YAKUBU v. STATE (2022)

YAKUBU v. STATE

(2022)LCN/16634(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/230/C/2021

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

JAMES YAKUBU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE GRANTING OF BAIL TO AN ACCUSED PERSON IS AT THE DISCRETIONARY POWER OF THE COURT

The granting of bail to an accused is a discretionary power of the Court before whom such application is made. This appeal does not require any waste of Judicial time and energy. The appellant’s counsel should know that pursuit of justice is assisted by laying all cards on the table for a serene and sober adjudication of any matter before the Court. This is an avoidable appeal if the appellant’s counsel had done the appropriate thing at the onset. At the point in time when High Court 15 granted bail to the appellant there was no charge preferred against him and no proof of evidence. Section 35 (4) of the Constitution of the FRN 1999 (as amended) provides:
“35(4) Any person who is arrested or detained in accordance with Subsection (1)(c) of this Section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date”. PER TALBA, J.C.A.

WHETHER OR NOT THE GRANT OR REFUSAL OF BAIL APPLICATION BY A TRIAL COURT HAS TO DO WITH THE CONSTITUTIONALLY GURANTEED PRESUMPTION OF INNONCENCE

The grant or refusal of bail application by a trial Court has nothing to do with the constitutionally guaranteed presumption of innocence under Section 36(5) of the 1999 Constitution. Especially where the accused did not kick start the process for the consideration of bail application. Circumstances might arise wherein even if the bail application is made, the Court has the discretion to refuse bail pending trial. That does not necessarily prejudice the presumed innocence of the appellant of the charge brought against him until the contrary is proved. See Bamaiyi v. State (supra). PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the High Court of Justice Kaduna State, delivered on the 4/08/2021 in suit No: KDH/KAD/20C/2021.

The appellant was arrested and detained by the men of the Nigeria Security and Civil Defence Corp on the allegation of rape. He was subsequently arraigned before the Chief Magistrate Court No. 9 Daura Road, for the Court to take cognizance of the alleged offence, vide a First Information Report (FIR). The appellant was remanded at Kaduna Correctional Centre pending the receipt of Legal Advice from the Ministry of Justice, Kaduna. The appellant through his counsel approached the High Court of Justice No. 15 Kaduna for bail. Bail was granted to the appellant on certain conditions. The appellant met the conditions and he did not breach any of the conditions.

Upon the receipt of the legal advice the appellant was arraigned before High Court No. 10 on one count charge for the offence of rape. The charge was read to the appellant and his plea was taken. The appellant’s counsel informed the Court that the appellant is on bail granted by High Court No. 15. But the learned trial Judge suo motu revoked the bail without an application by the respondent. The learned trial Judge held thus:
“The bail granted by Court 15 is hereby revoked; case is adjourned to 23rd September, 2021 for hearing. The Defendant shall be remanded in correctional Centre”.

Aggrieved by the decision the appellant appealed to this Court vide a notice of appeal filed on 3rd September, 2021. It contain two grounds of appeal. At the hearing of the appeal on 1st of June, 2022 J. D. Amangwai who settled the appellant’s brief of argument filed on 12th of November 2021, adopted same and he urge the Court to allow the appeal and set aside the ruling of the lower Court. S. T. Magaji Senior State Counsel Ministry of Justice Kaduna State, adopted the respondent’s brief of argument filed on 21st of March, 2022 and deemed properly filed on 1st of June, 2022. He urge the Court to dismiss the appeal and affirm the decision of the lower Court. From the two grounds of appeal, the appellant formulated two issues for the determination of this appeal to wit:
“1. Whether a Court of co-ordinate jurisdiction can revoke a bail granted by another Court when the accused/defendant has not violated any of the conditions given by the Court.
2. Whether the trial Court in the exercise of its discretionary power violated the appellant’s right to presumption of innocence.

The respondent’s counsel formulated two issues as well for the determination of this appeal thus:
“1. Whether the trial Court was bound to take cognizance and automatically follow the decision of a Court of concurrent jurisdiction.
2. Whether the trial Court was right in revoking the appellant’s bail suo motu in the light of the charge before him and in the absence of a bail application from the appellant”.

Upon a careful consideration of the issues submitted by counsel, I am of the view that the respondent’s issue number two is apt for the determination of this appeal. All other issues can be subsumed into the said issue.

The appellant’s counsel submitted that the trial High Court No. 15 being a Court of co-ordinate jurisdiction with High Court No. 10, the learned trial Judge has no power to reverse, vary or alter the bail granted by the High Court No. 15. He relied on the case of Customary Court of Appeal Edo State v. Aguele (2018) 3 NWLR (Pt. 1607) 369.

Learned counsel also relied on the case of Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (Pt. 222) 132 AT 147. The Supreme Court held that:
“Once the Court grants bail to an accused person; it ought not in law to revoke such bail unless there is evidence of some changed circumstances placed before it”

Learned counsel submitted further that the right to bail which a person was enjoying without blemish is an exercise of discretion but such discretion has to be exercised judicially and judiciously and the reason for the exercise must be given. He cited the case of Ameh Ebute & 5 Ors v. The State CA/K/196/94 (unreported) delivered on 21st July 1994. The Court held that “the Court in exercise of its discretion must only act on empirical facts or materials placed before it and not on extraneous or irrelevant matters”

The right to bail pending trial is a constitutional right and this is guaranteed by Section 35(4) of the 1999 Constitution of the FRN, as amended. And at this stage of his trial the appellant is presumed innocent as provided in Section 36(5) of the Constitution. He relied on the case of Chief Augustine A. Nawa v. Attorney General, Cross River State (2008) All FWLR 9 (Pt. 4010) 807 @ 84. The Court held thus:
“Presently it is the duty of the Court to safeguard the rights and liberties of individuals from abuse or misuse of power”

Learned counsel submitted that the trial Court violated the appellant’s Constitutional right of presumption of innocence guaranteed by Section 36(5) of the 1999 Constitution, when it revoked the appellant’s bail without giving any reason whatsoever knowing that the appellant had been a good person ever since the allegation leveled against him and has lived according to the conditions given him by the Court without violating any of it and there is no record placed before the Court showing to the contrary. The learned counsel urge the Court to allow the appeal and set aside the ruling of the trial Court and order that the case be transferred to another Court for fair hearing.

In his response, the learned respondent’s counsel submitted that Courts of similar or concurrent jurisdiction are not bound to follow the decision of each other. He relied on the following cases:
Olutola v. University of Ilorin (2004)18 NWLR (Pt. 905) 452;
Uwazuruike v. Attorney General of the Federation (2008) 10 NWLR (Pt. 1096) 444.

The ruling of High Court No. 15 granting bail to the appellant before the preferment of a charge does not bind the trial High Court No. 10 to take cognizance of the ruling neither does it serve as a bar to the trial Judge asserting his discretion in the matter in view of the proof evidence before him which was not before the Court that granted the appellant bail.

Learned counsel submitted further that the offence the appellant is charged with is rape which carries a punishment of life imprisonment pursuant to Section 258 of the Penal Code Law of Kaduna State. The offence is not ordinarily bailable. The criteria to be followed in granting bail or refusing bail has been laid down in plethora of cases and includes but not limited to the nature of the charge, the strength of the evidence which supports the charge and the gravity of the punishment in the event of conviction. See Dokubo-Asari v. FRN (2007) All FWLR (Pt. 375) 558 and Bamaiyi v. State (2001) All FWLR (Pt. 46) 956.

Learned counsel submitted that bail is at the discretion of the Court which must be exercised judicially and judiciously based on the materials placed before the Court. The appellant has a duty to approach the Court first and request for bail. The application must be supported with facts and materials that will enable the Court to exercise its discretion to grant or refuse the bail. There was no bail application either orally or written before the trial Court. Counsel to the appellant merely wanted the trial Court to take note of the fact that the appellant was on bail granted by a sister Court before charges were filed and he wants the trial Court to be bound thereof without placing any proof or conditions attached thereto.

The presumption of innocence does not make the grant of bail automatic since there is the discretion to refuse bail if the Court is satisfied that there are substantial grounds for believing that the applicant for bail pending trial will abscond or interfere with witnesses or obstruct the cause of justice. See Asari Dokubo v. FRN (supra).

Learned counsel submitted that the case of Ceekay Traders Ltd. v. General Motors Co. Ltd and Ameh Ebute & 5 Or. (supra) supports the respondent’s case. He urge the Court to resolve the issues in favour of the respondent and to dismiss the appeal.

The granting of bail to an accused is a discretionary power of the Court before whom such application is made. This appeal does not require any waste of Judicial time and energy. The appellant’s counsel should know that pursuit of justice is assisted by laying all cards on the table for a serene and sober adjudication of any matter before the Court. This is an avoidable appeal if the appellant’s counsel had done the appropriate thing at the onset. At the point in time when High Court 15 granted bail to the appellant there was no charge preferred against him and no proof of evidence. Section 35 (4) of the Constitution of the FRN 1999 (as amended) provides:
“35(4) Any person who is arrested or detained in accordance with Subsection (1)(c) of this Section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date”.
Now having regard to the fact that the appellant was not tried within two months from the date of his arrest and detention by the Nigeria Security and Civil Defence Corps, he was entitled to be released either unconditionally or upon such conditions as are reasonably necessary. But after his arraignment situations have changed with the charge and proof of evidence before the Court. It behoves on the appellant’s counsel to apply for bail either orally or in writing. Learned counsel cannot just inform the Court that the appellant was granted bail before his arraignment and expect the Court to put a stamp of approval to his ipse dixit. The Court is never known to indulge in speculation. The learned appellant’s counsel wanted the Court to either speculate or go into a voyage of discovery with a view to find out the terms and conditions under which the appellant was granted bail by High Court 15. The Court is not Mungo Park, Vasco Da Gama or Christopher Columbus. And the Court cannot exercise its discretion to grant bail to the appellant in vacuum, there has to be facts and materials to enable the Court to exercise its discretion judicially and judiciously. The law is grounded on facts, ex facto jus oritur. The Courts are not bound to exercise their discretion in the same manner, hence no two cases or situations are the same. Therefore, if Judge A exercises his discretion in a particular manner, it is not automatic for Judge B to exercise his discretion in the same manner. That will be an end to the exercise of discretion.
The Court has in most cases, discretion to admit an accused person to bail pending trial, but in the exercise of the discretion the nature of the charge the evidence by which it is supported, the sentence which by law may be passed in the event of a conviction, the probability that the appellant will appear to take his trial are the most important ingredients for the guidance of the Court and where these are weighty, an appellate Court will not interfere. See Bamaiyi v. State (supra). These facts were not presented before the trial Court and there was no formal application for bail before the trial Court. The Court is not a father christmas as such it cannot be expected to grant a relief that is not asked for. The appellant’s counsel should have filed an application for bail if he was smart enough before he informs the trial Court that the appellant was earlier granted bail by Court 15 and the appellant did not breach the terms and conditions of the bail. That could have persuaded the learned trial Judge to exercise his discretion in favour of granting bail. The filing of such application by the appellant’s counsel is out of abundant caution to make assurance doubly sure, ex abundanti cautela.

The grant or refusal of bail application by a trial Court has nothing to do with the constitutionally guaranteed presumption of innocence under Section 36(5) of the 1999 Constitution. Especially where the accused did not kick start the process for the consideration of bail application. Circumstances might arise wherein even if the bail application is made, the Court has the discretion to refuse bail pending trial. That does not necessarily prejudice the presumed innocence of the appellant of the charge brought against him until the contrary is proved. See Bamaiyi v. State (supra).

On this note, I hold that the appeal lacks merit, the sole issue is resolved in favour of the respondent against the appellant. Accordingly, the appeal is dismissed. The ruling of the trial Court delivered on 4th August, 2021 in suit No: KDH/KAD/20C/2021 is hereby affirmed.

AMINA AUDI WAMBAI, J.C.A.: I had a preview of the judgment of my learned brother, ABUBAKAR MAHMUD TALBA, JCA. I agree with his reasoning and conclusion that there is no merit in this appeal. I too dismiss the appeal and affirm the ruling of the lower Court delivered on 4th August, 2021 in suit KDH/KAD/20C/2021.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.