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.

On the argument that the Court below raised a new issue suo motu when it relied on Section 299 of the Administration of Criminal Justice Act, 2015 to justify the exercise of discretion by the trial Court, learned counsel submitted that the Court of Appeal is empowered to take judicial notice of all laws and statutes duly passed in this country relying on Section 122 of the Evidence Act 2011 and the case of Corporate Ideal Insurance Ltd v Ajaokuta Steel Company Ltd (2014) 7 NWLR (ptl65) 1405. He urged the Court to resolve this issue against the appellant.

RESOLUTION OF ISSUE ONE

At the Court below, the discretionary power of the learned trial Judge to remand the Appellant in the custody of the Department of State Services, instead of the regular prison custody was challenged by the appellant. In upholding the said decision, the Court below observed that the general prison is a “more neutral custodial facility than the custody of the DSS”. The lower Court went on further to hold on page 406 of the record of appeal as follows:

“But the order to remand him in the custody of the prosecution by its very nature is not punitive but purely preventive.

It appears that it is meant to prevent the persons being tried for acts of terrorism from escaping from custody during trial and from engaging in further terrorist activities or any activity prejudicial to the security of lives and properties and the security of the nation as a whole.”

It is based on the above decision of the lower Court that the appellant crafted the 4th, 5th, 6th and 7th grounds of appeal which has given birth to issue one under consideration.

Before its conclusion on the issue, the Court below made reference to Section 299 of the Administration of Criminal Justice Act 2015 as giving the trial Court the power to remand the appellant in the DSS custody. The learned counsel for the appellant had argued that since Section 299 of the Administration of Criminal Justice Act, 2015 was not cited by any of the parties, the Court below ought not to have referred to it. He submitted that it amounted to denial of fair hearing for the failure of the lower Court to invite them to address the Court on the section. Probably it is relevant at this stage to reproduce the reasoning of the Court below which brought Section 299 of the Administration of Criminal Justice Act, 2015 into focus. At pages 404-405 of the record, the Court of Appeal made the following findings:

“The discretionary power of the trial Court to remand accused persons in prison custody or other place of safe custody pending trial is derived from Section 239 of the Criminal Procedure Act Cap. C41 Vol.4 Laws of the Federation of Nigeria 2004(CPA) which was the prevailing law on 6-3-2015 when the trial Court made the order or remand of the accused persons. It provides that: “All persons committed to prison under his act shall be committed to a Government prison or other place of custody.” The Criminal Procedure Act applies to all criminal cases in the High Court and Magistrate Courts. In criminal cases involving the trial of terrorism offences, it applies in addition to Section 27(1) of the Terrorism Prevention (Amendment) Act 2013. From 13-5-1015, when the Administration of Criminal Justice Act, 2015 commenced, Section 239 CPA was succeed and replaced by the Section 299 of the Administration of Criminal Justice Act, 2015 which provides that: “A suspect committed, to prison under this act shall be committed to prison or other place of safe custody.” This act is applicable to this case by virtue of Section 2(1) therein. The custody of the Department of State Services is such “other place of safe custody”. So the trial Court acted within the powers given to it by Section 299 of the Administration of Criminal Justice Act, 2015 to remand the appellant in the custody of the DSS.”

The question is whether the Court below denied the appellant its right to fair hearing by referring to Section 299 of the Administration of Criminal Justice Act, 2015 in the course of its judgment. The law is trite that a Court of law is empowered to take judicial notice of all laws and statutes duly passed in this country. Every Court is to give effect to existing statutes whether cited by counsel or not. See Section 122 of the Evidence Act 2011, Corporate Ideal Insurance Ltd v Ajaokuta Steel Company Ltd (2014) 7 NWLR (1405), Okochi & others v Animkwoi (2003) 18 NWLR (pt. 851) p1, (2003) LPELR-2455 (SC) P. 19, paras D-F.

My Lords, having regards to the provision of Section 122 of the Evidence Act and the authorities of this Court referred to above, the Court below had no obligation whatsoever to invite, seek or solicit the consent of parties before relying or citing any authority or law in its judgment which in its opinion is applicable to the facts of the case though not cited or referred to by counsel. I agree with the learned counsel for the first respondent that the mere fact that the lower Court did not invite counsel to address it before it cited Section 299 of the Administration of Criminal Justice Act, 2015 cannot amount to denial of fundamental rights as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The lower Court was also accused of raising the issue suo moto. This is not correct. There are facts in the record of appeal to support Section 299 of the Administration of Criminal Justice Act, 2015 referred to by the Court below. It has to be noted that it was the learned senior counsel who represented the appellant at the trial Court who made an oral application for the appellant and his co-accused persons to be remanded in prison custody. This application was opposed by the learned counsel for the 1st respondent. The Court below exercised its discretion in ordering the appellant and the 2nd-5th respondents to be remanded in the DSS custody. It would have seen different if the law was cited in vacuum. I made this point in O.O Akeredolu v Dr. O. M Abraham & Ors (2018) LPELR-44076 (SC). See also Ikenta Best Nig. Ltd v Attorney General of Rivers State (2008) 6 NWLR (pt. 1084) 642.

The reasons given by the Court below in upholding the decision of the trial Court to remand the appellant in the custody of the DSS did not violate the provision of the Constitution of presumption of innocence of the appellant. All the Court below said is that it is better to keep the appellant and his co-accused persons in the custody of the DSS as a preventive measure. That statement does not suggest that the Court below prejudged and concluded on the matter. It will be recalled that the learned trial judge had observed the incidence of jail breaks in the country at that time and the nature of offence of terrorism in the country which was rampant and still a serious issue before coming to this decision. It has to be noted that where National security is threatened or there is real likelihood of its being threatened, Courts must be circumspect in handling issues of human rights of persons standing trial in such cases. See Asari Dokubo v FRN (2009) 37(2) NSCQR 1146 at 1184.

From the avalanche of facts in the record of appeal, it is wrong for the learned counsel for the appellant to argue that the Court of Appeal based its decision on speculation and extraneous matters. There is nothing speculative about holding that remanding the appellant in DSS custody is preventive. It is also not extraneous matters by citing Section 299 of the Administration of Criminal Justice Act, 2015 in the judgment. I agree with the learned counsel for the 1st respondent that the lower Court was right to uphold the exercise of discretion as there were no features in the appeal to decide otherwise. Accordingly, I resolve issue one against the appellant.

ISSUE TWO:

The learned council for the appellant submitted in issue two that the lower Court was wrong when it concluded that the appellant was charged for a capital offence. That the unfounded and disturbing finding is even more compounded because the Court predicated the totality of its reasoning on this faulty premise. He opined that the basis upon which the lower Court wrongly found that Section 27(1) of the Terrorism (Prevention) (Amendment) Act 2013 will not affect the appellants liberty protected under Section 35(4) of the 1999 Constitution (as amended) is proximately connected to the erroneous presumption that the Appellant was charged with a capital offence.

Learned counsel submitted further that by the wrongful activation of Section 35(7) of the 1999 Constitution (as amended), the appellant’s right to liberty as it were, or his opportunity for a fair trial if remanded in a neutral facility will continue to be in breach. He urged the Court to reverse the decision of the lower Court on this ground including that of the trial Federal High Court by directing that the appellant be transferred from the DSS custody to the general prisons.

In response, the learned counsel for the 1st respondent submitted that the lower Court was right when it held that the appellant was charged before the trial Court for a capital offence. That by Section 2 of the Terrorism (Prevention) (Amendment) Act 2013, the offences which the appellant and his co-accused persons were charged carry the death penalty and as such the Court below was right to hold that the offence is a capital offence, relying on Alaya v The State (2007) 16 NWLR (pt 1061) 483 at p517 para B.

Learned counsel submitted further that by Section 2(2)(h) of the Terrorism (Prevention) (Amendment) Act 2013, conspiracy is included in “or any offences referred to in this Act” which attracts the death penalty.

On the contention by the appellant that Section 27(1) of the Terrorism (Prevention) (Amendment) Act 2013 is imprecise, vague and inconsistent with Section 35(4) and (7) of the 1999 Constitution (as amended), Learned counsel submitted that it is not the case. It is his view that Section 35(4) of the Constitution is qualified by Section 35(7)(a) and (b) thereof; and such, as the draftsman of Section 27(1) of the Terrorism (Prevention) (Amendment) Act 2013 clearly contemplated the provision of the Constitution.

In conclusion, Learned counsel submitted that the two provisions of the law are consistent and not contradictory or ambiguous, hence, both should operate complementarily and do not violate the right of the appellant to fair hearing. He urged the Court to uphold the concurrent findings of the two Courts below on the issue.

In the appellants amended reply brief, the learned counsel for the appellant faulted the argument of the 1st Respondent with respect to his interpretation of Section 2(2)(h) of the Terrorism (Prevention) (Amendment) Act 2013. He also opined that since the appellant was not charged under that section, it can not apply. He urged the Court to resolve the issue in favour of the appellant.

RESOLUTION OF ISSUE TWO

The Court below held in part of its judgment that the offence which the appellant was charged with amounted to a capital offence. Learned counsel for the appellant thought otherwise. I find it difficult to agree with the position of the learned counsel for the appellant. His argument is that a person who kills one person is guilty of murder and this qualifies as a capital offence but a person who is alleged to have driven a car laden with explosives, parked same at Nyanya motor park and detonates same which killed 75 people, does not commit a capital offence. According to the learned counsel, the appellant may have conspired to commit terrorism, but should be treated with kid gloves. Apart from count 1 which the appellant is charged with conspiracy, he is also charged in count 7 with an offence under Section 1(2) of the Terrorism (Prevention) (Amendment) Act 2013. Count 7 states:

“That you, Amirtu Sadiq Oguche and Ahmed Rufai Abubakar (a.k.a Dr Tsiga now at large) on or about the year 2013 in Abuja within the jurisdiction of this honourable Court, did carried (sic) out surveillance and identified Silverbird galleria and other locations as potential targets of terrorist attack and you thereby committed an offence punishable to Section 1(2)(b) of Terrorism (Prevention) (Amendment) Act 2013.”

It is pertinent to reproduce Section 1(2)(b) of the Terrorism (Prevention) (Amendment) Act 2013 under which the appellant is charged. It states:

“1 (2) – A person or body corporate who knowingly in or outside Nigeria directly or indirectly willingly –

(a) …

(b) – commits an act preparatory to or in furtherance of an act of terrorism,

(c) …or

(d) …or

(e)…or

(f) …or

(g) …or

(h) …

commits an offence under this act and is liable on conviction to maximum of death sentence.”

There is no doubt that an offence punishable by the death penalty is a capital offence. Again, the phrase “or any of the offences referred to in this Act” contained in Section 1(2)(h) of the Terrorism (Prevention) (Amendment) Act 2013 appears to refer to all terrorism offences created by the Act. By Section 1(2)(b) of the amended Act, under which the Appellant is charged in count 7, he is alleged to have committed an act preparatory to or in furtherance of an act of terrorism which carries the death sentence. It is alleged in the charge that the acts of the appellant led to the death of 75 innocent persons: No wonder the Court below held that the appellant was charged with a capital offence. All the argument of the learned counsel for the appellant which seeks to impress on this Court that the appellant was not charged with capital offence did not fly at all. I think the offence of terrorism which creates intense fear and anxiety, both physically and psychologically in the minds of members of the public and which in most cases leads to the death of innocent persons should not be trivialised. It must be given the weight it deserves. See Musa Abdulmumini v Federal Republic of Nigeria (2017) LPELR 43726 (SC), Asari Dokubo v Federal Republic of Nigeria (2009) 37(2) NSCQR 1146.

Having agreed with the Court below that the appellant was being charged with a capital offence at the trial Court, it follows that by the provision of Section 35(7) of the Constitution of the Federal Republic of Nigeria (1999) (as amended), Section 35(4) of the same cannot apply to the case of the appellant who was arrested and detained upon reasonable suspicion of having committed an act of terrorism, a capital offence. For the avoidance of doubt, Section 35(4) and (7) of the Constitution provides:

“Section 35(4) – Any person who is arrested or detained in accordance with Subsection (1)(c) of Section shall be brought before a Court of law within a reasonable time and section shall be if he is not tried this within a period of –

(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or

(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him), be released either unconditionally or upon such conditions that are reasonably necessary to ensure that he appears for trial at a later date.

(7) Nothing in this section shall be construed –

(a) in relation to Subsection (4) of this Section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and

(b) …”

From the above provisions, it is crystal clear that although Section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides for the period to which a person suspected of having committed an offence may be detained and produced in Court; that provision is however not applicable to persons suspected of having committed a capital offence by virtue of Section 35 (7)(a) thereof. It follows that the provision in Section 27(1) of the Terrorism (Prevention) (Amendment) Act 2013, which empowers the trial Court to remand a person reasonably suspected of committing terrorist offences pending conclusion of prosecution or trial of the case, cannot be said to be contrary to Section 35(4) of the Constitution of the Federal Republic of Nigeria (supra). ​

The learned counsel for the appellant has urged this Court to declare Section 27(1) of the Terrorism (Prevention) (Amendment) Act 2013 as being inconsistent with Section 35(4) of the 1999 Constitution. But from all I have said above, that is not the case. Section 27(1) of the Terrorism (Prevention) (Amendment) Act 2013 is empowered by Section 35(7)(a) of the Constitution. I thus agree with the lower Court on the issue. Accordingly, issue two is also resolved against the appellant.

Having resolved the two issues against the appellant, I hereby hold that there is no merit in this appeal. It is accordingly dismissed. The judgment of the Court below delivered on 5th June, 2017 affirming the judgment of the trial Federal High Court which remanded the appellant in the DSS custody, is thereby affirmed.

Appeal Dismissed.

SC.533/2017