SALIHU ABDULLAHI DANJUMA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12405(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of March, 2018
CA/L/928C/2017
RATIO
CRIMINAL LAW: WHETHER THE OFFENCE OF TERRORISM REQUIRES BAIL
“In ACHEM v. F.R.N. (2014) LPELR-23202 (CA), EKANEM, JCA at pages 16-17, paras. F-A held that:
‘It should be mentioned that the applicant was convicted and sentenced for offences relating to terrorism which in recent times have grown in intensity and magnitude, and have become a threat to our national security. Courts should therefore be very circumspect in granting bail pending appeal to a person convicted for any offence relating thereto. In the case of DOKUBO-ASARI v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320, 358-359, the Supreme Court gave its nod of approval to the refusal to grant bail pending trial to the Appellant on ground, inter alia, of threat to national security…’ In JOHNSON v. F.R.N. (2016) LPELR-41115 (CA) the Court held quoting the apex Court in the case of EYU v. STATE [1988] 2 NWLR (Pt. 78) 670: ‘…the criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide required guidelines to a trial Court in the exercise of its discretion or matters of bail pending trial…'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
CRIMINAL LAW: WHETHER AN APPELLATE COURT CAN REFUSE TO GRANT BAIL
“In refusing bail, the lower Court took into consideration the threat posed to national security by the offence allegedly committed by the Appellant. This was a proper exercise of judicial discretion. See ASARI-DOKUBO v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320 and ACHEM v. F.R.N. (2014) LPELR-23202 (CA). Given that a decision to refuse bail is entirely at the discretion of the trial Court, an appellate Court would not ordinarily interfere unless the discretion was not exercised in accordance with law or it was exercised in a perverse manner. See OSAKWE v. F.G.N. (2004) 14 NWLR (Pt. 893) 305, LIKITA v. C.O.P. (2002) 11 NWLR (Pt. 777) 145, ATIKU v. THE STATE (2002) 4 NWLR (Pt 757) 265 and OKOMODA v. F.R.N. (2016) LPELR (40191) 1 at 22.” PER UGOCHUKWU ANTHONY OGAKWU
Before Their Lordships
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
SALIHU ABDULLAHI DANJUMAAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal against the Ruling of the Federal High Court sitting in Lagos State; coram FAJI, J., delivered on the 6th of July, 2017. The Ruling is against a bail application and the Appellant being dissatisfied with the Ruling filed a Notice of Appeal on 17th July, 2017.
The Appellant was facing a nine count charge in the lower Court mainly for conspiracy to import fire arms amongst others. The charge was accompanied by proof of evidence and additional proof of evidence pursuant to the Administration of Criminal Justice Act, 2015. The information had list of witnesses, their statement list of exhibits, statements of the defendants and bill of lading together with other relevant documents. After service, the Appellant filed a summons for bail while the Respondent filed its counter affidavit with a written address on 28th of June, 2017. After adoption and hearing the lower Court refused same and dismissed the Appellant’s application.
The Appellant filed its brief of argument on the 27th of July, 2017 which was settled by H. A. Ibrahim of Juris Kastle wherein he formulated two issues thus:
“1) Whether or not the trial Court was right when it dismissed the application of the 5th Defendant/Appellant seeking bail pending trial in view of the provisions of Section 35(1) (a) (c), 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 162 of the Administration of Criminal Justice Act, 2015.
2) Whether the trial Court was right when it delivered a single ruling for all the Defendants despite the fact that the Defendants including the Appellant filed a separate application for bail and whether by so doing it had not occasioned a miscarriage of justice.”
The Respondent filed a brief on 8th of November, 2017; same was settled by J. I. Ajakaye – Assistant director department of public prosecutions and Adeola Cole – Senior State counsel for the Attorney General of the Federation and Minister of Justice. Two issues were drawn for determination wit:
“1) Whether the learned trial judge was right in refusing the bail application of the Appellant.
2) Whether the learned trial judge erred in law by delivering a single ruling for the entire applicants.”
The issues formulated by parties are very much alike, but for purpose of the appeal I shall adopt that of the Appellant and shall take the two issues together.
ISSUE 1(1 & 2)
Appellant counsel submitted that the following sections must be considered in a bail application: Sections 158, 162 & 163 of the Administration of Criminal Justice Act, 2015 and Sections 35 (1) (a) (c) & 36 (5) of the 1999 Constitution (as amended).
Counsel argued that the combined effect of the above sections is that bail to a person accused of an offence other than a capital offence is a basic right especially if trial would exceed 2 months. He relied on the cases of OGUERI v. STATE (2000) 2 LRCN 14 at 25; OBEKPA v. C.O.P. (1980) 1 NCR 113 at 117. He submitted that the spirit behind this is for the accused to have unhindered access to his counsel and prepare for the trial as well as arrange his witnesses. He argued that an accused is deemed innocent until proved guilty. He referred to the cases of EYU v. THE STATE [1988] 2 NWLR (Pt. 78) 601 and the use of the word shall in Section 36 (5) & 162 of the Administration of the Criminal Justice Act 2015. That it is mandatory.
He cited ACHINEKU v. ISHAGBA [1988] 4 NWLR (Pt. 89) 411 at 420, paras. C-D; CHINEMELU v. C.O.P. (1995) 4 NWLR (Pt. 390) 467 at 484, paras. D; OGBHEMHE v. C.O.P. (2001) 5 NWLR (Pt. 706) at 216; SULEMAN v. C.O.P., PLATEAU STATE (2008) 8 NWLR (Pt. 1089) 298 at 322-323, paras. G-B.
He argued that the decision of the trial Court refusing bail was based on the expression of sentiment and extraneous matters and not the provisions of the 1999 Constitution (as amended) and the Administration of Criminal Justice Act, 2015 (ACJA). He submitted that this Court can therefore intervene. He cited the case of THE RESIDENT OF IBADAN v. LAGUNJU (1954) 14 WACA 549; ENEKEBE v. ENEKEBE (1964) 1 ALL NLR 549.
Counsel submitted that the only reason the Respondent had in its counter affidavit was that importation of fire arms was getting rampant and the violent crimes resulting from its use have been on the increase. He submitted that this was speculative and the lower Courts consideration of this was even more speculative. Counsel contended that the decision negated the provisions of the Constitution and ACJA.
He agreed that the Court ought to take judicial notice of a particular offence but bail should not be denied solely as a result. He referred to the affidavit filed that he had reliable sureties and would not interfere with the prosecution’s case or exhibits. On the whole he contended that the Appellant has put sufficient material before the trial Court to warrant the exercise of its discretion and grant of bail.
Appellant’s counsel contended further that the accused further deposed that he will attend Court sittings as at and when due, and that all conditions in Section 162 of the ACJA has been met by the accused and that the lower Court did not premise its refusal on any of these. He relied on SULEMAN v. C.O.P., PLATEAU STATE (supra) page 322, para D-G; IKEHAZUAGBE v. COMMISSIONER OF POLICE (2004) 49 WRN 112 at pages 129.
In conclusion he submitted that the Appellant will suffer if not granted bail.
On the issue of delivering a single ruling for all the Defendants he relied on OLAYIWOLA v. FEDERAL REPUBLIC OF NIGERIA (2006) All FWLR (Pt 305) 667 at 697, paras D-F for the proposition that in a trial with several persons each accused trial is distinct and independent of the other, with the individual having to plead to a distinctive charge against him and also in a multiple application for bail each would have its own application to be considered on its own merit. He submitted that a joint ruling will not constitute adequate consideration of the matter. He citedMAKWE v. C.O.P. (1989) 1 CCRN 92 at 105.
Appellant’s counsel contended that lumping the application together and delivering a joint ruling occasioned a miscarriage of justice. He referred to DOGO v. C.O.P. (1980) 1 NCR 14 at 17; UNILAG & ORS v M. I. AIGORO (1985) 16 (Pt. 1) NSCC 88. Appellant’s counsel urged this Court to interfere in this regard as it was not judicially and judiciously exercised and admit the Appellant to bail.
The Respondent’s counsel in his brief submitted that the lower Court considered the relevant sections of the Constitution and the ACJA in its ruling. He relied on ASARI-DOKUBO v. F.R.N. (2009) 4 NCC 158. He further submitted that the lower Court considered the guidelines at page 252, paragraph 5 of the records. He stated that relevant factors are in Section 162 of the ACJA and that same do not prejudice the presumption of innocence likewise in Section 36(5) of the Constitution.
He referred to EKWENUGO v. F.R.N. (2001) 6 NWLR (Pt. 708) 171; BAMAIYI v. THE STATE (2001) 2 ACLR 467 that a Court is bound to examine the evidence without considering any extraneous matter. Respondent referred to the extra-judicial statement of the Appellant made on 30th March, 2017 at page 108 of the record which was considered by the Court at page 253 paragraphs 2, 3, 4, & 5 of the record that the lower Court considered the prevalence of the offence, the punishment for the offence – life imprisonment and that the Appellant would not attend Court. He urged this Court not to interfere with discretion of the Court because the lower Court was right in refusing the Appellant’s bail based on national security and that the Court refused the bail application based on materials laid before it.
On the complaint of the use of one ruling in respect of all the applications, Respondent’s counsel argued that at page 249 of the record, the lower Court put in the ruling that the ruling is in respect of bail applications filed by the 1st, 2nd, 3rd & 5th Defendants.
That it was therefore clear that the Court analyzed the section of the law of each accused case, basic grounds and facts in support at page 252 of the record and submitted that the case of OLAYIWOLA v. FEDERAL REPUBLIC OF NIGERIA (supra) did not apply and that there was no miscarriage of justice to the 5th Defendant/Appellant upon which the appeal would succeed.
RESOLUTION
The bone of contention is whether the lower Court exercised its discretion judiciously and judicially in refusing the Appellant bail? The Appellant took his plea upon arraignment on the 14th of June, 2017 and pleaded not guilty; thereafter he filed a summons for bail. The Appellant was the 5th Defendant in the lower Court and his summons is at page 160 of the record, each party except the 4th Defendant filed summons for bail but the lower Court delivered a single ruling whereby he distinctively addressed each party’s case.
In the case of the 5th Defendant/Appellant herein the affidavit in support at page 162 of the record sworn to by Abdullahi Iliyasu Mohammed made up of 24 paragraphs 4, 15, 16, 17, and 21 (a – j) therein deposed to inability to see his lawyer, family, degrading treatment meted out to him in addition he undertook to comply with conditions of bail, he would be available, would not tamper with the case, witnesses, exhibit and had ready credible witnesses to stand surety for him, this is a summary of the affidavit.
I have read provisions of Sections 162 &, 163 of the ACJA, Sections 35 & 36(5) of the Constitution (as amended) and the decided cases cited on both sides which are indeed in line with the notable conditions for bail. Interestingly Section 163 of the ACJA states that:
“In any other circumstances other than those referred to in Section 161 and 162 of this Act, the defendant shall be entitled to bail, unless the Court sees reason to the contrary”. (underlining mine)
Furthermore the Respondent filed a counter affidavit at page 202 of the record and same was deposed to by Loveme Odudo and paragraphs 4 (a – k) therein are that the 5th Defendant/Appellant was arrested and arraigned for charges on conspiracy to illegally import prohibited firearms and importation of prohibited firearms into the country amongst others, that the investigation has been completed by DSS and that the offence was punishable by Section 1(14) of Miscellaneous Offences Act M17 LFN, 2004 which attracts life imprisonment. That the illegal importation of firearms has become prevalent in the country and violent crimes involving the use of firearms have also been on the increase.
I have also read carefully the Ruling of the learned trial judge and the reasons for the refusal and find that the notable grounds for grant of bail are not contested. What has been carefully examined are the security issues especially as the 4th Defendant is at large and is heavily implicated in the commission of the offence and has been implicated in the 5th Defendant/Appellant affidavit. At page 253 of the record the lower Court held thus:
“One issue which seems glossed over by the defence is that of national security. The Defendants did not file reply on points of law to the counter affidavit and written addresses.
This is not a case of importation of firearms simpliciter. Here we have 661 pump action rifles being imported by private individuals – not government or security agencies under the guise of importing steel doors.
The allegation is that they were actually imported and cleared at customs but intercepted on the road. This act itself is a breach of national security. What is more, it is a matter of public knowledge that Nigeria is still in the throes of violent crimes and terrorism manifesting itself in mass murders, kidnappings and sectional unrest. That to me is a matter of national security. What can be done with 661 pump action rifles in the hands of unguarded elements to me seems even more grievous than the threats of ASARI-DOKUBO in the case cited by the prosecution. Where there is threat to national security, issues of fundamental rights must take the back seat…”
In ACHEM v. F.R.N. (2014) LPELR-23202 (CA), EKANEM, JCA at pages 16-17, paras. F-A held that:
“It should be mentioned that the applicant was convicted and sentenced for offences relating to terrorism which in recent times have grown in intensity and magnitude, and have become a threat to our national security. Courts should therefore be very circumspect in granting bail pending appeal to a person convicted for any offence relating thereto. In the case of DOKUBO-ASARI v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320, 358-359, the Supreme Court gave its nod of approval to the refusal to grant bail pending trial to the Appellant on ground, inter alia, of threat to national security…”
In JOHNSON v. F.R.N. (2016) LPELR-41115 (CA) the Court held quoting the apex Court in the case of EYU v. STATE [1988] 2 NWLR (Pt. 78) 670:
“….the criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide required guidelines to a trial Court in the exercise of its discretion or matters of bail pending trial…”
Therefore there is no hard and fast rule to factors to be considered for bail it depends on each circumstances of the case. In this case it is clear that importation of 661 pump action rifles are quite a large hull and spells potent danger from the statement this was the 4th Defendant illegal importation said to be sold to “vigilante group” in the North. With heightened terrorism acts in the northern part of Nigeria the caution of EKANEM, JCA should be adhered to. A direct fueling or indirect fueling should call for refusal of bail until the trial is concluded and the issue examined.
Therefore I cannot but join the lower Court to refuse bail. The trial should be accelerated in the light of the sensitive nature of proof of evidence.
In the light of the part B of Section 163 of the ACJA, the lower Court exercised its discretion judiciously and judicially:
“as the Court sees reason to the contrary”
As to the second issue of delivering a single Ruling for all the Defendants, there is no doubt as to whom it was addressed following the evaluated 5th Appellant’s affidavit in support of the summons for bail (see page 253 of the record). There is no miscarriage occasioned as the Appellant has not shown how he was affected and I so hold. See the case of GBADAMOSI v. DAIRO (2007) LPELR-1315 (SC), per TOBI, JSC, pages 23-24, paras. G-B where it was held that “miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantial rights of the party… The burden of proof is on the party alleging that justice has been miscarried.”
On the overall the appeal lacks merit and fails. The Ruling of the Federal High Court sitting in Lagos State; coram FAJI, J delivered on the 6th of July, 2017 is hereby affirmed. The trial shall be accelerated.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother OBASEKI-ADEJUMO, JCA granted me the privilege of reading in draft the leading Judgment just delivered. I am in agreement with the reasoning and conclusion and therefore join in holding that the Appellant’s appeal is devoid of merit and deserves to be and is hereby dismissed by me, I also hold that the Ruling delivered by the lower Court on the 6th day of July, 2011 deserves to be and is hereby affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: This appeal is against the decision of the Federal High Court, Lagos Division dismissing the Appellant’s application to be admitted to bail pending trial.
The quiddity of the appeal is a challenge to the exercise of discretion by the lower Court. The stipulations of Section 163 of the Administration of Criminal Justice Act have reiterated the discretionary power of the Court to admit a defendant to bail by providing that a defendant shall be entitled to bail “unless the Court sees reasons to the contrary.”
In refusing bail, the lower Court took into consideration the threat posed to national security by the offence allegedly committed by the Appellant. This was a proper exercise of judicial discretion. See ASARI-DOKUBO v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320 and ACHEM v. F.R.N. (2014) LPELR-23202 (CA).
Given that a decision to refuse bail is entirely at the discretion of the trial Court, an appellate Court would not ordinarily interfere unless the discretion was not exercised in accordance with law or it was exercised in a perverse manner. See OSAKWE v. F.G.N. (2004) 14 NWLR (Pt. 893) 305, LIKITA v. C.O.P. (2002) 11 NWLR (Pt. 777) 145, ATIKU v. THE STATE (2002) 4 NWLR (Pt 757) 265 and OKOMODA v. F.R.N. (2016) LPELR (40191) 1 at 22.
I avow my concurrence with the reasoning process and conclusion in the leading judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, which I was privileged to read in draft, that the exercise of discretion by the lower Court was judicial and judicious. Being a proper exercise of judicial discretion, there is no justifiable legal basis on which this Court can interfere. Accordingly, I also dismiss the appeal for lack of merit.
Appearances:
H. A. IbrahimFor Appellant(s)
J. I. AjakayeFor Respondent(s)
