Olawale Olawoye & Ors V. Commissioner of Police (2005)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

This is an appeal against the decision of the Kwara State High Court of Justice sitting at IIorin, Coram Daibu J. delivered on the 14th day of September, 2004 refusing to admit appellants/applicants to bail.

The appellants are students of the Federal Polytechnics, Offa, Kwara State with the exception of the 1st appellant who wanted to return to the school for his Higher National Diploma (HND) having completed his National Diploma (ND) in the same institution.

The appellants who were arrested at Offa on the 17th August, 2004 by the police were detained till 23rd August, 2004 when they were taken before a Chief Magistrate Court in Ilorin for the offence of being members of secret cult and secret societies in Educational Institutions of Higher Learning in the state. On the 16/9/2004, their bail application was refused by the Learned Chief Magistrate on the ground that the offence of cultism is rampant in Institutions of Higher Learning in the state.

By a motion dated 17th day of September, 2004, the appellants, through their counsel filed a motion on notice praying the High Court at Ilorin to admit them to bail pending the determination of their case which as at that date was yet to be filed at the High Court. Here also their bail application was refused on the ground inter alia that the offence of cultism is rampant in Higher Institutions of Learning in the state.

Another reason given by the learned Judge is the seriousness of the offence.

Dissatisfied with the decision of the learned Judge, the appellants through their counsel appealed to this court and filed notice of appeal consisting of four grounds. Relief sought from this court reads thus:-

“An order of the court allowing the appeal and admitting the applicants/appellants to bail pending the criminal allegation by a competent court of law.”

Learned counsel for the appellants formulated one issue for determination. Learned counsel for the respondent for his part also formulated one issue for determination. Both issues are similar and this appeal can be disposed of by giving consideration to any of the two issues formulated by both counsel.

Having said that, I will now proceed to consider the issue as formulated by the learned counsel for the appellants which as stated a while ago is essentially the same with the one formulated by the respondent. The issue reads thus:

“Whether, taking the circumstances of this case into consideration, learned trial Judge was not wrong to have refused to admit the appellants to bail.”

Learned counsel submitted that the offence of cultism as provided by virtue of section 11 (1) of the secret cult and secret societies in Educational Institutions (Prohibition) Law No.6 of 2004 of Kwara State under which the appellants were arraigned before the Chief Magistrate Court carries a punishment on conviction to a period of 10 years and a fine of N50,000.00.

That being the case, learned counsel went on, the appellants who have been in prison custody for close to 4 months are entitled to bail under section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria, the offence for which they were arrested since 17th August, 2004 not being a capital offence. Learned counsel referred to the cases of Ogueri v. State (2000) 2 CLRN 14 at p. 25 and Obekpa v. C.O.P. (1980) 1 NCLR p.113 at p.117 where a provision of the 1979 Constitution in para materia with section 35(4) was judicially interpreted to confer bail as a right to a person charged with a criminal offence other than capital offence. The right is even said to be more basic if the trial is going to last more than two months for a non-capital offence.

Learned counsel referred to paragraph 13 of the counter affidavit where the respondents averred that police investigation into the matter has not been concluded and submitted that it is apparent that the detention without trial of the appellants has no end in sight. This, learned counsel contended should have prompted the lower court to have released the appellants on bail relying on the case of Ariyo v. C.O.P. (1989) 1 CLRN P. 287 at p. 291, per Adekeye, J. (as his Lordship then was).