OBUM OSAKWE v. FEDERAL GOVERNMENT OF NIGERIA
In The Court of Appeal of Nigeria
On Thursday, the 15th day of July, 2004
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
OBUM OSAKWE Appellant(s)
FEDERAL GOVERNMENT OF NIGERIA Respondent(s)
ZAINAB ADAMU BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The appellant, a legal practitioner and a counsel retained by one Mrs. Amaka Anajemba, was on 5/2/2004 arraigned with his client before the High Court of the FCT Coram Gummi, CJ in Charge No. CR/14/2004 on an eight count charge relating to the giving of gratification to public officers contrary to and punishable under sections 97, 118 and 169 of the Penal Code. The charges were read and the appellant entered a ‘not guilty’ plea. He was then remanded in prison custody.
On the 6/2/2004, he filed an application for bail which was supported by an affidavit and a further affidavit. The prosecution filed a counter-affidavit and the appellant filed a reply to the counter-affidavit. The court on 18/2/04 heard arguments on the application and on the 23/2/04 in a considered ruling refused the application for bail.
The appellant dissatisfied has now appealed to this court on four grounds of appeal. The grounds shorn of their particulars are listed hereunder;
The learned trial Judge erred in law by coming to the conclusion that “a reasonable presumption of the accused’s guilt exists” and that the prosecution/respondents have succeeded in raising a reasonable presumption of criminal responsibility on the part of the applicant and thereby refusing to grant bail pending trial to the appellant upon such ground.
The learned trial Judge erred in law, in relying upon an extraneous matter not before the court, namely a purported video recording, to deny bail to the appellant.
The learned trial Judge erred in law, in dismissing the appellant’s application for bail and refusing him bail without consideration of the materials placed before him by the appellant and the applicable principle thereto.
The learned trial Judge did not properly exercise the discretion to grant bail by refusing to grant bail to the appellant having regard to the materials and affidavit evidence before the court.
From the above grounds the following issues were distilled by the appellant;
1. Whether the learned trial Judge was right in refusing bail to the appellant on the ground that a reasonable presumption of criminal responsibility exists on the part of the appellant.
2. Whether the learned trial Judge was right to rely upon a video recording not tendered before the court to hold that the appellant would jump bail and hereby deny him bail.
3. Whether the learned trial Judge properly exercised the discretion to grant bail by refusing to grant bail to the appellant, pending his trial having regard to the materials and affidavit evidence before the said court, which materials were given no consideration whatsoever by the said court.
The respondent raised only this issue in his brief of argument:
Whether the lower court did not judicially and judiciously consider the appellant’s application for bail in the light of the proof of evidence and various affidavits evidence before it.
As the issues formulated by the appellant cover all the grounds of appeal and the issue as formulated by the respondent, I will adopt them in the determination of this appeal.
On issue one, it was the submission of the learned Senior Advocate for the appellant that criminal responsibility can only be established or disproved at the trial of the charge and not before pointing out that it should not be a factor for the consideration of bail and in the exercise of the discretion to grant or not to grant bail.
He cited the provisions of S 341(2) of the Criminal Procedure Code, the cases of Bamaiyi v. The State (2001) 8 NWLR (Pt.715) 270; Dantata v. The Police (1958) NRNLR 3; Olatunji v. Federal Republic of Nigeria (2003) 3 NWLR (Pt. 807) 406, which have over the years established the principles under which bail is granted submitting that these principles do not include a requirement that an accused/applicant must show that there is no presumption of criminal responsibility before he can be granted bail. That criminal responsibility can only be established or disproved at the trial of the charge and not before. That the court was wrong to have introduced it at pre-trial stage, for the only relevant presumption at that stage is the constitutionally guaranteed presumption of innocence. That the general rule is that a person who has not been charged with a capital offence, and has not been tried and convicted on a non-capital offence is entitled to be admitted to bail as a matter of course, unless there are special circumstances that will prevent the court from granting it, contending that in the instant case there are no such special circumstances.
Replying for the respondent learned Counsel Jacobs submits that the accused as an applicant for bail has the onus of placing some materials before the court for its consideration, and the onus then shifts to the prosecution to show why the applicant should not be granted bail contending that in the instant case the court considered the materials placed before it by both parties and found that the materials placed before it by the applicant were not sufficient for the court to exercise its discretion in favour of the applicant and that this did not in any way remove the presumption of innocence guaranteed by the Constitution. He placed reliance on the cases of Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320; Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467; Abiola v. F.R.N. (1995) 1 NWLR (Pt.370) 155; Ani v. The State (2002) 1 NWLR (Pt. 747) 217.
That a trial court can in this instance, consider the probability of guilt and the constitutional provision guarantying the presumption of innocence does not in any way remove the discretion of the court to grant or refuse bail. That the court in the instant case only, considered the principles that are to guide a court in an application for bail which does not amount to taking away from the applicant the presumption of innocence as guaranteed by the Constitution.
An application for bail as in the instant case is brought under section 341(2) of the Criminal Procedure Code which provides:
“341(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 by 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.”
The courts have also over the years, established principles or guidelines to be observed by the courts in the consideration of an application for bail, these principles are:
1. The nature of the charge;
2. The severity of the punishment;
3. The character of the evidence;
4. The criminal record of the accused;
5. The likelihood of the repetition of the offence;
6. The severity of punishment in the event of conviction;
7. The probability that the accused may not surrender himself for trial, thus not bringing himself to justice;
8. The risk that if released the accused may interfere with witnesses or suppress the evidence likely to incriminate him.
9. The necessity to procure medical or social report pending the disposal of the case.
See Dantata v. The Police (1958) NRNLR 3; Eyu v. The State (1988) 2 NWLR (Pt. 78) 602; Danbaba v. The State (2000) 14 NWLR (Pt. 687) 396; Ogbemhe v. C.O.P. (2001) 5 NWLR (Pt. 706) 215; Olatunji v. Federal Republic of Nigeria (2003) 3 NWLR (Pt. 807) 406.
An applicant in an application for a bail in a criminal offence that is punishable by more than three years has to place such materials before the court to show that he is entitled to it. The first burden is thus placed on him and the prosecution will thereafter show that the accused/applicant is not entitled to it. In the instant case, the appellant had placed before the court an affidavit of 20 paragraphs and a reply to the counter-affidavit of 5 paragraphs, while the respondent filed a counter-affidavit of 16 paragraphs in opposing the application of importance of the below listed averments.
See paragraphs 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the affidavit in support of the application:
(5) That I only performed my services as counsel for the 1st accused person by appearing at the Commission on behalf of my client, the 1st accused person and I, never offered any bribe to any body at all in this matter, and this charge of bribery is trumped up to sensitise this case for propaganda purpose for the Commission in their bid to attract news headlines.
(6) That I only went to the Commission’s office in the course of my lawful duties, and the present charge is merely designed to intimidate me, and other lawyers who visit the Commission’s office in the course of the daily responsibilities as counsel, and to belittle and ridicule the legal profession.
(7) That I did not offer any body bribe as alleged in his matter, and could not have been involved in offering bribes.
(8) That I clearly stated in my statement to the Commission that I did offer bribe to any person, and a copy of my statements is annexed herewith as exhibit ‘B’.
(9) That I am ready to stand trial in this matter, to face my accusers and to defend myself against these charges.
(10) That I am a very experienced legal practitioner and will not jump bail if admitted to bail, not jump bail if admitted bail.
(11) That the Commission had completed their investigation, and charged the matter to court a duly noted by this Honourable Court on 5th February, 2004 in this matter, and I will not, and am not in a position to interfere with any investigation.
(12) That there is no risk of my escaping from justice, as I have a very reasonable person to sign as surety for me, if required by the Honourable Court and I can as a legal practitioner be given bail in self-recognisance.
(13) That there are no grounds existing for believing that I will if released commit any crime.
(14) That I have been subjected to unbearable humiliation and treated like a common criminal because I had the guts to take up the defence of the 1st accused at the Commission.
(15) That it is unfair for the Commission to detain me for over two weeks in respect of an offence I have not been found guilt of.
(16) That I know as a lawyer that the charges against me are clearly bailable.
(17) That I also know that this Honourable Court has the jurisdiction, and indeed the discretion to grant me bail, since the essence of bail is to secure my attendance before the court to take my trial.
(18) That I undertake to appear in court to take my trial, when granted bail by this Honourable Court and I will never jump bail.
(19) That even the Commission granted me bail, and I did not jump bail, and appeared whenever they required me, including when I was invited for this matter to be charged to court.
Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the counter affidavit are also produced hereunder:
4. That in response to paragraphs 5, 6, 7 and 8 of the affidavit in support, the applicant actually went beyond the scope of his duty as a legal practitioner and performed the services for the 1st accused person of offering bribe in order to pervert the course of justice.
5. That in response to paragraphs 9 and 10 of the affidavit in support, the applicant here by his acts in offering bribe to public officers for the 1st accused person not to stand her trial would do anything in his own case so that he would not stand trial if admitted to bail.
6. That in response to paragraph 11 of the affidavit in support, since the applicant has tried earlier to interfere with the investigation of the 1st accused person, doing the one that concerns him would not be new to him.
7. That in response to paragraphs 12 and 13 of the affidavit in support and further to paragraph 10,the applicant’s acts in offering bribe clearly show that the competence and the dignity expected of a legal practitioner are lacking in the applicant.
8. That paragraph 15 of the affidavit in support was misrepresented, as the 2nd accused/applicant was detained in respect of the role played by him in the scam against Banco Noroeste S.A. of Sao Paulo Brazil, which formed the subject-matter of charge No. Cr/15/2004, but the Honourable Attorney-General graciously excluded him from that case.
9. That paragraph 19 of the affidavit in support is totally false as the bail granted the applicant was in respect of a different charge as he was never earlier arrested and detained in respect of this charge.
10. That it was the applicant that encouraged the 1st accused to evade arrest only for him to show up and offered bribe and according to him to “water” the ground before the accused would show up from her hiding place.
See also paragraphs 3b – 3k of the reply to the counter-affidavit:
3(b) That paragraph 4 of the counter-affidavit is totally denied as the 2nd accused/applicant never at anytime offer any bribe to any officer of Economic & Financial Crime Commission (EFCC) besides if he had given bribe, he could have been arrested immediately by the Commission.
(c) That paragraph 5 is of no relevance as the 2nd accused/applicant maintains at all material times and all his dealing with (EFCC) he was acting in his capacity as a counsel to the 1st accused person. That this issue of bribe is a hoax in order to frighten not only the 2nd accused from rendering any such legal service to the 1st accused but order to check all other lawyers from representing their clients in subsequent legal cases with EFCC.
(d) That the 2nd accused person is not only a member of the noble legal profession but also a justice of peace in Enugu State and therefore knows fully well that to indulge in such unholy act is unprofessional and so it is totally false that the 2nd accused did offer bribe to anybody but one of the Commission’s antics to deprive him from diligently representing the 1st accused person in this matter.
(e) That paragraph 8 is totally false. It is one of the Commission’s over zealousness to robe in everybody and make unnecessary name. In the affidavit by Commission sworn in Lagos High Court in Charge No. M/282/2003 Chief Nwude & 3 Others v. EFCC, the Commission stated that the 2nd accused/applicant together with two others are not being charged for any Economic Crime, but that they attempted to obstruct Police Officers in the course of their duty, but because of the Commission’s desperation to indict him by all means, they brought this false charge.
(f) That in reply to paragraph 9, it is on record that the Commission has tried severally without success to induce and entice some other suspects to incriminate the 2nd accused/applicant knowing fully well that the 2nd accused will sue the Commission for unlawful detention and defamation of character.
(g) That paragraph 10 is not only false but totally childish of the EFCC to degenerate to this level. It is ridiculous, as the 2nd accused has never ever used such words as “water the ground”. This is because as a counsel, the second accused knows that a court of competent jurisdiction had earlier granted bail to the 1st accused person in the same matter and the bail is still subsisting, but for the cheap popularity the EFCC wanted to make in this case.
(h) That paragraph 11 is completely baseless. No court of law has adjudged the 1st accused guilty of any offence and so the issue of illegally acquired “property does not arise”.
(i) That it is false that granting bail to the 2nd applicant will interfere with the case as the applicant cannot and is not in a position to interfere in this case, as investigation has long been concluded.
(j) That paragraph 13 is totally false. There was never a time the 2nd accused person ever visited any shrine with anybody.
(k) That the 2nd accused as a legal practitioner will appear before this Honourable Court to take his trial and will not jump bail.
The learned trial Chief Judge after due consideration of the said affidavits stated:
“I have carefully considered the affidavit evidence available before me at this point in time. I have also considered the proof of evidence, especially the statements of IPO Ibrahim Lamorde and other prosecution witness. In my view, the prosecution respondents have succeeded in raising a reasonable presumption of criminal responsibility on the part of the applicant”.
Here, the court had considered what had been placed before it and came to the conclusion that the appellant had not discharged the burden of criminal responsibility that is placed on him by the bail application.
Similarly, the constitutional provision of section 36(5) which provides that – ‘every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty’ has not been breached against the applicant/ appellant in this instance, as it is not an absolute right, for in the consideration of the application, all factors have to be considered by the court.
See Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 292 per Uwaifo, JSC:
“In that regard, it is proper to consider the nature of the offence, the nature of the evidence in support of it, and the severity of the punishment which conviction will entail. The learned trial Judge took these critical factor as to availability to stand trial into consideration. These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial, but they are certainly worthy to be taken into account in an application for bail pending trial. That does not necessarily prejudice the presumed innocence of the appellant of the charge brought against him until the contrary is proved, but it at least tries to ensure avoidable interruptions of the trial”.
On this issue, I agree entirely that the learned trial Chief Judge was right in holding that a reasonable presumption of criminal responsibility exists on the part of the appellant.
On issue two, it was the submission of the appellant that the learned trial Chief Judge was wrong to have relied upon the alleged video recording to deny the appellant bail, particularly as the video was not tendered at the hearing. Contending that reliance on the said video recording is speculative and that a decision of a court should be based on evidence that was before it and not on speculation and possibilities not supported by any evidence putting reliance on the case of Durwode v. State (2000) 2 NWLR (Pt. 645) 392.
He further submits that the appellant was not given the opportunity of addressing the court on the video recording and thus denied a fair hearing.
It is the submission of the respondent on that issue that the existence of the fact of video recording had been sufficiently placed before the court referring to the proof of evidence that had already been placed before the court, contending that a court can use any evidence contained in the proof of evidence filed by the prosecution in its consideration of an application for bail, while considering the evidence available against an applicant, the respondent further referred to his submission before the lower court at page 24 of the record of proceedings where he drew the attention of the court to the video recording to show that the appellant had sufficient notice.
The learned trial Chief Judge at p. 22 of the records in his ruling said:
“I am also convinced, that no one can discount the possibility that the applicant knowing the type of evidence that the prosecution has in its possession (video recording of accused giving bribe) may not turn up for his trial, if now released on bail”.
I have earlier in this judgment shown that in its consideration of an application for bail a court must examine all the available material that is before it. In the instant case, the court had the affidavit evidence of the parties, the charge itself and the proof of evidence which is supporting the charge. The appellant had notice of this proof of evidence which referred to the video recording and as was pointed out by the respondents it was referred to in his submission before the lower court. If the court referred to it in its ruling, it cannot be speculative or be based on possibilities, but tangent evidence before it. It has therefore not been wrongly used by the trial court.
The appellant submits on the 3rd issue that the trial court did not judicially and judiciously exercise its discretion in this matter having regard to the materials and affidavit evidence before the court and urged us to interfere with the wrong exercise of judicial discretion by the learned trial Chief Judge and admit the applicant to bail.
The application before the lower court as shown by the records is an application for bail of the applicant.
The said application was supported by an affidavit and a reply affidavit to the counter-affidavit on one side of the scale. On the other side, there was a counter-affidavit, the charge and the proof of evidence supporting the charge. Counsel to either party made submission on the application.
After a careful consideration of what was before it and consideration of the relevant principles that would entitle an applicant to bail refused the application, but ordered an accelerated hearing of the substantive matter.
An appellate court does not as a matter of course interfere with the exercise of discretion by a trial court, unless it is exercised not in accordance to law or in a perverse manner. See Likita v. C.O.P. (2002) 11 NWLR (Pt.777) 145; Saffieddine v. C.O.P. (1965) 1 All NLR 54; Ugboma v. Olise (1971) 1 All NLR 219; Atiku v. State (2002) 4 NWLR (Pt. 757) 265. The decision to grant or refuse an application for bail is entirely at the discretion of the trial court based on what was before it. Where it appears as in the instant case, that the discretion has been exercised judiciously this court cannot interfere.
It is my view, that the appellant has not placed sufficient reasons before us to interfere with the exercise of discretion by the learned trial Chief Judge. He has exercised it judiciously.
All issues having been resolved against the appellant, this appeal lacks merit and must be refused.
It is hereby, dismissed.
IBRAHIM TANKO MUHAMMAD, J.C.A.: I read in advance, the judgment of my learned brother, Bulkachuwa, JCA. I agree with the reasoning and conclusions reached in the leading judgment. I too, dismiss the appeal and abide by the consequential orders made in the judgment.
ALBERT GBADEBO ODUYEMI, J.C.A.: I had the privilege of reading, in advance, the judgment just delivered, by my learned brother, Bulkachuwa, JCA. I am in complete agreement with the reasoning in the judgment which I adopt as mine.
I also, agree that the appeal lacks merit.
I dismiss it.
I affirm the ruling of the lower court which refused bail.
Chief Chris Uche, SAN (with him, Chief M.I. Obegulu [Mrs.];
Okey Uzoho, Esq.; Emeka Chima, Esq.; Austin Dimonye, Esq;
C.N. Nosihe, Esq.; K.O.K Ojihe, Esq.; Miriam Nweze [Miss])For Appellant
Rotimi Jacobs, Esq. (with him, Gabriel Esegine, Esq.)For Respondent