Aminu Musa & Ors V. Commissioner of Police (2003)
LawGlobal-Hub Lead Judgment Report
IKECHI FRANCIS OGBUAGU, J.C.A.
This is an appeal against the decision/ruling of the Plateau State High Court, presided over by Mann, J. sitting as a vacation Judge and delivered on 16th September, 2002.
Each of the appellants, filed a separate notice and grounds of appeal containing the same five (5) grounds of appeal. Without their particulars, they read as follows:
Ground 1
The learned High Court Judge misdirected himself in law by disregarding and refusing to follow the decision in Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320 (sic) and thereby refused bail to the appellant. And thereby occasioned a miscarriage (sic).
Ground 2
The lower court misdirected itself in law, in undermining and/or making nonsense of presumption of innocence in favour of the appellant by wrongly invoking and interpreting section 35(7) (a) of the Constitution. And thereby, occasioned a miscarriage of justice.
Ground 3
The decision of the court below is against the evidence before the court.
Ground 4
The court below erred in law, when it refused to realize the appellants had shown special circumstance which warrant the grant of the appellant’s application which error caused failure of justice (sic).
The facts of the case, according to the appellants, is that they were arrested at random by the Police on or about 10th September, 2001, during the ethno-religious crisis that erupted in Jos and its environs. Whilst the appellants claim in the affidavit in support of their application for bail, that they were arrested in their respective residences (sic), the respondents, in the counter-affidavit in opposition to the said application averred that some of the appellants, were arrested along Gangare and Zololo junction areas of Jos on or about 7th September, 2001, while committing various criminal offences.
It is further deposed in the said counter-affidavit, that some of the appellants, were arrested along Massalachi Juma, a Street and Kwararafa areas of Jos on or about 7th September, 2001, while committing various criminal offences.
There is evidence in the record of proceedings, that the accused/appellants, and other accused persons, were charged to court. In charge/suit Nos. UACK/57/2001 and UACK/62/2001, sixteen (16) and twenty two (22) accused persons respectively, were arraigned/charged before the Upper Area Court of Plateau State holden at Kabong, Jos, on 4th and 6th December, 2001, while in Charge/Case Nos. PLD/J/23c and 24c/2002 respectively, twenty three (23) of the accused persons, were charged in the High court of Plateau State holden at Jos, with several offences including culpable homicide punishable with death under section 221 of the Penal Code.
The said Upper Area Court refused the appellants’ application for bail on the ground of lack of jurisdiction. Some of the accused persons named in the first information, then applied to the Federal High Court, Jos in suits Nos. FHC/J47/2002 -Awalu Mohammed & 11 Ors. v. Comm. of Police and FHC/J/48/2002 – Alhassan M. Saleh & 7 Ors. v. Comm. of Police for the enforcement of their fundamental human rights and for an order quashing the proceedings and order of the said Upper Area Court, Kabong, Jos. On the application of the prosecutor, the two suits/ applications, were consolidated by that court. The applicants in the two applications, were ordered to be released and they were released on bail on 2nd August, 2002.
After the DPP of Plateau State was served with the processes in the Federal High Court, on 31st July, 2002, criminal charges were preferred against all the accused persons named in the First Information in the said charge/suits Nos. PLD/J/23c/2002 and PLD/J/24c/2002 respectively. On 13th August, 2002, the 1st, 2nd, 3rd and 4th appellants, filed a summons in the High Court, Plateau State, Jos, to admit them to bail pending trial in case No. PLD/J/28m/2002 while on 2nd September, 2002, the 5th, 6th, 7th and 8th appellants, filed a summons in case No. PLD/J/135m/2002 in the same High Court also, to admit them on bail pending trial. On the application of the prosecution/respondent, the two applications were consolidated for hearing. The respondent filed a counter-affidavit in opposition.
After hearing arguments on 11th September, 2002, from both learned Counsel for the parties, in a considered ruling delivered on 16th September, 2002, the learned Judge, dismissed the application.
Dissatisfied with the said decision/ruling, the appellants, have appealed to this court on the said five (5) grounds of appeal reproduced hereinabove.
The appellants have formulated two (2) issues for determination, namely;
1.01 Whether or not, the lower court exercised its discretion judicially and judiciously in dismissing the appellants’ application for bail having regards (sic) to the entire circumstances of the case (distilled from grounds 2, 3, 4, and 5).
2.02 Whether or not, the lower court was right when it refused to be bound by the decisions of this Honourable court and therefore, erroneously refused to grant bail to the appellants (distilled from ground 1).
On his part, the respondent also formulated two (2) issues for determination, namely;
2.1 Whether the lower court rightly exercised its discretion in dismissing the appellants’ application for bail pending trial having regards (sic) to the affidavit evidence before it.
2.2. Whether the lower court rightly exercised its discretion in dismissing the appellants’ application for bail pending trial without determining the validity or otherwise of the charge against the applicants.
I observe that the respondent did not relate/distill any of his issues from any of the grounds of appeal.
It is now firmly settled that where a respondent has not filed a cross-appeal, the issues for determination formulated by him, must arise from the grounds of appeal filed by the appellant. See UAC (Nig.) Ltd. v. Global Transporte, S.A. (1996) 5 NWLR (Pt.448) 291; Ogundare v. Ogunlowo (1997) 6 NWLR (Pt.509) 360, both also referred to in the recent case of Padawa & 8 Ors. v. Jatau (2003) 5 NWLR (Pt.813) 247 at 264. Issue No.1 of the appellants and issue No.1 of the respondent, appear to me to be similar and of the same substance.
Issue No.2 of the respondent is not related to any of the grounds of appeal.
Issue No. 1 of the appellants and the respondent.
It is noted by me, that virtually all the arguments by both learned counsel for the parties at the lower court, are the same in this court. It does not matter. They are entitled to repeat the same in this court even though the record of proceedings in the lower court is before this court and the parties and this court, are bound by the contents.
Learned Counsel for the appellants have submitted that the appellants are constitutionally presumed innocent, until the contrary is proved. He referred to section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, which he states that its application, is not restricted by the provision in section 35(7) of the same Constitution.
The main complaints of the appellants as I see it, are firstly, that in respect of the charge of culpable homicide punishable with death, the names of the persons allegedly killed, are not stated or disclosed. Secondly, that the proof(s) of evidence, is/are was or were not exhibited at the lower court.
When this appeal came up before this court on 9th June, 2003, Sangei, A. A. Esq. -learned Counsel for the appellants, adopted their brief of argument filed on 25th October, 2002. He urged the court to allow the appeal.
Zi, G.F. Esq. – learned Counsel for the respondent who told the court that the hearing of the substantive charge at the High Court, was going to commence on 12th June, 2003, also told the court that they filed their respondent’s brief of argument, on 20th May, 2003. He adopted the same and urged the court to dismiss the appeal for lacking in merit.
Thereafter, judgment was reserved till today.
In respect of the first complaint, the learned Judge was of the view and so held, that whether the charge is defective and cannot stand because of that fact, is best left for the court handling the substantive case. I agree although as rightly submitted at the lower court by learned Counsel for the appellants, in the format of the charge under section 222 in the notes on the Penal Code (not section 221) by S.S. Richardson at page 150, contemplate that the names of both the accused and that of the victim, must be reflected.
Also, in section 152(1) of the C.P.A (Criminal Procedure Act) it is provided, thus:
“The charge shall contain such particulars as to the time and place of the offence and the person, if any, against whom, or the thing if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.”
(italics mine)
The learned Judge conceded in his said ruling, that –
“There is also no doubt that the charge of culpable homicide does not disclose the names of the victims.”
However, in respect of the second complaint, although the learned Counsel for the appellants stressed and canvassed this issue at the lower court and referred to the provisions of Rule (2) of the Criminal Procedure (application for leave to prepare a charge in the High Court Rules, 1970) and submitted that these – i.e. that proof of evidence are matters which ought and in fact should be placed before the court hearing the application for bail, but regrettably, the learned Judge, never said a word about this or made a finding of fact in respect thereof.
His stance, was that the contention before him, was whether or not he should exercise his discretion to grant bail to the appellants based on the real issue formulated by the appellants in the summons (not in the affidavit in support) which according to him, was to determine whether or not the appellants should be admitted to bail.
He held that the issue canvassed in the affidavit of the appellants, is extraneous.
However, in fairness to the learned Judge, he held that he has no jurisdiction in the application to resolve the question whether or not the appellants indeed committed the offence with which they are charged and on that basis, to grant them bail. He referred to the cases of Likita v. C.O.P. (2002) 11 NWLR (Pt. 777) 145 at 159 paragraphs A – C and Eyu v. The State (1988) 2 NWLR (Pt.78) 602.
It is noted by me, that in the affidavit in support, the innocence of the appellants, is averred in paragraph 3(d) thereof.
As a matter of fact, in the said affidavit, there is no averment of any fact or facts that can amount to or constitute any special circumstances to persuade that court or this court, to grant bail to the appellants. The averment in paragraph 3(e) thereof that the appellants have been in prison and that the respondents are not willing to prosecute the case, was debunked/neutralized by the respondent and as rightly found as a fact and held by the learned Judge in exhibits GFZ 1 & 2 – i.e. The FIR (First Information Report).
Although the issue of the absence of any proof of evidence was not averred by the appellants in the affidavit in support, but that issue or point being one of law, should have been considered by the learned Judge. Perhaps, section 341 (3) of the C.P.C, indicate that bail may be considered whether or not an applicant has been formally charged to court.
In my respectful view, that issue was crucial and fundamental. In the case of Alhaji Mohammed Sani Abacha v. Hamza AL Mustapha & 2 Ors. (2002) 7 SCNJ 1 at 35; (2002) 11 NWLR (Pt. 779) 437 at 486, 496.
What guided the Supreme Court in granting the accused/applicant bail, was the proof of evidence. Surely, it is from the proof of evidence, that a court will be persuaded whether or not to grant or refuse bail to an accused person/ applicant. i.e. to see whether or not there is a prima facie evidence. This was in fact, one of the reasons for this court granting bail in a murder charge in the case of Chief Anaekwe v. C.O.P (1996) 3 NWLR (Pt.436) 320 at 332 – 333 C.A. cited and relied on by the learned Counsel for the appellants, both in the lower court and in this court. This court – per Tobi, JCA (as he then was) had this to say, inter alia:
“Therefore, where the prosecution merely parades to the court the word “murder” without tying it with the offence, a court of law is bound to grant bail and the only way to intimidate the court not to grant bail is to prefer an information and proofs of evidence to show that there is a prima facie evidence of commission of the offence. A situation where there is no material before the trial court to show that the appellant is facing a charge of murder, including proofs of evidence, certainly qualifies as a special circumstance in which the court can grant bail”(italics mine).
In the instant case, without the proof of evidence, how on earth, can this court, know or determine, whether or not there is a prima facie evidence made against the appellants? One or I may ask. Moreso, where other co-accused persons charged with the same offence are breathing the air of freedom since August, 2002. I suppose that it is said that what is sauce for the goose, is also sauce for the gander. But before I am done in respect of this matter, let me quickly deal with some of the guiding principles in respect of granting of bail particularly in a murder case.
In the cases of Comm. Of Police v. Ja Isuman & Anor. – In Re Ja Isuman (1965/66) MNLR 111, it was held that the principal issue which calls for determination on application for bail, is whether or not there is the likelihood of the prisoner/accused coming to take his trial if admitted to bail. That in determining in the issue, the court will be guided by such ancillary matters as –
(a) the serious nature of the charge;
(b) the severity of punishment in the event of conviction;
(c) the nature of the evidence available against the prisoner.
That the onus is on the party who opposes an application for bail, to provide some prima facie evidence to show that the case against the accused, is strong and that he is not likely to make his trial if admitted to bail. See also Eyu (Mrs.) v. The State (1988) 2 NWLR (Pt.78) 602 at 607,610 and in Re Michael Patrick Phillips (1948) 32 CAR 47 at 48 as to the likelihood of the repetition of offence. See also recently Mohammed Abacha v. The State (2002) 3 SCNJ 1 at 26 per Uwaifo, JSC; (2002) 5 NWLR (Pt. 761) 638 at 674 – per Ejuwumni, JSC and Alhaji Olatunji & Anor. v. The Federal Republic of Nigeria (2003) 3 NWLR (Pt. 807) 406 at 25-426, 429, 430 C.A. I am aware of the provision of section 341(1) of the Criminal Procedure Code which states mandatorily, that persons accused of an offence punishable with death, shall not be released on bail. See also the case of The State v. Akaa (2002) 10 NWLR (Pt.774) 157 also referred to by the learned Counsel for the respondent.
In the case of Oladele v. The State (1993) 1 NWLR (Pt. 269) 294 at 308, (1993) 1 SCNJ 60 – per Olatawura, JSC; also cited and relied on by the learned Counsel for the respondent, it was held that “it is very unusual for a person accused of murder, to be on bail pending trial. Murder is a very serious offence.” See also Chief Enwere v. C.O.P. (1993) 6 NWLR (Pt. 299) 333 at 341 C.A. and Francisca Uju Emordi & 2 Ors. v. C.O.P. (1995) 2 NWLR (Pt. 376) 244 at 253, 256 paragraph B – the last case also cited and relied on by the learned Counsel for the respondent.
In the case of in Ex-Parte Barronet & Ors. 22 L.J.N.S.M.S.C. 25 at 28 Erle, J, stated the principle, thus:
“The principle has been fully laid down already that where a crime is of the highest magnitude, the evidence in support of the charge strong and the punishment the highest known to the law, the court will not interfere to admit to bail. Where either of these ingredients is wanting the court has a discretion which it will exercise.” (italics mine).
Surely, the exercise as to grant or refusal, is based on the discretion of the court in murder cases or culpable homicide punishable with death. For refusal and discretion, see the cases of Reg. v. Jammal 16 NLR 54, Rex v. Macatavy (1850) 4 COX 444 – 445; Rex v. Maginnise (1851) 5 COX 511 and Rex v. Michael P. Philip (supra).
For other relevant considerations in applications for bail, see also recently, the case of Chief Ani v. The State (2002) 1 NWLR (Pt.747) 217 at 230 C.A. – per Obadina, JCA, referring to Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467 at 484.
If I go by the affidavit in support of this application, since there are no special circumstances disclosed therein to warrant the granting of the application for bail, I will not hesitate at all, in dismissing this appeal as lacking in substance and merit. Firstly, the nature of one of the offences – which is culpable homicide punishable with death, secondly, the likelihood of the appellants repeating the offence, thirdly, the likelihood of their not appearing to take their trial, fourthly, the likelihood of their interfering with the witnesses and fifthly, the severity of the punishment in the event of conviction all these militate against the grant of bail to the appellants.
But since there is no proof of evidence which will reveal to me or the court the character; the nature or the strength of the evidence available against any of or all the appellants, or disclose a prima facie evidence to show the complicity of any of the appellants or all of them in the said offence, I am of the humble but firm view, that this is fatal to the opposition of the prosecution/respondent to the grant of bail to the appellants. Since, it is a matter of discretion, this failure of respondent, to produce or exhibit the said proof of evidence, in my respectful view, is or amounts to a special circumstance for me to exercise my discretion in favour of the appellants. See Anaekwe v. The State (supra) and the other cases in this regard. I also invoke the provisions of section 149(d) of the Evidence Act, against the respondent. The refusal/neglect to so produce, amounts to withholding/suppression of evidence. What prevents the respondent since 2002, from producing or exhibiting the proofs of evidence against the appellants, one or I may ask?
I want to pause here, to dismiss the impression or submission or reliance by the learned Counsel for the appellants to the fact that some of the accused persons, have been released on bail. Although, I had stated in this judgment, that what is good for the goose, is also good for the gander, but I am not in a position to know the facts before the Federal High Court that persuaded that court, to release the said accused persons on bail. Afterwards, they came to that court, by way of enforcing their fundamental human rights perhaps because of their remaining in custody for a long time without any charge being preferred against them. Any wonder, as soon as the processes in that court were served on the D.P.P., he then filed the said FIR.
In concluding this judgment, I wish to state again that section 341(3) of the C.P.C. also gives the court a discretion in the matter “notwithstanding” the provisions in section 341(1) of the C.P.C.
I wish to state also and this is just by the way, that the mayhem, the killings of innocent persons, the arson and the massive destruction of property in Jos and environs during the September 7th, 2001, anarchy and riots, and violence against members of the society, are most condemnable having regard to the fact that young boys or teenagers, were involved in the perpetration of the tragedy which have shocked even the strong hearted. But it is now settled, that it is better for one hundred accused persons to go free, than for one innocent person to be punished for an offence he did not commit or had no hands in its committal. This is why the provision in section 36(5) of the 1999 Constitution, that every person who is charged with a criminal offence shall be presumed to be innocent, until he is proved guilty and this will be, beyond reasonable doubt of course. Happily, sentiments, have no place in our courts.
Having made this remark/comment, in respect of issue Nos. 1.01 and 2.1 of the parties, respectively, my answer, is that having regard to the issue of the non production of the proofs of evidence canvassed at the lower court by the learned counsel for the appellants, the learned Judge, ought to and should have dealt with it rather than proceeding to distinguish it and hold that it is not applicable to this case. With respect, the principle enunciated in Anaekwe v. C.O.P. (supra) and as reproduced by me earlier in this judgment is also applicable in this case. But as for the materials before the learned Judge as contained in the affidavit in support, I hold that he rightly exercised his discretion in refusing the application for bail. There are laid down principles/guidelines when an appellate court can interfere with the exercise of discretion by a lower court. I am not going to go into that in this judgment.
As regards issue No. 2.02 of the appellant, my answer is that he was not right. I believe that had the learned Judge read or perused properly one of the ratio decidendi relating to the importance also of the production of the proof of evidence, he may not have treated the case as not being applicable to the instant case leading to this appeal.
In respect of issue No.2.2 of the respondent, I have already held that it did not arise or relate to any of the grounds of appeal of the appellant. However, my answer in respect thereof is rendered in the affirmative.
In the end result, the appeal succeeds and it is allowed by me on the ground of law raised and canvassed on behalf of the appellants both at the lower court and in this court as highlighted by me in this judgment.
Bail is hereby and accordingly granted to each of the appellants in the sum of N100,000.00 (One hundred thousand Naira) with two (2) sureties in each case and in like sum. The sureties must swear to and file affidavit of means and must own landed property in Jos metropolis. They must produce their passport photograph and they must be recommended by a lawyer based here in Jos.
Order: Bail is granted.
Other Citations: (2003)LCN/1455(CA)