Ishaya Bamaiyi Vs The State (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

There is pending in the Lagos High Court an Information filed on 27 January, 2000, charging offences against the appellant and four others on six counts. The appellant, who is the 1st accused in that Information, is involved in four of the counts. Two of them relate to conspiracy to murder two persons separately and at two different periods at Ikoyi, Lagos, namely, one Alex Ibru and one Isaac Seiya Porbeni. One other count is attempted murder of the said Alex Ibru while another is unlawfully causing grievous harm to him. The trial is on-going before Ade-Alabi, J.

The appellant moved for bail and the learned trial judge heard arguments on 7 March, 2000. On 19 May, 2000, he gave a considered ruling refusing bail. The appellant’s appeal to the Court of Appeal, Lagos Division was dismissed on 11 December, 2000. Still dissatisfied, the appellant has appealed to this court and has asked that his appeal be determined on two issues, namely:

1. Whether the Court of Appeal was right when it failed to consider and pronounce upon all the issues formulated by the appellant from the grounds of appeal validly filed and thereby occasioning a grave miscarriage of justice.
2. Whether the Court of Appeal was right, in the circumstances of this case, in affirming the decision of the trial court refusing appellant bail.

The respondent in its brief of argument has made it three issues. From the grounds of appeal and the arguments on both sides, I think the appeal can be resolved on the two issues formulated by the appellant. The appeal was heard by us on 15 March, 2001. I shall consider the issues raised separately.

Issue No. 1

The appellant’s short contention as reflected in his brief of argument is that the court below did not make any pronouncement on issue 2 raised before it and that had it done so, “it would have radically changed the outcome of the decision” it arrived at. It has been argued further that the failure to consider the said issue 2 amounted to a denial of fair hearing and resulted in a miscarriage of justice, citing a decision of this court, Union Bank of Nigeria Ltd. v. Nwaokolo (1995) 6 NWLR (Pt.400) 127, in support.

The main thrust of the argument of the respondent’s Counsel, the learned Attorney-General of Lagos State, on this issue can be summarised thus: The leading judgment of the lower court per Oguntade, JCA indicated that all the issues raised by the appellant were considered together when he said:

“The respondent’s issues are amply accommodated under the appellant’s issues. All the appellant’s issues could be conveniently considered together. I intend to do so in this judgment.”

The contention is that the said four issues were duly considered together as one. The contention goes further to say that the complaint that the depositions in the two counter-affidavits of the respondent offended against sections 85, 86 and 87 of the Evidence Act in that they contained extraneous mailers such as prayer, legal argument or conclusions, was not made out. The views of Omo, JSC in Orji v. Zaria Industries Ltd. (1992) 1 NWLR (pt.216) 124 at 151 were relied on. Again, that even if this court were to strike out the paragraphs of the counter-affidavits complained of, bail would still not have been granted to the appellant upon his application based only on his affidavit in support since bail was not granted as a matter of course, citing Chinemelu v. Commissioner of Police (1995) 4 NWLR (pt.390) 467. Finally, that assuming that the lower court did not make a definitive pronouncement on whether or not the said paragraphs of the counter-affidavits were not in conformity with sections 85, 86 and 87 of the Evidence Act, the failure to do so did not occasion a miscarriage of justice. Citing The State v. Ajie (2000) 11 NWLR (Pt.678) 434.

I must now turn to the said issue 2 raised by the appellant in the court below in respect of which there is the complaint that it was not considered and resolved. The issue reads:

“Whether there are exceptional circumstances arising from the counter-affidavit and further counter-affidavit of the respondent to warrant a denial of bail to the appellant by the trial judge having regard to the clear provisions of sections 86, 87 and 88 of the Evidence Act.”

The argument canvassed on this issue in the court below was that paras. 11, 12 13, 14, 15, 17, and 18 of the counter-affidavit and paras. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, of the further counter-affidavit which the respondent relied on to oppose the application for bail should be struck out being in contravention of sections 86, 87, 88 and 89 (formerly sections 85, 86, 87, and 88) of the Evidence Act. His contention was that para. 11 of the said counter-affidavit contained argument, opinion and conclusion; para. 12 contained opinion; para. 13 opinion and conclusion as well as made success in life a crime contrary to section 4 of the Criminal Code and section 11 of the Criminal Code Schedule; paras. 14, 15 and 16 opinions, findings and conclusions; para. 17 deliberate falsehood; and para. 18 legal argument, finding and conclusion.

As regards the further counter-affidavit, paras. 5 and 6 were said to be in contravention of sections 88 and 89 of the Evidence Act, the source of information therein not having been disclosed; para.7 is misleading and prejudicial since the appellant was not facing any other charge in any court; para. 8 argument and legal conclusion as to the guilt of the appellant; para. 9 opinion as well as misleading; para.10 argument, assumption, opinion and conclusion; paras. 11, 12, 13 and 17 opinions, arguments, findings and conclusions as well as being speculative; and paras. 14, 15 and 16 contravened sections 87, 88 and 89 of the Evidence Act.

From the point of view of the appellant it was important to consider these matters and determine the issue raised thereby. His contention is that if the paragraphs so identified had been struck out, there would be no facts and circumstances on which to base the respondent’s opposition to his bail. I think the appellant deserved to have the issue so raised resolved. The first question is, was the issue considered and resolved by the lower court. I have examined the judgment and can find nowhere this was done although the paragraphs of the two counter-affidavits complained of were reproduced without a word about their propriety. It appears to me that the lower court considered that there was only one question for determination when in the course of concluding its judgment, it observed: