DAVID v. STATE
(2022)LCN/16377(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, November 25, 2022
CA/OW/221C/2022
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
ESTHER DAVID APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
PROVING RIGHT IN REGARDS TO BAIL PENDING TRIAL
when it is trite that the law does not require the Appellant to prove her right to bail pending trial as the onus wholly rests on the Respondent to show why bail should not be granted; citing Section 159 Abia State Administration of Criminal Justice Law 2017; Akeem v. FRN(2017) ALL FWLR (Part 872)1518 at 1564 – 1565 Para D – B; OlaniranMuniru Adeola v. FRN, unrepoarted, Appeal no. CA/IB/290C/2015 delivered on 14/7/2016 per Hon. Justice Nonyerem Okoronkwo.
THE STATUTE THAT APPLIES IN THE GRANT OF BAIL
In the grant of bail, Section 159 of the Abia State Administration of Criminal Justice Law 2017, which is the statute that applies in the instant case, has codified the current position with regard to bail, thus:
“A defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the Court, be released on bail except in any of the following circumstance:
a. where there is reasonable ground to believe that the defendant will when released on bail, commit another offence;
b. attempts to evade his trial
c. attempts to influence, interfere with, intimidate witnesses, and/or interfere in the investigation of the case.
d. attempt to conceal or destroy evidence,
e. prejudice the proper investigation of the offence; or
f. undermine or jeopardized the objectives or the purpose or the functioning of the criminal justice administration, including the bail system.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Abia State, Umuahia Division in Suit No: HU/75C/2021 delivered by O.E Onyeabo J. on the 23rd day of November, 2021, refusing the bail application of the Appellant.
FACTS OF THE CASE:
The Appellant is standing trial on a 6 (six) count charge of alleged attempted murder, unlawful wounding, grievous harm, endangering health of another and rape at the High Court of Abia State, Umuahia Division. On the 8th September 2021 the Appellant applied for bail pending her trial before the vacation Judge, K. C. J. Okereke J, who denied her application for bail in his ruling delivered on the 30th September 2021.
On 9/11/2021 after the Appellant’s arraignment and plea, she again applied before the substantive Judge for bail pending her trial, which application was again denied by the trial Court on 23/11/2021. Dissatisfied by this decision, the Appellant has appealed against this ruling to this Court through a Notice of appeal filed on 2/6/2022.
BRIEFS OF ARGUMENTS/ISSUE(S) FOR DETERMINATION:
The Appellant’s Brief of Arguments settled by I.C. Achara Esq. and filed on 26/07/2022 donated a sole issue for determination, namely:
“Whether the learned trial Judge was right in refusing to grant the Appellant bail pending her trial?”
Similarly, a sole issue for determination was distilled by the Principal State Counsel of the Ministry of Justice, Abia State, C. N. Obike, Esq. in the Respondent’s Brief of Arguments filed on 30/09/2022, but deemed as properly filed on 02/11/2022, viz:
“Whether having regard with the totality of materials placed before the trial Court, the learned trial Judge did not exercise his discretion judicially and judiciously in refusing the appellant’s application for bail as to warrant an interference with the exercise by this Honourable Court.”
The issue formulated by the Respondent is the same with that of the Appellant, howbeit, paraphrased. I shall accordingly adopt the issue formulated by the Appellant for the just determination of this appeal.
The Issue for Determination is:
Whether the learned trial judge was right in refusing to grant the Appellant bail pending her trial?”
Appellant’s Submissions:
It is the contention of learned counsel that bail pending trial, generally, is of right to a person accused of committing a crime; and this is informed by the presumption of innocence that he enjoys under the Constitution of the Federal Republic of Nigeria. He cited the cases of Mrs. Mubo Ikotun v. Federal Republic of Nigeria (2015) LPELR-24684(CA); Theophilous v. FRN & Ors (2015) LPELR-25984 (CA).
He argued that the learned trial Judge erroneously held that “the Appellant did not satisfactorily prove to the Court that she was entitled to bail” when it is trite that the law does not require the Appellant to prove her right to bail pending trial as the onus wholly rests on the Respondent to show why bail should not be granted; citing Section 159 Abia State Administration of Criminal Justice Law 2017; Akeem v. FRN(2017) ALL FWLR (Part 872)1518 at 1564 – 1565 Para D – B; Olaniran Muniru Adeola v. FRN, unreported, Appeal no. CA/IB/290C/2015 delivered on 14/7/2016 per Hon. Justice Nonyerem Okoronkwo.
Counsel further contended that pursuant to the Court of Appeal’s decision in Ogede v. FRN (2018) LPELR-46816 (CA) at Page 10 per Obaseki-Adejumo, JCA the trial Court no longer had the unfettered discretion under the previous regime (i.e. prior to the inception of the ACJA/ACJL) to decide the Appellant’s right to bail on the strength of the affidavit in support of the application but was confined within the ambit of its circumscribed discretion to consider only the materials placed before it in the prosecution’s affidavit opposing the bail application to ascertain if there was sufficient admissible evidence establishing the circumstances listed in Section 159 (a)-(f) of the Abia State ACJL such as will lead the Court to rightly refuse the Appellant her statutory right to bail pending trial. Learned Counsel also complained that the trial Court took into consideration extraneous matters in coming to the conclusion that the Respondent had discharged the onus on them to show why bail should not be granted to the Appellant.
Respondent’s Submissions:
The Principal State Counsel submitted that the trial Court has the discretion to either grant or refuse an Applicant bail pending trial. The Court can exercise its discretion to refuse bail where any of the factors listed in the provisions of Section 159 (a)-(f) of the Abia State ACJL is present. It should, however be noted, Counsel submitted, that it is not the requirement of the law that all these factors must co-exist before the Court can refuse bail; citing UBA LTD &Ors v. Stehibau GMBH & Co. KG (1989) 3 NWLR (Part 110) 374 at 409 Para E per Oputa, JSC; Ekwenugo v. FRN (2001) 6 NWLR (Part 708) at 186 PARA A; Dokubo-Asari v. FRN (2009)12 NWLR (Part 1048) Page 320 at 349 Para D-F per Muhammed JSC.
Respondent’s counsel also cited the cases of Nwude v. FGN (2004) 17 NWLR (Part 902) Page 306;Bamaiyi v. State (2001) 5 NWLR (Part 715)270 at 291 in holding that where this discretion of the trial Court is rightly exercised, the Appellate Court will not interfere with the exercise of discretion of the trial Court.
In response to the submission of the Appellant’s Counsel that the trial Court took into consideration Exhibits A-A1, B-B2, C&D (photographic images of injuries on the victim and the extra-judicial statement of one of the prosecution witnesses), being matters extraneous to the bail application, Counsel submitted that judicial discretion ought to be founded upon facts, circumstances and the law. Therefore, the trial Judge is bound to consider the weight of facts pleaded to in an affidavit evidence placed before him and all other requirements as highlighted in Section 159 as well as other considerations such as the strength of the evidence which supports the charge, the gravity of the punishment in the event of conviction, the likelihood of the accused interfering with proposed witnesses or suppressing evidence that may incriminate him and the probability of guilt.
REPLY BRIEF:
Appellant’s Counsel, in his Reply, submitted that the trial Court no longer has the unfettered discretion in determining bail applications for offences punishable with imprisonment of more than 3 years as made out by the Respondent in light of the provisions of Section 159 of the Abia State ACJL. He cited the following cases of, in proof of this assertion; Ogede v. FRN (2018) LPELR-46816 (CA) at Page 10 & 14;OlaniranMuniru Adeola v. FRN, unreported, Appeal no. CA/IB/290C/2015 delivered on 14/7/2016 per Hon. Justice Nonyerem Okoronkwo; Zakirai v. Muhammad (2017)17 NWLR (Part 1594) Page 181 at 192 SC.
RESOLUTION:
In the grant of bail, Section 159 of the Abia State Administration of Criminal Justice Law 2017, which is the statute that applies in the instant case, has codified the current position with regard to bail, thus:
“A defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the Court, be released on bail except in any of the following circumstance:
a. where there is reasonable ground to believe that the defendant will when released on bail, commit another offence;
b. attempts to evade his trial
c. attempts to influence, interfere with, intimidate witnesses, and/or interfere in the investigation of the case.
d. attempt to conceal or destroy evidence,
e. prejudice the proper investigation of the offence; or
f. undermine or jeopardized the objectives or the purpose or the functioning of the criminal justice administration, including the bail system.
The lower Court, in refusing to grant bail to the Appellant, while agreeing that the offences with which she is charged are bailable and not capital offences, held, inter alia, that the Appellant did not satisfactorily prove to the Court that she was entitled to bail. He took cognisance of the severity of the injuries to the victim and the statement of the person who reported the Appellant to the Police, that she threatened his life and business, for involving the Police.
The Court also held:
“In considering an application for bail, the Court need not restrict itself to the affidavit evidence but its consideration should include the contents of the proof of evidence. SEE ABACHA V. STATE (2002) 5 NWLR(PT.761) 638, and which is what this Court has done, as well as having duly considered the materials before the Court in the affidavit evidence particularly of the Applicant. SEE LIKITA V COP(2002)FWLR (PT 106) 1075.”
From a reading of Section 159 of the Abia State Administration of Criminal Justice Law Supra, it is apparent that this statute is framed in mandatory terms to the effect that the trial Court has no discretion when considering an application for bail where the accused person is charged with an offence punishable with imprisonment for a term exceeding three years, unless the circumstances in Section 159 (a) to (f) are shown to exist.
This is a departure, I hold, from the former extensive discretion which trial Courts had in determining bail applications for offences punishable with imprisonment of more than 3 years but not capital offences under the former administration of criminal justice regime.
Thus, unless the accused is held to have run foul of the six conditions stipulated in Section 158 above, the Courts have no option but to grant bail to the accused, the Appellant in this case. The essence of bail, I hold, is to set at liberty an accused person, subject to certain conditions, particularly directed to ensuring that the accused who is being set free from custody, will appear at a certain place and time.
In the case of OGEDE v. FRN (2018) LPELR-46816(CA) at p.14, this Court, in the judgment of my learned brother, Obaseki-Adejumo JCA held:
“For the avoidance of doubt, upon the enactment of the ACJA, and with particular reference to the provision of Section 162 thereof, the Court no longer enjoy [sic] the discretionary privilege to refuse or grant bail to an accused person other than as provided by that section. Therefore, in any case where application for bail in non-capital offence is being considered and the provision of ACJA is applicable, the Court must ensure that it is guided by the express and clear provision of Section 162 of ACJA.”
The Court, earlier in the said case held at Page 10 of the said report, expounding on Section 162 of the ACJA, which is similar to Section 159 of the statute in question, held:
“It is obvious that the above provision was framed in mandatory language to the effect that the trial Court has no discretion when considering an application for bail when the accused person was charged with an offence punishable with imprisonment for a term exceeding three years. Unless it is shown that the circumstances in Section 162 (a) to (f) are shown to exist, a Court is bound to grant bail to an accused. ….it must be said that by Section 162 ACJA, the only circumstances upon which a Court can refuse to admit an accused person to bail are those stated in paragraph (a) to (f) thereof. The provision admits of no discretion in matter it provides for.”
See also THEOPHILOUS v. FRN & ORS (2015) LPELR-25984(CA) per IKYEGH JCA.
Thus, while I agree that the offences for which the Appellant is charged are grave, it has not been satisfactorily shown that conditions exist which deprive the Appellant of her rights under this statute. It must be remembered that the presumption of innocence enures in favour of the Appellant until proved guilty. Placing the burden on her to “satisfactorily prove to the Court that she was entitled to bail” and which she had failed to do, is contrary to the tenets of this statute, I hold.
Also, for the trial Judge to have referred to a statement which the Appellant was alleged to have made in the Magistrate Court of disappearing to South Africa, where her husband is resident, has been denied by the Appellant in her affidavit, and, in any event, is hearsay evidence, I hold. The threat allegedly made by the Appellant to the witness who reported her to the Police, which has also been denied by her, does not, in my opinion, amount to interfering with, intimidating witnesses, and/or interfering in the investigation of the case, as contemplated by Section 159 (c) of the Abia State ACJA Supra, as it is clear that investigation has been concluded and the case charged to Court.
I agree with the Appellant’s Counsel that the cases relied on by the Respondent’s Counsel to justify the trial Court’s consideration of the proof of evidence in determining the Appellant’s bail application predate the commencement of the current trend of the Administration of Criminal Justice Act which expressly limits the considerations for bail applications to the specific factors listed in paragraphs (a)-(f) of the said statute.
In any event, whatever fears the prosecution has, will be addressed in the orders to be made by this Court. I hold, in resolving the sole issue for determination in favour of the Appellant, that the trial Judge was in error in his refusal to grant the Appellant bail pending her trial.
This appeal succeeds and is allowed. The decision of the lower Court to refuse bail to the Appellant pending trial is set aside.
The Appellant is granted bail pending trial on the following terms:
1. The Appellant is admitted to bail in the sum of N5 Million Naira and two sureties in like sum.
2. The sureties are to swear to an Affidavit of Means and be resident within the jurisdiction of this Court.
3. One of the sureties shall be a public servant on grade level 14 and above. He/She shall attach to the bail papers their letter of appointment and their last letter of promotion, along with a photocopy of their identity card.
4. The second surety shall be a land owner and must produce for sighting, the original title documents of the land while attaching the photocopy of the land title documents and two passport photographs.
5. The Applicant shall deposit her International passport with the Registrar of this Court.
6. The Applicant must not in any way or manner intimidate or threaten any of the witnesses. In the event of a default of this condition, this bail shall be immediately revoked.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
I agree with his reasoning and conclusions.
I allow the appeal. I also grant the bail application.
I adopt the terms of the bail as granted by my brother.
SAMUEL ADEMOLA BOLA, J.C.A.: I have had the benefit of reading in draft, the judgment delivered by my learned brother O. A. Adefope-Okojie, JCA I am in agreement with his reasoning and conclusion. I abide by the consequential Orders made particularly the conditions governing the admission of the Appellant to bail.
Appearances:
I.C. ACHARA For Appellant(s)
C.N. OBIKE (Principal State Counsel, Ministry of Justice Abia State) For Respondent(s)
