COL. MOHAMMED SAMBO DASUKI v. DIRECTOR GENERAL STATE SECURITY & ORS
(2019)LCN/13916(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2019
CA/A/806/2018
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
COL. MOHAMMED SAMBO DASUKI Appellant(s)
AND
1. DIRECTOR GENERAL STATE SECURITY
2. STATE SECURITY SERVICE
3. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
RATIO
THE POSITION OF THE LAW ON ALTERNATIVE CLAIMS
It is settled law that an alternative claim can be considered only when the principal claim which must be considered first fails. See Standard Trust Bank Limited v. Anumnu (2007) LPELR ? 7749, Governor of Kwara State & Ors. v. Rabelat Nigeria Limited (2006) LPELR – 9842, G.F.K.I Nigeria Limited v. NITEL Plc (2009) 15 NWLR (Pt. 1164) 344 at 378. PER AKOMOLAFE-WILSON, J.C.A.
THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON BEFORE PROVEN GUILTY
By the provisions of Section 36(5) of the Constitution, every person charged with an offence is presumed innocent until the contrary is proved. Regardless of the nature of the offence and the standing of a party in the society, where bail is grantable, the condition attached must not be suffocating, unbearable, unworkable and unduly burdensome. See Abacha v. State (2002) 5 NWLR (Pt. 2002) 5 NWLR (Pt.761) 638. In the cited case of Ibori v. FRN (2009) 3 NWLR (Pt 1172) 94 at 106, this Court held that:
“No matter how seemingly serious, grave, heinous or unconscionable an alleged offence or offences committed by an accused person might look, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the Constitution.”
Let me however make it clear loudly that this Court is not by any means suggesting that persons suspected of crimes should be pampered by the Court. Anybody suspected of committing a crime should adequately be dealt with in accordance with appropriate law or the Constitution of the land. In my view, the trial Judge wrongly exercised his discretion to grant such severe and stringent bail terms and conditions when he had denounced in very strong terms the unlawful detention of the Appellant and more importantly noted that several Courts had admitted him to bail and he fulfilled the conditions required in the bail orders but the Respondents disallowed him from taking benefits of any of them. (See pages 276-277, 279-280 of the record of appeal). PER AKOMOLAFE-WILSON, J.C.A.
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja, delivered by Hon. Justice Ijeomia L. Ojukwu on the 2nd of July, 2018.
The Appellant as Plaintiff had by way of Originating Motion under the Fundamental Rights (Enforcement Procedure) Rules, 2009 sought, inter alia for declaration that his continued detention by the operatives of the 1st and 2nd Respondents is unconstitutional. He consequently prayed for orders for Public apology in two widely published National Daily Newspapers; payment of the sum of five billion naira as general damages; and admitting him to bail on liberal terms. At the conclusion of the case, the learned trial Judge declared his continued detention, despite the fact that he had been granted bail unconstitutional, but refused to award any damages, rather in the alternative, granted him bail on some terms.
Aggrieved by the failure of the trial Court to award damages and the stringent conditions of bail granted, the Appellant filed this appeal.
In this Court, parties filed their respective briefs of argument. The Appellant distilled two issues for determination, as follows to wit:
1. Whether the learned trial Judge was right in law, when having found that the Appellant’s fundamental human right was violated by the Respondents for over two years, in consequence of which he also deprecated them for the unlawful detention, he refused to award damages and direct an apology to be made in favour of the Appellant. Distilled from Ground 1 of the Notice of Appeal.
2. Given the fact that several Courts had admitted the Appellant to bail, but the Respondents disallowed him from taking benefits of any one of them, even after fulfilling all the terms thereof, whether it was right for the learned trial Judge to still admit him to bail on onerous terms and conditions. Distilled from Ground 2 of the Notice of Appeal.
The Respondents couched two similar issues thus:-
1. Whether in the peculiar circumstance of the Appellant’s case, the learned trial judge was right to have granted the Appellant bail without damages in compensation?(Distilled from ground 1)
2. Whether the bail conditions made by the learned trial judge were onerous considering the peculiar facts and circumstances of the Appellant’s case? (Distilled from ground 2).
On 24/1/2019, Ahmed Raji, SAN, filed Appellant’s Reply Brief which was deemed as properly filed and served on 13/2/2019. The issues as donated by the Respondent are more concise. I adopt them for the determination of this appeal.
Issue One
Whether in the peculiar circumstance of the Appellant’s case, the learned trial Judge was right to have granted Appellant bail without damages in compensation.
The contention of the Appellant under this issue is that the learned trial Judge erred in law when having found that the Appellant’s fundamental right was violated by the Respondents for unlawful detention for over two years yet refused to award damages to assuage the Appellant on the wrong premise that the relief for damages was an alternative prayer for bail. The learned counsel for the Appellant, Adeobi Adedipe Esq., argued vigorously that the prayer for five billion naira damages for the unlawful detention of the Appellant since 2015 till date is a separate award which is not meant to be a substitute for the bail of the Appellant. It was submitted that the object of an award of damages is to give compensation to the Plaintiff for the damage, loss or injury which he has suffered, citing G. B. N Plc. v. Chimage (2014) 9 NWLR (Pt. 328) 309 in support. It was argued that it is trite law that where there is a legal wrong, there ought to be a remedy to redress that wrong, citing ? Saleh v. Monguno (2006) 15 NWLR (Pt. 1001) 26 at 60.
Further that even where the Appellant does not ask for compensation, once he has been able to establish the fact of his unlawful detention, compensation is automatic ? Diruaku v. Nwoke (2005) 15 NWLR (Pt. 1483) 417 at 482.
Responding to issue one, the learned Solicitor – General of the Federation, Dayo Apata Esq., for the Respondents submitted that in prayer 4 of the Originating Processes, the Appellant prayed for bail as an alternative prayer. It was submitted that by Order xi of the Fundamental Right Enforcement Procedure Rules, 2009, a trial Judge has a wide discretion on which order to make at the hearing of an application for enforcement of fundamental rights and after considering the peculiar circumstances of this case, the Court in its wisdom granted bail and not damages or apology in favour of the Appellant. It was submitted that a party cannot be allowed to approbate and reprobate and that once a party by his own volition consents to a particular proceeding, even if irregular, he cannot be heard complaining of the procedure again ? Military Governor of Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291 at 334.
Finally on this issue, it was submitted that the grant of bail and compensation at the same time runs counter to common sense. He urged this Court to resolve this issue in favour of the Respondent.
Issue two
“Whether the bail conditions made by the learned trial Judge were onerous considering the peculiar facts circumstances of the Appellant case?”
It was submitted for the Appellant that the learned trial Judge erred in law after having found that several Courts have granted the Appellant to bail and he fulfilled the conditions of bail but the Respondents denied him the access to bail still proceeded to admit the Appellant on bail on more onerous terms and conditions. It was argued that the purpose of bail is to ensure an accused person to come back to face his trial and so bail must not be imposed on such stringent terms to give the coloration of a punishment; citing Eyu v. State (1988) 2 NWLR (Pt. 78) 602.
Learned counsel further submitted that the discretionary power of the Court to grant bail must be exercised judicially and judiciously – Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 291 – 292. He urged us to interfere with discretionary power wrongly exercised by the trial Court; in order to prevent injustice. He called in aid several authorities including Ogbuawa v. FRN (2011) 12 NWLR (Pt. 1260) PG. 100 at 116 -117 para. H-B; Kudoro v. Alaka (1956) SCNL 255; Williams v. Williams (1987) 2 NWLR (Pt. 54) 66; Ebute v. State (1994) 8 NWLR (Pt. 360) 66; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; and Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144.
We were urged to grant both issues in favour of the Appellant.
On the part of the Respondents, it was submitted that the learned trial Judge rightly exercised his discretionary powers having regard to the magnitude of the allegations against the Appellant, granted the terms of bail, which according to their learned counsel, are not onerous. It was submitted that the grant of an application for bail is a sole discretion of the trial Court; and that an appellate Court will rarely interfere with the exercise of such discretionary powers once such powers are exercised judicially and judiciously.
This Court was urged to dismiss this appeal as lacking in merit.
I will take the two issues together.
1. Whether in the peculiar circumstance of the Appellant’s case, the learned trial judge was right to have granted the Appellant bail without damages in compensation?
2. Whether the bail conditions made by the learned trial judge were onerous considering the peculiar facts and circumstances of the Appellant’s case?
At this juncture, it is necessary to state the facts of this case for ease of comprehension of the issues involved in this appeal. These facts are best captured from the depositions in the Affidavit and Further Affidavit in support of the Originating Motion, and the Counter-Affidavit in opposition to the Application;
5. I know that the Applicant is a Retired Army Colonel in the Nigerian Army and until recently, the National Security Adviser (NSA) to the President of the Federal Republic of Nigeria.
6. The 1st Respondent is the Head of the Department for the State Security Services (2nd Respondent) upon whose instructions officers and operatives of the 2nd Respondent acted and continued to act in breach of the Fundamental Rights of the Applicant.
7. The 2nd Respondent is an agency of the Federal Government of Nigeria; primarily charged with the responsibility of intelligence gathering and maintenance of internal security in accordance with the relevant statutes of the subject matter.
8. The 3rd Respondent is the Attorney General of the Federation through whom actions may be commenced by or against the Federal Government of Nigeria. He is also responsible for providing legal advice to the Federal Government on the legality and constitutionality of decisions and actions of the Federal Government of Nigeria and its agencies and agents.
9. That the applicant is a law-abiding citizen of Nigeria.
10. By a Charge preferred on 24th August, 2015, the Applicant was charged in this Court, but was subsequently admitted to bail on self – recognisance. A copy of the Charge is now shown to me and marked Exhibit A.
11. On 3rd November, 2015, this Honourable Court granted leave to the Applicant to travel abroad for a three week medical consultation, on account of his health which was failing. Now shown to me is a copy of the said Order marked Exhibit `B’
12. Sequel to the Order in Exhibit ‘B’ the Applicant immediately purchased travel ticket processed the boarding pass in order to urgently seek the necessary medical attention but was prevented by the Respondents. Now shown to me is the boarding pass marked Exhibit C.
13. Shortly after the Order in Exhibit `B’ above was made, the Respondents, particularly the 1st & 2nd Respondents laid siege on the Applicant’s house in Asokoro, in brazen defiance of the Order of Court, thereby deliberately disallowing him from accomplishing the terms of the Order. Now shown to me and marked Exhibits D1, D2 & D3 are Certified True Copies and Receipt of Newspaper Report confirming the continued siege laid on the Applicant’s house.
14. The said operatives and officers of the 2nd Respondent acting upon the instructions of the 1st Respondent blocked every entry and exit point to the premises of the Applicant, thereby restricting any kind of movement, whether vehicular or human. Despite informing the operatives of the 2nd Respondent of the life-threatening illness which he suffers from, the said operatives acting in the instructions of the 1st Respondent refused all entreaties in defiance of the Order of Court to allow the Applicant make
