Otunba Gani Adams & Ors. V. Attorney-general of the Federation (2006)

LawGlobal-Hub Lead Judgment Report

ODILI, J.C.A.

This is an appeal against the ruling of the Federal High Court dated 22nd December, 2005 refusing the bail application filed by the appellants before that court presided over by the Honourable Justice A. I Chikere. The appellants were dissatisfied with the decision of the learned Justice of the Federal High Court and so have appealed to the Court of Appeal upon a notice of appeal dated 12th January, 2006.

FACTS

The appellants were arrested on Saturday, 22nd October 2005 at the office of the Commissioner of Police, while attending a meeting called by the said Commissioner of Police involving the appellants and relating to the alleged activities of some members of the Oodua Peoples Congress. Prior to the charge leading to this appeal, the appellants were on 27th October, 2005, ordered to be remanded in custody at the Kirikiri Maximum Prison by the Chief Magistrates’ Court, Igbosere, Lagos on the application of the Police. However, upon bail application filed by the appellants, the Lagos State Director of Public Prosecutions rendered a Legal Advice, which disclosed that there was no case against the appellants as they were not in any way connected with the alleged crime. Consequently, on 14th November, 2005, the High Court of Lagos State granted an order releasing the appellants unconditionally in suit No. M/509/2005. Thereafter, the appellants were released from the Kirikiri Maximum Prison on 15th November, 2005 but were immediately re-arrested by the Police.

The appellants were later detained at the Force Criminal Investigation Department, Alagbon, Ikoyi Lagos until Friday 18th November, 2005 when they were transferred to the Federal Capital Territory, Abuja. The appellants were then detained at the Force Criminal Investigation Department Detention Centre, Area 10, Garki, Abuja. On the 23rd November, 2005 the appellants were transferred out of the said Area 10 Detention Centre, but still remain in the custody of the Police. On the 1st December, 2005, the appellants were arraigned before the Federal High Court, Abuja upon a four-count charge of being members of an unlawful society and forming and managing an unlawful society, contrary to and punishable under sections 64 and 62 (2) (1) of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990; possession and control of prohibited firearms, contrary to section 3, 4 and 8 and punishable under Section 28 of the Firearms Act, Cap. 146, Laws of the Federation of Nigeria, 1990.

Upon arraignment, an oral application was made for the bail of the appellants, but refused by the trial court. Consequently, the appellants filed separate bail applications all dated 1st December, 2005. The Appellants also filed further affidavits dated 12th December, 2005 and the respondent filed a counter – affidavit dated 14th December, 2005.

At the hearing of the bail application on 20th December, 2005 the counsel to the appellants, with the consent of the respondent’s counsel and the court, adopted the argument of the 1st appellant and at the conclusion of the argument, the trial court refused to admit the appellants to bail hence this appeal.

The appellant’s brief was filed on 31/1/06 and the appellants’ formulated a single issue which is:

Whether, having regard to the facts and circumstances of this case, the trial court applied the correct legal principles in refusing the appellants bail.

The respondent in their brief of argument deemed properly filed on 15/5/06 sequel to a motion for extension of time within which to file their brief of argument and to deem same as properly filed adopted the issue posed by the appellant.

Learned counsel for the appellant stated that the appropriate premise for a consideration of an application for bail pending trial is the constitutional guarantee contained in section 36(5) of the Constitution of the Federal Republic of Nigeria 1999. That the construction that has come to be placed on the section by relevant decided authorities is to the effect that an accused who is charged with an offence is entitled to be granted bail pending trial. This is the constitutional foundation for grant of bail upon which the provisions of other statutes and decided authorities on bail are founded.

Learned counsel cited the case of Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155 at pp 178 – 179; Eyu v. State (1988) 2 NWLR (Pt. 78) 602 at 610.

He said the trial court erred in law in dwelling on section 35 (4) of the 1999 Constitution.

Learned counsel for the appellants stated that flowing from the constitutional presumption of innocence in favour of an accused is the established principle that after the accused has placed some materials before the court for grant of bail, the onus is on the prosecution to show course why the accused should not be granted bail. He referred to supporting affidavit of the motion for bail and the further affidavits. That the counter affidavit contained facts that were not in any way relevant to the substance of the charge before the court. That the law is now settled that the acceptable way by which the prosecution can intimidate the court not to grant bail is by way of placing before the court proof of evidence, showing the substance of the crime allegedly committed by the accused and the evidence with which the prosecution intend to prove such an allegation. He referred to Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320 at 333.

Learned counsel said the prosecution did not supply any such material, all the prosecution did was to rest on the bare assertions in the counter-affidavit and the dry charge before the court. Also that it is from the proof of evidence that the trial court could have deduced how serious the allegations against this appellant are; that this is made even worse for the prosecution since the charge involved is by way of summary proceedings and not on information. That the prosecution could have done better by providing the court with the proof of evidence it intends to rely on, and depositions in counter affidavit would not suffice to serve that purpose. He further stated that the prosecution alleged that the appellants admitted in their statements to Police that they are members of the Oodua Peoples Congress (OPC) but the alleged “statement” was not before the court.

Mr. Kehinde of counsel stated on that the conclusion of the trial court at page 37 of the record was based on the bare depositions of the prosecution are completely unrelated and irrelevant to the charge before the court, are with respect, born out of speculation by the trial court. He cited Omodara v. State (2004) 1 NWLR (Pt. 853) 80 at 91; Johnson v. Lufadeju (2002) 8 NWLR (pt 768) 192 at 219.

He stated that it is pertinent to observe that the submission of the appellants’ counsel that the offences alleged against the appellants as provided in the relevant statutes are not particularly weighty was not controverted either on the facts or debunked on principle by the prosecution and/or the trial court. That the count with the heaviest punishment is count 2, which is 7 years under Section 63 of the Firearms Act. See Ebute v. State (1994) 8 NWLR (Pt. 360) 66 at 72.

Learned counsel for the appellant said the other recognised considerations established by principles for granting bail, such as provision of substantial surety, that appellants will not jump bail, that appellants will not interfere with investigation of the case, were positively deposed to in the affidavits and further affidavits in support of the appellants’ applications for bail, and there was no challenge thereto, and the materials before the trial were available to be adversely used against the appellants in this case. That the appeal should be allowed.

Learned counsel for the respondent, Mr. Diri stated that it is trite that before an accused is granted bail by the trial court certain conditions must be fulfilled by the applicant. That where the application is by way of motion on notice properly served on the respondents, the affidavit must show good and substantial reasons which will persuade the trial court to exercise its jurisdiction in favour of the accused person. He cited the case of Bamaiyi v. State (2001) 2 NWLR (Pt.698) 435, (2001) 6 NSCQR 156 at 160.

Learned counsel stated that a careful perusal of the affidavits will show that the only strong reason stated in the affidavits for the grant of bail is that the applicants were ill. That it is the contention of the respondent before the trial court that paragraph 5 of the affidavit of the applicant was vague because there was no supporting medical report from a pathologist certifying the appellants ill and that their kind of illness is such that the respondents lack quarantine facilities to treat. That for the appellants to get the sympathy of the lower court the appellants must do more than just stating in an affidavit that they were ill. He referred to Abacha v. State (2002) 11 NWLR (Pt.779) 437; (2002) 9 NSCQR 501.

He further contended that the issue of ill-health had not been established by the appellants since paragraph 5 of supporting affidavit was not supported with any medical report. That the only option for the appellants was for them to file an affidavit to further counter the counter affidavit of the respondent on the issue of ill-health before the trial court. He relied on the cases of Attorney-General Anambra State v. Okeke & Ors. (2002) 12 NWLR (Pt.782) 572, (2002) 10 NSCQR 792; Lawson-lack v. Shell Petroleum Development Company Ltd (2002) 13 NWLR (Pt.783) 180,(2002) 11 NSCQR 271.

Learned counsel stated on that the trial before the Federal High Court in criminal cases is to be conducted similarly. He referred to Section 33(2) of the Federal High Court Act. That the submission of the appellants on this point of proof of evidence cannot be supported. That counsel’s submission no matter how powerfully made cannot constitute evidence. He cited Wema Bank v. Alhaji Anisere (2003) 8 FR 91.

Learned counsel said the respondents had discharged the onus on them before the trial court and that this court should affirm the decision of the lower court as decided by Hon. Justice A. I. Chikere.

In the court below the three applicants now appellants had been charged with others in this manner:-

ATTORNEY – GENERAL OF THE FEDERATION

COMPLAINANT

AND

1. DR. FREDERICK FASHEHUN
2. MR AJAYI EDWARD OLUSHOLA
3. ALHAJI MUDASSHIRU ADENIJI
4. OTUNBA GANI ADAMS
5. ALHAJI CHIEF OYINLOYE AWE
6. CHIEF WAHAB ISIAKA

The six accused in a motion filed on 20/1/2006 in that court applied to be admitted to bail which application was refused. However for our purpose in this appeal are the 4th, 5th, 6th accused in that earlier process who appealed against that ruling in this manner:-

1. OTUNBA GANI ADAMS
2. ALHAJI (CHIEF) OYINLOLA AWE APPELLANTS
3. CHIEF WAHAB ISIAKA

AND

ATTORNEY-GENERAL OF THE FEDERATION RESPONDENT

In the supporting affidavit of respect of 1st appellant who was the 4th accused/applicant it was averred inter alia in the following paragraphs of the eleven paragraph deposition of Chief Olumide Micheal Adeniji :-

1. That I am 1st cousin of the 4th accused/applicant with personal knowledge of the facts deposed to in this affidavit.
2. That I have known the 4th accused/applicant all my life
3. That I was informed today by Wole Adebayo Esq., counsel to the 4th accused/applicant at 10 am at the Federal High Court premises and I verily believe him that all the three courts preferred against the 4th accused/applicant in the charge dated 29th November, 2005 are bailable.
4. That the 4th accused/applicant informed me today at the Federal high Court premises Abuja after his plea and I verily believe him that the 4th accused/applicant will not interfere with the investigation of Nigeria Police or any other law enforcement agency whatsoever.
5. That I know that I am prepared to stand surety for the 4th accused/applicant as may be required by this Honourable court.
6. That I know that very factually the 4th accused/applicant has not at any time committed such or similar offences before.
7. That I know that the 4th accused/applicant is frail in health consequent upon his long detention.
8. That I know verily that the 4th accused/applicant is the sole bread winner of his extended family.
9. That the 4th accused/applicant informed me today at the Federal high Court premises Abuja after his plea was taken and I verily believe him that 4th accused/applicant will not jump bail if granted bail by this Honourable Court.
10. That I know that the 4th accused/applicant has been in police custody since 22nd October, 2005 without trial and without any bail.

There was a further affidavit of 13 paragraphs where the same Otunba Adeniji Olumide averred substantially to the status of the 4th accused/applicant as a promoter of Yoruba cultural and social values and the maintenance of a peaceful society. Also that the said 4th accused/applicant is a responsible man of means and respected titles.

In counter-affidavit, M.L. Ibrahim Litigation Clerk in the Federal Ministry of Justice averred in a 2 paragraph counter affidavit as follows:-

2 (A):-

That the 4th accused person was only arrested by the Police in Lagos on the 19th November, 2005 alleging that he committed the offences of conspiracy, belonging to an unlawful organisation called Oodua Peoples Congress (OPC) and being in possession of firearms without licence.

(B) That on receipt of the case diary, the Attorney-General of the Federation framed the charges of belonging to and managing an unlawful organisation known as the Oodua peoples Congress (OPC) against the 4th accused person and filed same on the 30th day of November, 2005.

(C) That after the prosecution had filed the charges against the 4th accused person mentioned in paragraph (B) above, further investigation into the case revealed that the 4th accused person had committed other more heinous offences

(E) That after the arraignment of the 4th accused person on Thursday, the 1st December, 2005 investigation into the case continued.

(F) That as a result of subsequent investigation into this case, further evidence emerged against the 4th accused showing that the 4th accused person had encouraged inter tribal wars amongst the major tribes in Lagos town and other major towns in Western Nigeria

(G) That as a result of the facts stated in (F) above the prosecution had prepared and filed a new set of charges against the 4th accused person on the 6th day of November 2005.

(H) That the new charges now filed against the 4th accused person are charges of belonging to and managing an unlawful organisation called the Oodua Peoples Congress (OPC), being in possession of firearms and preparation and carrying out of warlike undertakings against other tribes or natives Western Nigeria.

(K) That there is evidence in the case diary to show that the 4th accused person had attempted to commit murder of one Senior Police Officer in the person of Ahmed Fakorede the Divisional Police Officer of Adaten Police Station in Abeokuta and one Sgt. Moses Ugwuegbu by shooting them on the neck when they were only in the process of investigation this case in Ogun State.

(L) That the Federal Ministry of Justice is preparing to transfer the case of murder against the 4th accused person to the Ogun State Ministry of Justice for prosecution.

(N) That releasing the 4th accused person on bail at this stage will thwart the investigation of this case against the accused person.

(O) That the prosecution undertakes to provide adequate medical facilities to the accused/applicant while he is in detention.

(P) That the accused/applicant if released will jump bail and it will be difficult for the prosecution to trace him in Lagos.

That was substantially the same counter-affidavit against the 5th accused/applicant now 2nd appellant and 3rd appellant. The supporting affidavit of 1st appellant was used to argue for 2nd and 3rd appellants.

Having stated the supporting affidavit further affidavit and counter affidavit upon which the application was argued in the court below and upon which the learned trial Judge based her refusal of the application, I would refer to some of the cases cited and the necessary principles upon which this appeal is being considered.

I am mindful of the fact that an appellate court will interfere with the exercise of judicial discretion by the trial court if it is shown that the discretion was wrongly or perversely exercised, or that the trial court took into consideration irrelevant materials or failed to consider relevant materials in arriving at its decision; See Ebute v. State (1994) 8 NWLR (Pt. 360) 66; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143.

A court exercising judicial discretion must do so judicially and make plain what material it took into consideration in the exercise of that discretion. See Ebute v. State (1994) 8 NWLR (Pt. 360) 66 at 71.

In the exercise of a discretion that court must state the reason relied upon. This is because the duty on Judges or courts is to do substantial justice. See Ebute v. State (supra) at 71 para H; Ceekay Traders Ltd v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132; Akpan v. State (1992) 6 NWLR (Pt. 248) 439.

The prosecution would always be in the best position to advise or suggest to the court on the antecedent or probability or even the tendency of an applicant to escape from being tried. See Omodara v. State (2004) 1 NWLR (Pt. 853) 80 at 91.

When the evidence of the prosecution against the accused are strong and direct, his chances of being set free are remote because the temptation of jumping bail and escaping justice is high. See Omodara v. State (supra) at 92.

An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detained poses a possibility of a real health hazard to others, and there are no quarantine facilities of the authorities for the type of illness. See Abacha v. State (2002) 11 NWLR (Pt. 779) 437, (2002) 9 NSCQU 501 at 508.

It is the law that where it is sought to lay claim to ill health in circumstances such as this, credible evidence given by an expert in that branch of medicine ought to be made available, see Abacha v. State (supra) 531.

It does seem accepted that whatever the stage at which bail is sought by an accused person, ill-health of the accused is a consideration weighty enough to be reckoned as special circumstance. See Abacha v. State (supra) at 508.

The special medical need of an accused person whose proven state of health needs special, medical attention which the authorities may not be able to provide is a factor that may be put before the court for consideration in the exercise of discretion to grant bail to the accused person. Such need is not brought before the court by the mere assertion of the accused or his counsel, but on satisfactory and convincing evidence. See Abacha v. The State at 512 per Ayoola JSC.

Having stated the issue of ill-health of a detainee and its effect on bail application viz-a-viz the above stated authorities, in the instant case nothing meaningful in that regard was proffered and so those cases are inapplicable to the case in hand.

Since the court presumes in favour of the liberty of the subject and his innocence, until found guilty, the onus is on the prosecution to show, in a given case, that an accused or applicant for bail is one that should be refused bail. See Abiola v. Federal Republic of Nigerian (1995) 1 NWLR (Pt. 370) 155 at 179; Eyu v. State (1988) 2 NWLR (Pt. 78) 602 at 610.

It is when the applicant has placed some material for the consideration of the court that the onus will shift to the door steps of the prosecution to show cause why the bail should not be granted. However, the onus placed on the applicant for bail is not a high one, but on a balance of probabilities. See Abiola v. Federal Republic of Nigeria (supra) 179 C-D.

Whenever a power exists to deprive people of their personal liberty, that power must be strictly interpreted and not stretched beyond its least onerous meaning. Consequently, Section 236 (3) of the Criminal Procedure Law of Lagos State which provides for the remand of persons accused of offences while preparation for their arraignment continues must not be interpreted in a way that offends the constitutionally guaranteed rights to personal liberty, to fair hearing within a reasonable time, presumption of innocence and right to be charged for an offence promptly. See Johnson v. Lufadeju (2002) 8 NWLR (Pt. 768) 192 at 219 -220 paras H – B.

The following factors or criteria may be taken into consideration by a Judge in granting or refusing bail pending trial:-

(a) the evidence available against the accused;

(b) availability of the accused to stand trial;

(c) the nature and gravity of the offence;

(d) the likelihood of the accused committing another offence while on bail;

(e) the likelihood of the accused interfering with the course of justice;

(f) the criminal antecedents of the accused person;

(g) the likelihood of further charge being brought against the accused;

(h) the probability of guilt;

(i) detention for the protection of the accused;

(j) the necessity to procure medical or social report pending final disposal of the case.

These factors may not be relevant in all cases and they are not exhaustive. See Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 291 para F- H.

The trial court has in most cases discretion to admit an accused person to bail pending trial. In the exercise of the discretion, the following are the most important ingredients which will guide the court that is:-

(a) the nature of the charge;

(b) the evidence by which it is supported;

(c) the sentence which by law may be passed in the event of a conviction;

(d) the probability that the accused will appear to take his trial.

Where these are weighty an appellate court will not interfere. See Bamaiyi v. State (supra).

A prosecutor cannot oppose bail merely as a routine procedure.

There must be a valid cause or reason for opposing bail. See Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320 at 332.

An accused person who stands trial for the offence of murder is not ordinarily entitled to be granted bail. The reason for this is clear, murder is regarded as the highest crime under the law which attracts the most severe punishment. In spite of this, however, courts have strived to uphold the constitutional presumption of innocence by creating case laws which have provided some conditions under which an accused standing trial for murder may be admitted to bail pending his trial. See Omodara v. The State (supra) 89 paras D – E.

There is the need to clarify this point because of certain concerns or fears that matters worthy to be taken into consideration in an application for bail pending trial do not necessarily prejudice the presumed innocence of the accused of the charge brought against him until the contrary is proved. See Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 292.

I had stated in detail the supporting affidavit and the counter affidavit and it needs no saying any further that the counter-affidavit with its weighty contents were not replied to or countered. This is all the more instructive in a situation where the persuasive materials that ought to be in the supporting affidavit or further affidavit were absent. This court is therefore entitled to presume that the other party had no reply to the deposition in the counter affidavit and agreed with the deposition. This is because affidavit evidence not denied by a respondent is deemed to be admitted see Attorney-General Anambra State v. Okeke & Ors (2002) 12 NWLR (Pt.782) 572, (2002) 10 NSCQU 792; Lawson-Jack v. Shell Petroleum Development Co. Nig Ltd (2002) 11 NSCQR.

An evidence not challenged by a party that had the opportunity to do so should ordinarily be believed and awarded credibility. However, such evidence must be capable of being believed even if not challenged.

In other words, when the evidence is weak in content as not to assist the court or is manifestly unreasonable or is devoid of any substance as not to help resolve the matter in issue it will be safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true, it is also true to say that the court is not in all circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, impossible or sharply falls below the standard expected in a particular case see Neka B.B.B. Manufacturing Co. Ltd. v. ACB Ltd (2004) 2 NWLR (Pt. 858) 521 at 550 – 551.

It is glaring from the affidavit evidence that the condition envisaged in Neka BBB Manufacturing Co. Ltd v. ACB Ltd (supra) is not applicable here. I say so because, with the grave assertions of the respondent’s court affidavit which were left unattended to while the appellants went into the non-material and unimportant posturing of the many chieftaincy titles and philanthropic gestures of the 1st appellant which go to no issue in the matter in hand. I do not see why I should depart from the decision of the learned trial Judge whose findings were based on the materials before her. Indeed the appellants could not have seriously expected to have this appeal allowed having not addressed the salient points raised by the respondents.

It is therefore my conclusion that the appeal lacking in merit is hereby dismissed as I affirm the decision of the court below.

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Other Citations: (2006)LCN/2031(CA)