NWANKO v. DSS, KEBBI STATE
(2020)LCN/14706(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/S/37/2020(R)
RATIO
APPLICATION: NATURE OF GRANT OR REFUSAL OF AN APPLICATION
It is settled law that the grant or refusal of this application is entirely at the discretion of the Court. In the exercise of its discretion a Judge must act judicially and judiciously. A Court does not exercise its discretion in vacuum, there has to be a full disclosure of true facts that will enable the Court to make a balanced consideration of the facts for each party. See DONGTOE VS. CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 9 NWLR (PT. 717) 132, MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT. 738) 203 and GENERAL AVIATION SERVICES LTD VS. CAPTAIN PAUL THAHAL (2004) 6 MJSC 120. PER TALBA, J.C.A.
AFFIDAVIT: EFFECT OF FAILURE TO FILE AN AFFIDAVIT TO COUNTER AFFIDAVIT FILED
It is settled law that where no reply affidavit is filed to a counter affidavit the facts therein are deemed admitted and conceded by the other party, see J. NWANGANGA VS. A. G. IMO STATE (1987) 3 NWLR (PT. 59) 123, AGBAJE V. IBM SEA FOODS LTD (1972) 5 SC 50 at 55. AJOMALE V. YADUAT (No. 2) (1991) 5 SCNJ 178 AT 184. ADESINA V. THE COMMISSIONER IFON/ITOBU BOUNDARY COMMISSION, OSOGBO (1996) 4 SCNJ 112 at 199. UBA V. ODUSOTE (1994) 1 SCNJ 1. PER TALBA, J.C.A.
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
COMFORT NWANKO APPELANT(S)
And
DEPARTMENT OF STATE SECURITY SERVICE KEBBI STATE RESPONDENT(S)
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): The six applicants in this case namely:
1. Comfort Nwanko
2. Helen Samuel
3. Uchenna Benedith
4. Agatha Anichie
5. Dorathy Ikene
6. Francisca Ejiofor Ugochukwu
They bought a motion on notice pursuant to Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Order 17 of the Court of Appeal Rules 2016. Section 170 (1) of the Administration of Criminal Justice Act 2015 and under the inherent jurisdiction of this Honourable Court.
The Applicants are praying for the following reliefs:
“1. An order of this Honourable Court for variation/review of bail terms, and conditions fixed by this Honourable Court in its judgment delivered on the 11th day of June, 2020 in Appeal number CA/S/37C/2020.
2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.”
There are six (6) grounds upon which the application is brought as contained in the motion dated 12th day of October, 2020 and filed same date.
The motion is supported by a 16-paragraph affidavit deposed to by Nwanko
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Johnpaul Chigozie, the son of the first applicant. Attached to the affidavit in support are three annexures marked as exhibits A, B & C. A gist of the facts as contained in the affidavit in support is that the applicants had been in detention of the Respondents since 5th day of November, 2019. The Applicants applied for bail before the High Court of Justice Kebbi State but they were refused bail on the 18th day of February, 2020. They appealed to this Court and they were granted bail on the 11th day of June, 2020, upon the terms and conditions as contained in the Court order attached and marked as exhibit A. In an attempt to satisfy the bail conditions, two person, Celestine Chukwudi Nwanko and Ugbe Samuel swore to an affidavit of means and they presented themselves as sureties but they were refused by the Respondent through their letter dated the 9th day of June, 2020. A CTC of the said letter is attached as exhibit B. Upon the rejection of the first sureties, the Applicant secured two other sureties who swear to an affidavit of means, and they were presented to the Respondents. They are Mr. Jonathan Chukwu Anya and Mr. Kenneth Ugodi. The second set of
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sureties were also rejected by the Respondents vide a letter to this Court. A CTC of the letter is attached and marked as exhibit C. The Applicants are finding it difficult to meet up with the terms, particularly Order 5. As such the applicants are still in prison.
Order 5 reads:
“The sureties must swear to a satisfactory affidavit of means and the place of residence must be confirmed by officers of the department of state security services.”
And as it is now the Respondents may never be satisfied with any surety brought by the applicants. The applicants are still in prison custody without being properly charged to a Court of competent jurisdiction. That this Court can grant this application and vary its order in order not to defeat the cause of justice. And the grant of this application will meet the interest of justice and fairness.
In opposition to this application, the Respondents filed a 10 paragraph counter affidavit deposed to by Usman Abubakar, an officer of the State Security Service. In paragraphs 6 – 10 of the counter affidavit, the Respondents deposed to the fact that paragraphs 3 and 12 of the affidavit in support are not true.
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And contrary to paragraphs 7 and 9 of the affidavit in support, the Respondents neither rejected nor refused any surety but rather reported back to the Honourable Court the outcome of the inquiry conducted in a bid to confirm certain details of the sureties.
And that Mr. Kenneth Ugodi and Mr. Jonathan Chukwu Anya who were presented as sureties to the first applicant in the second attempt have deliberately evaded checks by SSS officers who made efforts to establish contact with them and the undertakings to avail themselves are yet to be fulfilled.
While arguing the application, the applicants counsel urged the Court to grant the application while the Respondents counsel submitted that there is no exceptional circumstance to warrant the grant of this application and he urged the Court to refuse the application.
It is settled law that the grant or refusal of this application is entirely at the discretion of the Court. In the exercise of its discretion a Judge must act judicially and judiciously. A Court does not exercise its discretion in vacuum, there has to be a full disclosure of true facts that will enable the Court to make a balanced
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consideration of the facts for each party. See DONGTOE VS. CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 9 NWLR (PT. 717) 132, MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT. 738) 203 and GENERAL AVIATION SERVICES LTD VS. CAPTAIN PAUL THAHAL (2004) 6 MJSC 120.
The issue now is whether the applicants are entitled to be granted this application having regard to the affidavit evidence before the Court. In other words, are there sufficient facts and materials that could persuade the Court to exercise its discretion in favour of granting the application. One fundamental issue is that the applicants had failed to state in their motion what alternative terms and condition they want the Court to consider. And moreso the applicants had refused or neglected to file a further affidavit in order to challenge the depositions in paragraphs 6 — 9 of the counter affidavit, the effect of such failure to file a further affidavit is that the applicants are deemed to have admitted the facts deposed in paragraph 6 – 9 of the counter affidavit. The Respondent had deposed to the fact that they never rejected nor refused any surety but rather they reported back to the
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Court the outcome of their inquiry conducted with a view to confirm certain details of the sureties. And most importantly, the Respondents deposed to the fact that Mr. Kenneth Ugodi and Jonathan Chukwu Anya who were presented by the Court for confirmation as sureties to the first applicant, they deliberately evaded cheeks by SSS officers who made efforts to establish contact with them. It is settled law that where no reply affidavit is filed to a counter affidavit the facts therein are deemed admitted and conceded by the other party, see J. NWANGANGA VS. A. G. IMO STATE (1987) 3 NWLR (PT. 59) 123, AGBAJE V. IBM SEA FOODS LTD (1972) 5 SC 50 at 55. AJOMALE V. YADUAT (No. 2) (1991) 5 SCNJ 178 AT 184. ADESINA V. THE COMMISSIONER IFON/ITOBU BOUNDARY COMMISSION, OSOGBO (1996) 4 SCNJ 112 at 199. UBA V. ODUSOTE (1994) 1 SCNJ 1.
Apart from their failure to challenge the depositions in the counter affidavit, the applicants had failed to provide sufficient facts and materials that will enable the Court to consider in the exercise of its discretion to grant the application.
The application is refused and same is dismissed
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before
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now the lead ruling just delivered by my learned brother ABUBAKAR M. TALBA, J.C.A. I fully agree that this application is totally devoid of any merit and is according refused and dismissed by me too.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling just delivered by my Learned ABUBAKAR M. TALBA – J.C.A. and I am in agreement with his reasoning and conclusions in refusing to grant the Application. The settled position of the law is that grant or a refusal of a motion of this nature is at the discretion of the Court even though the Court is expected to exercise that discretion judicially and judiciously. It is however trite that the Court would readily refuse to exercise its discretion where sufficient materials have not been paraded by the Applicants as in this case.
The authorities in support of this proposition of the law are in the legions, some of which are cases of GENERAL AVIATION SERVICES LTD. VS. CAPTAIN PAUL THAHAL (2004) 6 M.J.S.C., 120 and MENAKAYA VS. MENAKAYA (2001) 16 NWLR (PT. 738) 203.
I too refuse to grant this Application and it is accordingly dismissed.
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Appearances:
…For Appellant(s)
…For Respondent(s)
