SADDAM ABBA MUSA v. COMMISSIONER OF POLICE KADUNA STATE (2014)

SADDAM ABBA MUSA v. COMMISSIONER OF POLICE KADUNA STATE

(2014)LCN/7007(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of March, 2014

CA/K/379/2013

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

T. N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

SADDAM ABBA MUSA Appellant(s)

AND

COMMISSIONER OF POLICE KADUNA STATE Respondent(s)

RATIO

DUTY OF THE COURT IN CONSTRUING THE PROVISION OF A STATUTE

It is trite that in construing the provision of a statute, where the words are clear and unambiguous, it is the words used that prevail and not what the judge says the provisions mean. No Court is entitled to substitute its words for the words of an Act. See; Awuse V. Odili (2005) 16 NWLR (Pt. 952) page 416 at 488. PER ABOKI, J.C.A.

WHETHER OR NOT THERE IS A SPECIFIC PROVISION IN THE CRIMINAL PROCEDURE CODE ON HOW TO APPLY FOR BAIL

It is pertinent to note that there is no specific provision in the Criminal Procedure Code on how to apply for bail. Section 363 of the CPA applicable to southern part of Nigeria allows adoption of the procedure in English Courts i.e. application by summons supported by affidavit.
See; Olugbusi Vs COP 1970 2 All NLR 1;
Simidele V. COP (1966) NMLR 116.
High Courts in the Northern Nigeria specifically exclude foreign rules in criminal matters. The common procedure adopted is to apply by motion supported by affidavit. See; Offiong Vs COP 1967 NMLR 341. PER ABOKI, J.C.A.

WHETHER OR NOT THE COURT WILL PUNISH A PERSON FOR NOT STRICTLY COMPLYING WITH PROCEDURAL RULES

It is trite law that Court will not punish a person for not strictly complying with procedural rules. If a person has a right, it does not really matter how he enforce it. The Court will look into the justice of the case since rules of procedure cannot override the rule of substantive law.
See; Folabi Vs Folabi (1976) 1 NMLR 169;
Bello Vs A.G. Oyo State 1986 12 SC 1. PER ABOKI, J.C.A.

FACTORS THE COURT MUST CONSIDER IN CONSIDERING AN APPLICATION FOR BAIL PENDING TRIAL

In consideration of an application for bail pending trial, the Court must in the exercise of its discretion consider the following, among other relevant factors;
1. Evidence available against the accused;
2. Availability of the accused to stand trial;
3. The nature and gravity of the offence
4. The likelihood of the accused committing another offence while on bail;
5. The likelihood of the accused interfering with the course of justice;
6. The criminal antecedents of the accused person;
7. The likelihood of further charge being brought against the accused;
8. The Probability of guilt;
9. Detention for the protection of the accused;
10. The necessity to procure medical or social report pending final disposition of the case.
These factors may not be relevant in all cases and they are not exhaustive.
See; Ofule V. F.G.N (2005) 3 NWLR (pt. 913) pg. 571 at 596. PER ABOKI, J.C.A.

WHETHER OR NOT WHERE THERE IS NO COUNTER-AFFIDAVIT TO REBUT FACTS IN A SUPPORTING AFFIDAVIT, THE DEPOSITIONS IN THE SUPPORTING AFFIDAVIT ARE DEEMED ADMITTED

It is trite law that where there is no counter affidavit to rebut the facts in a supporting affidavit to an application, the depositions in the supporting affidavit are deemed admitted.
In Olori Motors & Co. Ltd Vs UBN Ltd (1998) 6 NWLR (PART 554) PG 493 at 505 the Supreme Court held as follows;
“where as in the instance case there is a positive averment in an affidavit which is not challenged by the opposing party who had the opportunity to do so, such averments must be accepted and acted upon by the Court without hesitation” PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Kaduna State High Court delivered on the 11th July, 2013 by M. K. Dabo J.
The Appellant was the Accused person at the lower Court while the Respondent was the Complainant.

The facts of the case leading to this Appeal are as follows:
The Appellant was taken before the Magistrate Court, Ibrahim Taiwo Road, Kaduna for cognisance via a Police First Information Report (FIR) dated 31st October, 2012 for offence of Culpable Homicide not punishable with death and other offences, punishable under Sections 221, 97 and 246 of the Penal Code Laws Cap 110 Laws of Kaduna State of Nigeria 1991. The F.I.R reads as follows:
“On 24/08/2012 at about 1700hrs, the above case was transferred from Kawo Division to the State CID Kaduna to the effect that on 21/8/2012 at about 2300hrs one Musa Abdullahi “M” of No. CK 12 Zango Road, T/Wada Kaduna reported at Kawo Police Station that on the same date at about 2200hrs, his Nephew one Musa Suleiman was attacked by the following suspects 1. Saddam Abba “M” 2. Mubarak Hassan “M” 3. Abdulmudalab Musa “M” 4. Hassan Mohammed “M” 5. Abdul Killer “M” at large 6. Gwanu “M” at large 7. Bahajo “M” at large 8. Zanki “M” at large all of Ungwan Dosa Kaduna. That the suspects without any cause matched his Nephew Mutari Suleiman as a result of which he bleeded to death and also inflicted injury on one Umar Moh’d Abdulrahman. Contrary to Sections 97, 246 and 221 of the Penal Code Law.”

The Appellant subsequent to his being taken to the said Court by motion on notice dated the 1st day of July, 2013 sought for an order of the lower Court to admit him to bail pending the trial and determination of the criminal charge against him. The application is supported by 11 paragraphs affidavit.

The lower Court in its ruling on the 11th day of July, 2013 refused the bail application and held as follows;
“… I have observed after perusing the motion on notice that it is not supported by a written address. It is very clear from Order 15 Rule 1 that where by these rules any application is authorized to be made to a judge, such application may be made by motion or summons which shall be supported by affidavit.
Order 15 Rule 1 (2) provides that every such application shall be accompanied by a written address in support of the relief sought.

Further more, Order 32 Rule 1 provides that the order shall apply to all applications and final address.
It is my humble view that this requirement in Order 15 Rule 1 and 1 (2) and Order 32 Rule 1 applies to both civil and criminal interlocutory applications.
The absence of a written address in support of the motion as required by these rules makes the application not initiated in accordance with the due process of the law. It is trite that the Court lack jurisdiction in all matters not initiated in accordance with due process of the law.
In the circumstances, the application is struck out.”

Dissatisfied with the said ruling of the lower Court, the Appellant filed a notice of appeal dated 12th July, 2013 but filed on 22/8/2013 containing two grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument.

The Appellant distilled two issues for determination from two grounds of appeal as follows;
1. Whether Kaduna State High Court (Civil Procedure) Rules 2007 is applicable to an application for bail brought pursuant to the provision of the Criminal Procedure Code (Distilled from Ground 1).
2. Whether the lower Court was justified in not admitting the Appellant to bail. (Distilled from Ground 2).

The Respondent in their brief distilled a lone issue for the determination of this appeal as follows;
1. Whether the lower Court was right in holding that the Appellant’s application was incompetent.
Issue one as formulated by the Appellant captures the main grievance of the parties and same is adopted for the determination of this appeal.

It was argued on behalf of the Appellant that this appeal is predicated on the interpretation of the Kaduna State High Court (Civil Procedure) Rules 2007 by the lower Court particularly Order 15 Rule 1 & 1 (2) and Order 32 Rule 1 of the said rules. He referred the Court to Order 15 Rule 1 & 2 and Order 32 Rule 1.

Learned Appellant’s counsel submitted that civil procedure is the body of law that sets out the rules and standards that Courts follow when adjudicating civil law suits. He argued that Order 15 Rule 1 & (1) (2) and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 are very clear, unambiguous and admits only one interpretation which is that it applies only in civil procedure not criminal procedure. He cited rule 1 of the Practice Direction which provides as follows;
“The civil procedure rules set out herein shall be the rules of civil procedure in the High Court of justice of Kaduna State.”

Learned Appellant’s counsel submitted further that there is plethora of authorities that settle the issue of interpretation, which have striven to frown at tendency to misconstrue a law; plain words must be given their plain meanings. He referred to the cases of;
Lawal V. G.B Olivant (1972) 3 SC 123;
Ifezue V. Mbadugha (1984) 1 SCNLR 427;
I.B.W.A V. Imano (Nigeria) Ltd (1988) 3 NWLR (Pt. 85) page 633;
Adisa V. Oyinwola (2000) 10 NWLR (Pt. 674) page 116 and
Amadi V. NNPC (2000) 10 NWLR (Pt. 674) page 76.

Learned Appellant’s counsel further argued that this Court in Mika’ilu V. The State (2001) 8 NWLR (Pt. 715) Page 469 particularly at 484 Per; Abdullahi PCA, (As he then was) held as follows;
“In the case of OGBAJI V. AREWA ILE PLC (2000) 11 NWLR (Part 678) 322, it was observed that the practice or procedure of submitting written addresses in the High Court is not known to any of those Courts’ procedure. It is however, becoming fashionable for the High Courts to demand to be addressed in writing but this practice is not provided in their various civil procedure rules or criminal law applicable in the country”

Counsel submitted that submission of written addresses in the High Court was not known to High Courts’ civil procedure as at the time when the decision in Mika’ilu V. The State (supra) was made, it is now allowed under various High Courts Civil Procedure Rules, but till date written addresses is not provided for in criminal law applicable in the country.

Learned Counsel contended that the Appellant’s application for bail pending his trial was properly initiated and placed before the trial Court in accordance with due process of the law. Consequently, his lordship was clothed with the requisite jurisdiction to entertain and determine same. He urges your lordships to allow this appeal.

Learned Appellant’s counsel further submitted that the respondent who was served with the Appellant’s motion on notice dated 1st July, 2013 did not file a counter affidavit. The trial Court after considering the affidavit evidence placed before it and the submissions of the learned counsel to the Appellant struck out same.

Counsel submitted further that the main general provision dealing with an offence committed within Northern States is Criminal Procedure Code. Thus, by S.340 (1) of the Criminal Procedure Code the grant or refusal of bail in respect of an offence which is ordinary bailable (offence not exceeding three years) is mandatory. He referred the Court to the case of; Chedi Vs A.G. of The Federation (2006) 13 NWLR Pt. 997 page 308 at 323.

By the provision of Section 341 (2) of the Criminal Procedure Code offences punishable with imprisonment exceeding three years are not ordinarily bailable, but the Court may upon application release accused person on bail on some considerations. Thus, the issue of bail is at the discretion of the trial Court to be exercise judicially and judiciously.

Counsel further submitted that there are plethora of authorities that in grant of application for bail certain factors may be taken into consideration. Those factors may not be relevant in all cases. For a counsel to succeeds in opposing bail application, the respondent’s counter affidavit must be detail and in line with the consideration of those factors. He referred the Court to cases of;
Dantata Vs Police (1958) NRNLR 3;
Olabanji Vs FRN (2003) 3 NWLR (Pt. 807) 406;
Ekwenugo Vs FRN (2001) 6 NWLR (Pt. 708) 171;
Bamali Vs State (2001) 8 NWLR (Pt. 715) 270;
Eyu Vs State (1988) 2 NWLR (Pt. 78) 602;
Olugbusi Vs COP (1970) 2 All NLR 1.

Counsel contended that the main function of bail is to ensure the presence of the accused person at the trial. He referred the Court to the cases of;
Sulaiman Vs COP Plateau State (2008) 8 NWLR Pt. 1089 298 and Bamaiyi Vs The State (2001) 8 NWLR (Pt. 715) 270.

He argued that by Section 35 (1) (a) & (c) of the CFRN 1999, any person arrested or detained in accordance with Section 35 subsection (1) (c) of the CFRN 1999 shall be brought before a Court of law within a reasonable time, and if not tried within a period of two months from the date of his arrest or detention (in the case of person who is not entitle to bail), he shall be release unconditionally or upon conditions reasonably necessary to ensure that he appears for his trial at a later date. He also referred the Court to the case of;
Ikhazuagbe Vs COP (2004) 7 NWLR (Pt. 872) Pg. 346 at 363. And also, S. 36 (5) of the CFRN 1999

Learned counsel argued that a careful perusal of the trial Court’s ruling would reveal that nothing has been said on the following;
1. The presumed innocent of the Appellant
2. Non-availability of any criminal record against the Appellant
3. The way and manner how the Appellant will impede the police investigation
4. Whether there has been any evidence to suggest that the Appellant will escape justice.

There was no counter-affidavit opposing the Appellant’s application for bail and it is trite law that where there is no counter affidavit to rebut those facts in a supporting affidavit to an application, the depositions in the supporting affidavit are deemed admitted. He referred the Court to the cases of;
Ejide Vs Ogunyemi (1990) 3 NWLR (pt. 141) 758;
Niger Construction Ltd Vs Okungbeni (1987) 4 NWLR (pt. 67) 787.

Counsel contended that it is trite that the Court of Appeal has the power to determine appeal before it by way of re-hearing, evaluate the evidence and may reject conclusion of the trial Court from facts which do not follow from the evidence or regarded as perverse. He referred the Court to the case of; Jadesimi V. Okotie-Eboh (1986) 1 NWLR (pt. 16) 264. He contended further that Section 16 of the Court of Appeal Act gives this Court power to deal with any case before it on appeal, and the power includes the jurisdiction of a Court of first instance.
He also referred the Court to the cases of;
U.B.N Ltd Vs Fajebe Foods & Poultry Farm (1994) 5 NWLR (Pt. 344) 325;
Igiehon Vs Omoregie (1993) 2 NWLR (pt. 276) 398;
Ejowlwmu Vs Edol Eter Mandilas Ltd (1986) 5 NWLR (pt. 39) 1;
Igweshi Vs Atu (1993) 6 NWLR (pt. 300) 484;
Uzoukwu Vs Ezeonu (1991) 6 NWLR (pt. 200) 708;
Kokom-Own v. Ogunbanbi (1993) 8 NWLR (pt. 313) 627.

Learned Appellant’s counsel finally submitted that the instance case is a good and clear case for the invocation of Section 16 of the Court of Appeal Act. He referred the Court to the cases of;
Gamba Vs Kic Ltd (2005) 5 NWLR (pt. 917) 160;
A-G Anambra State Vs Okeke (supra).

He urged the Court to allow the appeal, set aside the ruling and in its place grants an order admitting the Appellant to bail pending the hearing and determination of the criminal case against him.

The Respondent’s counsel in response contended that the crucial questions to be determined in this appeal remains whether the Appellant’s motion before the trial Court is competent, a matter of jurisdiction of the Court before which it was instituted and also the intendment of Section 116 of the High Court Law of Kaduna State, Order 15 Rule 1 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007. He referred the Court to Section 116 of the High Court Law of Kaduna State, Order 15 Rule 1 & 2 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007.

Learned respondent’s counsel submitted that issue of jurisdiction is regarded as a threshold issue and life line of any proceedings. He referred to the cases of;
Petrojessica Enterprises Ltd Vs Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675 at 693;
Madukolu vs Nkemdilim (1962) 1 ALL NLR (Part 4) 857;
Adeigbe and Anor. Vs Kusino (1965) NMLR (1986) 284 at 287 and
Kasikwu Farms Ltd Vs A.G Bendel (1986) 1 NWLR (Part 19) 695 at 730 705-706.

Learned respondent’s counsel contended that in the interpretation of a statute, the cardinal principle is to give the words used their ordinary meaning without resort to any internal or external aid. He referred the Court to the cases of;
Attorney General of Ondo State Vs Attorney General of Ekiti State (2001) 10 SCNJ 117;
Alhaji Ibrahim Vs Galadima Barde (1996) 12 SCNJ 1 at 38 and City Engineering (Nig) Ltd Vs Nigerian Airports Authority (1999) 6 SCNJ 263.

Counsel argued that the whole of Section 116 of the High Court Law of Kaduna State, Order 15 Rule 1 & 2 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 must be read together conjunctively and not disjunctively.

Counsel insisted that rules of Court are meant to be obeyed and that the Appellant having regard to the decision in several cases particularly the case of Ekpan V. Uyo (1986) 3 NWLR (Pt. 26) 63 at 73, is bound to comply with Order 15 Rule 1 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007.

Counsel further contended that the importance of a Court receiving addresses from counsel cannot be over emphasized. He referred the Court to the case of Obodo Vs Olomu (No citation).

Learned counsel insisted that non-compliance by the Appellant with the rules of the trial Court cannot be termed a mere irregularity, it renders the application incompetent, thus the lower Court bereft of the jurisdiction to entertain same on account of failure to initiate the application by due process.

Finally on the argument of the learned Appellant’s counsel at page 10 paragraph 4.12 of its brief of argument, the learned respondent’s counsel submitted that it is only when the Appellant’s application before the lower Court is competent that those aforementioned constitutional provisions can avail him. He urged this Court to dismiss this appeal as unmeritorious and affirm the ruling of the lower Court.

I have carefully considered the arguments of the parties in this appeal, it is my opinion that the grievance of the Appellant centered on refusal of the trial Court to grant his bail application because of its failure to comply with the provisions of Order 15 Rule 1 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007, which according to the trial Court applies to both civil and criminal interlocutory applications.
It is pertinent at this point to reproduce the provisions of Order 15 Rule 1 & 2 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 for ease of reference.
Order 15 Rule 1:
“Where by these rules any application is authorized to be made to a judge, such application may be made by motion or summons which shall be supported by affidavit and shall state under what rule of Court or law the application is brought”.
Order 15 Rule 2:
“Every such application shall be accompanied by a written address in support of the relief sought”
Order 32 Rule 1:
“This order shall apply to all applications and final addresses”.
Now, can it be said that the provisions of Order 15 Rule 1 & 2 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 above are applicable to the application for bail in criminal trials? I do not think so.
Section 3 of the Kaduna State High Court (Civil Procedure) Rules 2007 Cap 68 Laws of Kaduna State provides as follows;
“The provisions contained in this rules set out in the schedule to this edict hereinafter called the High Court (Civil Procedure) Rules shall be the rules of civil procedure to be followed in High Court of the State.” (Underline mine for emphasis)
Also Section 35 of the High Court law Cap 67 Laws of Kaduna State provides as follows;
“Subject to the provisions of this law the jurisdiction vested in the High Court shall be exercised, so far as regards practice and procedure, in the manner provided by this law, by the Criminal Procedure Code……, in civil causes and matters by the High Court (Civil Procedure) rules.”
It is very clear from the printed record of appeal that the offences with which the accused person was alleged to have been committed in the FRI (Exhibit ‘A’) are all under the Penal Code. Section 5 (1) of the Criminal Procedure Code is very clear on the relevant procedure code to be applicable in such situations. The section provides as follows;
“All offences under the penal code shall be investigated inquired into and other wise dealt with according to the provisions contained in the criminal procedure code”. (Underline mine for emphasis)
From the above it is very clear that the wordings of Order 15 Rule 1 & 2 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 are clear and unambiguous, so also the wordings of Section 3 of the Kaduna State High Court (Civil Procedure) Rules 2007 Cap 68 Laws of Kaduna State, Section 35 of the High Court law Cap 67 Laws of Kaduna State and Section 5 (1) of the Criminal Procedure Code.

It is my opinion that the provisions of Order 15 Rule 1 & 2 and Order 32 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 above are very clear and unambiguous and not applicable to criminal trials proceedings as in the instant case.

As observed by the learned Appellant’s counsel, from a careful perusal of the trial Court’s ruling, nothing has been said on the presumed innocent of the Appellant, non-availability of any criminal record against the Appellant, the way and manner how the Appellant will impede the police investigation and whether there has been any evidence to suggest that the Appellant will escape justice. It is also very clear that there was no counter-affidavit opposing the Appellant’s application for bail. It is trite law that where there is no counter affidavit to rebut the facts in a supporting affidavit to an application, the depositions in the supporting affidavit are deemed admitted.
In Olori Motors & Co. Ltd Vs UBN Ltd (1998) 6 NWLR (PART 554) PG 493 at 505 the Supreme Court held as follows;
“where as in the instance case there is a positive averment in an affidavit which is not challenged by the opposing party who had the opportunity to do so, such averments must be accepted and acted upon by the Court without hesitation”

In an application for bail pending trial, the trial Court must consider all the evidence brought before it by the prosecution and the accused Applicant. This consideration necessarily includes the documents and statement listed in the proof of evidence as well as the affidavit evidence in support. See; Ofule v. F.G.N (2005) 3 NWLR (pt. 913) pg. 571 at 596-7.

The Court always has the discretion to refuse an application for bail if it is satisfied that substantial grounds exist for believing that the Applicant will abscond or interfere with witnesses or otherwise obstruct the course of justice if granted bail. The crucial factor is in the existence of a substantial ground that he would do so. See; Ofule V. F.G.N (supra) at 597.

Where a trial Court took into account in its consideration of an accused’s application for bail all the relevant principles governing same, there is no justification for the appellate Court to interfere with the trial Court’s exercise of discretion refusing the application for bail. See; Ofule V. F.G.N (supra) at 600.
In the instance case, the trial Court did not make any evaluation of the evidence, there was no counter affidavit to the Appellant’s affidavit in support of its application before it and it did not take into account all the relevant principles for the Appellant’s entitlement to bail.
An appellate Court does not as a matter of practice intervene in matters concerning the exercise of discretion by a trial Court and will not interfere with the exercise of discretion by a trial Court merely because it would have exercise it differently. It will only interfere where the discretion was wrongly exercised. In other words, where the appellate Court finds that on grounds other than grounds of law the decision of the trial Court will result in injustice being done, it has both the power and duty to remedy it. See; Ofule V. F.G.N (supra) at 599-600.

In the instance case can it be said that the discretion of the trial Court in the circumstances of the case was properly exercised? I do not think so.

The discretion of the trial Court was not based on proper evaluation of the evidence before the Court and not in accordance with the principles guiding the exercise of the discretion. Thus, in my opinion there is justification for setting aside the ruling of the trial Court. The ruling of the Kaduna State High Court delivered by M. K. Dabo J. on the 11th July, 2013 is hereby set aside.

On the Appellant’s second prayer seeking for an order admitting him to bail.

The Appellant’s application for bail was not heard on the merit by the lower Court. It follows therefore that there is no sufficient material upon which this Court can invoke its powers under Section 15 of the Court of Appeal Act 2004 as we have been invited to do by the Appellant. Now that the procedure adopted by the lower Court in entertaining the said application has been declared void, there is no indication that the Respondent may not desire to present useful materials or swear to a counter affidavit opposing the application.

The proper forum for the entertainment of this application will be the lower Court. Consequently the Chief Judge of the High Court of Justice, Kaduna State is hereby ordered to assign the Appellant’s application for bail to another Judge of the Court other than M. K. Dabo J. for hearing de novo.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment of my learned brother ABDU ABOKI, JCA, and I agree with his reasoning and conclusions completely.

I abide by the consequential orders in the lead judgment.

Appearances

Tajudeen Oladoja with Murtala Abdulrasheed, Fausat Abdulsalam (Mrs), Adeyinka Opaleke and M. B. YusufFor Appellant

AND

Maryam M. Salisu (Mrs)For Respondent