Abdul Gafar Alaya V. The State (2007)

LawGlobal-Hub Lead Judgment Report

AGUBE, J.C.A.

This is an appeal against the ruling of M. A. Akoja, J. delivered on the 6th day of September, 2004 in the High Court of Kwara State sitting at the llorin Division, wherein he refused the accused bail pending his trial for the offences of armed robbery and unlawful possession of fire arms contrary to sections 1 (2) and 3(1) of the Robbery and Firearms (Special Provisions) Act. Cap. 398, Laws of the Federation of Nigeria. 1990.

The application was grounded under sections 341 of the Criminal Procedure Code. 36(5) and (6) of the 1999 Constitution and the inherent jurisdiction of the court below.

From what has been gathered from the record of proceedings and briefs of argument filed by respective counsel to the parties, the accused/applicant/appellant was first arraigned in the Chief Magistrates Court on an F. I. R. (First Information Report) disclosing the alleged offences of robbery and unlawful possession of arms and upon an application for bail orally and subsequently in writing, the learned Chief Magistrate Adegbite refused the bail of the accused person on the ground of want of jurisdiction. Nevertheless, he in his considered ruling held:

“The application therefore fails and the earlier order remanding the accused/applicants thereby subsists”.

Sequel to the refusal of bail by the Chief Magistrate, the accused/applicant proceeded to file the application, which is the subject of this appeal. The accused/applicant supported his application with a fourteen paragraphed affidavit to which exhibits A and B (the F. I. R. and the ruling of the Chief Magistrate in the earlier application for bail), were annexed.

A further and better affidavit of nine paragraphs was also deposed to in reaction to the counter-affidavit of the respondent who also filed a further counter-affidavit to the further and better affidavit of the applicant.

Annexed to the counter-affidavit of the respondent is exhibit “MOJ” a purported confessional statement of the accused person.

Arguments were taken from counsel and in a well considered ruling, the learned trial Judge refused the bail of the accused/applicant and dismissed the application.

Dissatisfied with the ruling aforesaid, the accused/applicant/appellant herein has now appealed to this Honourable Court as per the grounds of appeal hereunder reproduced as follows:-

“Ground 1. Error in Law:

The learned trial Judge erred in law by his refusal to admit the accused/appellant to bail on the premise that he did not disclose any exceptional circumstances to warrant the success of his bail application.

Particulars

(1) The applicant is a student of Kwara State Polytechnic Ilorin and in search of a place for his industrial attachment before his arrest and eventual detention.

(2) The appellant has been in police detention for the past two or more months without any trial whatsoever.

(3) Section 36(5) of the 1999 Constitution creates a special circumstance for admitting to bail an accused person in the class of the appellant.

“Ground 2. Error in Law”

The learned trial Judge erred in law when he refused to consider and apply the ratio in the Court of Appeal decision in Musa v. C.O.P (2004) 9 NWLR (Pt. 879) 483 at 504 and thereby engender (sic) a non-compliance with the time honoured principle of stare decisis.

Particulars

(a) He has been in custody for more than 2 months without trial.

(b) Under section 36(5) of the 1999 Constitution; whoever is remanded in prison custody for more than two months shall on the application of the person be released on bail. (See Musa v. C.O.P (supra).

(c) The trial Judge is mandatorily bound to apply the ratio in Musa v. C.O.P

“Ground 3. The ruling is against the weight of evidence.”

Briefs were duly ordered to be filed and from the grounds of appeal, the appellant’s counsel formulated two issues for determination as follows: –

“1. Whether the respondent can validly show the court, the nature of bail disentitling offences through a holding charge as opposed to proof of evidence, and whether the lower courts reliance upon such bail disqualifying factor is well founded.

2. Whether Musa v. Commissioner of Police (2004) 9 NWLR (Pt. 879) 483 bail grant principles by the Court of Appeal are applicable to bail applications” as in the instance (sic) case, in alleged armed robbery and fire arms offences trials and whether the non-observances (sic) of the time-hallowed doctrine of stare decisis by the lower court, in its decision occasioned a miscarriage of justice.”

On his part, the learned Attorney- General of Kwara State, Alhaji Saka Isau Esq. also formulated two issues which are couched in the following terms: –

“1. Whether from the affidavit evidence before the trial court the applicant (appellant herein) was able to establish any special or exceptional circumstance to warrant his release on bail. (ground one of the notice of appeal).

2. Whether the case of Musa v. C.O.P (2004) 9 NWLR (Pt. 879) 483 or any other case(s) are merely a guide where a court has a discretion to exercise (ground two of the notice of appeal).”

On the 7th day of November, 2906 when the appeal was due for argument, T.O.S. Gbadeyan, Esq. with him Victoria Abutu (Miss) and Rachael Emmindonuafo (Miss), for the appellant adopted the appellant’s brief and urged us to allow the appeal particularly as according to them, between the time parties filed their briefs and the hearing of the appeal, the confessional statement of the accused/appellant had been tendered but marked “rejected” by the learned trial Judge.

J. A. Mumuni, Esq., the learned D. P. P, Kwara State, with him, S. H. Mohammed, Esq. for the respondent countered that the issue of confessional statement did not arise from the appeal. He however adopted their respondent’s brief, which was deemed filed on the 3rd day of April, 2006, emphasizing that hearing in the case had commenced and that as at the 10th of November, 2006, they would have adopted their respective addresses in the High Court. He finally urged the court to dismiss the appeal.

Before delving into the arguments of counsel in their respective briefs, I have to state right here without much ado that applications of this nature – bail pending appeal – have been the subject of a plethora of decisions by our superior courts of records, and it would appear on settled principles that bail is a basic right of every citizen of this country who is charged with a criminal offence. Also, by the provisions of sections 35(1) and 36(5) and (6) of the 1999 Constitution, every person is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the Constitution and/or statute.

Furthermore, the presumption of innocence of every person charged with a criminal offence is also guaranteed: so is his/her right to fair hearing which encompasses amongst others, his entitlement to be informed or the nature of the offence he has committed: adequate time and fact times for the preparation of his defence; defend himself either personally or by a legal practitioner of his choice: examine witnesses and/or call those witnesses as may assist his case and to seek the assistance of interpreter. These constitutional guarantees notwithstanding, the law and the courts have distinguished between offences, which are bailable as of right, and those that are not, except under exceptional, special or extenuating circumstances. This explains for instance, the provisions of section 341 of the Criminal Procedure Code of Northern Nigeria as applicable to Kwara State which states in very clear terms that: –

“341(1) Persons accused of an offence punishable with death shall not be released on bail.”

Subsection 2 of section 341 thereof also stipulates that persons accused of an offence punishable with imprisonment for a term exceeding three years shall not ordinarily be released on bail; nevertheless, the court may upon application release on bail, a person accused of such an offence if the following factors are taken into consideration: –

(a) the grant of bail would not prejudice the proper investigation of the offence; and

(b) that there is no serious risk of the accused escaping justice – in other words, that the accused shall upon grant of bail appear in court to face his trial; and

(c) that no grounds exist that the accused, if released would commit an offence.

By section 341(3), it is provided that:

“(3) Notwithstanding anything contained in subsection (1) and (2), if it appears to the court that there are not reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for further inquiry, such person may pending such inquiry, be released on bail.”

The above section accords with section 35(4) of the 1999 Constitution, which states thus:

“(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried 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 as are reasonably necessary to ensure that he appears for trial at a later date.”

Subsection (5) defines what is meant by “a reasonable time” in subsection (4) above quoted.

What emerges from a combination of the provisions of the Criminal Procedure Code and the Constitution is that even where a court is confronted with application for bail from a capital offender the discretion is his to grant bail where the circumstances permit. There are a motley authorities and counsel on both sides are in tandem that such discretion must be exercised judicially and judiciously. See Ikhazuagbe v. C.O.P. (2004) 7 NWLR (Pt. 872) 346 at para. C and Bulama v. F.R.N. (2004) 12 NWLR (Pt. 888) 498 at 509 paras. F-G. See also Eyu v. The State (1988) 2 NWLR (Pt.78) 602, Danbaba v. The State (2000) 14 NWLR (Pt. 687) 396 cited by counsel on both sides.

It has to be noted that this discretion is exercisable by the courts notwithstanding what the Constitution says in section 35(7) to the effect that:

“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.”

In Abacha v. The State (2002) 5 NWLR (Pt. 761) 638 at 674 paras. B-C: Ayoola, J.S.C (as he then was) delivering the lead judgment of the Supreme Court emphasized the relevant factors to be taken into consideration in deciding the grant or refusal of an application for bail pending trial as in out” instant case thus: –

“In the exercise of the discretion to grant bail to an accused person pending trial, the court has to consider the following:

(a) the nature of the charge:

(b) the character of the evidence

(c) the severity of the punishment:

(d) the criminal record of the accused;

(e) the likelihood of the repetition of the offence;

(f) evidence that should applicant be granted bail, the witness for the prosecution may be interfered with or prevented from appearing to testify; and

(g) whether the applicant if granted bail, would fail to attend court to face his trial: Obaseki v. Police (1959) NRNLR 149. Dantata v. I.G.P. (1958) NRNLR 3.”

Although the factors above stated are not exhaustive, it was held in Dantata’s case while interpreting section 341(3) of the C.P.C. that these factors must co-exist before the court can grant or refuse bail.

It is against this background that we shall consider the ground of appeal and the issues formulated. In considering the issues, I must remark here that it is inappropriate for the learned appellant’s counsel to formulate issue number 1 (one) at large. Issues must be distilled from the grounds of appeal and the peculiar facts and circumstances as may have arisen at the court of first instance. As I had said elsewhere relying on the Supreme Court case of Dweye & Ors. v. Joseph Iyomahan & Ors. (1983) 8 S C. 76, appellate courts generally do not allow points not taken at the trial court to be taken for the first time on appeal for the simple reason that the appellate court would not have been seised of the benefit of the opinion of the lower trial court on the issue.

In the present appeal, the question of proof of evidence and/or F. I. R. and holding charge were not in issue. Even on a calm and dispassionate appraisal of ground I as couched in the notice and grounds of appeal and the particulars, it is clear that the learned counsel is complaining about weight of evidence upon which the court below decided that the accused did not disclose any exceptional circumstance to warrant the grant of bail.

However, since judicial authorities seem to favour the position that where a respondent has not filed a cross-appeal, the issues formulated by him must arise from the grounds of appeal filed by the appellant (See Musa v. C.O.P (2004) 9 NWLR (Pt. 879) 483 at 496 paras. F-G: U.A.C. (Nig.) Ltd. v. Global Transporte, S. A. (1996) 5 NWLR (Pt.448) 291. Ogundare v. Ogunlowo (1997) 6 NWLR (Pt.509) 360 and Fadawa & 8 Ors v. Jatau (2003) NWLR (Pt.813) 247 I shall adopt the issues as formulated by the learned respondent’s counsel in the determination of this appeal since they clearly emanate from the grounds riled by the appellant’s counsel.

Issue No 1: whether there was sufficient evidence placed by the appellant before the trial court in order for him to be granted bail. Here the appellant’s counsel has argued quoting extensively from the dictum of Onu, J.C.A. (as he then was) in the case of Enwere v. C.O.P (1993) 6 NWLR (Pt. 299) 333 and referring to page 38 of the record of proceedings submitted that the court relied on the holding charge before the Chief Magistrate and that since evidence had not been taken, the prosecution should have tendered the proof of evidence in their counter-affidavit in order for the court to determine the nature of the offence and the serious nature of armed robbery which would deprive the accused of his bail.

Relying on Musa v. C.O.P supra at page 488 and Enwere v. C.O.P (supra), he submitted that the prosecution merely paraded the offences of armed robbery and unlawful possession of arms and nothing else and as such, the court had the unfettered discretion to grant bail.

He has also submitted on this issue that the prosecution did not bring any application before the lower court to prosecute the accused except for the statutorily invalid F.I.R. and the holding charge and that the holding of the Judge at page 38 of the record of proceedings that the appellant had not established the existence of special circumstance to warrant the grant of bail was an error in law. Referring again to the dictum of Ogbuagu, J.C.A. in Musa v. C.O.P, he insisted that the failure of the prosecution to put before the court proof of evidence for the Judge to see if there was prima-facie case of armed robbery against the appellant, was by itself a special circumstance that the court ought to use to invoke section 149(d) of the Evidence Act, to grant bail. The cases of Eyu v. The State supra at 638 and Olatunji v. F.R.N. (2003) 3 NWLR (Pt.807) 406 were cited to urge the court to allow the appeal and grant the accused bail.

On his part, the learned counsel for the respondent referred to the nature of the crime allegedly committed by the accused persons submitting that even though bail is at the discretion of the court, sections 341 (1) of the C. P. C. and 35(7) of the Constitution preclude the grant of bail to the accused person in that the alleged offences were capital in nature. He maintained further that legal authorities have established that before bail is granted in the circumstances the accused has found himself, he must establish the existence of exceptional circumstances in his favour.

Secondly, he submitted on the authorities of Anaekwe v. C.O.P (1996) 3 NWLR (Pt. 436) 320; Ihekwe v. F.R.N. (2004) All FWLR (Pt.213) 1780 at 1803 and Osakwe v. FUN. (2004) 14 NWLR (Pt.893) 305 at 315 that applicant must place before the court such materials to show that he is entitled to bail and that it is only after this burden had been discharged that the onus to show that the applicant was not so entitled shifted to the prosecution.

He argued that from the gamut of the affidavit evidence the appellant did not discharge the burden nor did he show any special circumstance to warrant the grant of bail to him.

I have carefully considered the submissions of learned counsel on both sides on this issue and I must remark that the position taken by learned counsel for the appellant on this issue is predicated on his assumption that by sections 36(5) and 35(4) of the 1999 Constitution, the accused/applicant/appellant is entitled to his unfettered liberty and is presumed innocent until proved guilty and that the onus is on the prosecution to show that the appellant was not entitled to bail. See Eyu v. The State (1988) 2 NWLR (Pt.78) 602 at 610, Abiola v. FR.N. (1995) 7 NWLR (Pt.405) 1 at 155.

However, majority of judicial authorities seem to support the view that the presumptions enshrined in sections 35(4) and 36(5), (6) of the Constitution can only be invoked where there is no prima-facie evidence against the accused. Thus, if there is prima-facie evidence against the accused, it would be foolhardy to allow him on bail because the constitution could not have envisaged a situation where every accused person of every shade would be allowed bail just at the mention of the magic words “presumption of innocence and right to liberty.”

This explains why the Constitution has provided for section 35(1)(a)-(f) and the proviso thereto.

Even the much acclaimed section 35(4) of the Constitution has been explicitly excluded where a person is arrested and detained upon a reasonable suspicion of having committed a capital offence.

Again, apart from the above provisions, the proviso to section 36(5) of the Constitution on the presumption of innocence categorically states that:

“Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the onus of proving particular facts.”

At this juncture, it is also necessary to reflect on the provisions of sections 341 (1) and (2) of the C.P.C and subsection (3) thereof.

Thus in Anaekwe v. C.O.P. (1996) 3 NWLR (Pt.436) 320 at 331 paras D-E. Tobi, JCA. (as he then was) aptly held: ”

Although the Constitution generally provides for the right to bail the pretrial freedom is restricted, particularly in capital offences. Under our Criminal Procedure Law, a person charged with any offence punishable with death shall not be admitted to bail, except by a Judge of the High Court. Although, the law apparently confers such a right to a Judge of the High Court, it is the general practice to refuse bail to a person charged with the offence of murder.”

I have also to note that there is a preponderance of authorities in favour of the view that where an accused is charged with a capital offence, the onus is on him to prove special and exceptional circumstances by placing such materials before the court and thereafter the prosecution or respondent will then bear the brunt of proving otherwise that he is not entitled to bail. Abdulahi J.CA. in Abiola v. FR.N. (1995) 1 NWLR (Pt. 370) 155 at 179 stated the position of the law thus:-

“In any case, it is my considered view, that whether an application for bail is made only in a situation where the accused is arraigned directly before the High Court…or … and eventually…by way of motion with a supporting affidavit, the applicant must place some form of material for the consideration of the High Court in dealing with the application.”

See again the dictum of Ejiwunmi, J.CA. (as he then was) in Chinemelu C.O.P (1995) 4 NWLR (Pt.390) 467 at 472 where he quoted with approval the position of Abdulahi, J .CA. in the Abiola’s case at page 179 supra thus:

“It is when the applicant has placed some materials for the consideration of the court, that the onus will move to the door steps of the prosecution to show cause why bail should not be granted.”

It is submitted that upon the authorities cited particularly Abacha v. State, Anaekwe v. COP And Chinemelu supra, such materials as contemplated by the courts and the law can only be distilled from the affidavit and further and better-affidavit of the appellant and the counter-affidavit and further counter-affidavit of the respondent in order to decipher whether the court erred in law in not granting the appellant bail based on the evidence before His Lordship.

Going by the criteria set out in Abacha’s case (supra);

1. On the nature of the offence allegedly committed by the accused, paragraph 3 of the affidavit in support states:

“(3) That the accused/applicant was charged and arraigned on the 21st May, 2004 attached herein is a copy of the F.I.R. marked exhibit ‘A’. Thus it was rather the applicant/appellant who paraded the F.I.R. as exhibit.

In the said exhibit A the offences disclosed are armed robbery and unlawful possession of arms contrary to section 1(2) and 3(1) of the Armed Robbery and Firearms (Special Provision) Act, Cap. 398 and 146 Laws of the Federation of Nigeria, 1990.

2. On the character of the evidence before the court, there is no doubt that as at the time the application was moved in the High Court, there was no information filed in order for the court to determine whether there was prima-facie evidence warranting the accused to be admitted to bailor not.

In the circumstance the learned counsel for the appellant would have been on firm ground when he cited Musa v. C.O.P supra and Enwere v. C.O.P. particularly the dictum of Ogbuagu, J.C.A. at 487 of Musa’s case because this ought to be the position of the law where the prosecution has no evidence at all to establish a prima-facie case against the accused.

In our instant case however, apart from the F.I.R. where it is clearly disclosed that the accused and three others committed armed robbery and that the two hand sets stolen from the victims of the robbery were recovered (along with the locally made pistol the weapon with which they robbed), from the said accused/appellant; the respondents have stated in paragraphs 4 and 6(a) – (d) as follows: –

“(4) That it was true the accused/applicant with three others were arraigned on 21st May, 2004 on F.I.R. marked exhibit A attached to the supporting affidavit.”

“(6) That I was briefed by supol Isiaka Umar, the Investigation Police Officer (IPO) in this case in our office and I verily believe him as follows: –

(a) That the applicant with the other accused were arrested after committing a robbery attack against one Omoniyi John and Olalekan Akanbi at Wonder Land Garden, Ilorin on 12/5/2004.

(b) That the applicant and the other accused attacked the complainants with a gun and robbed them of their handsets.

(c) That the gun used in the operation and the handsets were recovered from the applicant.

(d) That the accused/applicant volunteered a confessional statement to the Police.”

In paragraph 7 of the counter-affidavit, the respondents averred thus:

”That a copy of the accused/applicant’s statement to the Police is herewith attached as exhibit MOJ.”

It is pertinent to note that in the further and better affidavit, the applicant/appellant attempted half, heartedly to counter the averments in paragraph 7 of the counter affidavit, when he stated through one of his counsel Peter Alatishe, Esq., that on a visit to the accused/applicant/appellant, he saw appellant at the Federal Prisons, Ilorin with multiple wounds on his body and upon inquiry, the accused/appellant told them and they believed him:

“(a) That he was threatened, beaten and intimidated by the Police in the course of taking his statement at the Police station.

(b) That the statement made to the Police was procured from him by force, hence those wounds on his body.

(c) That he was not guilty of those alleged offences for which he was arrested.”

It is also noteworthy that there was no attempt to attach a photograph of the alleged wounds on the accused’s body nor was there any medical report to that effect.

In any case, the respondent in a further-counter-affidavit deposed to by Inspector Oabo Ezekiel. one of the Investigation Police Officers stated per contra to the alleged intimidation and torture of the accused before extracting the confessional statement that amongst other averments in paragraphs 1-3: –

“(4) That the averments in the said further and better affidavit arc not correct especially paragraphs 6 and 7 thereof.

(5) That on the 15th of May, 2004, the accused/applicant freely and without any coercion or force or any influence whatsoever volunteered a statement (exhibit MOJ) to the Police.

(6) That the accused/applicant volunteered the said (exhibit MOJ) in my presence and in his own writing after the usual words of caution had been administered on him.

7. That the applicant did not only write the statement (exhibit MOJ) but signed it himself.
8. That thereafter, the applicant was taken by me before Supol Isiaka Umar (ASP) who read the statement over to the applicant’s hearing and the accused confirmed its voluntaries and correcctness, then signed again in my presence before the said Supol Isiaka Umar counter signed.”

Nothing else was said by the accused/applicant/appellant to counter these very weighty averments.

(4) On the severity of the offence, it goes without saying that armed robbery is punishable with death and counsel for the appellant has conceded to this fact in his address or appellant’s brief. His quarrel here however is that the respondent did not furnish sufficient particulars of the offence since there was no proof of evidence, in spite of exhibit MOJ, the confessional statement of accused/applicant which to my mind was not challenged by the appellant except by saying that he was not guilty of the offence.

It is trite law and the learned counsel for the appellant knows very well that at that juncture, the guilt of the accused was not in issue but reasonable suspicion of having committed the offence of armed robbery was to be paramount in the refusal or grant of bail.

4. On the criminal record of the accused, there is nothing from the respondent’s affidavits to show that the accused had a previous criminal record and the onus was on them to so show the court in order for bail to be refused the accused/applicant/appellant.
5. On the likelihood of the accused repeating the commission of the offence paragraph 12(c) of the affidavit in support where he stated that “he did not commit the offence for which he is being tried or any other offences whatsoever,” is very instructive.

On the 6th criterium, which is, whether the accused would interfere with witnesses for the prosecution or prevent them from appearing to testify, the applicant/appellant had in paragraph 12(b) of his affidavit in support disclosed this fact.

On the other hand, the respondent has stated on the contrary in respect of the averments of the appellant on the two aforestated criteria, in paragraphs 8 – 10 of the counter-affidavit that the F.I.R. disclosed the offences of armed robbery and unlawful possession of arms and three co-accused persons had earlier brought a similar application which the High Court refused. That the investigation of the case had not been completed and that some of the suspects named by the applicant and other accused persons were still at large; and that owing to the gravity of the offences, the applicant will likely interfere with Police investigation if granted bail. Furthermore, in paragraph 12, the respondent expressly stated that the accused would likely jump bail and commit other or similar offence(s) if bail was granted.

This paragraph also takes care of the last criterium, which is whether if granted bail, the accused will fail to attend court to stand his trial.

The applicant had however stated in paragraph 12 (a), (d) and (e) that if granted bail, he would not jump bail and would regularly attend court for his trial; that he would provide reliable sureties and that he would abide by the conditions given for his bail and any other orders given by the court in the circumstances.

Upon these facts, the learned trial Judge at page 38 of the record having earlier pronounced on whom the onus first lies in an application of this nature posited as follows in paragraph 3:

“In the further affidavit in support, the deponent raised the issue of or it seems to raise the issue of health condition of the applicant when they last visited him in prison. It is unfortunate however that the issue was not canvassed and learned counsel to the respondent, carefully avoided discussing same. That issue is therefore deemed abandoned. It is however to be noted that even where such issue is raised, unless it is supported with cogent and compelling evidence, it would not succeed.

It is trite that the mere fact that an applicant for bail is sick or suffering from ill health does not qualify him for bail. See Ibekwe v. F.R.N. supra at 1806-1807; Chinemelu v. C.O.P supra. ”

Commenting on the counter-affidavit of the respondent the learned Judge said: –

“On the other hand, the counter-affidavit of respondent gave details and for particulars of the arrest of the accused/applicant and named his accomplices, the items recovered from him, attached a copy of the statement of the applicant which they described as confessional.

It was also deposed that other accused persons mentioned by the applicant are yet to be arrested.”

Definitely, these findings of the trial Judge can not be faulted as they are based on his careful and dispassionate analysis of the evidence before him and the peculiar circumstances of this case. The prosecution did not only parade the serious offence of armed robbery but the prima facie evidence of robbery as can be gleaned from exhibit MOJ to the counter-affidavit which in any case the respondent did not challenge.

In the case of Anaekwe v. C.O.P (supra), where the often quoted dictum of Tobi, J.C.A. (as he then was), was first pronounced, the rationale behind milord’s stance was that even when that case was of murder of which the court ordinarily should not grant bail, “a situation where there was no material before the trial court to show that the appellant is standing trial on a charge of murder, including proof of evidence, certainly qualifies as a special case to grant bail”. See Oladele v. The State (1993) 1 NWLR (Pt.269) 294; Emordi v. C.O.P (1995) 2 NWLR (Pt.376) 244 which were distinguished and Chinemelu v. Co. (supra) and Enwere v. C.O.P (supra), which were followed.

In our instant case, the learned trial Judge found some materials from the respondent, which formed the basis for his refusal of bail. I am afraid the cases cited by the learned appellant/accused counsel do not apply to the peculiar circumstances of this case.

There is this other angle of the appellant’s grouse with the teamed trial Judge’s finding at the bottom of page 38 that: “From the foregoing, I am of the candid opinion that the accused/applicant herein has not established the existence of any special or exceptional circumstances to make him entitled to the discretionary jurisdiction of this court”. This finding, it was submitted is a grave and serious error of law.

I beg to disagree with learned appellant’s counsel that the learned trial Judge committed any error of law, A careful perusal of the penultimate paragraphs of the ruling at page 38 would reveal that the learned trial Judge took into consideration, a combination of factors before arriving at the conclusion that the applicant did not discharge the heavy burden cast upon him to convince the court to grant him bail in an armed robbery case.

For instance, in paragraph 6 of the same page which comes before the conclusion, which is the subject of the learned counsel for the appellant’s complain, the learned trial Judge again found thus: –

“The type or nature of the offences allegedly committed are described as armed robbery which caries capital punishment and being in possession of firearms. It is interesting that the further counter-affidavit gave details of the recording and confirmation of the statement of the applicant before a Senior Police Officer. It is to be noted that even though the voluntariness of the statement was made an issue, this however can only be taken up at the trial,”

From the foregoing, I cannot but agree more with the learned counsel for the respondent on the authorities of Ibekwe v. FR.N., Osakwe v. F G.N. and Anaekwe v. C. O. P. (supra) that the appellant had the bounding duty to establish by his affidavit evidence, the existence of special and exceptional circumstances by placing such materials before the court as would persuade the court to grant bail and that it is only after the discharge of that burden, that the Respondent would have the onus to show the contrary.

I also agree in toto that from the gamut of his affidavit evidence, there was nothing to persuade the court to exercise its discretion in the appellant’s favour. The respondent as was rightly held by the learned trial Judge had countered even the feeble attempt made by the appellant at persuading the court, in that respect.

Accordingly. I shall resolve the first issue against the appellant.

On issue number 2 which is whether the case of Musa v. C.O.P. (2004) 9 NWLR (Pt. 879) 483 or any other cases are merely guides to the exercise of the discretion of a court. Put differently, is the principle in Musa v. C.O.P (wpm), a judicial precedent that must be followed in all cases of an application for bail particularly in armed robbery matters like the one before us now? The learned appellant’s counsel had conceded that the decision to grant or refuse bail is at the discretion of the court. See Eyu v. The State supra and Danbaba supra, which he cited to urge that courts are enjoined to consider the issue of bail liberally.

He has harped on the issue of want of proof of evidence and what the court decided in Musa v. C.O.P on F.I.R. But I had earlier on held that apart from the F I. R. which in any case is cognizable under the Criminal Procedure Code by section 143 thereof, the trial Judge in his wisdom considered all the materials before him including the confessional statement which disclosed a primo facie case of armed robbery and rightly refused to grant bail. With due respect, the learned trial Judge had no business applying the principles enunciated in Musa’s case when the facts and circumstances were not similarly situated.

In the much celebrated case of Musa v. C.O.P. Ogbuagu, J.C.A. granted the application even though he had held that from the affidavit in support thereof, no special circumstances were disclosed to warrant his grant of bail. He however, held that since there was no proof of evidence, this constituted a special circumstance, which tilted the exercise of his discretion in the applicants favour.

Note that in that case, the confessional statements of the accused/applicants were not tendered neither was it disclosed that the weapons with which the crime of murder was committed were recovered. Even the names of the victims of the murder were not disclosed.

In the instant case, not only did the F. I. R. state that the weapons were recovered but it was also disclosed that the two mobile phones stolen from the victims of the armed robbery who were duly mentioned in the F. I. R. were recovered.

Again, the accused in Musa v. State, was detained for almost an indefinite period but in this case, the applicant was only in prison custody for two months pending investigation. Thus having been accused of the commission of the offence of armed robbery which carries capital punishment, his personal liberty was circumscribed by sections 35(1)(c) and 35(7)(a) of the 1999 Constitution; so was his presumption of innocence under section 36(5) circumscribed by the proviso to the said section. There is no doubt that the doctrine of judicial precedent is time honoured and sacrosanct to our jurisprudence but no single case is a precedent for all cases immaterial of their not being of similar facts and circumstances.

I am fortified in this position by what the Honourable and erudite Fabiyi, J.C.A. said in Ekwenugo) v. F.R.N. (2001) 6 NWLR (Pt.708) 171 at 186 paras. E-F on judicial precedent and the hierarchical structure of courts inter alia:

“It is not just enough to dangle the decision of a superior court in the face of a lower court. It must be stated that what is binding, as a precedent is not just a concrete decision in a case. It is the enunciation of the reason or principle upon which the question before the court was decided that matters. The facts and circumstances of each case must be considered. The previous case determined by the superior court must be similarly situated to bind the lower court.”

See Adesokan v. Adetunji (1994) 5 NWLR (Pt.346) 540; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 193.

I therefore agree with the learned counsel for the respondent that Musa v. CO.P. does not apply to the case at hand as no case is an authority for another except they are similarly situated. I am also in agreement with the Respondent’s counsel on the authority of Bulama v. CO.P. (supra), that precedents are mere guides to the exercise of the court’s discretion.

Since this appeal turns on the exercise of the court’s discretion to grant bail based on the evidence elicited by parties in their respective affidavits, I hold the considered view that in a country like ours where armed robbery is extremely rife, coupled with the fact that the accused/appellant has disclosed in his statement that his cohorts are secret cult members, the exercise of discretion by the learned trial Judge in refusing bail was not whimsical or capricious but a product of judicious and judicial circumspection.

In Danbaba v. The State (2000) 14 NWLR (Pt. 687) 396 at 408 para E -F. Galadima, J.C.A. quoted with approval the dictum of IGUH, J.C.A. in the case of Echaka Cattle Ranch Ltd. Vs. N.A.C.B. Ltd. (1998) 4 NWLR (Pt.547) 526 at 544 inter alia:

“While it is the law that the exercise of its discretion by the trial court may be reviewed on appeal, an appellate court must not interfere unless it can be shown that such discretion was not exercised judiciously and judicially, that is to say, if the exercise was mala .fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was exercised in a manner that was inconsistent with the ends of justice.”

From this authority, I find nothing illegal, mala fide, extraneous irrelevant or arbitrary in the exercise of discretion by the trial court. The Judge has honestly followed his inclinations which are the product of his instincts and reasoning guided by the parameters set in the judicial authorities cited by both counsel, in the exercise of his unfettered discretion and has come to the unassailable conclusion, that the application lacked merit and bail was accordingly refused.

I am therefore not inclined to disturbing the exercise of such discretion as done in this case.

This appeal is unmeritorious and is accordingly dismissed. Moreso, as counsel on both sides had admitted that as at the 10th of November, 2006, they would have addressed the High Court on the substantive case pending trial thereat.

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Other Citations: (2007)LCN/2204(CA)