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 –

“I am a bit constrained that when I reflected on the respective submissions of the 1st, 2nd and 3rd Accused/Applicants vis-a-viz the judicial guidelines which I have considered to grant the Accused/Applicants bail will of necessity involve the prescription of such terms and conditions which arguably, may be so harsh that none of the Accused/Applicants may be able to meet and perfect in order to be certain that they will be available to face trial as most important factor laid down in a host of decisions by the appellate Courts. To do this, will invariably lead to abuse of Court’s discretion, and perhaps smack of judicial arbitrariness.”

He added at page 111 that “to do so will in my view, be subversive of the solemnity of the judicial discretion which the Court of law and Constitution is entitled to exercise one way or the other. He opined that his considering the severity of the prescribed penalty for the alleged offences may also be prejudicial.

In a nutshell, the trial Court took judicial notice of terrorist activities, particularly in the Northern Eastern States of Nigeria; but restrained itself from considering those facts in the bail decision, as doing so will be prejudicial to the Appellant in his pending application for bail pending his trial for terrorist activities, He further considered the principle of severity of the penalty for the alleged offence (s) viz-a-viz the conditions/terms of bail and opted eventually to proceed to accelerated trial of the Appellant for the alleged terrorist activities, rather than impose onerous terms/conditions of bail. These are raison d’etre for the decision of the trial Court.

The Lower Court, at page 189 of the Record, applauded and affirmed the decision of trial Court; holding inter alia –

“The trial Judge indicated his readiness to give the matter an accelerated hearing within the months of March, April and May 2014. In the circumstance, one would have thought the appellant would persue (sic: pursue) the commencement of his trial rather than his release on bail. It is my view that this is a situation where the trial Court could be said to have exercised its discretion judicially and judiciously taking into consideration the surrounding circumstances in relation to the nature of the charge against the Appellant.”

This further appeal does not challenge this specific raison d’etre given by the Lower Court for endorsing the decision of the trial Court. The appeal also does not specifically challenge the conclusion of the Lower Court that it failed “to see the wrong committed by the trial Judge in taking judicial notice of the terrorist acts in the Northern Eastern parts of Nigeria, specifically Borno, Yobe and Adamawa States.”

In this appeal, it is not per se the grouse of the Appellant that the trial Court took judicial notice of fact of prevalent terrorist activities in several parts of Nigeria. He cannot complain about that. Section 122 (3) of the Evidence Act, 2011 permits the Court to take judicial notice of notorious facts “on all matters of public history”.

The grouse of the Appellant is rather that the trial Court made use of those extraneous matters it took judicial notice of in its decision to deny bail to the Appellant. As indicated earlier, the Appellant is wrong in this perception. Setting the fact aright, the trial Court, though took judicial notice of terrorist activities prevalent in some parts of the Federation, did expressly restrain itself from considering those facts, holding that doing so would be prejudicial and amounting to abdication of its judicial function that “smack of judicial arbitrariness”. The learned trial Judge was throughout conscious of its judicial function to accord to the accused Appellant the constitutional presumption of innocence until the contrary was proved beyond reasonable doubt.

My Lords, I agree with the 1st Respondent, the prosecution that the Appellant missed the ratio decidendi of the 7th March, 2014 decision of the trial Court; and that the allusion to terrorist activities in parts of the country the Appellant posits on as “extraneous matters are mere obiter dictum (which) did not form the basis of the decision for the refusal of bail”. Obiter dictum is not a matter fit for appeal. Appeal is fought on the basis of the decision of the Court and not against mere obiter. OLUDOTUN OGUNBAYO v. THE STATE (2007) 5 NWLR (pt 1035) 157, 185; N.D.P v. INEC (2012) LPELR – 19722 (SC) P.32. An obiter dictum is a statement made in passing which does not constitute the reason or ground for the decision of the Court in the case.

​In my firm view, this appeal is abuse of Court’s process, having not being directed against the ratio decidendi or the raison d’etre on which the trial Court elected to place the trial of the Appellant for accelerated hearing; rather than granting bail pending his trial, given the serious nature of the alleged terrorism activities, the substance of the 7 count charge and the fact that investigation had been concluded and the prosecution ready to commence the trial.

I earlier pointed out that the notice of appeal was filed out of the time prescribed by Section 27(2)(b) of the Supreme Court Act, 2004. No right of appeal enures to an appellant to appeal mere obiter dictum. All these defects render the appeal incompetent and it is accordingly struck out.

I earlier observed that the sordid silence of the Appellant, through his counsel Abdul Mohammed, Esq., on whether the trial of the Appellant, in relation of which the trial Court ordered accelerated hearing was still pending, was unwholesome. If the trial had been concluded, then the issue of the Appellant’s bail pending trial becomes purely academic and this appeal is a gross abuse of the Court’s process and time.

​Whichever the case is, the concurrent decisions of the trial Court, Federal High Court (Kolawole, J) delivered in suit No. FHC/ABJ/CR/13/2014 on 7th March, 2014, and decision of the Lower Court delivered on 13th November, 2014, appeal No. CA/A/222C/2014 affirming the trial Court’s decision will not be disturbed.

Appeal struck out.

SC.31/2015