academic and incapable of affecting the result of the appeal. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT 135) 688 SC, Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt 795) 185 SC Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 SC and Administrator General, Delta State v. Ogogo (2006) 2 NWLR (Pt 964) 366 CA. PER M. DATTIJO MUHAMMAD, (OFR)
FAIR HEARING: WHAT ARE THE BASIC ATTRIBUTE OF FAIR HEARING AS PROVIDED FOR UNDER SECTION 36 OF THE 1999 CONSTITUTION
The basic attribute of fair hearing as provided for under section 36 of the 1999 constitution have been held to include: (a) that the court hears both sides on all material issues raised in appellant’s application before reaching a decision which may be prejudicial to any of the parties to the application and (b) the court gives equal treatment, opportunity and consideration to the parties to the application. See Usani v. Duke (2004) 7 NWLL (Pt 871) 116 CA, Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 305 SC Awoniyi v. The Registered Trustees of the Roierucian Order, Amorc (Nigeria) (2000) 6 SC (Pt 1) 103 and Araka v. Ejeagwu (2001) 5 WRN 1 SC. PER M. DATTIJO MUHAMMAD, (OFR)
FAIR HEARING: WHAT FAIR HEARING CONNOTES
Fair hearing, see Ogboh v. FRN (2002) 10 NWLR (Pt 774) 21 SC, has been held to connote fair trial and a fair trial of a case, including an aspect or issue of the whole case, consists of not only listening to the parties thereto but collating, evaluating and deciding on the basis of the materials so received from the parties and filtered by the court. The system we operate is adversarial in the sense that both parties are, by the law, entitled to comment on all the evidence the basis of which the decision is to be made. PER M. DATTIJO MUHAMMAD, (OFR)
FAIR HEARING: CONSEQUENCE OF A PROCEEDING CONDUCTED IN BREACH OF FAIR HEARING
It is trite law that once there is a breach of fair hearing the whole proceedings in the course of which the breach occurred as well as the decision arrived at by the court becomes a nullity. See A.N.P.P V. INEC (2004) 7 NWLR (PT 871) 16 CA and All Peoples Party v. Ogunshola (2002) 5 NWLR (Pt 761) 484. PER M. DATTIJO MUHAMMAD, (OFR)
AFFIDAVIT EVIDENCE: EFFECT OF FACTS DEPOSED TO IN AN AFFIDAVIT THAT ARE NOT CHALLENGED
It remains trite that facts deposed to in affidavit that are not challenged are deemed admitted and acted upon by the court. Ogoejeofo (2006) 3 NWLR (Pt 966) 205 SC and Shona – Jason Ltd. V. Omaga Air Ltd (2006) 1 NWLR (Pt. 960) 1 CA. PER M. DATTIJO MUHAMMAD, (OFR)
CONDITIONS FOR BAIL: WHETHER THE CONDITIONS FOR THE GRANT OF A BAIL CAN BE STRINGENT
In Obiama v. FRN supra at page 167 lines 15-25 this court has held: “It is however settled that conditions of bail must not be unreasonable or oppressive. They must not amount in effect to punishment. Once the conditions of bail are so stringent, it in effect amounts to refusal.” PER M. DATTIJO MUHAMMAD, (OFR)
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHIKA MADU Appellant(s)
AND
THE STATE Respondent(s)
M. DATTIJO MUHAMMAD, (OFR) (Delivering the Leading Judgment): This is an appeal against the ruling of the Rivers State High Court presided by Aprioku J. dated 30th July 2010 wherein the appellant’s application for the variation of bail conditions was dismissed. Let me briefly provide the facts which led to the ruling being appealed against.
The appellant was arraigned before a magistrate court on a one count murder charge and thereafter remanded in prison custody. Following his application for bail to the High court, the appellant was granted bail and on the fulfillment of the bail terms released on bail.
The respondent having subsequently preferred information against him, the appellant was arraigned before the High Court Coram Aprioku J. Appellant’s plea was eventually taken on 21st January 2010 after nearly a year of his initial arraignment. Before then, he had enjoyed the bail granted to him earlier by the court as presided by Okocha J. The court as constituted by Aprioku J. allowed the Appellant to continue with the bail in the terms granted by Okacha J. and adjourned the case to subsequent dates in March for Appellant’s, renewed bail application to be taken and hearing into the case to commence. The case suffered series of adjournments during which period the appellant continued with the bail granted him. He voluntarily attended court without fail. On 20th July 2010 the lower court revoked appellant’s earlier bail but regranted him bail on conditions considered more stringent. Incapable of fulfilling the conditions, the appellant was remanded in prison custody.
The appellant’s application for the variation of the bail conditions came up for hearing at the lower court on 26th July 2010 and was adjourned to 30th July 2010. On that date, hearing into the case commenced after the court’s attention had been drawn to appellant’s application for the variation of the conditions of bail. What transpired in the court is better appreciated from the proceedings of that day hereunder reproduced form page 39 lines 10-19 of the record of appeal for ease of reference:
“CM Ngumoha, Esq.: My Lord, this is an application filed on 28/07/10, to vary the conditions for bail. We rely on the 22 paragraphs affidavit and our written address as argument.
Court: This court will not vary the bail conditions as the applicant who is facing a murder trial have not placed sufficient material facts for me to vary the order for bail.
Application is dismissed.
SGD.
S.H. APRIOKU
(JUDGE) 30/07/2010”
It is glaring from the foregoing that the court had not been formally moved by counsel and arguments for and against the application taken before the court’s decision was arrived at.
Aggrieved by the ruling, the appellant has appealed on a Notice containing two grounds filed on the 13th August 2010. The two grounds of Appeal are hereunder reproduced from pages 49-51 of the record without their particulars for ease of reference:
GROUND 1.
The Learned trial Judge erred in law in not exercising his discretion judicially and judiciously in respect of the appellant’s Application for variation of the Bail conditions imposed on the Appellant by the trial court.
GROUND 2.
The learned trial court erred in facts in holding that there was no material evidence before the court in allowing the Accused/Appellant application for variation of Bail condition as imposed by the court.
This appeal, consequent upon the order of court, was heard on the appellant’s brief alone.
The two issues distilled in the appellant’s brief from the foregoing two grounds of appeal read:
“a. Whether the learned trial judge exercised his discretionary powers in refusing to vary the bail conditions imposed by him on the Accused/Appellant judicially and judiciously. This is distilled from ground 1 of the Notice and grounds of appeal.
b. Whether in the circumstances of this case, the bail conditions imposed by the learned trial judge on the Accused/Appellant can be varied. This is distilled from ground 2 of the Notice and grounds of Appeal.”
Appellant’s second issue is very much at large and stands in clear breach of the basic rules of issue formulation for the purpose of an appeal. It must be remembered at all times that an issue for determination is a combination of facts and circumstances and includes the law on a particular point which, when decided one way or the other, affects the fate of the particular appeal. Issues are formulated in general yet practical terms and so tailored to the real questions in controversy in the case. An issue for determination in an appeal that is large and too wide is liable to be struck out as same is unworthy of the appellate court’s consideration. After all, the duty of the appellate court is to determine in what respect and manner the lower court erred if at all. It is for this very principle that appellant’s second issue that does not target and seek to solve the real question in controversy between the parties herein will be discountenanced. The issue is simply very academic and incapable of affecting the result of the appeal. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT 135) 688 SC, Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt 795) 185 SC Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 SC and Administrator General, Delta State v. Ogogo (2006) 2 NWLR (Pt 964) 366 CA. Appellant’s first issue alone shall, therefore, form the basis of the determination of the appeal.
Again, of appellant’s seven paragraph and sixteen page brief, paragraph 4.11 is about the most relevant and portent. Thereunder learned counsel submits, and I am totally overwhelmed, that it is fatal for the trial judge to fail or refuse to consider the materials placed before him by the accused before refusing the application for the variation of bail conditions earlier imposed by the court. The lower court’s dismissal of appellant’s application without a consideration of the materials placed before it constitutes a wrongful exercise of the court’s discretionary powers. Relying on the decisions in Ikpa v. State (2008) All FWLR (Pt 446) 1959 at 1970; Ekwenugo v. AG Federation (2001) 6 NWLR (PT 708) 171, Oyewode V. C.O.P (1979) 2 FNR 3001, F.R.N V. Bulama (2005) 16 NWLR (pt 951) 219 at 244 and Uhet v. FRN (2008) All FWLR (Pt 411) 923 at 935, learned counsel urges that we resolve this issue on appellant’s behalf and the court’s non-consideration of the materials that has occasioned miscarriage of justice made the basis of allowing the appeal. I cannot agree more.
The appellant’s right of being heard before any decision that affects his rights and/or obligations is taken has been raised to a constitutional level. It was, before the constitutional provision, embedded in the doctrine of fair hearing which requires that a party must be heard before he is dealt with. Section 36 (4) and (5) of the 1999 constitution in that vein provides thus:
“36. (4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to fair hearing in public within a reasonable time by a court or tribunal.
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
The application of the foregoing to the facts of the instant case necessitates an answer to the question whether or not the lower court had fairly heard the appellant before deciding that the appellant’s application is without merit. If appellant’s right as given by the section of the constitution is to make any sense, the basis for the court’s refusal to review the bail conditions must be readily manifest in the court’s decision. The basic attribute of fair hearing as provided for under section 36 of the 1999 constitution have been held to include:
(a) that the court hears both sides on all material issues raised in appellant’s application before reaching a decision which may be prejudicial to any of the parties to the application and
(b) the court gives equal treatment, opportunity and consideration to the parties to the application. See Usani v. Duke (2004) 7 NWLL (Pt 871) 116 CA, Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 305 SC Awoniyi v. The Registered Trustees of the Roierucian Order, Amorc (Nigeria) (2000) 6 SC (Pt 1) 103 and Araka v. Ejeagwu (2001) 5 WRN 1 SC.
An examination of the record of appeal, part of which has been reproduced earlier in this judgment, reveals that the lower court is in clear breach of the requirement of section 36 of the constitution on fair hearing. The court’s ruling on appellant’s application does not contain the basis of the court’s refusal of the application. In support of the application parties had filed and exchanged written addresses. This is in addition to the appellant’s affidavit in support of his application. The respondent did not file any counter-affidavit to appellant’s affidavit in support. The averments in the appellant’s affidavit, the law that governs and should inform the resolution of the issue the application raises, the court’s application of the latter to the former demonstrating how the court’s ruling is arrived at, are all lacking from the court’s ruling. Fair hearing, see Ogboh v. FRN (2002) 10 NWLR (Pt 774) 21 SC, has been held to connote fair trial and a fair trial of a case, including an aspect or issue of the whole case, consists of not only listening to the parties thereto but collating, evaluating and deciding on the basis of the materials so received from the parties and filtered by the court. The system we operate is adversarial in the sense that both parties are, by the law, entitled to comment on all the evidence the basis of which the decision is to be made. In the instant case the lower court’s omission to consider the materials the two sides adduced and relied upon for or against the application not only made the delivery of reasoned decision on the application impossible but manifestly constitutes unfairness. It is trite law that once there is a breach of fair hearing the whole proceedings in the course of which the breach occurred as well as the decision arrived at by the court becomes a nullity. See A.N.P.P V. INEC (2004) 7 NWLR (PT 871) 16 CA and All Peoples Party v. Ogunshola (2002) 5 NWLR (Pt 761) 484.
Again, it must further be conceded to learned appellant counsel that the lower court, by appellant’s application, is required to exercise its discretion and that by law that must be done judicially and judiciously. Where it fails to so do and its decision is shown to be perverse, the court’s decision must be interfered with on appeal. See Menakaya v. Menakaya (2001) 16 NWLR (Pt 738) 203 SC; Onyali v. Okpata (2001) 1 NWLR (Pt 694) 282 CA and Udoebere v. State (2001) 12 NWLR (Pt 725) 617 SC. For all these, I resolve the lone issue in the appeal in appellant’s favour allow the appeal and annul the lower court’s null and void ruling.
Where does this take us to? The answer lies in Section 23 of the court of Appeal Act 2004 which provides:
“On the hearing of an appeal under this part of this Act, the court of Appeal-may exercises any power that could have been exercised by the court below or may order the case to be re-trial by a court of competent jurisdiction.”
Now, it is evident from the ruling appealed, against that the lower court is not averse to granting bail to the appellant. The court’s quarrel pertains only to the conditions the appellant should satisfy before he enjoys the bail. In proof that he is entitled to the review of the conditions the court earlier imposed, the appellant had averred in paragraphs 7-20 of the affidavit in support of his application thus:
“7. That the bail conditions of the Accused/Applicant at the formal Court were as follows:
a. The sum of N500,000.00 with two sureties in like sum and sureties must be resident in the locality.
b. Sureties are to swear to affidavit of means attaching two passport photographs,
c. One of the Sureties must be closely related to the Accused/Applicant.
8. That the bail condition of the Court was dully perfected and the Accused/Applicant was released on bail.
9. That while on bail, the Respondent filed information against the Accused/Applicant and the case started before this Honorable Court being the Court of trial of the substantive case.
10. That in view of the fact this case was assigned to this Honorable Court as the Court of trial; the Accused/Applicant filed another application for bail.
11. That before the bail application was heard, this case came up several times before this Honorable Court both for plea and hearing and the Accused/Applicant was present on all the adjourned dated fixed for this case by this Honorable Court.
12. That the said application for bail of the Accused/Applicant was heard by this Honorable court on the 20th day of July, 2010 and this Honorable Court graciously granted the said application and admitted the Accused/Applicant to bail.
13. That the bail condition granted to the Accused/Applicant by this Honorable Court is as follows;
a. One Million Naira with two (2) Sureties in the like sum.
b. Sureties to be a Civil servant of grade level twelve (12) and above.
c. Two (2) passports each, sureties to swear to an affidavit of mean.
d. One of the sureties to have office at Rivers State Secretariat Complex Port Harcourt.
14. That since the grant of the bail to the Accused/Applicant all efforts made to secure a surety as stipulated by the Honorable Court have proved abortive particularly that of the sureties to be a civil servant of grade level 12 and above, as well as one of the sureties to have office at Rivers State Secretariat Complex Port Harcourt.
15. That the Accused/Applicant does not know nor have any personal relationship with anybody that is a civil servant in Rivers State as stipulated by this Honorable Court.
16. That if the requirement of a civil servant of grade level 12 and above, with one of the sureties to have office of Rivers State Secretariat Complex Port Harcourt is expunged from the conditions to bail, the Accused/Applicant will be able to fulfill and perfect the bail condition.
17. That the Accused/Applicant has responsible brothers and close relations who are not civil servants but within jurisdiction of this honorable Court and who are willing to take the Accused/Applicant on bail as well as ensure that the Accused/Applicant attend court for his trial if allowed by this Honorable Court.
18. That unless this condition is varied, the Accused/Applicant may not be able to fulfill the condition and will automatically remain in custody perpetually.
19. That if the bail condition is not varied, the Accused/Applicant will not reap the fruit of the granted to him by this Honorable Court.
20. That it will be in the interest of justice that this application is granted.”
(Underlining mine for emphasis)
The foregoing paragraphs have neither been challenged nor controverted by the respondent. Had the lower court considered the averment in the foregoing paragraphs it would have found sufficient material on the basis of which to exercise its discretion in favour of the appellant. The court would have had no option that to rely on the said paragraphs and review the stringent conditions in earlier decreed. It remains trite that facts deposed to in affidavit that are not challenged are deemed admitted and acted upon by the court. Ogoejeofo (2006) 3 NWLR (Pt 966) 205 SC and Shona – Jason Ltd. V. Omaga Air Ltd (2006) 1 NWLR (Pt. 960) 1 CA.
The most important consideration a court makes in deciding whether or not to grant an accused bail and the terms for such a grant is whether the accused will eventually not escape justice and he turn up for his trial. The evidence before the court clearly shows that even on the less stringent conditions imposed earlier on the appellant by Okocha J. he had attended court for his trial without fail. Appellant has also shown how impossible it is for him to meet the condition subsequently imposed and thus the necessity for a review.
In Obiama v. FRN supra at page 167 lines 15-25 this court has held:
“It is however settled that conditions of bail must not be unreasonable or oppressive. They must not amount in effect to punishment. Once the conditions of bail are so stringent, it in effect amounts to refusal.”
Appellant counsel’s reliance on the foregoing is apposite. The dicta bind us still. Indeed a bail granted on the basis of conditions the accused is incapable of fulfilling is like a poisoned meal. The accused dies on taking it and still dies by keeping away from it. Since he is adjudged entitled to be granted bail, the terms of the bail so granted him must be such that he can fulfill and access the bail he is allowed to enjoy. That is the justice of the appellant’s circumstance. He is hereby released on bail in the very terms contained in exhibit A annexed to the affidavit in support of his application for review and averred to in paragraph 7 of the very affidavit as earlier reproduced in this judgment.
EJEMBI EKO, J.C.A.: I had the privilege of reading, before now, the judgment just delivered in this matter by my learned brother M.D. MUHAMMAD (OFR), JCA. I am in complete agreement with my learned brother. I have nothing useful to add to the judgment, including all consequential orders therein, which I hereby adopt.
T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother M. D. MUHAMMAD (OFR) JCA.
I am in full agreement with the reasoning’s and conclusion therein.
I have nothing more to add.
I abide by the consequential orders (including costs) made in the lead judgment.
Appearances
C. I. ENWELUZOFor Appellant
AND
RESPONDENT SERVEDFor Respondent
