Pius Ogbuawa V. Federal Republic Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED L. TSAMIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Federal High Court, Awka Judicial Division (herein referred to as the trial court), in the Criminal Case No.FHC/AWK/7C/2009, which Ruling was delivered on 6/10/2010, refusing the application for bail pending trial.

From the facts contained in the printed record of appeal placed before this court, the Appellant Mr. Pius Ogbuawa, along with other twenty accused persons were arrested by the Police and arraigned before the trial court on a three count charge related to treason, and terrorism. These are offences created by and punishable under the Criminal Code Act, Cap-77, and Economic and Financial Crimes Commission (E.F.C.C) Act Cap. E I, Laws of the Federation of Nigeria, 1990 and 2004 respectively.

On 28/7/2010 the appellant along with other twenty accused persons, upon being arraigned before the trial court pleaded not guilty to all the three count charge.

On 24/9/2010, appellant’s counsel moved his motion on notice, praying the trial court to admit the accused/appellant to bail. The application was supported by an affidavit of 123 paragraphs and a further affidavit in support, of 81 paragraphs. The two respective affidavits contained several documents as attachments and marked as Exhibits A – M3 respectively. On the other hand, the respondent in opposing the application filed three counter affidavits deposed to by police Inspector, Ambrose Ilabor (see p. 459-558 of the record of Appeal), a further counter affidavit deposed to by one Chief Innocent Chukwuma on 16/9/2010 (see pp. 593 – 586 of the record of Appeal) and the 2nd further counter affidavit deposed to by one Chinenye Egwu (see pp.617- 637) of the record). The respondent in addition to the above filed a proof of evidence (see pp.10-233 of the record) on 24/9/2010.

In the said application for bail the grounds on which the appellant relied were stated in the motion papers as follows:

1. That the offences the applicant/appellant are standing trial are non-capital offences and that bail is in the circumstances is a constitutional right.
2. The facts and circumstances of the application warrant granting the Applicant/appellant bail.
3. The applicant/appellant ought to be granted bail on health grounds.
4. The prosecution is not ready as it has not filed proof of evidence.

The counter affidavits apart from denying generally the deposition of the accused/appellant, also averred that the accused/appellant, other accused persons resorted to kidnapping as a way of raising fund, gave financial assistance even before the other accused persons resorted to kidnapping as a way of raising fund, through the 4th accused person who is a brother in law to the accused/appellant. That after arresting the other accused persons the police made several efforts to interview the applicant/appellant but their attempts was frustrated by the appellant’s constant resort to court for the enforcement of his fundamental rights, until when other accused were arraigned before the trial Court on the said count charges. That the appellant is also standing trial for some other offences different from the present charges, before another court.

After taking arguments from the learned counsel for the respective parties, the learned trial judge examined their submissions along with the affidavits evidence laid before him. On 6/10/2010, the learned trial judge refused to grant bail to the appellant. The appellant being not satisfied with the decision, appealed to this court on four grounds of appeal. And from the said four grounds of appeal, learned counsel for the appellant, in the appellants brief of argument filed on 10/11/2010 and adopted in argument of the appeal, on 24/1/2011, has formulated only one issue for determination. The issue is as follows:

“Whether in all the circumstances of this case, the court below was wrong in refusing the appellant’s bail.”

The respondent on the other hand neither raised any issue for determination in his brief of argument filed on 23/12/2010 which he adopted during the hearing of this appeal, or adopted the appellant’s single issue for determination. But from his response in the brief it seems to me that he intends to adopt appellant’s single issue for determination in this appeal.

It is trite law that the grant or refusal of an application for bail is at the discretion of the court which discretion must not only be exercised judicially but judiciously. That being so, when a court has duly exercised that discretion either to grant or refuse the grant of bail, the real issue that calls for determination in an appeal arising therefrom is whether the trial court properly exercised its discretion in acting in the particular way it did. That will definitely not call for the filing of four grounds of appeal.

Be that as it may, in arguing this issue, learned senior counsel for the appellant submitted that the trial court in determining the appellant’s application for bail, totally misconceived the law on criminal justice as it relates to bail. That as the appellant is charged with non-capital offences, there is no practice which says ordinarily he (the appellant) is not entitled to bail.

Learned senior counsel for the appellant further submitted that in its introductory part of the Ruling the trial court laid emphasis on the fact that the punishment for the charge against the appellant is life imprisonment and the charge is serious, and thereby erroneously decided that the appellant have the duty to convince the trial Court to grant him bail and that the appellant in doing so had a Herculean task of convincing it to grant bail. This pronouncement and reasoning of the trial court, learned senior counsel submitted, necessarily did not only connote that the appellant was making a near impossible request from the trial court, but revealed that the trial court had approached the bail application from the angle that the appellant was not entitled to bail pending trial having been charged with an offence that attracts the maximum sentence of life imprisonment. That this approach offends section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and the principle of law stated in Bolamale v. State (2006) 1 NWLR (pt.916) 507 at 518. The learned senior counsel for the appellant also submitted that the trial court from the approach adopted in the appellant’s application for bail, required the appellant to prove his innocence beyond reasonable doubt, and this can only amount to a travesty of justice and a desecration of the Nigerian Gnund-Norm – the Constitution of the Federal Republic of Nigeria 1999. The case of Ikhazueba V. C.O.P. (2004) 7 NWLR (Pt.827) 346 at 366 was relied on to support his submission.

It was further submitted by the learned senior counsel for the appellant that the trial court’s approach led it into further erroneous pronouncement in its ruling refusing bail to the appellant, when, at the concluding part of the ruling held that, “it has not been shown that the prison Doctor could not manage the health situation of the appellant and therefore, it will not be in the interest of justice to grant the application for bail, when infact there is no law that states that an applicant charged with the Commission of non-capital offence is not entitled to bail unless he proves that he is sick and a fortiori that the prison Doctor cannot manage his health.