Adamu Suleman & Anor. V. Commissioner Of Police, Plateau State (2008)

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

The two appellants were arrested and detained at Garga Police station in Plateau State for armed robbery sometime in October, 2002. They were later transferred to Jos Police Headquarters and then to Jos C.I.D. where they were detained for quite sometime before they were arraigned before the Chief Magistrate Court, Jos on 11th December, 2002. They then caused to be issued a summon to admit them to bail pending trial at the Jos High Court. The application was supported with a 5 paragraph affidavit.

Paragraph 3 of the supporting affidavit deposed to by one Serah Ibrahim, Litigation Secretary, in the law firm of the appellants’ counsel, read as follows:

“3. That I have been informed by the applicants in Jos prison on 9/3/2003 at 12.00 noon while briefing A.A. Sangei, Esq. of counsel and verily believe their information to be true:

(a) That the applicants were arrested and detained at Garga Police Station for alleged offence of Armed Robbery sometimes in October, 2002.

(b) That they were later transferred to Jos Police Headquarters and finally transferred to Jos C.I.D. where they were detained for a long time.

(c) That the applicants did not commit the alleged offence on the F.I.R., A copy of the F.I.R. is hereby annexed and marked exhibit “A”.

(d) That the applicants were subsequently arraigned before the Chief Magistrate Court II, Jos on the 11/12/2002 after staying at C.I.D. Jos for a long time.

(e) That the Chief Magistrate Court II, Jos ordered for the remand of the applicants at the Jos prison.

(f) The proceedings are annexed hereto and marked as exhibit “B”.

(g) That the applicants have been in prison since 11/12/2002.

(h) That the respondent is not willing to prosecute the applicants. That the respondent only want the applicants to be detained in prison custody without prosecution.

(h) That the applicants will not jump bail, they will also appear in court for their case.

(i) That the applicants will not interfere with proper police investigation in case any is remaining.

(j) That the applicants will provide credible and reliable surety/sureties as this Honourable Court may order.”

The application was opposed and to that end, a 15 paragraph counter-affidavit deposed to by one Joseph Chinda, an Assistant Superintendent of Police (ASP) attached to the Special Anti-Robbery Section, C.I.D. Plateau State Police Command, Jos. The facts relied on are contained in paragraph 1 to 11 of the counter-affidavit which read as follows:

“1. That I am the sectional head of the team of Police Officers investigating the case of criminal conspiracy, armed robbery and culpable homicide offences that the applicants and other culprits now at large are standing trial for, by virtue of the said position I am very conversant with the facts deposed to herein.

2. That I have read through the summons to admit the applicants to bail pending their trial as well as supporting affidavit and I know as a matter of fact that paragraph 3 (c, g, h, i, and j) are not true.
3. That Police investigation into the case is still in progress with the view of arresting the cohorts of the applicants that are still at large, and that should the applicants be released on bail the (applicants) will not only elope justice but that they may tamper with Police investigation.
4. That the applicants have made useful statements to the Police to the effect that they are members of a gang of armed robbers that have committed series of armed robberies within Dengi-Kanam and its evirons and Plateau State in particular in the recent past as well as neighbouring Bauchi State.
5. That working on the above information given to the Police by the applicants, the detectives have since gone into action with the view of arresting the remaining culprits from their hide-outs.
6. That based on further clues discovered by the Police against the applicants and others into the case, they (Police) shall substitute the initial First Information Report (FIR.) with a new one to include the other offences that were not included in the old First Information Report (FIR.) against the applicants.
7. That this will be done as soon as the Investigating Police Officers (I.P.Os) who are in possession of the case file diary return from their special assignments in connection with this very case that the application for bail is being sought by the applicants.
8. That the delay in the arraignment of the applicants before the court all these while is not unconnected with the constant strike actions by both the Federal Civil Servants and Plateau State in particular, ministry of Justice Plateau State, Jos inclusive since 2002/2003 and of late, the recent Nigerian Labour Congress (N.L.C.) as a result of the fuel prices that were increased by the Federal Government of Nigeria.
9. That the Ministry of Justice Plateau State, Jos who is to file the necessary application before the High Court for leave to prefer a charge against the applicants was not left out of the strike stated in paragraph 8 above and the current Nigerian Bar Association (N.B.A.) Plateau State, Jos Branch Law week.
10. That now the strike action have been suspended by both Federal and State civil servants, I verily believe that the Ministry of Justice Plateau State, Jos, will make the necessary application to the High Court of Justice Plateau State, Jos for leave to prefer a charge against the applicants.
11. That since the arrest and detention of the applicants there had been rapid decline of robbery incident in Shuwaka Garga village of Dengi -Kanam Local Government Area of Plateau State and Plateau State in general.”

The application thereafter came up for hearing before Damulak, J. sitting at Jos High Court. After taking submissions from learned counsel for the parties, delivered his reserved ruling on 20th October, 2003. The learned Judge, after reviewing all the issues raised in the matter, came to the conclusion that there was no merit in the application. He therefore dismissed it. He said as follows in the concluding paragraph of his said ruling:

“In the circumstances, I find that the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court forthwith.”

The appellants were dissatisfied with the ruling and their appeal to the Court of Appeal, Jos Division was dismissed. This is an appeal from the judgment of the Court of Appeal (hereinafter referred to as court below). The parties filed their briefs of argument in this court.

The following two issues were formulated in the appellant’s brief which was also adopted by the respondent in the respondent’s brief:

“1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellant’s appeal.

2. Whether or not the Court of Appeal was right when it upheld the decision of the trial court which refused to be bound by the decision of the Court of Appeal in Anakwe v. C.O.P (2004) 17 NWLR (Pt. 901) 1; and Musa v. C.O.P (2004) 9 NWLR (pt. 879) 483.”

It is submitted in the appellant’s issue 1 that the learned Justices of the court below were in error when they affirmed the decision of the trial High Court which is said not to have been exercised judicially and judiciously having regard to the circumstances of the case as depicted by the depositions of the parties. The court below is specifically accused of disregarding the appellants’ right to presumption of innocence as envisaged by section 36(5) of the 1999 Constitution It is further submitted that the applicants having deposed to specific facts in paragraph 3 (c) to (k) which facts are not denied, the court below is said to be in error in dismissing the appeal.

It is submitted in the appellants issue 2 that the court below was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of the Court of Appeal in some named cases where such applications were granted. Particular reference was made to the case of Oshinayo v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 which was a case involving armed robbery where bail was granted to the accused person.

It is submitted in reply, in the respondent’s brief that the criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly in Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558 at 572; (2007) 12 NWLR (Pt. 1048) 320; and Bamayi v. The State (2001) FWLR (Pt. 46) 956 at 984, (2001) 8 NWLR (Pt.715) 270. It is also argued that the bail ability of an accused depend largely on the weight the Judge attached to one or several of the criteria open to him in any given case. The court below in this case is said to have exercised its discretion judicially and judiciously when it dismissed the appellants appeal having regard to the facts tendered in the case. It is further submitted that the presumption of innocence does not make the grant of bail automatic since there is always the discretion to refuse bail if the court is satisfied that there are substantial grounds for believing that the applicant for bail pending trial would abscond or interfere with witnesses or otherwise obstruct the course of justice. The crucial factor is said to be the existence of substantial ground for the belief that he would do so.

It is submitted in reply to issue 2 that since the issue of grant or refusal of bail is a discretionary matter, previous decisions are not of much value. They are therefore said not to be binding but can only offer broad guidelines as each exercise of discretion depends on the facts of each case.

The question to be resolved in this appeal is whether the Court of Appeal was right in its decision to dismiss the appeal before it and affirming the order of the trial High Court by which the appellants’ application for bail was refused. It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black’s Law Dictionary, 6th edition, 1990, page 466 as meaning:

“A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law.”

The criteria to be followed in taking a decision in cases of this nature as laid down by this court include:

(i) the nature of the charge;

(ii) the strength of the evidence which supports the charge;

(iii) the gravity of the punishment in the event of conviction;

(iv) the previous criminal record of the accused, if any;

(v) the probability that the accused may not surrender himself for trial;

(vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;

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

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

See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270;Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558, (2007) 12 NWLR (Pt. 1048) 320; Abacha v. The State (2002) 5 NWLR (Pt. 761) 638; Ani v. The State (2002) 1 NWLR (Pt. 747) 217; Elorenugo v. Federal Republic of Nigeria (2001) 6 NWLR (pt. 708) 717; and Eyu v. The State (1988) 2 NWLR (Pt. 78) 602.

It follows, therefore, that a judicial officer saddled with the responsibility of exercising a discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.

Thus from the facts of this case as set out in the affidavit evidence filed by the parties, the appellants were first arrested and detained for armed robbery sometime in October, 2002. As at the time of their arrest, there was a wave of armed robberies in the Jos area and the police told the court of the need to detain the appellants pending their efforts to arrest the remaining members of the gang of robbers terrorizing the area. This was the situation as at the time when the appellants were arraigned before the Chief Magistrate Court, Jos who ordered their detention in prison custody. It will therefore be totally out of place to say that the trial High Court who refused their application for bail failed to properly exercise its judicial discretion judiciously and judicially having regard to the above facts presented to him.

Similarly, the court below could not be blamed for upholding the decision of the trial court by dismissing the appellants’ appeal. This is because there were no justifiable reasons placed before it to warrant querying or tampering with the trial Judge’s exercise of his judicial discretion by refusing the application before him in the case. The learned trial Judge went further when he ordered in the concluding paragraph of his ruling that:-

“Investigation into the matter be stepped up and the applicants be charged before High Court forthwith.”

The ruling of the High Court was delivered on 30th October, 2003 while the judgment of the Court of Appeal was delivered on 8th December, 2004. On 13th December, 2007, when this appeal came up for hearing in this court, the order of the learned trial Judge made on 30th October, 2003 that the police should step up investigation into the matter and charge the appellants before the High Court forthwith had not been complied with. This is because we were told that the appellants were still being remanded in prison custody on the order of the Jos Chief Magistrate. The flagrant breach of that order on the part of the police has given credence to the averment in paragraph 3(g) of the affidavit in support of the appellants application where it is averred:

“That the respondent is not willing to prosecute the applicants. That the respondent only wants the applicants to be detained in prison custody without prosecution.”

The disclosure that the appellants are yet to be arraigned before the High Court since their arrest in October, 2002 is totally unacceptable and cannot be justified under the guise that the police are yet to complete their investigations.

In the result, there is absolute justification in not allowing the continued detention in prison custody of the appellants as ordered by the Jos Magistrate Court. The appeal is therefore allowed. It is hereby ordered that the appellants be allowed on bail each in the sum of N200,000 with two sureties each in the same amount. The sureties are to be resident in Jos area and supply proof of ownership of residence property in the Jos area

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SC.19/2005