NWANKO & ORS v. DSS, KEBBI STATE
(2020)LCN/14242(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/S/37C/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
COMPORT NWANKO & 5 ORS APPELANT(S)
And
DEPARTMENT OF STATE SECURITY SERVICE, KEBBI STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THERE ARE RIGID PRINCIPLES OR RULES GOVERNING BAIL APPLICATION
It is settled law that there are no rigid principles or rules governing bail application because so much discretion is involved and discretion can only be exercised in the light of the peculiar circumstance of the case. See OKOMODA VS FRN & ORS (2016) LPELR- 40191 (CA) Per Augie JCA (as he then was).
In the exercise of discretion, the Court is guided by its whims and caprice which is only checked by the need to exercise such discretion judicially and judiciously not arbitrarily or as a matter of course. The Court is not even guided by a previous decision in matters of exercise of discretion for that in effect will put an end to the discretion as no two cases are exactly alike. While a Court will not be bound by a previous decision to exercise its own discretion. See OLAM NIG. PLC. VS ORIBOLAWALE (2004) VOL. 6 WRN 1-176 @ 121.
When a judge exercises his discretion judicially he will be expected to act critically. So also when a discretion is required to be judiciously exercised one expects the person so acting to do so with high degree of prudence and good judgment. Thus when a judge is called upon to exercise his discretion judicially and judiciously it follows that in reaching his discretion in the subject matter in which his discretion is called into play he must be involved in judicial balancing of the pros and cons or the strength and weakness of the parties case as placed before him. See ODOGWU VS ODOGWU (1992)1 NWLR (PT 370)203. It is important to note that the bench mark of the exercise of discretion by Courts is that the decision to use discretionary power must be exercised judicially and judiciously. See BAMAIYI VS STATE (2001) 3 NWLR (PT.715) 230. PER TALBA, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
It is settled law that an Appellate Court will not ordinarily disturb the findings of facts or exercise of discretion by a trial Court, it remains to be said that an appellate Court will readily interfere with the exercise of discretion by the lower Court which was not done judicially and judiciously, hence perverse thereby resulting in travesty of justice. The learned counsel made copious submissions on the exercise of discretion by the lower Court, which does not seems to favour the Applicants in this Appeal. See pages 14 line 17 to gape 17 line 5 of the Appellants Joint brief of argument. PER TALBA, J.C.A.
GUIDELINES FOR THE CONSIDERATION BY THE COURT IN EXERCISE OF ITS DISCRETION TO REUSE OR GRANT BAIL PENDING TRIAL
Now taking all the issues together the paramount issue in this appeal is whether the applicants are entitled to bail pending trial. The apex Court laid down some guidelines for consideration by the Courts in exercise of their discretion to refuse or grant bail pending trial. These are:
1. The availability of the accused to stand trial.
2. The nature and gravity of the offence.
3. The likelihood of the accused committing offence while on bail.
4. The criminal antecedents of the accused.
5. The likelihood of the accused interfering with the course of Justice.
6. The likelihood of further charge being filed. 7. Detention for the protection of the accused.
8. The evidence available against the accused.
See DOKUBO VS FRN (2007) 5-6 SC 150, ANI VS THE STATE (2002) 5 SC (PT.1) 30, BAMAIYI VS STATE (2001) 8 NWLR (PT 715) 270, ABACHA VS STATE (2002) 5 NWLR (PT. 761) 638. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of High Court of Justice Birnin Kebbi, Kebbi state delivered by Hon. Justice Umar Abubakar on the 18th day of February, 2020. The Appellants/Applicants filed a motion on Notice NO: KB/HC/M.13/2020, praying for their bail pending arraignment before a competent Court. After hearing the counsel to both parties in the application for bail, the learned trial judge refused the application and instead ordered the respondents to expedite investigation purposely to arraign the applicants for trial before a Court of competent jurisdiction within a reasonable time from the date of ruling.
The Appellants/Applicants being dissatisfied with the Ruling, they each filed a separate Notice of appeal before the lower Court on the 12th day of March, 2020, on three ground of appeal each. See page 45 – 68 of the records of Appeal, which was transmitted on the 18th day of March, 2020. The Appellants/Applicants filed their joint brief of Argument on the 20th day of March, 2020.
At the hearing of this appeal on the 1st day of June, 2020, the
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Appellants/Applicants counsel (herein referred to as applicants) adopted his joint brief of argument and he urged the Court to set aside the decision of the lower Court and to grant bail to the applicants. Learned counsel referred to affidavit of urgency filed by the applicants on 7th day of May, 2020. The Respondents counsel was in Court on the date of hearing and he confirmed the receipt of all the processes including the affidavit of urgency. But he said the respondents did not file any process in response to all the processes served on them. At this stage the matter proceeded to hearing. From the three grounds of appeal filed by each of the applicants, two issues were distilled for the determination of this appeal, thus:
1. Whether the learned trial Judge of the lower Court was right when he refused to exercise his judicial discretion judicially and judiciously in favour of the Appellants.
2. Whether the learned trial judge of the lower Court was right when he relied on extraneous matters and refused to grant the Appellants bail.
While arguing on issue one the applicants counsel submitted that the grant or refusal of an application for
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bail is solely the discretion of the Honourable Court. However, such discretion must be exercised judicially and judiciously having regard to the right of the Accused/Applicant to his liberty and the presumption of innocence until proven guilty to the crime alleged. He relied on Section 35(4) of the Constitution of the FRN 2011 as amended. Learned counsel submitted that based on the (FIR) First Information Report as well as the averment of the Applicants in paragraphs of the supporting affidavit, the Applicants had been in detention at the Respondents and now in the Correctional Centre in Birnin Kebbi by the order of a Chief Magistrate since 20th January, 2020. More than two months after their arrest. And the offence for which they are alleged to have committed are bailable offences by virture of Section 341 of the CPC. Learned counsel submitted that applicants were not arraigned or given any opportunity to defend themselves, even the day they were sent to Correction Centre, they were never taken to the Court, rather from the custody of the Respondents direct to prison on the order secured by the Respondent from a chief magistrate Court. Learned counsel
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submitted further that the constitutional rights of the applicants have been breached. He relied on the case of ONYIRIOHA VS I.G.P (2009)3 NWLR (PT. 1128) 342. And Sections 35(4) and 36(5) of the 1999 Constitution of the FRN. He also relied on Section 341(2) of the CPC and the following case:
ASARI VS FRN (2009) 4 NCC 158,
BAMAIYI VS STATE (2001)8 NWLR (PT. 715) 270,
LAWAL VS FRN (2013)3 NWLR (PT. 1342)451 and ALI VS STATE (2012)22 WRN 92.
Learned counsel further submitted that the applicants averred in paragraph 28 of the supporting affidavits that if granted bail they will appear before the Court to attend their trial and that was not controverted in anyway by the respondents. And on the failure of the respondents to obey the order of the lower Court by arraigning the applicants to a Court of competent jurisdiction clearly shows that the respondents has no any serious case against the Applicants and they were only detained to purnish them. He cited the following case to support his argument, thus:
SHUGABA VS UBN (1999) LPELR – 3068 (SC) and ODOGWU VS ODOGWU (1992) LPELR – 2229 (SC).
Now coming to the second issue,
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thus, whether the learned trial judge of the lower Court was right when he relied on extraneous matters and refused to grant the Appellants bail, without much ado I will mention or rather observe that I do not agree with the submission of the learned counsel that the trial judge placed reliance on facts/extraneous matters that was neither stated in affidavit nor in the address of the respondent which has greatly affected the judicial discretion of the learned trial judge. At page 43 of the record of appeal it clearly shows that the learned trial judge relied on the counter affidavit which is unchallenged. It is settled law that there are no rigid principles or rules governing bail application because so much discretion is involved and discretion can only be exercised in the light of the peculiar circumstance of the case. See OKOMODA VS FRN & ORS (2016) LPELR- 40191 (CA) Per Augie JCA (as he then was).
In the exercise of discretion, the Court is guided by its whims and caprice which is only checked by the need to exercise such discretion judicially and judiciously not arbitrarily or as a matter of course. The Court is not even guided by a previous
5
decision in matters of exercise of discretion for that in effect will put an end to the discretion as no two cases are exactly alike. While a Court will not be bound by a previous decision to exercise its own discretion. See OLAM NIG. PLC. VS ORIBOLAWALE (2004) VOL. 6 WRN 1-176 @ 121.
When a judge exercises his discretion judicially he will be expected to act critically. So also when a discretion is required to be judiciously exercised one expects the person so acting to do so with high degree of prudence and good judgment. Thus when a judge is called upon to exercise his discretion judicially and judiciously it follows that in reaching his discretion in the subject matter in which his discretion is called into play he must be involved in judicial balancing of the pros and cons or the strength and weakness of the parties case as placed before him. See ODOGWU VS ODOGWU (1992)1 NWLR (PT 370)203. It is important to note that the bench mark of the exercise of discretion by Courts is that the decision to use discretionary power must be exercised judicially and judiciously. See BAMAIYI VS STATE (2001) 3 NWLR (PT.715) 230. It is settled law that an Appellate
6
Court will not ordinarily disturb the findings of facts or exercise of discretion by a trial Court, it remains to be said that an appellate Court will readily interfere with the exercise of discretion by the lower Court which was not done judicially and judiciously, hence perverse thereby resulting in travesty of justice. The learned counsel made copious submissions on the exercise of discretion by the lower Court, which does not seems to favour the Applicants in this Appeal. See pages 14 line 17 to gape 17 line 5 of the Appellants Joint brief of argument.
Now taking all the issues together the paramount issue in this appeal is whether the applicants are entitled to bail pending trial. The apex Court laid down some guidelines for consideration by the Courts in exercise of their discretion to refuse or grant bail pending trial. These are:
1. The availability of the accused to stand trial.
2. The nature and gravity of the offence.
3. The likelihood of the accused committing offence while on bail.
4. The criminal antecedents of the accused.
5. The likelihood of the accused interfering with the course of Justice.
6. The likelihood of further charge being filed.
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- Detention for the protection of the accused.
8. The evidence available against the accused.
See DOKUBO VS FRN (2007) 5-6 SC 150, ANI VS THE STATE (2002) 5 SC (PT.1) 30, BAMAIYI VS STATE (2001) 8 NWLR (PT 715) 270, ABACHA VS STATE (2002) 5 NWLR (PT. 761) 638.
In the case of BAMAIYI VS THE STATE (Supra) the Supreme Court stated that while the criteria highlighted above are not exhaustive, the peculiar facts and circumstance of each case coupled with the particular factor that weighs more in the mind of the judge that will result in the grant or refusal of bail. One important factor which must be given due consideration in this instant case is the fact that when the learned trial judge refused the bail application instead he ordered that the respondent should expedite investigation purposely to arraign the applicants for trial before a court of competent jurisdiction within a reasonable time from the date of the ruling. The ruling was delivered on the 18th February, 2020. And till date there is no evidence to show that the applicants were arraigned before a Court of competent jurisdiction. In my
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humble view this constitute a special circumstance to justify the grant of bail to the Applicants.
In OBEKPA VS COMMISSION OF POLICE (1980) 1 NCR 113 the Court held that even in cases where a person was not ordinarily entitled to bail the constitutional provisions require that once the trial is going to exceed two or three months the accused must be released either conditionally or unconditionally. Section 35(4) & (5) of the 1999 constitution of the Federal Republic of Nigeria (as Amended) provides that
(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 prejudice to any further proceeding that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he
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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 kilometers, 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.
I must say that one day of freedom or detention means a lot to the person who is in detention. I believe that the expression reasonable time in the constitution refers to the estimation of a reasonable man. And a reasonable man should be a man who keeps his mind and reasoning within bounds of reason and not extreme.
I must also say that the detention of the Applicants is quite extreme, it is outside the bounds of reason. It is a clear breach of the constitutional provisions and a disobedience to the order of the trial court. This court will not allow the situation to continue rather the court must do Justice in a way that it embraces and optimizes social engineering that is for the welfare of the
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society.
In the case of GIWA-OSAGIE VS GIWA-OSAGIE & ANOR (2009) 4 NWLR 41 GUMEL JCA stated thus:
“in its quest to do justice a court should at all time endeavor to find means to do justice to all manner of men based on living and dynamic law”
Equally in the case ofODUNSI VS ABEKE (2000) ALL FWLR (PT.10) 1625 ADEREMI JCA stated thus;
“To allow a flagrant disobedience of orders of court is to strike hard at the foundation of the rule of law and thereby unwittingly bring about anarchy”
Bearing in mind the above principles, I am of the view that these constituted special or exceptional circumstance upon which the applicants can be admitted to bail. Consequently, the applicants are hereby admitted to bail on the following conditions pending trial: –
1. Bail is granted in the sum of ₦10,000,000 (ten million naira) with two surties’ each in the same amount.
2. The sureties must be reasonable, responsible and reliable citizens who are resident within this jurisdiction.
3. The sureties must swear to a satisfactory affidavit of means and their place of residence must be confirmed by
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officers of the department of State Security Services.
4. The applicants to deposit their international passport with the registrar of the High Court including a recent passport photograph of the Applicant and the surties.
In summary the appeal is allowed. The ruling of the lower court delivered on the 18th day of February, 2020 is hereby set aside. Bail is granted to the applicant’s as per the condition stated above.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, Talba, JCA. I fully agree with his reasoning and conclusion. I abide by all the consequential order of His Lordship in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of my learned Brother, ABUBAKAR M. TALBA, JCA just delivered. I am in agreement with the reasoning and conclusions reached in granting the application as meritorious. I abide by all the consequential orders made thereto.
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Appearances:
A. SAMBO ESQ. with M. U. UWAIS ESQ. SANUSI SAIDU ESQ. & S. D. BARAYA ESQ. For Appellant(s)
I. NAMATA ESQ. For Respondent(s)
