UGBEDE ALI V. THE STATE
(2011)LCN/4614(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of June, 2011
CA/IL/C.77/2010
RATIO
DISCRETION OF COURT: MEANING OF THE TERM “DISCRETION” AS APPLICABLE TO JUDICIAL OFFICERS
The term discretion as applicable to judicial officers is defined in Black’s Law Dictionary, 7th Edition at page 479, as:- “The exercise of the judgment by a Judge or a Court based on what is fair under the circumstances and guided by the rules and principles of Law; a Court’s power to act or not to act when a litigant is not entitled to demand for the act as a matter of right. – Also termed legal discretion.” From the foregoing definition, it is clear that for discretion to be judicial and judicious, it must meet with certain legal principles or criteria. In other words, such discretion is not subject to the whims and caprices of the Judge; so also should it not be arbitrary or based on sentiments or extraneous considerations. Judicial and judicious discretion should therefore be dictated by sound judgment, honesty, pure reason and good conscience of the Judge unfettered by the dictates of others but predicated on the surrounding circumstances of the case and the competing rights of the parties (in this case the Appellant and the State). See Nnaemeka-Agu, JSC; in Wayne (West African) Ltd. v. Reuben N. A. Ekwunife (1999) 12 S.C.N.J 99 at 120; Adamu Suleman & Anor. v. Cop Plateau State 33 NSCQR (pt. 2. 735 at 757, per Akintan, JSC and Anajemba v. F.G.N (2005) 1 NCC 39O at 403; per Muhammad, J.C.A. (as he then was) and UNILAG v. Olaniyan & Ors (1985) 1S.C. 295 at pp. 344- 345 and 345 – 346; per Oputa, J.S.C. In U.B.A Ltd. & Ors v. Stahlban Gmbh & Co. Kg (1989) 6 SCNJ (pt. 1) 1 at 28; the self same learned judicial icon (Oputa, J.S.C.); still on this vexed issue of the judicial and judicious exercise of discretion, held thus:- “Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment based on facts and guided by the law or equitable decision.” PER IGNATIUS IGWE AGUBE J.C.A
INTERFERENCE WITH THE DISCRETION OF THE LOWER COURT: POSITION OF THE LAW ON WHEN AN APPELLATE COURT WILL WITH THE DISCRETION OF THE LOWER COURT
There are authorities galore and the Law appears settled that an Appeal Court such as ours is always reluctant or wary in interfering with the exercise of discretion by a Court of first instance although an appellate Court can inquire into whether or not such discretion was exercised in accordance with the Law, the rules, and existing binding precedents on the subject matter. See UNILAG & Ors v. Olaniyan (supra). See also Efetiroje v. Okalefe II (1991) 5 NWLR (Pt. 193) 517 and Igboamigo v. The State (1992) 2 NWLR (Pt. 281) 784 at 789; per Ogundare, JCA, (as he then was) and of blessed memory. It is trite also that an Appeal Court can only exercise the right of interference with the exercise of a lower Court’s discretion, if such discretion was exercised wrongly or wrongfully, to the extent that the Court below acted under a misconception or misapprehension of Law or fact by attaching weight to irrelevant and unproved facts or omitted to take into account factors relevant or where the discretion was exercised or not exercised based on wrong and insufficient materials, and in all other circumstances where such exercise would have occasioned a miscarriage of justice. PER IGNATIUS IGWE AGUBE J.C.A
BAIL OF AN ACCUSED: CRITERIA TO BE FOLLOWED IN GRANTING BAIL WHERE AN ACCUSED IS CHARGED WITH AN OFFENCE PUNISHABLE WITH DEATH
In Suleman v. C.O.P. Plateau State (supra), at pp. 752 – 753; Akintan, JSC; relying on earlier judicial authorities on the subject matter, identified ten of such criteria including the ones stated in Section 341(2)(a) – (c) when he succinctly posited thus:- “The criteria to be followed in taking a decision in cases of this nature as laid down by this court include:- i. The nature of the charge; ii. The strength of the evidence which supports the charge; iii. The gravity of the punishment in the event of conviction; iv. The previous criminal record of the accused, if any; v. The probability that the accused may not surrender himself for trial; vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; vii. The likelihood of further charge being brought against the accused; viii. The probability of guilt; ix. Detention for the protection of the accused; and x. The necessity to procure medical or social report pending final disposal of the case. PER IGNATIUS IGWE AGUBE J.C.A
ILL HEALTH OF AN ACCUSED: CIRCUMSTANCE IN WHICH ILL HEALTH OF AN ACCUSED PERSON WILL ENTITLE HIM TO BE GRANTED BAIL
It has not been disclosed by the Appellant that in the course of his detention, he has suffered any serious health disability which would need medical attention outside the prison yard or that his continued stay in prison custody poses a health hazard to fellow inmates. Even then, the law is settled that mere allegation of ill health does not entitle him to be granted bail unless such ill health is so compelling in order to warrant his release thereby averting the health hazard, calamity or death that may be occasioned in the event of such exposure to the hazard. See Abacha v. F.R.N. (2002) 5 NWLR (pt. 761) 638 S.C. and Bulama v. F.R.N. (2004) 12 NWLR (pt. 888) 498 C.A. PER IGNATIUS IGWE AGUBE J.C.A
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
Between
UGBEDE ALI Appellant(s)
AND
THE STATE Respondent(s)
IGNATIUS IGWE AGUBE J.C.A (Delivering the Leading Judgment): This is an Interlocutory Appeal against the Ruling of Hon. Justice H. A. Saleeman, of the High Court of Kwara State, Ilorin Judicial Division, whereof the learned trial Judge refused the application to grant or admit the Appellant to bail pending the determination of his case.
The Appellant was arraigned before the learned trial Judge on the 24th of March, 2010, on a two count charge of Armed Robbery and being in possession of Fire Arms, contrary to Sections 1(2) and 2(2) of Armed Robbery and Fire Arms Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004. After the charge was read and explained to the Appellant, he pleaded not guilty. On the same 24th day of March, 2010, the learned counsel for the Appellant filed an Application for Bail. According to the learned counsel for the Appellant, the application was promptly filed and served on the State but the State neglected to file a counter-affidavit challenging the application until the 6th of April, 2010, while same was served on learned counsel to the Appellant on 7th April, 2010, when the application was to be heard. After hearing the addresses of counsel on both sides, the learned trial Judge ruled/held amongst others as follows:-
“However, going by the supporting affidavit, the contents therein are mere denials which are not substantiated. Although, bail is a guaranteed right of an Accused by virtue of Section 36(5) of the 1999 Constitution. The same Section under Section 35(7) says the liberty of the accused can be curtailed if there is a probability of the commission of the offence by the Accused.
From the available record, particularly the proof of evidence before the court, there is not only the likelihood of commission of the alleged offence, probability and potency of commission is higher than non-commission of same. The presumption of innocence on the accused is diluted in the mind of the Court. “(Page 33 lines 14 – 22 of the Records and page 34 line 1 thereof).”
The learned trial Judge continued at page 34 lines 6 – 12 that even though the accused was in prison custody for two years before his belated arraignment, and the Court may want to tilt the pendulum of justice towards that end; even at that, the gravity of the alleged offence is a capital one with high degree of punishment. He maintained further that:
“To release the accused to the society now may spell doom. More so, the accused address is not known, coupled with some incriminating facts shown in the proof of evidence.
No convincing iota of fact in the supporting affidavit which is very scanty thereby preventing the court from holding on to any fact which will sway the court’s mind to the granting of the application.”
In lines 13- 21 of page 34 to page 35 lines 1-4 of the Records; the learned trial Judge rounded up his ruling inter alia:
“For this reason and for the fact that the offence is capital one, and it carries the highest punishment, that there is no convincing facts on record and there is no way to trace the accused in case he decides to jump bail as a result of having no fixed address, no fact showing that the condition he is in prison has adversely affected his health specially. The Accused/Applicant’s application is hereby refused. More so, when the arms and the ammunitions were said to have been recovered from the Accused/Applicant who was also identified by the victim. The Accused person having stayed for some period in prison custody, the case shall be given accelerated hearing with a rider that the prosecuting State Counsel shall expedite action in prosecuting the case particularly in the area of prosecution witnesses. The case is adjourned to 19/4/2010 for continuation of hearing on trial within trial. Accused to be remanded.”
It is against this Ruling that the Appellant has appealed to this Court on Five Grounds of Appeal as contained in pages 36 to 39 of the Records. Following the transmission of the Record of Appeal to this Honourable Court, Briefs were duly-exchanged by learned counsel to the respective parties. For the Appellant, Tunde Olomu Esq. formulated three Issues for determination couched and reproduced hereunder follows:-
“(i) Whether the trial Court exercised its discretion judicially and judiciously by refusing the bail of the Appellant having regard to the facts presented before it ? (Grounds 2, 4 and 5).
(ii) Whether from the affidavit evidence before the Court, special circumstances exist for the release of the Appellant on bail? (Grounds 1 and 3).
(iii) Whether the learned trial Judge can rely on extraneous fact to presume the Appellant guilty of an offence not yet (sic) provided (read ‘proved’ to refuse him bail? (Ground 4).”
On the other hand, Abdullahi Yusuf Beki Esq. (Senior State Counsel, Ministry of Justice Ilorin, Kwara State), who settled the Brief of the Respondent/State, distilled only two Issues as calling for determination, inter alia:
“(i) Whether the trial Court exercised its discretion judicially and judiciously by refusing the bail of the Appellant having regards to the material facts presented before it?
“(ii) Whether from the affidavit evidence before the court, special circumstances exist for the release of the Appellant on bail?”
I must remark that Issues 1 and 2 of the Appellant and the Respondent are the same and the only issue which is different is Issue 3 of the Appellant formulated in duplicity from Ground 4 of the Grounds of Appeal.
ARGUMENT OF ISSUES
ISSUE 1: Learned counsel for the Appellant has argued that the grant or refusal of bail application is at the discretion of the Court, which discretion must be exercised judicially and judiciously but that in the instant case, the Court below did not exercise its discretion judicially and judiciously in the refusing the application. He explained what is meant by judicial and judicious exercise of discretion drawing our attention to the 15 paragraph affidavit of the Applicant in support of the Application at pages 15 – 17 of the Records, the contents which he enumerated including the undertaking by the Appellant to produce reasonable sureties if released.
Learned counsel then contended that on the authorities of Jimoh v. COP (2004) 17 NWLR (pt. 902) 389 AT 417; per Mika’lu, JCA, and Section 341 (2) of the Criminal Procedure Code, the onus is always on the prosecution to satisfy the Court by credible evidence that the Appellant is not entitled to bail by filing a counter-affidavit which the court did not consider but concentrated on mere denial which was not substantiated.
On the part of the Appellant, learned counsel submitted that by virtue of the Section of the Criminal Procedure Code earlier cited, the Appellant was/is expected to satisfy the Court that he would not jump bail if granted and would not commit any offence or jeopardize police investigation into the matter. These facts according to him were/are contained in pages 15 – 17 of the Record of Proceedings which were not controverted or challenged by the Respondent and the refusal of the Court below to grant bail in the circumstance is not judicial and judicious exercise of discretion. For this submission, he placed reliance on the case of Omodara v. The State (2004) NWLR (pt. 853) at 97; per Galadima JCA (as he then was).
Learned counsel to the Appellant further referred to the case of J.O. Ibori v. Federal Republic of Nigeria (2009) All FWLR (pt. 488) 285 at 295; per Oredola, JCA; to argue that the court’s refusal to grant bail on the ground that the Appellant had no fixed address coupled with failure to consider his affidavit on the ground that it is a mere denial, is a consideration of extraneous matter and exclusion of relevant fact leading to injustice in the case. He insisted that there is nothing on record to show that the Appellant had no fixed address except the evidence of Yakubu Okpaluwa who testified that Appellant was brought to him with some Exhibits. It was further contended that the finding of the Court that Appellant was caught with ammunition, was speculative information supplied by the Court to buttress the case of the Respondent, thereby occasioning a miscarriage of justice. Shagari v. C.O.P: (2007) 5 NWLR (pt. 1021) 275 at 299; per Sanusi, JCA; was again referred to posit that the Court of Appeal will only set aside a discretion exercised by a trial court if it is exercised on wrong principles.
In the instant case, he stressed, the lower Court introduced extraneous matters and suppressed relevant facts placed before it through the Appellant’s affidavit; therefore its exercise of discretion was not judicial and judicious. The authority of Ayo Adegbite v. C.O.P. (2006) 13 NWLR (pt. 997) at 269; was relied upon to urge us to resolve Issue Number One (1) in favour of the Appellant.
Responding to the above submissions, the learned Senior State Counsel conceded on the authority of Atiku v. State (2002) 4 NWLR (pt. 257) 265 at 278 – 179; that the grant or refusal of bail is at the unfettered discretion of the court subject to the judicial and judicious exercise of the discretion even though the grant of bail is not as a matter of right, contrary to the submission of the learned counsel for the Appellant. He therefore submitted that the learned trial Judge exercised his discretion judiciously and judicially in refusing the application in the peculiar circumstances of this case.
On the authority of Gani Adams v. A. G, Federation (2000) 11 NWLR (pt. 1001) 341 at 361; he posited that for the Court to exercise its discretion in favour of the Appellant, the Appellant must place sufficient materials before it but that a cursory look at the affidavit of the Appellant would reveal that it discloses no such strong, credible and convincing materials that can ensure the court’s discretion in the Accused/Appellant’s favour.
On the submission by the learned counsel for the Appellant that the Court below did not give the affidavits before it a holistic consideration, the learned counsel for the Respondent argued that the Appellant confessed to certain aspects of the offences for which he was charged at page 22 of the Records submitting-further with reference to the fifteen paragraph affidavit of the Appellant, that they would no doubt caution a reasonable tribunal from exercising its discretion against the grant of the application.
Learned counsel for the Respondent recalled that the learned trial Judge refused to consider the counter-affidavit of the Respondent in line with section 86 of the Evidence Act which was the basis of the objection of the Appellant’s counsel as upheld by the court. The Court however, he submitted, can still rely on the affidavit of the Applicant alone in determining a bail application.
On the binding principles for the grant of Application for bail, learned counsel for the Respondent cited Chinemelu v. Cop (1995) 4 NWLR (pt. 390) 467 and Atiku v. The State (Supra), contending that the court below in its findings critically put into consideration those factors at page 34 of the Records more so as the affidavit of the Appellant/Applicant carried no address except the Nigerian prisons, Ilorin. He urged this court not to disturb the credible position taken by the Court below in refusing the bail of the Appellant.
Turning to the gravity of the offence, he submitted that the Appellant is standing trial for Armed Robbery and Possession of Fire Arms under the Armed Robbery and Fire Arms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria; which Offences are capital in nature and carry the death penalty and as such not in the public interest to release the Appellant on bail pending trial.
He took the view that a person standing trial for a capital offence is not normally granted bail as a matter of course as even the Constitution recognizes under Section 35(7) that it is not in the public interest to grant such a person bail more particularly as the crime is of the highest magnitude and the evidence in support is so strong, that the court ought not to interfere to grant bail. The cases of Atiku v. The State (supra) at page 269 and Unogu v. The State (2000) 11 NWLR (Pt 677); were relied upon to buttress his submission and to urge the Court to dismiss the appeal.
On the prevalence of the offence of Armed Robbery, he noted that the Court was in no doubt of the high incidence and prevalence of Armed Robbery in the society, thereby refusing the Appellant bail particularly, as the other co-offenders are now at large and this Court in Ogbeme v. C.O.P. (2001) 5 NWLR (pt. 706) 275 at 222; had sounded a note of warning on the need for courts to be extra-cautions in granting bail which the lower court heeded in this case.
On the severity of the punishment prescribed for the offence for which the Appellant is charged, learned counsel adopted his submission in paragraphs 4.18 – 4.24 of the Brief and urged us to hold that there is the likelihood of the repetition of offence by the Appellant who is a high risk to society and that particularly with the holding of the learned trial judge at page 33 of the Records, the evidence against the Appellant is so cogent and compelling pointing irresistibly to his commission of offence.
Alluding to the proof of evidence and the confessions of the Appellant shortly after plea was taken as contained in page 22 of the Records which according to him constitute strong prima facie evidence of the commission of the offences against the Accused to caution the Court from acceding to bail in favour of the Appellant, he urged us to discountenance the bogus submission 3 of learned counsel to the Appellant in paragraphs 5:9, 5:10 and 6:5 to 6:7 of the Appellant’s Brief, which are calculated to attract sympathy. Rather, he urged further, this court should adopt the broader and wider meaning of the words “probability and potency” of commission of the offence rather than hold as the learned counsel to the Appellant had submitted, that the lower court has found the Appellant guilty before hearing the case against him (Ehuwa v. Ondo State INEC (2006) 12 NJSC (Pt. 2) 151 referred). He further referred to Longmans Dictionary of Contemporary English where the words “probability” and “potency” were interpreted as “likely” and “powerful effect” which words do hot suggest finality to urge us to hold that the probability of the commission of the offence is on the high side.
It was further submitted on the authority of Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 at 234 para 17 that the allegation of bias against the Appellant cannot avail him if put to the test of likelihood of bias. Finally on this issue, he urged us not to interfere with the lower court’s exercise of its discretion merely because we would have acted differently in the same situation and relying on the authority of Saleh v. Monguno (supra) at 238 para. 23; further urged us to dismiss the appeal because the learned trial Judge exercised his discretion judicially and judiciously by refusing to grant the application.
RESOLUTION OF ISSUE NUMBER ONE (1)
I have carefully considered the submissions of the learned counsel for both the Appellant and Respondent on the 1st issue. It would appear that in his response to the submissions of the learned counsel to the Appellant, the Learned Senior Counsel on behalf of the Respondent has delved into the other two Issues as formulated by the Appellant’s Counsel, and in particular, as regards the pronouncement of guilt of the Accused/Applicant/Appellant before the determination of the case against him. See the argument of the learned counsel for the Appellant in paragraphs 6.1 to 6.7 at pages 10 to 12 of the Appellant’s Brief. I shall however touch on the Issues and resolve them seriatim.
From what has been gathered in the submissions of the respective counsel, it is clear that both of them are ad idem that the grant or refusal of bail is at the unfettered discretion of the Court and that such discretion should be exercised judicially and judiciously, taking into consideration the interest of the parties, the society at large and the surrounding circumstances of the case.
The term discretion as applicable to judicial officers is defined in Black’s Law Dictionary, 7th Edition at page 479, as:-
“The exercise of the judgment by a Judge or a Court based on what is fair under the circumstances and guided by the rules and principles of Law; a Court’s power to act or not to act when a litigant is not entitled to demand for the act as a matter of right. – Also termed legal discretion.”
From the foregoing definition, it is clear that for discretion to be judicial and judicious, it must meet with certain legal principles or criteria. In other words, such discretion is not subject to the whims and caprices of the Judge; so also should it not be arbitrary or based on sentiments or extraneous considerations. Judicial and judicious discretion should therefore be dictated by sound judgment, honesty, pure reason and good conscience of the Judge unfettered by the dictates of others but predicated on the surrounding circumstances of the case and the competing rights of the parties (in this case the Appellant and the State). See Nnaemeka-Agu, JSC; in Wayne (West African) Ltd. v. Reuben N. A. Ekwunife (1999) 12 S.C.N.J 99 at 120; Adamu Suleman & Anor. v. Cop Plateau State 33 NSCQR (pt. 2. 735 at 757, per Akintan, JSC and Anajemba v. F.G.N (2005) 1 NCC 39O at 403; per Muhammad, J.C.A. (as he then was) and UNILAG v. Olaniyan & Ors (1985) 1S.C. 295 at pp. 344- 345 and 345 – 346; per Oputa, J.S.C.
In U.B.A Ltd. & Ors v. Stahlban Gmbh & Co. Kg (1989) 6 SCNJ (pt. 1) 1 at 28; the self same learned judicial icon (Oputa, J.S.C.); still on this vexed issue of the judicial and judicious exercise of discretion, held thus:-
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment based on facts and guided by the law or equitable decision.”
There are authorities galore and the Law appears settled that an Appeal Court such as ours is always reluctant or wary in interfering with the exercise of discretion by a Court of first instance although an appellate Court can inquire into whether or not such discretion was exercised in accordance with the Law, the rules, and existing binding precedents on the subject matter. See UNILAG & Ors v. Olaniyan (supra). See also Efetiroje v. Okalefe II (1991) 5 NWLR (Pt. 193) 517 and Igboamigo v. The State (1992) 2 NWLR (Pt. 281) 784 at 789; per Ogundare, JCA, (as he then was) and of blessed memory.
It is trite also that an Appeal Court can only exercise the right of interference with the exercise of a lower Court’s discretion, if such discretion was exercised wrongly or wrongfully, to the extent that the Court below acted under a misconception or misapprehension of Law or fact by attaching weight to irrelevant and unproved facts or omitted to take into account factors relevant or where the discretion was exercised or not exercised based on wrong and insufficient materials, and in all other circumstances where such exercise would have occasioned a miscarriage of justice. See per Bello, J.S.C of blessed memory in UNILAG v. AIGORO (1985) 1 S.C 269 at pages 271-273; Enekebe v. Enekebe (1964) 1 ALL NLR 102 at 106; Safffieddine v. C.P. (1965) 1 ALL NLR 54 at 56; Ugboma V. Olize (1971) 1 ALL NLR 8; Demuren v. Asani (1967) 1 ALL NLR 94 at 101 and Solanke v. Ajibola (1968) 1 ALL NLR 46 at 52.
It is against this background that we shall attempt to resolve the first (1st) issue if not other issues raised by learned counsel on both sides of the divide. In so doing, we have to remind ourselves that the principles upon which an Accused person standing trial can be granted bail, have been laid down not only by the Constitution but by Statutory as well as case Laws too numerous to mention.
Beginning from the Constitution of the Federal Republic of Nigeria, 1999, Section 35(1); (4), (5) and (7) thereof; are very germane to the determination of this appeal. For instance, Section 35(1) guarantees the personal liberty of every citizen of this nation who shall not be deprived of such liberty except amongst other reasons:-
“(c) For the purpose of bringing him before a Court in execution of the order of a court upon reasonable suspicion of his having committed a criminal offence, or to such extent that as may be reasonably necessary to prevent his committing a criminal offence.”
By the provision of subsection (4) of Section 35 of the Constitution, any person who is arrested or detained in accordance with Section 35(1)(c) of the Section 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 a person who is not entitled to bail, he shall be released either unconditionally or upon conditions as are reasonably necessary to ensure that he appears for his trial at a later date.
Subsection (5) defines what is meant by the expression “reasonable time” as provided by subsection (4) of Section 35 of the Constitution which subsections, learned counsel for the Appellant made an issue by contending in paragraphs 5.2-5.6 (pages 6-9 of the Record of Proceedings), on the effect of the Appellant being detained for about two years before preferment of charge and commencement of his trial, which trial from the Records before us, is still on-going.
However, Section 35(7) of the constitution makes it expressly clear that:-
“Nothing in this section shall be construed –
(a) In relation to subsection (4) of this section, as applying in the case of a person arrested or detained on reasonable suspicion of having committed a capital offence.”
Apart from the above constitutional provisions, the criminal Procedure Code which governs the conduct of criminal Proceedings in Kwara State has calibrated criminal offences into three categories for purposes of bail. These are: –
i. Criminal offences of which the punishment is not more than three years imprisonment which are governed by section 340(1) of the Code;
ii. Criminal offences which are punishable for more than three years which are governed by provisions of section 341(2) of code; and
iii. Criminal offences punishable with death which are governed by the provisions of Section 341(1) and (3).
Now, for purposes of this appeal, section 341(1) of the criminal procedure code stipulates unequivocally and mandatorily inter alia:-
“341(1) persons accused of an offence punishable with death shall not be released on bail.”
By subsection (2) thereof:
“(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 provisions of the Constitution and Criminal Procedure Code have been given judicial interpretations in a long line of cases. See for instance: Obaseki v. Police (1959) NRNLR 149; Mamudu Dantata v. Police (1958) NRNLR 3; Adamu Suleman & Anor. v. C.O.P. Plateau State, 33 NSCQR (pt 2) 735 and Jimoh v. C.O.P. (2004) 17 NWLR (pt. 902) 389 at pp. 415- 476. In all these cases, the bottom line is that a person charge with an offence punishable with death shall not be admitted to bail. However, by the provisions of section 341(2)(a) – (c) of the criminal procedure Code which further reinforces the discretion of the trial Judge to grant bail, the courts over the years have laid down certain criteria for the exercise of that discretion, and unless and until such criteria are met by the Accused/Applicant/Appellant, he ought not to be granted bail.
In Suleman v. C.O.P. Plateau State (supra), at pp. 752 – 753; Akintan, JSC; relying on earlier judicial authorities on the subject matter, identified ten of such criteria including the ones stated in Section 341(2)(a) – (c) when he succinctly posited thus:-
“The criteria to be followed in taking a decision in cases of this nature as laid down by this court include:-
i. The nature of the charge;
ii. The strength of the evidence which supports the charge;
iii. The gravity of the punishment in the event of conviction;
iv. The previous criminal record of the accused, if any;
v. The probability that the accused may not surrender himself for trial;
vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
vii. The likelihood of further charge being brought against the accused;
viii. The probability of guilt;
ix. Detention for the protection of the accused; and
x. The necessity to procure medical or social report pending final disposal of the case. See Bamaiyi v. The State (2001) 8 NWLR (pt 715) 270; Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (pt 375) 558; Abacha v. The State (2002) 5 NWLR (pt 761) 638; Abu v. The State (2002) 7 NWLR (pt. 747) 277; Ekwenugo V. Federal Republic of Nigeria (2001) 6 NWLR (pt 708) 9; and Eyu v. The State (1988) 2 NWLR (pt. 78) 607. It follows therefore, that a judicial officer saddled with the responsibility of exercising discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.”
Going by the criteria enumerated in the above dictum of his Lordship, the Emeritus justice of the apex Court, and other authorities relied upon in that case, since the application in this appeal, was for bail pending trial, the grant or refusal of same must, apart from the above criteria, be predicated on whether the crime allegedly committed and for which the Appellant is standing trial, is of the highest magnitude. In other words, the court must be satisfied whether or not there is high prevalence of the offence charged within the polity or society, in the exercise of its undoubted discretion. See Odo v. C.O.P. (2004) 8 NWLR (pt. 874) 46 at 65; per Fabiyi, JCA, (now J.S.C.) and Olugbusi & Ors. v. Commissioner of Police (1970).
The learned counsel of the Appellant has drawn our attention to the 15 paragraphed affidavit of the Appellant as contained in pages 16 – 17 of the Record of proceedings, wherein he deposed to the following facts:-
“1. That I am the accused person in this case;
2. That by virtue of my position, I am Conversant with the fact of this case;
3. That I have been charged to court for an offence of armed robbery and being in possession of fire arms;
4. That I did not belong to any gang;
5. That I did not commit armed robbery or any other offence;
6. That I have never committed any offence whatsoever in my life;
7. That I have never been tried for any offence in my life;
8. That I have been in detention since the 7th day of September, 2008, living under inhuman and degrading condition;
9. That I have been tortured, maltreated to make a confessional statement;
10. That I will not jeopardize police investigation if granted bail;
11. That I promise to make myself available before this Honourable Court throughout the period of my trial.
12. That I will not commit any offence if granted bail;
13. That I have respectable and responsible persons who will stand as my sureties; and
14. That it is in the interest of justice to grant this application.”
From the foregoing averments, particularly in paragraphs 3-7, the Appellant vehemently denies belonging to any gang or ever committing robbery or any offence in his life nor had he been tried for any criminal offence in his life time. He has also related how he had been in detention under very inhuman and degrading conditions from the 7th day of September, 2008, until his arraignment on the 24th day of March, 2010, that is to say, he was under detention for close to two years before being charged to court. See paragraph 8 of the affidavit. Apart from the above, he was also allegedly tortured and maltreated to make a confessional statement. See paragraph 9.
In paragraphs 10 and 11, he undertook not to jeopardize police investigation and promised to make himself available before the Honourable Court throughout the period of his trial. He also vowed in paragraph 12 thereof not to commit any other offence if granted bail and that he had respectable and responsible persons to stand as sureties for him which he did not mention (Paragraph 13). Finally, in paragraph 14, he urged that it was in the interest of justice that the application be granted.
Contrary to the submission of the learned counsel for the Appellant in paragraph 4.4 that the onus is always on the prosecution to satisfy the court by credible evidence that the Appellant/Applicant is not entitled to bail, by filing a counter-affidavit, the preponderance of the authorities particularly, in capital offences have established that bail pending appeal is not ordinarily granted as of right where a person has been arrested and detained on reasonable suspicion of having committed an offence punishable with death.
This is because death sentence is the highest of all penalties for the commission of offences.
Accordingly, an Applicant like the Appellant in this case must first place before the court for its consideration materials upon which to found the exercise of its discretion. It is only after the Applicant has discharged this onus that rests on him, that the onus will shift to the prosecution to show cause why the bail should not be granted. See Gani Adams v. A. G. Federation (2000) 17 NWLR (pt. 1001) 347 at 367; Olatunii v. F.R.N. (2009) 3 NWLR (pt. 807) 406 CA. In cases of Oshinaya v. C.O.P. (2004) 17 NWLR (pt. 901) 1, CA; Chinemelu v. C.O.P. (1995) 4 NWLR (pt. 390) 467; Odo v. C.O.P. (2004) 8 NWLR (pt. 874) 46 CA; State v. Akaa (2002)10 NWLR (pt. 774) 157, CA; Atiku v. State (2002) 4 NWLR (pt. 757)265, CA; Omodara v. State (2004) 1 NWLR (pt.853) 80, CA; J.O. Ibori v. Federal Republic of Nigeria (2009) All FWLR (pt. 488) 285 at 295 and Shagari v. COP (2007) 5 NWLR (pt. 1021) 275 at 299.
It would be recalled that the ten paragraph counter-affidavit deposed to and filed on behalf of the Complainant/Respondent by Isadiq Babatunde Lawal, the Litigation Clerk in the Office of the learned Attorney General of Kwara State, was discountenanced by the learned trial Judge on the ground that it offended Section 86 of the Evidence Act. Ordinarily, in certain proceedings, since there was no counter-affidavit against the averments of the Accused/Appellant, those averments would have been deemed as admitted. This may have explained the submissions of the learned counsel for the Appellant in paragraphs 4.4 – 4.6 relying on the authorities of Jimoh v. C.O.P (supra) per Mika’Ilu, JCA and Omodara v. The State (supra); that since the Respondent failed to challenge or controvert the averments in the affidavit in support of the Applicant’s application for bail, it was wrong for the lower Court not to consider the totality of the averments but only to hold that the facts deposed to in the supporting affidavit were mere denials which were not substantiated. He had also contended further that for the foregoing reasons, the learned trial Judge’s refusal to grant the Appellant bail is not a judicial and judicious exercise of discretion.
I must with the greatest respect, remark here that in the exercise of discretion against the grant of the application for bail, the mere fact that the Respondent did not file a counter-affidavit is irrelevant since the primary consideration is whether in the opinion of the trial Judge, the Applicant has furnished sufficient materials to persuade him to exercise his discretion in Appellant’s favour or even to consider the counter-affidavit of the Respondent. See Olatunji v. F.R.N. (2003) 3 NWLR (pt. 807) 406. Where as in this case, the answer from the totality of facts in the affidavit in support of the application is in the negative, the learned trial Judge did not grant the application even where the Respondent did not file a counter-affidavit to oppose same. See per Onnoghen, JCA (as he then was) in Toyin Jimoh v. C.O.P. (supra) at 409, cited by learned counsel for the Appellant.
In the above case, my Lord, now of the Supreme Court eruditely quoted with approval the dictum of Achike, JCA (as he then was) in Chinemelu v. C.O.P, (1995) 4 NWLR (pt. 390) pg. 467 at 483; where the learned Law Lord pointedly and appositely stated the position of the law thus:-
“I must state emphatically, that the mere fact that Respondent filed no counter-affidavit nor opposed the application for bail is not conclusive to admit the Appellant to bail as a matter of course. The decision to grant or refuse bail lies with the discretionary power of the court which must be exercised judicially and judiciously. The exercise of that power, cannot, in my view, be prejudiced simply by the failure to oppose the application. Similarly, the fact that the Respondent has filed a counter-affidavit or opposed the application for admission to bail does not conclude the matter, rather these acts or omissions are mere indices that will assist in exercise of the said discretion – nay powers of the court, one way or the other.”
It is pertinent to note that the learned trial Judge in spite of the absence of a counter-affidavit took a cursory look at the totality of the depositions in the affidavit in support and the surrounding circumstances of the case and in my view, rightly held at page 33, lines 13 – 18 of the Records, inter alia: –
“However, going by the supporting affidavit, the contents therein are mere denials which are not substantiated. Although, bail is a guaranteed right of an Accused by virtue of Section 35(1) of the 1999 Constitution. The same Section under Section 35(7) says the liberty of the accused can be curtailed if there is a probability of the commission of the offence by the Accused.”
This finding cannot be faulted in view of the provisions of the Constitution, the Criminal Procedure Code and criteria set out in the cases earlier cited. The depositions are to say the list scanty and in the words of the learned trial Judge, mere denials as it is clear from the affidavit, that the Appellant has no fixed address except the Federal Prisons, Ilorin Kwara State. Again, going by the gravity of the offences of armed robbery and possession of fire arms, which carry death sentence and pose great danger to society, the learned trial Judge was right to have refused bail in the public interest. Furthermore, because of the prevalence of the offence of armed robbery within the polity, the learned trial Judge was also right in refusing bail as he rightly held that:-
“From the available record, particularly the proof of evidence before the court, there is not only the likelihood of commission of the alleged offence, probability and potency of commission is higher than non-commission of same. The presumption of innocence on the accused is diluted in the mind of the Court.” (Page 33 lines 14 – 22 of the Records and page 34 line 1 thereof).
In the locus classicus of Anaekwe v. C.O.P. (1996) 3 NWLR (pt. 436) 320, (although a murder case which is nevertheless a capital offence as armed robbery for which the present Appellant is standing trial in the lower court); the Court of Appeal, Enugu Division, per Tobi, Akintan and Adamu, JJ.CA.; had cause to pronounce on the nature of evidence that will ground the grant or refusal of application for bail pending trial in a lower court, when they posited:
“Where the prosecution merely parades to the court the word “murder” without tying it with the offence, a court of law is bound to grant bail. And the only way to intimidate the court not to grant bail is to prefer information and proof of evidence to show that there is prima facie evidence of commission of the offence. Thus, although bail is normally not granted a person accused of murder, a situation where there is no material before the trial court to show that the Appellant is facing a charge of murder, including proof of evidence, certainly qualifies as a special circumstance in which the court can grant bail. Oladele v. State (1993) 1 NWLR (pt. 269) 294; Emordi v. Commissioner of Police (1995) 2 NWLR (pt. 376) 244 distinguished; Chinemelu v. C.O.P. (1995) 4 NWLR (pt. 390) 467 and Enwere v. Commissioner of Police (1993) 6 NWLR (pt. 299) 333.”
In the instant case, the Respondent has filed her information and proof of evidence and at pages 7 and 8 of the Records, the Appellant related the circumstances leading to his arrest and confessed that when he was arrested and searched, four raps of Indian hemp were recovered from his pocket whereas, his friend whom he decided to settle with the police ran away and dropped a nylon bag containing two locally made pistols, some cartridges and some dangerous charms. At page 12, he also admitted that the bullet proof vest recovered from him was given to him by his father to use for vigilante and for protection when travelling. However, at page 22 of the Records, when the charge was read to him, he appeared to have understood same and stated rather that he was arrested at the Post Office. He denied being the owner of the guns allegedly recovered from him but that he was searched and wraps of Indian hemp found in his possession and subsequently, was arrested and taken to a vehicle. Those who sold Indian hemp to him ran away as soon as they sighted police vehicle. There, where the Indian hemp is sold, a leather bag containing guns was found.
There is also the evidence of Esther Kemi Fatoye the Petrol Attendant attached to Texaco Filling Station Ilorin who related how she was robbed of the sum of N70, 315.00 and her Nokia 6085 handset and the handsets of other attendants at gun point on the 7th day of September, 2008. On 9/9/2008, while she was watching television, she saw two suspects being paraded with her handset. She decided to go to the SARS Office to make enquiry and she was shown the handset which she identified as hers. She also identified the Accused/Appellant as the armed robber that came and pointed the gun at her.
At pages 5 and 6 of the proof of evidence, the names of the Police Officers who either witnessed the arrest of the Appellant or partook in the investigations and their respective statements/evidence relating to the commission of the crime are reproduced. In particular, the evidence of the 4th, 5th and 6th witnesses (PC Alhassar Achema, Inspector Thomas Balogun and T/W Babatunde Ige, are very weighty), to have influenced the learned trial Judge to be a little bit cautious in granting the Appellant bail.
Having taken into consideration, the totality of the averments in the affidavit of the Appellant and the contents of the proof of evidence, the learned trial Judge also held inter alia:-
“To release the accused to the society now may spell doom. More so, the accused address is not known, coupled with some incriminating facts shown in the proof of evidence.
No convincing iota of fact in the supporting affidavit which is very scanty thereby preventing the court from holding on to any fact which will sway the court’s mind to the granting of the application.”
In lines 14 – 21 to page 35 of the Records, lines 1 and 2; the learned trial Judge rounded up his ruling inter alia:-
“For this reason and for the fact that the offence is capital one, and it carries the highest punishment, that there is no convincing facts on record and there is no way to trace the accused in case he decides to jump bail as a result of having no fixed address, no fact showing that the condition he is in prison has adversely affected his health specially. The Accused/Applicant’s application is hereby refused. More so, when the arms and the ammunitions were said to have been recovered from the Accused/Applicant who was also identified by the victim.”
From the foregoing, there is no doubt that the prosecution had intimidated the court not to grant bail to the Appellant as there was prima facie evidence of commission of the offence. In other words, contrary to the submissions of learned counsel to the Appellant that the learned trial Judge scavenged for evidence in order to refuse bail; speculated on the information supplied; introduced extraneous and suppressed relevant matters; and did not consider the affidavits of the parties and surrounding circumstances holistically, the prosecution discharged its onus by placing sufficient materials before the court below in the nature of:-
1. The charge which is armed robbery (a capital offence).
2. The strength of the evidence which supports the charge.
3. The gravity of the punishment which is death sentence or at least 21 years imprisonment.
4. The probability that because of the severity of the punishment and the fact that the Appellant has no fixed address, the Appellant is likely not to present himself for further trial.
5. There is a likelihood of the Appellant’s interference with the witnesses or suppression of any evidence that may incriminate him if released on bail particularly as other accused persons are at large.
6. There is a likelihood of a further charge of conspiracy being brought against him and his other cohorts, now at large.
7. There is a probability of guilt by the avalanche of evidence of the witnesses paraded in the information filed and Exhibits so far tendered at the hearing.
8. It is even in the best interest of Appellant that he be detained for his protection.
Accordingly, I shall discountenance all the submissions of the learned counsel to the Appellant and most of the authorities cited as they are not apposite to the facts and circumstances of this case. Issue Number One (1) is therefore resolved against the Appellant and in favour of the Respondent.
On Issue Number Two (2), Mr. Olomu has argued strenuously that special circumstances exist for the release of the Appellant in that even though the Appellant was arrested on 7th day of September, 2008, it was not until the 28th of January, 2010, where the application to prefer a charge against him was filed and was subsequently moved and granted on the 15th February, 2010, eighteen months after his arrest and incarceration. According to him, the delay in bring the Appellant before a competent court for his trial is a gross violation of section 35(4) of the 1999 Constitution and of course a violent breach of the Appellant’s right to personal liberty as enshrined in the Constitution. He has reeled out the provisions of Section 35(4) (a) and (b) and the dicta of the cases of Garba v. The State (1974) 4 SC 118; Chinnemelu v. C.O.P. (1995) 4 NWLR (pt. 390) 491 and Anochie David Ozuogwu v. The State (2006) 9 NWLR (pt. 985) 240 at 257 – 252; to submit that the content of the proof of evidence does/did not disclose any prima facie case of robbery as can be made against the Appellant to warrant refusal of his bail; hence, failure to charge the Appellant in time constitutes special circumstance for him to be admitted on bail.
Learned counsel for the Respondent has argued per contra and urged us to answer the question posed by the issue in the negative that the affidavit evidence before the court does not disclose any special circumstances warranting the grant of the Applicant’s bail, reason being that the delay was not inordinate and unreasonable and the prosecution deposed to the fact that investigation was still going on during that period with the view to tracking down the fleeing gang members of the Appellant. For the above submission, he relied on the authority of Effiom v, The State (1995) 1 SCNJ, on what constitutes reasonable time or delay to further submit that Garba’s case cited by the learned counsel for the Appellant is not apposite to the facts of this case.
In the resolution of this issue, I must state that the provision of Section 35(4) (a) and (b) of the 1999 constitution has been reproduced earlier and without further dissipation of energy and time, Section 35(7) of the same Constitution which excludes the applicability of subsection (4) to the facts and circumstances of the person of the Appellant who was arrested and detained on reasonable suspicion of having committed a capital offence, has also been earlier reproduced. Let it be restated for the umpteenth time that it is vain and illusory to imagine that Section 35(4) applies to the circumstances of this case or whether that section will affect the fortunes of the Appellant’s case in the face of Sections 35(1) (c) and 35(7) of the Constitution which clear intendments are to make the provisions of the Constitution on the right to liberty of a citizen not absolute. The last two sections are quite clear that the right entrenched in Section 35(4) is circumscribed or qualified to the extent that it can be restricted in the course of judicial enquiry or the liberty of the Appellant deprived as in this case where for instance the Appellant is reasonably suspected to have committed armed robbery.
See Udeh v. F.R.N. (2001) 5 NWLR (pt. 706) 312; Echeazu v. COP (1974) NMLR 308 at page 374; where Irikefe, JSC (as he then was) took the view and rightly too, that if a person accused of a felony talk-less of a capital offence, can hide under the canopy of Section 35 of the Constitution to escape lawful detention, then, a flood gate of escape routes to freedom is easily made available to suspected felons and capital offenders which will not augur well for the peace, tranquility and progress of society.
As Dongban-Mensem, J.C.A. aptly put it in the case of Odo v. C.O.P (2004) 9 NWLR (Pt. 874) 46 at 67-63;
“The punishment for robbery is stated in section 1 (i) of the Robbery and Firearms Act (supra) which states that any ‘person who commits the offence of robbery shall, upon trial and conviction be sentenced to imprisonment for not less than twenty-one years, and is liable to be sentenced to death; if armed, It is alleged in this case that the Appellant was armed with gun. Should the Appellant be found guilty upon trial, he is liable to be sentenced to death, or to a very long term of imprisonment. He has been in custody for over five years so far. He cannot be said to have been in custody longer that the term of imprisonment he is liable to serve upon conviction, if found guilty. ”
In the instant case, the facts are similar to those in the above cited cases, in that the Appellant is standing trial for armed robbery which carries a sentence of 21 years imprisonment and where fore, as alleged in the charge that he was armed in the course of the robbery, if the offence of robbery with arms is eventually proved, he shall be liable to a sentence of death. Accordingly, a detention for 18 months is nothing near 21 years imprisonment or death sentence to warrant the argument that the arraignment and trial of the Appellant was unreasonably and/or inordinately delayed so as to infer special circumstance warranting the Court below and indeed, this Court to hold that there is/was the existence of special circumstance for the grant of Appellant’s bail. See Effiom v. The State (1995) 1 SCNJ; Oshinaya v. C.O.P. (2004) 17 NWLR (pt, 901) 1 C.A. and Chinemelu v. C.O.P. (1995) 4 NWLR (pt. 390), 467.
In Oshinaya’s case, this Court reiterated that bail pending trial is not normally granted ex-debito justitia where the offence is a capital offence. However, special circumstances may exist to warrant the grant of bail pending trial for a capital offence. Such special circumstances may include but not limited to the prosecution’s delay or failure to prepare the proof of evidence or to file information against the Applicant for the alleged offence. However, as it has been clearly shown, the delay in arraigning the Appellant was explained to the satisfaction of the court below and we are also satisfied that it was as result of the uncompleted full investigation of the case as at that time the Respondents were making efforts to track down the fleeing gang members of the Appellant. In any case, as had been said earlier, the proof of evidence and information has been filed; Appellant has been arraigned and his trial had since commenced. The learned trial Judge was therefore right to have ordered as follows:-
“The Accused person having stayed for some period in prison custody, the case shall be given accelerated hearing with a rider that the prosecuting State Counsel shall expedite action in prosecuting the case particularly in the area of prosecution witnesses.”
It has not been disclosed by the Appellant that in the course of his detention, he has suffered any serious health disability which would need medical attention outside the prison yard or that his continued stay in prison custody poses a health hazard to fellow inmates. Even then, the law is settled that mere allegation of ill health does not entitle him to be granted bail unless such ill health is so compelling in order to warrant his release thereby averting the health hazard, calamity or death that may be occasioned in the event of such exposure to the hazard. See Abacha v. F.R.N. (2002) 5 NWLR (pt. 761) 638 S.C. and Bulama v. F.R.N. (2004) 12 NWLR (pt. 888) 498 C.A.
All said and done, the learned trial Judge was also right when he agreed as the learned counsel for the Appellant had noted in paragraph 5.6 at page 9 of the Records that the delay in bringing the Appellant to court could have swayed his mind to granting the Appellant bail but for some incriminating evidence in proof of the case. The submission of the learned counsel to Appellant in paragraphs 5.7 – 5.9, therefore that, after analyzing the proof of evidence no prima facie case of robbery can be reasonably made against the Appellant to warrant his refusal of bail, is a gross misconception and misapprehension of the weighty evidence paraded in the proof of evidence.
We hold on the contrary, that there is prima facie case or incriminating evidence as earlier highlighted to justify the refusal of the Appellant’s bail and accordingly the failure to charge the Appellant to court in time or his detention for a period of 18 months does not and did not constitute inordinate delay in view of the provisions of Section 35(7) and 341(1) of the 1999 Constitution and Criminal Procedure Code of Northern Nigeria respectively. This issue is again resolved against the Appellant and in favour of the Respondent.
On the last Issue which is “Whether the learned trial Judge can rely on extraneous fact to presume the Appellant guilty of an offence not yet (sic) provided (read “proved” to refuse him bail?” the learned counsel for the Appellant has submitted on the authority of Ozougwu v. The State (2006) 9 NWLR (pt. 985) 240 at 253; per Adekeye, JCA (as he then was) and Olawoye v. C.O.P. (2006) All FWLR (pt. 309) 1485 at 1495; per Abdullahi, JCA; that the Appellant is presumed innocent until his guilt is established by credible evidence. According to him, the presumption of innocence inures to the benefit of the Appellant and the Court below was therefore wrong to hold that the presumption of innocence is diluted in the mind of the court as the presumption can only be rebutted by cogent and credible evidence adduced by the prosecution against the accused person during trial until conviction is reached.
He has also contended further that a graphic perception of the proof of evidence will reveal that the prosecution is not only speculative but merely scavenging for evidence against the Appellant. Furthermore, he has taken the view that the decision of the court to the effect that “the probability and the potency of commission is higher than non commission of same”, is a pronouncement of guilt on the Accused/Applicant/Appellant before the case against him is heard. Placing reliance on the case of Gwandu v. C.O.P. Kebbi State (2006) All FWLR (pt. 294) 537 – 538; per Ba’aba, JCA; he asserted that bail application is an interlocutory matter in the entire criminal trial and that trial courts have been enjoined not to delve into the substantive case at an interlocutory stage. The above quoted pronouncement of the learned trial Judge, in his view, tantamount to making pronouncement on the substantive matter and of course a verdict of guilty on the Appellant. He urged us to resolve this issue in favour of the Appellant and allow the appeal.
Reacting to the above submissions, the learned counsel for the Respondent countered that the learned trial Judge did not delve into the substantive case in any manner but critically perused the affidavit evidence before it and thus exercised his discretion in accordance with the law living us with no reason to disturb the decision of the trial court. He accordingly urged us to resolve this issue against the Appellant and in favour of the Respondent and consequently dismiss the appeal.
There is no doubt and the law is trite as enunciated by Ba’aba, JCA, in Gwandu v. C.O.P. Kebbi State (supra); that trial courts should not delve into the substantive case at interlocutory stage because if the court is allowed to revisit the substantive issue at any stage of the trial, it would tantamount to the Judge sitting on appeal on his earlier decision on the substantive matter thereby outraging the sense of justice of an independent dispassionate observer sitting in court. I agree also with the position taken by my lord Ba’aba, JCA; that in such circumstance, an appellate court will have no option than to order a retrial before another Judge of the same jurisdiction.
However, I do not understand the remarks of the learned trial Judge at page 33 lines 19 – 21 to page 34 lines 1 and 2, of the Record of Appeal that:-
“From the available record, particularly the proof of evidence before the court, there is not only the likelihood of commission of the alleged offence, probability and potency of commission is higher than non-commission of same. The presumption of innocence on the accused is diluted in the mind of the Court”, to mean that he had found the Appellant guilty of the offences for which he is standing trial. Shorn of its inelegance, the observation of the learned trial Judge is borne out of his perusal of available records, that is, the affidavit in support of the Appellant’s application; his various statements to the police; the proof of evidence tendered by the Respondent and the averments of the Appellant when he took his plea. The court below came to the unassailable conclusion, particularly, that from the proof of evidence, there is presumption of the commission of the alleged offence and the weight and quality of the evidence tendered by the Respondent diluted or watered down or reduced the presumption of innocence of the accused.
The learned, trial Judge did not say that the proof of evidence destroyed the presumption of innocence completely so as to warrant the contention that the learned trial Judge has pronounced on the substantive case. By the laid down criteria for the grant of application for bail in a capital offence like armed robbery as highlighted in the cases earlier cited, particularly, “the strength of the evidence which supports the charge and the probability of guilt”, there is no how these criteria can be determined without the pilloried pronouncement being made by the learned trial Judge. See Odo v. C.O.P. (2004) 8 NWLR (pt. 874) 46 at 65; Anajemba v. F.G.N. (2005) 1 NCC 390 at pp. 404 – 405; Bamaiyi v. The State & Ors. 6 NSCQR (pt. 1) 156 and Nwude v. F.G.N. (2005) 1 NCC 190 at pp. 210 – 211.
From the foregoing, it is not true as has been canvassed and contended by the learned counsel to the Appellant that the learned trial Judge has delved into the substantive case at this interlocutory stage. In line with the decision in Likita v. C.O.P. (2002) 11 NWLR (pt. 777) pg. 145 at 148; the learned trial Judge dispassionately considered the affidavit of the Appellant vis-Ã -vis the proof of evidence and came out with a judicial and judicious exercise of his discretion to refuse the bail of the Appellant, particularly, as no special circumstance exists/existed to warrant the grant of bail pending the trial of the Appellant for armed robbery which is a capital offence for which the criminal procedure Law and constitution prohibit bail either absolute or except on special circumstances. There are therefore no grounds upon which this court can interfere with the exercise of discretion of the lower court to refuse bail. This issue is also resolved against the Appellant and in favour of the Respondent.
On the whole, this appeal is unmeritorious and is accordingly dismissed in its entirety. The Ruling of the learned trial Judge refusing the bail of the Appellant is hereby affirmed. The Appellant shall continue with his trial before the lower court if same has not already been concluded.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in advance the lead judgment of learned brother, AGUBE, J.C.A., just delivered and I am in complete agreement with his reasoning and conclusion that the appeal is unmeritorious and ought to be dismissed. My Lord has exhaustively and extensively dealt with all the issues that call for determination in this appeal. For emphasis, I would like to add a few words.
A hard look at the affidavit evidence adduced in support of the application will no doubt ought to have cautioned a reasonable judge from exercising his discretion in favour of the Appellant. The paragraphs of the affidavit in support of the application as rightly pointed out by the learned trial Judge contained nothing but mere denials by the appellant of the commission of the offence. I am of the considered view that in the light of the weighty evidence contained in the proof of evidence attached to the charge brought against him (Appellant) by the prosecutions, mere denial without move cannot help the case of the Appellant.
It is now trite that in an application such as the one we have in hand, courts have always and repeatedly guided by a long chain of decisions of the apex court and this Court by a number of fundamental factors that should be considered in the exercise of its discretion in bail application.
Most common of the factors are the:
i. The likelihood of the applicant attending to his trial
ii. The gravity of the offence allegedly committed by the applicant
iii. The prevalence of the alleged offence.
iv. The severity of the punishment prescribed for the offence.
v. The evidence available against the accused, among others.
See the cases of CHINEMELU v. COP (1995) 4 NWLR (Pt. 390) p. 467 and ATIKU V. THE STATE (2002) 4 NWLR (Pt. 757) p. 265 at 278-9.
For these reasons and the more detailed ones ably stated in the lead judgment, I too dismiss the appeal for lacking in merit.
CHIMA CENTUS NWEZE J.C.A.: I had the advantage of reading the draft of the leading judgment which my Lord, Agube JCA, just delivered now. I entirely agree with His Lordship that the lower court rightly exercised his discretion in refusing the appellant bail.
Appearances
Tunde Olomu Esq.
Y.O Sanni Esq.For Appellant
AND
A. O. Akinpelu (Mrs.) Solicitor-General/Permanent Secretary
Ministry of Justice, Kwara State with S. K. Grillo (Mrs.) Assistant
Director and Abdullahi Yusuf Beki Esq. (Senior State counselFor Respondent
