Umar V. Frn & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

This further appeal, filed on 12th December, 2014, is against the decision of the Court of Appeal, Abuja Division (the lower Court) delivered on 13th November, 2014 was filed outside the 30 days period statutorily prescribed in Section 27(2)(b) of the Supreme Court Act, 2004 for appealing to this Court against the decision of the Court of Appeal in a criminal case. I do not have any evidence that, consistent with Section 27(4) of the same Act (this Court’s enabling statute), this Court extended the period prescribed in the said Section 27(2)(b). In the circumstance, this appeal is no doubt incompetent, having been filed outside the period statutorily prescribed and without an order extending the said period for the Appellant to bring this appeal.

Order 8, Rule 2 (7) of the Supreme Court Rules entitles the Court “to strike out a notice of appeal when an appeal is not competent”.

I will proceed further to demonstrate the incompetence of the appeal on other grounds.

The sole issue proposed for the determination of this appeal by the Appellant’s Counsel is – Whether the Court of Appeal was right to have found the action of the trial Court, to wit: “taking into cognizance the events that have occurred subsequent to the arraignment of the Appellant, as peculiar facts and circumstances” while determining his application for bail?

Let me state firstly that the trial Court, at page 115 of the Record, preferring “accelerated trial of the charges against the accused persons” declined to grant the applications for bail respectively filed by the accused persons (including the 3rd Accused/Applicant). This order of trial Court was made on 7th March, 2014. This appeal was argued on 24th September, 2020 without the Counsel, particularly Appellant’s Counsel, extending a good courtesy of informing us whether or not the trial of the Appellant, the accelerated hearing of which was ordered by the trial Court on 7th March, 2014 – some 78 months ago was still on going. In the circumstances, it is reasonably presumable (pursuant to Section 168(1) of the Evidence Act, 2011) that the trial should now have been concluded in view of the order for accelerated hearing. And since the bail sought at the trial Court, being bail pending trial, this appeal would appear academic and smack of abuse of process and a gratuitous waste of this Court’s precious time if, in actuality, the trial of the Appellant herein had since been concluded. The duty, at all times, of every counsel appearing in this Court, as a minister in the temple of justice, to honestly disclose all facts, favourable or unfavourable, as doing so immensely assists and/or guides the Court in the judicious discharge of its judicial functions. The point cannot be over-emphasised. As much as the judex cannot speculate; so also must the Bar not put the Bench in a state of factual uncertainties of material facts.

At the trial Court, the Appellant was being tried with two others on a seven count charge of terrorism related offences which include, inter alia, acquiring and processing weapons with intent to commit acts of terrorism contrary to The Terrorism Prevention (Amendment) Act 2013. Most of the offences are punishable with death.

The Appellant, like the other two accused persons, brought at the trial Court an application for “bail pending the hearing and determination of the charge(s) against him”.

The application, supported by affidavit, was fiercely contested. The Respondent filed counter-affidavit. The Appellant, as the applicant, had exhibited in the supporting Affidavit, as Exhibit MDA1, a document titled “Affidavit of Completion of Investigation” wherein one M.U. Idakwo of the Department of State Security Service (SSS) had averred that “Investigations into the alleged case of terrorism against the above named persons have been concluded.” This averment, no doubt, informed the decision of the trial Court to go for “accelerated trial of the charge” instead of granting bail. The Appellant, unsuccessfully appealed this decision of the trial Court at page 115 of the Record; to wit, I repeat:

Instead of granting bail, I will grant accelerated trial of the charge against the Accused persons.

In this appeal, the Appeal complains that the replete extraneous matters the learned trial Judge considered in his ruling of 7th March, 2014, particularly at pages 96, and 109 – 113 influenced his decision to deny the Appellant bail pending trial. In the ruling, the learned trial Judge took judicial notice of “the recent upsurge of violence wanton killings and destructions of properties allegedly by the dreaded terrorist group called “Boko haram”. The last four weeks had witnessed unprecedented, relentless and mindless campaign of terror in Nigeria and in particular in Yobe and Borno States of the Federation….” He had warned himself consistently that taking into consideration these facts he took judicial notice of, would be prejudicial to the applicant for bail pending trial; and that those facts “need not be reflected upon whilst considering the 3rd Accused/Applicant’s” Motion on Notice” for bail.

At page 110, in particular, the learned trial Judge stated-

The point I am driving at, lest I may be misunderstood, is not to deny the Accused persons their fundamental rights to presumption of innocence. To do so is to have unconstitutionally prejudged the criminal charge on which they are standing trial.

He remained conscious of his duty not to pre-judge the Appellant while deciding on his bail application viz-a-viz the notorious facts of the prevalent terrorist acts particularly in the Northern Eastern States and rapted up the self-restraint thus –