Otunba Gani Adams & Ors. V. Attorney-general of the Federation (2006)

LawGlobal-Hub Lead Judgment Report

ODILI, J.C.A.

This is an appeal against the ruling of the Federal High Court dated 22nd December, 2005 refusing the bail application filed by the appellants before that court presided over by the Honourable Justice A. I Chikere. The appellants were dissatisfied with the decision of the learned Justice of the Federal High Court and so have appealed to the Court of Appeal upon a notice of appeal dated 12th January, 2006.

FACTS

The appellants were arrested on Saturday, 22nd October 2005 at the office of the Commissioner of Police, while attending a meeting called by the said Commissioner of Police involving the appellants and relating to the alleged activities of some members of the Oodua Peoples Congress. Prior to the charge leading to this appeal, the appellants were on 27th October, 2005, ordered to be remanded in custody at the Kirikiri Maximum Prison by the Chief Magistrates’ Court, Igbosere, Lagos on the application of the Police. However, upon bail application filed by the appellants, the Lagos State Director of Public Prosecutions rendered a Legal Advice, which disclosed that there was no case against the appellants as they were not in any way connected with the alleged crime. Consequently, on 14th November, 2005, the High Court of Lagos State granted an order releasing the appellants unconditionally in suit No. M/509/2005. Thereafter, the appellants were released from the Kirikiri Maximum Prison on 15th November, 2005 but were immediately re-arrested by the Police.

The appellants were later detained at the Force Criminal Investigation Department, Alagbon, Ikoyi Lagos until Friday 18th November, 2005 when they were transferred to the Federal Capital Territory, Abuja. The appellants were then detained at the Force Criminal Investigation Department Detention Centre, Area 10, Garki, Abuja. On the 23rd November, 2005 the appellants were transferred out of the said Area 10 Detention Centre, but still remain in the custody of the Police. On the 1st December, 2005, the appellants were arraigned before the Federal High Court, Abuja upon a four-count charge of being members of an unlawful society and forming and managing an unlawful society, contrary to and punishable under sections 64 and 62 (2) (1) of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990; possession and control of prohibited firearms, contrary to section 3, 4 and 8 and punishable under Section 28 of the Firearms Act, Cap. 146, Laws of the Federation of Nigeria, 1990.

Upon arraignment, an oral application was made for the bail of the appellants, but refused by the trial court. Consequently, the appellants filed separate bail applications all dated 1st December, 2005. The Appellants also filed further affidavits dated 12th December, 2005 and the respondent filed a counter – affidavit dated 14th December, 2005.

At the hearing of the bail application on 20th December, 2005 the counsel to the appellants, with the consent of the respondent’s counsel and the court, adopted the argument of the 1st appellant and at the conclusion of the argument, the trial court refused to admit the appellants to bail hence this appeal.

The appellant’s brief was filed on 31/1/06 and the appellants’ formulated a single issue which is:

Whether, having regard to the facts and circumstances of this case, the trial court applied the correct legal principles in refusing the appellants bail.

The respondent in their brief of argument deemed properly filed on 15/5/06 sequel to a motion for extension of time within which to file their brief of argument and to deem same as properly filed adopted the issue posed by the appellant.

Learned counsel for the appellant stated that the appropriate premise for a consideration of an application for bail pending trial is the constitutional guarantee contained in section 36(5) of the Constitution of the Federal Republic of Nigeria 1999. That the construction that has come to be placed on the section by relevant decided authorities is to the effect that an accused who is charged with an offence is entitled to be granted bail pending trial. This is the constitutional foundation for grant of bail upon which the provisions of other statutes and decided authorities on bail are founded.

Learned counsel cited the case of Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155 at pp 178 – 179; Eyu v. State (1988) 2 NWLR (Pt. 78) 602 at 610.

He said the trial court erred in law in dwelling on section 35 (4) of the 1999 Constitution.

Learned counsel for the appellants stated that flowing from the constitutional presumption of innocence in favour of an accused is the established principle that after the accused has placed some materials before the court for grant of bail, the onus is on the prosecution to show course why the accused should not be granted bail. He referred to supporting affidavit of the motion for bail and the further affidavits. That the counter affidavit contained facts that were not in any way relevant to the substance of the charge before the court. That the law is now settled that the acceptable way by which the prosecution can intimidate the court not to grant bail is by way of placing before the court proof of evidence, showing the substance of the crime allegedly committed by the accused and the evidence with which the prosecution intend to prove such an allegation. He referred to Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320 at 333.