HALILU UMAR v. THE STATE
(2017)LCN/10150(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of July, 2017
CA/K/462/C/2013
RATIO
BAIL: THE POSITION OF LAW ON THE GRANT OF BAIL APPLICATIONS
In Musa v. Commissioner of Police (2004) 9 NWLR Part 879 Page 483-484 at Para G-H, the Court of Appeal, per Ogbuagu JCA (as he then was) held that in determining the issue of bail, the Court should be guided by the following considerations:
(a) The serious nature of the charge;
(b) The severity of punishment in the event of conviction;
(c) The nature of the evidence available against the prisoner.
In Suleman v. Commissioner of Police, Plateau State (2008) 8 NWLR Part 1089 Page 298 at 322-323 Para D-E, His Lordship Tobi JSC held:
“The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The Section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212. The most important consideration in the bail decision is the determination of what criteria the Court should use or invoke in granting or refusing bail. The bailability of the accused depends largely upon the weight the Court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously. In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. It is a hard matter of law, facts and circumstances which the Court considers without being emotional, sensitive or sentimental. The general criteria for granting bail are; (a) the availability of the accused to stand trial. (b) The nature and gravity of the offence. (c) The likelihood of the accused committing offence while on bail (d) The criminal antecedents of the accused. (e) The likelihood of the accused interfering with the course of justice. The above general criteria apart, the criteria for granting pre-trial bail or bail by trial Court include (a) Likelihood of further charge being brought. (b) The probability of guilt. (c) Detention for the protection of the accused. (d) The necessity to procure medical or social report pending a final disposal of the case.”
In arriving at a decision in the appeal before them, His Lordship held, at Page 329-330 Para H-C: “Murder is a capital offence; a most heinous offence. Therefore before an accused is charged with murder, there must be sufficient materials by way of proof of evidence to justify and back up the offence. The Court should be able to see at a mere glance of the proof of evidence that the accused is properly charged of the offence. I must say that at this stage the consideration is not whether the accused will be convicted of the offence of murder but whether a prima facie case is made out on the proof of evidence that the accused is properly charged of the offence. If the offence of murder is camouflaged like a smoke-screen to deceive the Court to punish an innocent person, the Court has the competence to remove the veil and decide accordingly.” Referring to the proof before them, His Lordship had this to say: “Learned counsel for the respondent in his argument relied on the First Information Report as basis for the appellants committing the offence. This to me, is quite on the joking side. It is not a serious submission. The First Information Report as the name implies, is just a Report that an offence is committed. It is no more than a charge in the Southern States. A charge is an allegation or accusation of crime. It is not tantamount to proof of evidence that the crime was committed or likely to have been committed.” I hold likewise. Though armed robbery is, no doubt, a dastardly offence, the Court has to steel itself not to be intimidated by the words, but must tie the facts before it to the offence in question. In the words of His Lordship Akintan JSC in the case above, reading the lead judgment: “The mere fact of just reading from the charge sheet that the offence for which the applicant was charged was that of murder is just not enough to warrant refusal of the application. The duty is on the Judge entertaining such an allegation for bail to ensure that the applicant’s continued detention is well supported and justified by the evidence disclosed in the proof of evidence placed before him. There is nothing magical in the word ‘murder charge’ to justify failure of the Court from enquiring if the charge was not cooked up merely to ensure the detention of an innocent person. A Court that fails to look into the fact relied on in support of such charge cannot be said to have exercised its discretion judiciously. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
BAIL: THE POSITION OF THE LAW ON THE DUTY OF THE PARTY OPPOSING THE GRANT OF AN APPLICATION FOR BAIL
The onus, I hold, is on the party who opposes an application for bail to provide some prima facie evidence to show that the case against the accused is strong and that he is not likely to make his trial if he is admitted to bail and as to the likelihood of the repetition of the offence. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
BAIL: INSTANCES WHERE THE COURT WILL NOT GRANT AN APPLICATION FOR BAIL
The principle on the issue of bail stated long ago in the case of IN EX-PARTE BARRONET & ORS 22 L.J.S.M.S.C. 25 at 28 cited by OGBUAGU JCA (as he then was) in the case of MUSA V. COP (2004) 9 NWLR PART 879 p. 483 remains good law till this day. Stating that principle, Erle J said as follows:-
“The principle has been fully laid down already that where a crime is of the highest magnitude, the evidence in support of the charge strong and the punishment highest known to the law, the Court will not interfere to admit to bail. Where either of these ingredients is wanting, the Court has a discretion which it will exercise”. PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
HALILU UMAR – Appellant(s)
AND
THE STATE – Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Katsina State delivered on the 15th April, 2013 by Hon. Justice Abdullahi Yusuf refusing the Appellant’s application for bail. Aggrieved by this decision, the Appellant has appealed to this Court, by Notice of Appeal filed on 27th May 2013.
At the hearing of the appeal, on 3rd May 2017, there was no appearance for the Appellant, in consequence of which the State Counsel, representing the Respondent, Nabila Galadima Esq. applied that the Brief of Argument filed on behalf of the Appellant by M.A. Kofa of the Legal Aid Council, be deemed duly argued. The Appellant’s Brief of Argument, dated and filed on 15th October 2014 was accordingly deemed duly argued, pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
In the Appellant’s Brief of Argument, dated 15/10/14, five issues were formulated, namely:
1. Whether the trial Court is duty bound to follow the decision of the Court of Appeal.
2. Whether the trial Court, exercised its discretion judicially and judiciously in dismissing the
1
Appellant’s application for bail having regards (sic) to the entire circumstances of the case.
3. Whether the trial Court was right when it precluded the Appellant’s right of innocent (sic) as it was guaranteed to him by the 1999 Constitution of Nigeria as amended in the absence of any proper charge and proof of evidence placed before the Court by the prosecution.
4. Whether there was a proper evaluation of the two Affidavits placed before the trial Court.
5. Whether the trial Court was right when it holds that, person suspected to have committed capital offence can’t be released on bail under Section 35(4) (a) and (b) of the 1999 Constitution of Nigeria as amended, being an exception to grant same.
The Assistant Director of Public Prosecution, Ministry of Justice, Katsina State, Murtala Aliyu Kankia, adopted the Appellant’s issues for determination.
The simple issue that I consider arises for determination and under which the other issues for determination shall be subsumed, is the following:
Whether the lower Court exercised its discretion judicially and judiciously in refusing the Appellant’s application for bail.
The
2
Appellant’s Counsel has submitted that failure of the trial Court to apply the decision of the Court of Appeal in the case of MUSA V. COP (2004) 9 NWLR PART 879 PAGE 483 cited to it by him, occasioned a miscarriage of justice, by prolonging the detention of the Appellant in custody. The Court, he said, was bound by the doctrine of stare decisis to adopt this decision. Special circumstances, he submitted had been disclosed, in view of the absence of a charge and proof of evidence against the Appellant after many months in detention.
Counsel accused the lower Court of failing to exercise its discretion judicially and judiciously in dismissing the Appellant’s application. The First Information Report which the trial Court heavily relied upon in arriving at its decision cannot, he said, constitute a formal charge. Counsel cited the case of AGUNDI V. COP (2013) ALL FWLR (PT. 666) 1247 AT PARAS B-E and referred to the contents of the affidavit of the Appellant, which he accused the lower Court of failing to take cognisance of.
In his response, the Assistant Director of Public Prosecutions submitted that the scenario in the case of MUSA V. COP Supra is
3
different, as the Appellant had only been detained for 75 days when his bail application was filed at the lower Court. No cogent or verifiable reason has been disclosed as to why the Court should grant his application. Since the application was filed prematurely, as investigation in respect of the case was still or, a reasonable suspicion, by the content of the First Information Report, had been disclosed.
The discretion of the lower Court, he urged, was exercised judicially and judiciously, in view of the fact that the offence under which the Applicant was detained is not bailable. He cited Section 35(7) of the “CFRN 1999” and Section 341(1) the Criminal Procedure Code, giving the three conditions under which an accused person will be granted bail.
The Constitutional guarantees, with respect to the liberty of the citizen, are stated in Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Of particular relevance to this case is Section 35(4) and (7), as follows:
SECTION 35
1. Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and
4
in accordance with a procedure permitted by law –
4. Any person who is arrested or detained in accordance with Subsection (1) (c) of this Section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of –
a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without projudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
5 In Subsection (4) of this Section, the expression “a reasonable time” means-
a) in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
7. Nothing in this Section shall be
5
construed –
a) in relation to Subsection (4) of this Section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
Section 341 of the Criminal Procedure Code, as applicable in the Northern States of Nigeria, provides as follows:
“341. (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 the 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 released would commit an offence.
3) Notwithstanding anything contained in Subsection (1) and (2) if it appears to the Court that there are not reasonable grounds for believing that a person accused has committed the offence, but that there
6
are sufficient grounds for further inquiry, such person may, pending such inquiry, be released on bail.”
It is clear from these Statutes that persons accused of capital offences are, as a general rule, not permitted to be released on bail. Sub section (3) of Section 341 of the Criminal Procedure Code Supra and Section 35 (7) (a) have, however, relaxed the rigour of these laws where there are not reasonable grounds for believing that the person accused has committed the offence.
In determining whether reasonable grounds have been disclosed, reference is made to the facts disclosed before the lower Court.
In the affidavit of the Appellant in support of his application for bail, he alleged that on the day in question, he left Abuja for Katsina in a trailer (DAF), reaching Katsina at around 12 midnight. As the driver of the trailer dropped him at the junction, he found a place to sleep until the following morning. While he was sleeping, some members of a vigilante group woke him up and challenged him. They checked his bag but found nothing. They then took him to the Sabon Gari Police Station, Katsina, where he was informed that he was alleged to
7
have committed the offence of criminal conspiracy and armed robbery. He denied the allegation but was taken to the Chief Magistrate Court on a First Information Report and remanded in prison custody. He has spent four months in prison custody yet with no proper trial before a Court of competent jurisdiction, prompting his application. He undertook not to jump bail, promising to present himself before the Court when required.
In the Counter Affidavit of one Abdulkarim Abubakar, Litigation Clerk in the office of the Hon. Attorney General of Katsina State, it was deposed that his information from Counsel handling the matter is that the Police had told him that some more suspects were arrested in connection with the offence and that the investigation is almost completed, following which the case file would be sent to the Ministry of Justice for legal advice. There was substance, he further deposed, in the allegation against the Appellant as he was arrested at the scene of the offence.
?
The lower Court, in its Ruling, noted that the First Information Report by which the Appellant was arraigned before the Chief Magistrate Court 1 Katsina is that he was
8
arrested at the scene of an alleged armed robbery attack.
The Court held:
“The submission of Counsel to the applicant which is supposed to draw this Court’s attention to the absence of Charge and proof of evidence after many months is on point with regard to being an exceptional circumstance which can make this Court exercise its discretion in favour of the applicant. However this Court can only exercise its discretion judiciously and judicially. There are certain guiding principles which Courts such as this one are enjoyed (sic) to follow before admitting a person detained on reasonable suspicion of having committed an offence. One of them is the possibility of committing similar offence and another is escaping from justice. In the present application the fact that the applicant was arrested at the scene of the alleged robbery raised the chances of one of the above or both happening.
On the issue of constitutional provision Section 35(4) (a) and (6) which requires a person suspected to have committed an offence to be released on bail this has the exception to one who is alleged to have committed a capital offence. In the case at hand the
9
applicant committed on suspicion of having committed a capital offence hence bail ought not to be granted to him (sic). In view of the foregoing the application is hereby dismissed for lacking in merit.”
The law reports are replete with authorities on considerations that should agitate the mind of the judge in the grant of bail.
In Musa v. Commissioner of Police (2004) 9 NWLR Part 879 Page 483-484 at Para G-H, the Court of Appeal, per Ogbuagu JCA (as he then was) held that in determining the issue of bail, the Court should be guided by the following considerations:
(a) The serious nature of the charge;
(b) The severity of punishment in the event of conviction;
(c) The nature of the evidence available against the prisoner.
In Suleman v. Commissioner of Police, Plateau State (2008) 8 NWLR Part 1089 Page 298 at 322-323 Para D-E, His Lordship Tobi JSC held:
“The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time
10
and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused.
The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The Section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212.
The most important consideration in the bail decision is the determination of what criteria the Court should use or invoke in granting or refusing bail. The bailability of the accused depends largely upon the weight the Court attaches to one or
11
several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. It is a hard matter of law, facts and circumstances which the Court considers without being emotional, sensitive or sentimental.
The general criteria for granting bail are; (a) the availability of the accused to stand trial. (b) The nature and gravity of the offence. (c) The likelihood of the accused committing offence while on bail (d) The criminal antecedents of the accused. (e) The likelihood of the accused interfering with the course of justice.
The above general criteria apart, the criteria for granting pre-trial bail or bail by trial Court include (a) Likelihood of
12
further charge being brought. (b) The probability of guilt. (c) Detention for the protection of the accused. (d) The necessity to procure medical or social report pending a final disposal of the case.”
In arriving at a decision in the appeal before them, His Lordship held, at Page 329-330 Para H-C:
“Murder is a capital offence; a most heinous offence. Therefore before an accused is charged with murder, there must be sufficient materials by way of proof of evidence to justify and back up the offence. The Court should be able to see at a mere glance of the proof of evidence that the accused is properly charged of the offence. I must say that at this stage the consideration is not whether the accused will be convicted of the offence of murder but whether a prima facie case is made out on the proof of evidence that the accused is properly charged of the offence. If the offence of murder is camouflaged like a smoke-screen to deceive the Court to punish an innocent person, the Court has the competence to remove the veil and decide accordingly.”
Referring to the proof before them, His Lordship had this to say:
“Learned counsel for the
13
respondent in his argument relied on the First Information Report as basis for the appellants committing the offence. This to me, is quite on the joking side. It is not a serious submission. The First Information Report as the name implies, is just a Report that an offence is committed. It is no more than a charge in the Southern States. A charge is an allegation or accusation of crime. It is not tantamount to proof of evidence that the crime was committed or likely to have been committed.”
I hold likewise. Though armed robbery is, no doubt, a dastardly offence, the Court has to steel itself not to be intimidated by the words, but must tie the facts before it to the offence in question.
In the words of His Lordship Akintan JSC in the case above, reading the lead judgment:
“The mere fact of just reading from the charge sheet that the offence for which the applicant was charged was that of murder is just not enough to warrant refusal of the application. The duty is on the Judge entertaining such an allegation for bail to ensure that the applicant?s continued detention is well supported and justified by the evidence disclosed in the proof of
14
evidence placed before him. There is nothing magical in the word ‘murder charge’ to justify failure of the Court from enquiring if the charge was not cooked up merely to ensure the detention of an innocent person. A Court that fails to look into the fact relied on in support of such charge cannot be said to have exercised its discretion judiciously.”
The onus, I hold, is on the party who opposes an application for bail to provide some prima facie evidence to show that the case against the accused is strong and that he is not likely to make his trial if he is admitted to bail and as to the likelihood of the repetition of the offence. See Musa v Commissioner of Police Supra at 500 Para A-B, per Ogbuagu JCA (as he then was). None of these have been satisfied by the Respondent in its counter affidavit before the lower Court.
?
Indeed, the lower Court acknowledged that the absence of a charge and proof of evidence after so many months, is an exceptional circumstance, yet turned round, contrarily, to deny the Appellant of bail, on the principles of the possibility of committing similar offences or escaping from justice, without tying these allegations to the
15
case before him. This was indeed an injudicious exercise of discretion, I hold.
The presumption of innocence in favour of a citizen is not to be lightly esteemed, I hold, and can only be withheld from a citizen where it is clear, from the facts before the Judge, that such should not be granted.
By Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, every person who is charged with a criminal offence shall be presumed innocent until he is proven guilty beyond reasonable doubt. Thus, where, as in this case, there is nothing to show that the prosecution has gone beyond merely filing a First Information Report and with no proof of evidence indicting the Appellant, a special circumstance for the grant of bail has been made out, I hold.
I find no justification for the continued detention in prison custody of the Appellant. I accordingly allow this appeal and set aside the Ruling of the High Court of Katsina State, delivered on 14/5/2013.
?
In determining the terms of bail, I must take into cognisance the fact that the Appellant is a labourer. The Appellant is accordingly allowed on bail pending the determination of the charge
16
against him in the sum of N100, 000.00, with two sureties in the like sum. The sureties and the Appellant shall enter into a bond in the said sum. The sureties must be persons resident in Katsina State, whose residences must be identified.
It is further ordered that acceleration should be given to the hearing of the charge against the Appellant, which hearing must not go beyond six months of delivery of this judgment. In default thereof, the Appellant should be released unconditionally.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the benefit of reading the draft judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree with the reasoning and conclusions of my lord. The principle on the issue of bail stated long ago in the case of IN EX-PARTE BARRONET & ORS 22 L.J.S.M.S.C. 25 at 28 cited by OGBUAGU JCA (as he then was) in the case of MUSA V. COP (2004) 9 NWLR PART 879 p. 483 remains good law till this day. Stating that principle, Erle J said as follows:-
“The principle has been fully laid down already that where a crime is of the highest magnitude, the evidence in support of the charge strong and the
17
punishment highest known to the law, the Court will not interfere to admit to bail. Where either of these ingredients is wanting, the Court has a discretion which it will exercise”.
In the matter on appeal before us, the alleged crime is of the highest magnitude and the punishment the highest known evidence is required to be strong, there is a huge question mark. Even the lower Court acknowledged the absence of a charge and proof of evidence. It seems to me therefore in the circumstances, that a proper exercise of discretion by a Court of law will be to grant bail. For this reason and the fuller reasons given by my lord in the lead judgment, I agree with the conclusions reached by my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA.
AMINA AUDI WAMBAI, J.C.A.: I agree.
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Appearances:
M. A. KofaFor Appellant(s)
M. A. Kankia (Assistant Director Public Prosecution) with him, A. Umar (Chief State Counsel), A. Garba (Assistant Chief State Counsel) and S. A. Dan Mallam (State Counsel)For Respondent(s)
Appearances
M. A. KofaFor Appellant
AND
M. A. Kankia (Assistant Director Public Prosecution) with him, A. Umar (Chief State Counsel), A. Garba (Assistant Chief State Counsel) and S. A. Dan Mallam (State Counsel)For Respondent
