Alhaji Mujahid Dokubo-asari V Federal Republic Of Nigeria (2007)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

From the facts contained in the printed record of appeal placed before this court, the appellant Alhaji Mujahid Dokubo-Asari, was a one time leader of the Niger Delta Peoples Salvation Front (NDSF) but now leader, Niger Delta Peoples Volunteer Force (NDPVF). He is also a member, Pro-National Conference Organisation. He, along with one Mr. Uche Okwukwu and others, now at large, were said to have signed one communique which castigated Governors, Local Government Chairmen and NDDC Directors in connivance with the Federal Government that they looted the oil revenue accruing to the people of Niger Delta while pursuing their personal projects and aggrandizement. This, they felt, had left the people in a state of neglect and abject poverty. They also cited the recent hike in fuel pump price as one of their grievances. They therefore threatened to take-up arms against the government after lodging their protest with Pro-National Conference Organisation (PRONACO). The association also revealed its plan to cause civil disorder that would lead to the overthrow of the present Government. Dokubo Asari was arrested by the police and taken to court on a five count charge of conspiracy: treasonable felony: forming, managing and assisting in managing and unlawful society: publishing of false statement and being a member of an unlawful society. These are offences created by and punishable under the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria. 1990.

On the 6th day of October, 2005 the appellant as accused, was arraigned before the Federal High Court holden in Abuja. The appellant pleaded not guilty to all the 5 counts.

On the same 6th day of October, appellant’s counsel moved his summons on notice dated 10th day of October, 2005, praying the trial court to admit the accused/appellant to bail. After taking arguments from the learned counsel for the respective parties, the learned trial Judge examined their submissions along with the affidavit evidence laid before him. In a considered ruling delivered on the 11th day of November, 2005, the learned trial Judge refused to grant bail to the accused/appellant.

Accused/appellant was dissatisfied with the trial courts decision and he filed his notice and grounds of appeal to the Court of Appeal, Abuja Division. (court below). In its judgment of 6th June, 2006, the court below dismissed the appeal and affirmed the ruling of the trial court.

Further dissatisfied, the accused/appellant sought and was granted leave by the court below to appeal to this court. Two grounds of appeal were set out in the notice of appeal which was filed within the time granted by the court below for filing same. Learned counsel for the appellant, Mr. Keyamo, filed on behalf of the appellant a brief of argument in which he distilled two issues for the determination of the appeal by this court. These are the issues:

“(i) Whether the Court of Appeal was right when it reached a conclusion of fact that there was acceptable evidence of threat to national security by the appellant in the case put forward by the respondent.

(ii) Assuming (without conceding) that the case of the respondent revealed a strong prima facie case of threat to national security, whether that suspends the right to bail as enshrined in section 35 of the 1999 Constitution.”

Learned Director of Public Prosecution of the Federation, who appeared for the respondent, filed the respondent’s brief of argument. The learned DPP, Mr. Aliyu, formulated one issue for determination of the appeal by the court. The issue reads:

“Whether in view of the totality of the facts and circumstances of this case and the evidence properly before the trial court, the court below was right when it confirmed the decision of the trial court.”In his submissions on issue 1, learned counsel for the appellant argued that the concurrent findings of fact of both courts below as to threat to National Security cannot stand in the face of available evidence. He stated further that what is called “threat to National Security” can only be distilled from paragraph 5(d) of the respondent’s counter affidavit at the trial court.” These, he argued further, were just depositions without nothing more to Support them when the burden is on the prosecution to prove why bail should not be granted. Bail pending trial, learned counsel submitted, is a Constitutional right and there is a presumption of innocence of the individual. He cited and relied on the cases of Enebeli v.Chief of Naval Staff (2000) 9 NWLR (Pt. 671) 119 at 124-125; Ani v. State (2002) 1 NWLR (Pt. 747) 217 at 30. Learned counsel stressed the point that it was not the duty of the Court of Appeal to believe or not to believe anything at this stage of the proceedings when exhibits have not been tendered at the trial. It was a grave error for that court to prejudice the appellant by believing that he actually granted an interview contained in a newspaper cutting which was part of a bundle of papers given to the appellant’s counsel (but not filed along with the charge, purportedly as proof of evidence). Learned counsel urged this Court to interfere with the finding of fact of the Court as it violated the known principle of law that an accused is presumed innocent until proved guilty. He urged this court to resolve issue No.1 in favour of the appellant.

In his submissions on issue No.2, the learned counsel for the appellant stated that a mere allegation of threat to National Security cannot automatically suspend the provisions of Chapter 4 of the 1999 Constitution which includes section 35 thereof, on right to bail. In disagreeing with the Court of Appeal in its reasoning process, learned counsel for the appellant argued that the only time human rights can take a second place is not when a mere charge relating to threat to National Security is brought against anyone, but when a formal declaration of a State of emergency is proclaimed in line with the provision of the Constitution. It was argued further for the appellant that if “threat to National Security” is to be taken as a factor to consider in the grant or refusal of bail, the court must still have recourse to the competing depositions in the affidavit as filed by both parties and see whether the prosecution has successfully discharged this burden to show that there is a threat to National Security. Even if it is, it does not preclude altogether the consideration of that right to bail as enshrined in the Constitution. Learned counsel referred to the case of Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155. He urged this court to resolve issue No.2 in favour of the appellant. Learned counsel finally urged us to allow the appeal and admit the appellant to bail.

The learned Director of Public Prosecution for the respondent submitted that the trial court took into consideration all the relevant criteria for the grant of bail as have been laid down in a plethora of cases and the court rightly held that all the requisite conditions for the grant of bail did not co-exist. He cited and relied on the cases of Anajemba v. Federal Government of Nigeria (2004) 13 NWLR (Pt. 890) 267; (2005) 1 NCC 390 at page 398]; Ani v. State (2002) 1 NWLR (Pt. 747) 217 at page 230 A-C; Nakutama Likita v. C.O.P (2002) 11 NWLR (Pt. 777) 145 at page 160 E-; 161 – B. It was his further submission that there is a strong probability of guilt of the accused and that there is a likelihood of the accused person interfering with the cause of justice if released on bail. He relied on the affidavit evidence as well as the interim Police Investigation Report; the accused person’s confessional statement; communique of meeting held at Samsy Hotel, Benin City, Edo State and the press interview. Learned Director of Public Prosecution cited the case of Bamaiyi v .State (2001) 8 NWLR (Pt. 715) 270 at 291. It was the learned Director of Public Prosecution’s submission that refusing bail to the appellant is not in anyway inconsistent with the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999. The learned Director of Public Prosecution drew this court’s attention to the fact that there are concurrent findings of the two lower courts against the appellant which were adequately supported by credible affidavit evidence adduced before the trial court. The attitude of this court, he argued further, to such concurrent findings is that this court will not disturb such findings without any substantial error apparent on the record of proceedings or that such findings are perverse. He stated that the onus is on the appellant to demonstrate by showing the existence of special circumstances to justify why this court should interfere with the findings of fact made by the two lower courts. This, the appellant has woefully failed to do.

Further submission made on behalf of the respondent are that where an offence carries a sentence exceeding 3 years imprisonment, bail in such a case is not a mere matter of course, but rather, at the discretion of the court which must be exercised judicially and judiciously as has been done in this case. The learned Director of Public Prosecution cited section 118(2) of the Criminal Procedure Act (CPA). The charges against the appellant carry a maximum sentence of life imprisonment. It is in the interest of justice to refuse the appellant bail and uphold the concurrent findings of the two lower courts. The learned Director of Public Prosecution urged this court to dismiss the appeal.

When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial Court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include, among others, the following: