Alhaji Felix Ikhazuagbe V. Commissioner of Police (2004)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This is an appeal against the decision of the High Court, Auchi striking out the appellant’s summons for bail. Appellant was arrested in May, 2000 on suspicion of murder. Based on his plea of alibi, he was released on police bail the next day. He was however re-arrested on 4th September, 2000 and arraigned with one other person before the Chief Magistrate’s Court Auchi on a two count charge of conspiracy to commit murder and murder punishable under section 516 and 319(1) respectively of the Criminal Code, Cap. 48 Vol.11, Laws of Bendel State of Nigeria, 1976 applicable in Edo State.

The learned Chief Magistrate, notwithstanding the facts that he had no jurisdiction to entertain the matter before him made an order that each of the two accused persons is to be remanded to prison custody for want of jurisdiction. It was not stated from where the court derived the power to make the said order see the lead judgment of Akaahs, J.C.A. in Ogbemhe v. C.O.P. (2001) 5 NWLR (Pt.706) 215, (2001) ACLR 1. The order remanding the appellant was made on 10th October, 2000.
The following day, i.e., 11/10/2000, the appellant, by way of summons, applied to the High Court, Auchi to admit him to bail pending his trial pursuant to section 118(1) and (2) of the Criminal Procedure Law Cap. 49, Laws of Bendel State applicable in Edo State.

In support of the summons for bail is a 40-paragraph affidavit to which are exhibited 15 documents.
In opposing the summons for bail, the respondent filed a 10 paragraph counter-affidavit to which 3 documents are exhibited.

The presiding Judge, Idahosa, J. took the submissions of learned counsel for each side on 16th November, 2000 and in a terse ruling on 27/11/2000 struck out the summons. The ruling is hereunder reproduced:
“I have carefully considered the application and the submission of learned counsel on both sides. In my opinion, the character of the evidence as shown on the exhibits attached to the affidavit is not weak. This evidence cannot be evaluated at this stage as it has not been subjected to cross-examination. In the circumstances of the case and in view of the provisions of S.7(b) and (c) of the Criminal Code, Laws of Bendel State 1976, I am unable to grant the application. The application is hereby struck out.”

Aggrieved by the decision of the lower court, the appellant filed a notice of appeal containing four grounds of appeal from which contrary to settled principle of law and practice, he distilled 6 issues for determination thus:
“1. Whether the learned Judge was right to rely solely or mainly on the exhibits attached to the counter-affidavit in resolving the issue of bail without juxtaposing them with those in appellant’s affidavit in support of summons?.
2. Whether having found that ‘…evidence cannot be evaluated at this stage not having been subjected to cross examination, the learned trial Judge was right in treating the character of the evidence as not weak?. (This issue encompassed grounds 2 and 4 of the grounds of appeal).
3. Whether having found that the character of the evidence as shown on the exhibits attached to the affidavits is not weak. This evidence cannot be evaluated at this stage as it has not been subjected to cross examination, the learned Judge was right in failing to resolve the issue of bail on other grounds?. (This issue is also distilled from ground 3 of the ground of appeal).
4. Whether the proper principles for the grant of bail were applied?. (This issue also encompassed grounds 2 – 3 of the grounds of appeal).
5. Whether the application of section 7(b) and (c) of the Criminal Code applicable in Edo State was improper and prejudicial to the appellant in the light of the holding that ‘…evidence cannot be evaluated at this stage.
(This issue is also distilled from grounds 2 – 4 of the grounds of appeal).
6. Was the learned Judge, notwithstanding the fact that there was no information or formal charge pending against the appellant, right in refusing bail?. (This issue is distilled from ground 4 of the grounds of appeal).”

The respondent did not adopt the issues presented by the appellant but rather formulated the following single issue for determination.
“Was the trial court right in law to have refused the appellant bail?.”

At the hearing, both counsel adopt and relied on their respective briefs. In his brief of argument, learned counsel for the appellant submitted in issue one that the averment in the affidavit in support of the summons were not controverted in the 10 paragraph counter-affidavit. He referred to Azeez v. The State (1986) 2 NWLR (Pt. 23) 541 and argued that any fact not denied in the counter-affidavit is deemed admitted. Citing Ogueri v. The State (2000) 5 NWLR page 28, learned counsel argued that the court should have considered the dispute between the Danesi Ruling family and the Ogiator Ruling family of the Okhoko Ruling House of Iyakpi South Ibie in Etsako West Local Government Area of Edo State. Had the court considered the dispute between the ruling houses and the fact that the appellant belongs to one of the two rivals, the court would have exercised more caution in dealing with the summons for bail.

In issues No.2, counsel relied on Anaekwe v. C.O.P (1996) 3 NWLR (Pt.436) 320 and said the court failed to examine the evidence placed before it. It was wrong for the lower court to deny the application on the ground that the facts needed to be subjected to cross-examination. In issue No.3, learned counsel said the court was not guided by the decisions in Chinemelu v. C.O.P (1995) 4 NWLR (Pt.390) 467, (1995) 1 All CLR 501 at 504 and Eyu v. The State (1988) 2 NWLR (Pt. 78) 602 at 694. In issue No.4, he submitted that the proper principles for the determination of application for bail were not applied by the lower court.

In issue No.5, he challenged the court’s reliance on section 7(b) and (c) of the Criminal Code Law of Bendel State applicable in Edo State. He submitted that the said provision is not one of the issues for consideration in the application before the court. Counsel referred to the dicta of Lord Akin in Evans v. Bartlam (1937) AC 473 at 480-481 and Lord Simon in Blunt v. Blunt (1943) AC 517 at 526-527 and argued that this court has the power and the duty to remedy the injustice in this case, he relied on Enekebe v. Enekebe (1964) 1 All NLR 102 and Olubode v. Oyesina (1977) 5 SC 79 and said that the court should interfere with the finding of the lower court especially as the material on which the lower court exercised its discretion was documentary.

In issue No.6, counsel said the appellant was detained without a formal charge. He referred to section 35(4) of the Constitution and argued that even though the appellant was charged with a capital offence he should not be detained indefinitely. Relying on the State v. Buki (1974) 2 SC 67 at 73-74, counsel argued that this court is entitled to inquire into the exercise of the lower court’s discretion. He urged the court to allow the appeal.

Learned counsel for the respondent urged the court to strike out issues Nos. 5 and 6 in the appellant’s brief as the said issues do not relate to any grounds of appeal. He relied on Idise v. Williams Limited (1995) 1 NWLR (Pt. 370) page 142 and 145; Biocon (Nig.) v. Kudu (2000) 15 NWLR (Pt.691) 493, (2000) 82 LRCN 3332. Dibiamaka v. Prince Osakwe & Anor. (1989) 3 NWLR (Pt.107) 101 and 104. He said that the appellant is challenging the ruling of the lower court on the ground that there is no formal charge against the appellant, but there is no ground of appeal from which that issue can arise. He relied on Sha v. Kwan (2000) 8 NWLR (Pt.670) 685, (2000) 78 LRCN 1645 and Baridam v. The State (1994) 1 NWLR (Pt. 320) 250 and urged the court to strike out the two issues for being incompetent.

On the single issue he formulated, counsel argued that all that was required of the respondent is to show a prima facie case against the appellant, adding that juxtaposing the case of the appellant with that of the respondent is not one of the conditions for granting bail. See Emordi v. Commissioner of Police (1995) 2 NWLR (Pt. 376) 244. He said the lower court has a discretion which it exercised judiciously in rejecting the application for bail. This court should not interfere as the exercise of the lower court’s discretion was not wrong, arbitrary reckless or injudicious- see Oshunrinde v. Akande (1996) 6 NWLR (Pt.455) 383, (1996) 40-41 LRCN; Baridum v. The State (supra); John Akujobi Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt. 88) 257.

Learned counsel argued that the court was right to have refused the application for bail as the charge against the appellant is murder. Bail is not usually granted in murder cases. He urged the court to dismiss the appeal.