Ogwuche V. Frn & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C. 

This appeal is against the judgment by the Court of Appeal, Abuja division delivered on 5th June, 2017 wherein the lower Court upheld the decision of the learned trial Judge of the Federal High Court in charge No. FHC/ABJ/CR/254/14 consisting eight counts of Terrorism. The facts giving birth to this appeal may be summarized as hereunder.

On 6th March, 2015, the appellant and the 2nd to 5th respondents were arraigned in the Federal high Court at Abuja in charge No. FHC/ABJ/CR/254/14 on an eight counts charge of Terrorism. After all the accused persons pleaded not guilty to all the counts of terrorism, each of them applied through his counsel that he be remanded in prison custody while awaiting his trial in Court. The prosecution opposed this application and urged that they be remanded in the custody of the Department of State Services because they are charged with an extraordinary offence and that in recent times, there have been incidents of jail breaks within the country. The trial Court refused the application and ordered that the accused persons be remanded in the custody of the Department of State Services pending the conclusion of the prosecution of this case.

Dissatisfied with the said ruling, the appellant appealed to the Court below by a notice of appeal containing two grounds. An amended notice of appeal brought in one more ground. After hearing the appeal, the Court below, in its judgment delivered on 5th of June, 2017 affirmed the decision of the learned trial judge and dismissed the appeal of the appellant.

Further dissatisfied, the appellant filed a notice of appeal on 5th July, 2017 with seven grounds of appeal therein. Out of the seven grounds, the appellant has distilled two issues for determination. The two issues are as follows:

1. Bearing in mind the Court’s finding that the general or government prisons being maintained by the Nigerian Prisons service are more neutral custodial facilities than the DSS custody, and in view of its consequent failure to direct a transfer of the appellant from the DSS custody to the general prisons, whether the lower Court was right to prejudge the matter and thereafter deny the appellant a right to a fair hearing/fair trial when it suo motu invoked the provision of Section 299 of the Administration of Criminal Justice Act, 2015 (former Section 239 of the CPA) to hold that the trial Court rightly exercised its discretion to remand the appellant in the DSS custody.
2. Considering the Appellant’s contention on the unconstitutionality of Section 27 of the Terrorism (Prevention) (Amendment) Act, 2013, vis-à-vis Section 35(4)&(7) of the 1999 Constitution (as amended), whether it was right for the lower Court not to resolve same when it relied on Section 33 of the Terrorism (Prevention) (Amendment) Act 2013 to hold that the appellant’s right to fair hearing would not be violated since he was charged for a capital offence in counts 1 and 2 of the charge.

In his brief of argument, the 1st respondent adopts the two issues formulated by the appellant in opposition to the appeal. Although the 2nd and 5th respondents filed briefs and adopted the two issues of the appellant, they however concede to the appeal. The other respondents did not file any brief but at the hearing of the appeal, their counsel announced that they concede to the appeal. I shall determine this appeal based on the two issues donated by the appellant.

ISSUE ONE:

In the amended appellant’s brief signed by M.D. Adebayo, Esq., and filed on 10th January, 2018 but deemed filed on 7th February, 2018, it is argued on the first issue that it summarizes the failure of the Court below to dispense justice in accordance with settled principles of law, particularly on the appellant’s right to a fair hearing and fair trial. Learned counsel contended that the lower Court did not only maintain dual positions in one fell swoop, but also unilaterally involved/applied the provision of Section 299 of the Administration of Criminal Justice Act, 2015 against the appellant’s interest. According to him, the appellant’s interest was adversely prejudiced when the said provision was not an issue submitted for adjudication before the Court, neither were the parties afforded any opportunity to volunteer contributions or submissions on the same.

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According to the learned counsel, the decision of the Court below that the position of the trial Court to remand the appellant in the custody of the Department of State Services was to prevent him from escaping from custody and from engaging in further acts of terrorism was speculative and presumptuous and in violation of Section 36(5) of the 1999 Constitution (as amended). He submitted that a Court of law ought not to base its decision on speculation and extraneous matters not supported by any evidence, relying on GIF Nig Ltd v Agip Petroli Int’l & Ors (2010) 5 NWLR (pt 1187) 348 at 418 para B-D; Mercantile Bank of Nigeria Pic v Nwobodo (2000) 3 NWLR (pt 648) 297 amongst others.

Learned counsel further submitted that by virtue of Section 36(5) of the 1999 Constitution (as amended), an accused person is presumed innocent until proven guilty. That to speculate that the appellant may engage in further terrorist activities was speculative and presumptuous, relying on Okoro v State (1988) 1 NWLR (pt 94) 255 at 277 para E, Adeoti v The State (1998) 7 SCNJ 83 and others. He urged the Court to resolve the issue in favour of the appellant.

In response, the learned counsel for the first respondent, Mohammed S. Diri Esq., submitted that there is no evidence that the Court below denied the appellant a right to fair hearing/fair trial. He contended that before an appellant can succeed in an appeal on grounds of denial of fair hearing or fair trial, he has to show the circumstances as to how he was so denied, relying on Ajibade v state (2012) 1 NSCQR I, The Governor of Zamfara state v Gyalange (2012) 51 NSCQR I. He submitted that the lower Court did not deny the appellant a fair hearing or a fair trial as enshrined under Section 35(4) & (7) of the Constitution of the Federal Republic Nigeria 1999 (as amended).

The learned council opined that the fact that the trial Court refused to grant the prayers of the appellant and remanded him in the DSS custody pursuant to Section 27(1) of the Terrorism Prevention (amendment) Act 2013 and the Court of appeal upheld same and cited Section 299 of the Administration of Criminal Justice Act 2015 (former Section 239 of CPA) does not amount to denial of Appellant’s right to fair hearing.

It was further submitted that the Court of Appeal did not base its decision on speculations and extraneous matters as argued by the appellant. He contended that the Court below based its judgment on facts in the record of appeal which was anchored on Section 27(1) of Terrorism Prevention (Amendment) Act.