Amaka Martina Anajemba V. The Federal Government of Nigeria (2004)

LawGlobal-Hub Lead Judgment Report

ALBERT GBADEBO ODUYEMI, J.C.A.

The appellant was the 2nd of seven persons (the last 4 of the accused persons being corporate bodies) arraigned on 6th February, 2004, before the learned Chief Judge of the High Court of the Federal Capital Territory, Abuja.

They were charged on an 86 count charge on offences of the contravention – inter alia, of: sections 1(1), 7(3), and 8(a) of the Advance Fee Fraud and Other Related Offences Decree No. 13 of 1995 as amended by Decree 62 of 1999; and sections 97, 364 and 366 of the Penal Code.

The pleas of the first three accused persons were taken. Each pleaded not guilty to the charge.

The learned trial Chief Judge then entered a “not guilty” plea in respect of 4th, 5th, 6th and 7th accused persons, who were corporate bodies.

By a motion on notice filed in the lower court on 6th February, 2004, the 2nd accused person (appellant herein, who shall hereafter be called “the appellant”) moved the lower court under section 341(2) and (3) of the Criminal Procedure Code, sections 35(4) and 36 of the Constitution of the Federal Republic of Nigeria, 1999 and S.18(2) of the Advance Fee Fraud and Other Related Offences Decree as amended, for bail pending her trial.

In support of her application, the appellant filed an affidavit; a further affidavit, a further and better affidavit and a further and additional affidavit. In response, the respondent filed a counter affidavit and, later, a counter-affidavit to the appellant’s further and better affidavit.

The learned trial Chief Judge took addresses from both learned Counsel for the applicant/appellant as well as for the prosecution.

In a considered ruling delivered on 23rd February, 2004, the court refused the pre-trial application for bail of the applicant.

Being aggrieved, she filed a notice of appeal to this court.

The notice of appeal contained four grounds of appeal which, shorn of their respective particulars read as follows:

“Ground 1:

The learned trial Judge erred in law, by refusing to grant bail pending trial to the appellant on the erroneous conclusion that the proof of evidence suggested that the appellant played active roles in the alleged fraud.

Ground 2:

The learned trial Judge erred in law, in refusing bail to the appellant on the ground that there is likelihood of her jumping bail, contrary to the evidence before the trial court, and particularly when he held as follows:

“If the applicant went into hiding and refused to come out to make a statement at a time when she had not even been charged with the crime, it is very likely as urged by the prosecution that she may jump bail now that she has been charged with more than 80 counts for offences ranging from money laundering to bribing of public officers.”

Ground 3:

The learned trial Judge erred in law, when he held that the “recent antics” of the appellant have disqualified her from the enjoyment of pre-trial bail, when there was no evidence or proof of such “recent antics.”

Ground 4:

The learned trial Judge did not properly exercise the discretion to grant bail by refusing to grant bail to the appellant having regard to the materials and affidavit evidence before the court.”

As required by the rules of this court, the parties filed briefs of argument. In addition, the appellant filed a reply brief.

In her brief of argument, appellant identified from the four grounds of appeal three issues for determination in this appeal.

They read respectively thus:

“1. Whether the learned trial Judge properly exercised the discretion to grant bail by refusing to grant bail to the appellant pending her trial having regard to the materials and affidavit evidence before the said court. (Arising from ground 4).

2. Whether the learned trial Judge was right in refusing to grant bail pending trial to the appellant on the speculation that the proof of evidence suggested that she played active roles in the alleged fraud, when the case had not been tried. (Arising from ground 1).
3. Whether the learned trial Judge was right, in refusing bail to the appellant on the ground that there is likelihood of her jumping bail despite the evidence to the contrary before the lower court. (Arising from grounds 2 and 3).”

For its part the respondent identified only one issue for determination thus:

“Whether the learned trial Chief Judge of the High Court of the F.C.T., Abuja, did not properly exercise his discretion to grant bail by refusing to grant same to the appellant pending her trial, having regard to the proof of evidence and other materials contained in the affidavit evidence before the court.”

I consider that issue No.1 formulated by the appellant, which is identical (though in different forms) with the sole issue identified by the respondent sufficiently covers issues Nos. 2 and 3 in the brief of appellant.

In this judgment, I shall adopt for consideration of the appeal issue 1 as framed by the appellant – considering of course, the arguments contained also under issues 2 and 3.

For ease of reference, I repeat below the issue for consideration in this judgment as formulated by the appellant –

“Whether the learned trial Judge properly exercised the discretion to grant bail by refusing to grant bail to the appellant pending her trial having regard to the materials and affidavit evidence before the said court.”

The submissions of the appellant are:-

The discretion vested in the court in respect of the grant of bail to an accused person under section 341(2) of the Criminal Procedure Code, Cap. 491, Laws of the Federation of Nigeria, 1990, section 18(2) of the Advance Fee Fraud and Related Offences Decree No. 13 of 1995 as amended, as well as sections 35 subsections (1) and (4) and 36 of the Constitution of the Federal Republic of Nigeria, 1999 is conceded.

However, it is contended that a proper interpretation of the provisions in respect of a person who has not been tried and convicted by a court of competent jurisdiction for an offence known to law is that such person is entitled to be admitted to bail as a matter of course as the offences for which the appellant is charged are bailable under each enactment – unless there are special circumstances that prevent the court from granting bail.

Reliance is placed inter alia, on:

(i) Ani v. The State (2002) 1 NWLR (Pt.747) 217;

(ii) Chinemelu v. Commissioner of Police (1995) 4 NWLR (Pt.390) 467;

(iii) Enwere v. Commissioner of Police (1993) 6 NWLR (Pt.299) 333 at 341.

That the objective of bail is to ensure that the accused person presents himself for trial.

That the learned trial Judge failed to consider or apply the well settled principles laid down by law and precedent in his consideration of the application of the appellant.

Contends that it is indicated in the affidavit of applicant in support of the application that applicant is a widow with four children of tender ages and was not in any way involved (though a nominal director in one of the late husband’s companies viz the 4th accused company) with the business activities of her late husband in respect of which the offences are alleged to have been committed.

On the issue of availability of the accused to stand trial, it is contended that when the Economic and Financial Crimes Commission (the prosecutor) granted her bail, she duly reported as instructed as and whenever needed and denied going into hiding as alleged by the prosecution.

It is contended that investigations in the matter having been concluded, there is no likelihood of the appellant interfering with investigations or intimidating witnesses – home based or foreign.

It is contended that there was a breach of section 36(5) of the Constitution which touches on the presumed innocence of an accused person until his guilt is proved, when in the ruling the learned trial Judge stated that from the proof of evidence, there were statements suggesting that the appellant played active roles in the alleged fraud.

It is further contended that in an application for bail it is the affidavit evidence before it that a court should consider and not the proof of evidence.

Finally, it is submitted that in view of the voluminous nature of the charges and proof of evidence she needs to have the company of her counsel.

In the circumstance, appellant submits that this court should interfere with the exercise by the learned Chief Judge of his discretion as it was not judicially and judiciously exercised.

For the respondent, it is submitted as follows:

It is contended that the case of appellant falls under section 341(2) of the Criminal Procedure Code which provides that in considering bail, the court should take into considerations if there is a serious risk of the accused person escaping from justice or committing another offence if released; and whether investigation will be prejudiced by reason of bail being granted.

That the charges are brought under enactments conviction on which may carry from between imprisonment for ten years or for life; therefore the charges are for serious offences for which bail is normally not granted as a matter of course.

That the discretion in the court to grant or refuse bail does not take away the presumption of innocence guaranteed by the Constitution.

Reliance is placed on Bamaiyi v. The State (2001) 8 NWLR (Pt.715) 270.

It is contended that the proof of evidence shows that the appellant is linked with the offences for which she is charged Reference is made inter alia, to pages 185 – 195; 199 – 200; 273 356 and 453 – 4 of the record of proceedings.

On the issue of whether the appellant will make herself available for trial, it is submitted that while it was true that the Commission granted bail to the appellant, there is in the proof of evidence and counter-affidavit that the appellant abused the bail granted when her presence was needed in the course of investigation, that the Commission had to declare her “wanted” to the security agencies.

Finally, it is contended by the respondent that there does not exist in this case justifiable reasons for this court to interfere with the findings of the lower court. The following paragraphs of the affidavit evidence of the parties appear relevant:

Affidavit filed on 6th February, 2004, Paragraphs: 1, 2, 7, 8, 18, 20, 28 and 29.

“1. That I am the 2nd accused/applicant in this matter.

2. That I am a housewife and widow to the late Chief Ikechukwu Anajemba, an importer and businessman, who was brutally murdered on the 4th October, 1998.
3. That before the death of my husband, I was a complete housewife. taking care of our little children and other domestic work.
4. That I was never involved in any business of my husband, and I did not participate with my husband in any of his business transactions, just as none of the wives of any of the co-accused persons in this matters, took part in any of their businesses.
5. That I am a very responsible woman and will not jump bail if admitted to bail.
6. That is no risk of my escaping from justice, and I am prepared to have my International Passport deposited with the Honourable Court and besides, I have a very reasonable person to sign as surety for me if required by the Honourable Court.
7. That I undertake to appear in court to take my trial, when granted bail by this Honourable Court and I will never jump bail.
8. That even the Commission granted me bail, and I did not jump bail, and appeared whenever they required me, including when I was invited for this matter to be charged to court.”

Counter-affidavit of respondent filed on 11th February, 2004.

Paragraph 1, 3, 6, 8 – 10; 15 (c), (d), (e), 16, 18(a), (d), 19 -21.

“1 That I am the investigating Police officer attached to the Economic and Financial Crimes Commission (EFCC) and assigned to investigate the complaint made against the 2nd accused/applicant and by virtue of which I am familiar with the facts of this case.

3. That I have seen a copy of the affidavit in support of the motion on notice dated 6th February, 2004, deposed to by the 2nd accused/applicant for her bail and the facts stated therein are not true…
4. That paragraph 3 of the affidavit in support is not entirely true as the accused/applicant was arraigned based on her connection and involvement in the Advance Fee Fraud Charge against her.
5. That her being arraigned with the other accused persons was not due to the facts of her being the wife of late Chief Ikechukwu Anajemba, but because of her serious involvement in the deal, the subject-matter of this charge.
6. That the 2nd accused/applicant as against her averment in paragraphs 7 and 8 of her affidavit in support was a Director of Fynbaz (Nig.) Ltd., the 4th accused/applicant at the material time when the said company received various sums of money from Banco Noroeste S. A. of Sao Paulo, Brazil.
7. That the 2nd accused/applicant also played active role in the scam by claiming at all times material to this charge, to be Rossy Ford, Olisa Agbakoba and Mrs. Y. Rasheed Gonwalk.
8. That paragraphs 14, 15, 16, 17, 18 and 19 of the affidavit in support are untrue and I state further that:

…

(c) During the search, the applicant escaped from her residence and a message was left for the accused to report at the EFCC office within 24 hours. However, the accused/applicant refused to appear.

(d) On account of failure of the accused/applicant to make herself available, the EFCC had to place the applicant on watch listing and declare her wanted on the 21st May, 2003. Annexed hereto and marked as exhibit ‘C’ is a copy of the letter declaring the applicant wanted.

(e) The applicant remained in hiding until July, 2003, but her solicitor was busy offering bribe to the officials of the EFCC to pave way for her appearance in public.

16. That as against what the accused/applicant deposed to in paragraph 20 of her counter affidavit, the Commission had to seize her International Passport, when it perceived that she was making some moves to escape. That we do not know the one which she is prepared to give this court if granted bail as that will be a scam one because she is only entitled to only one International passport…
17. That I am further informed by the said Alhaji Nuhu Ribadu and I verily believe him that:

a. Once the accused/applicant is released on bail, the course of this case will be in jeopardy ….

d. She will not in any way, be prevented from having access to her lawyer…

19. The applicant exhibited act of violence in the process of the search of her home in Enugu, by stationing hefty men in the house, who resisted her arrest and the search of her premises.
20. That other members of the accused persons involved in the crime such as Christian Anajemba and Bless Okure, were assassinated under a suspicious circumstance.
21. The foreign witnesses are now afraid to come to Nigeria and testify.”

In addition, sections 341 and 342 of the Criminal Procedure Code are reproduced below:

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

(2) Persons accused of an offence punishable with imprisonment for a term exceeding three years, shall not ordinarily be released on bail, but the court may on application release on bail a person accused as aforesaid if it considers –

(a) that by reason of the granting of bail the proper investigation of the offence would not be prejudiced; and

(b) that no serious risk of the accused escaping from justice would be occasioned; and

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

(3) Notwithstanding anything contained in subsections (1) and (2) of this section, if it appears to the court that there are no reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for further inquiry, the person may, pending the inquiry, be released on bail.

342(1) Where a person is accused of an offence, a single Judge thereof may, subject to the provisions of section 341 of this Code, direct that the person be admitted to bail.

(2) When a person is convicted of an offence in a court and appeal from the court to the High Court, the High Court or a single Judge thereof may, subject to the provisions of section 341 of this Code, direct that the person be admitted to bail.

Lastly, it would be useful to reproduce relevant portions of the ruling of the learned trial Chief Judge against which this appeal is lodged:-

“Learned Senior Advocate Chief Chris Uche, submitted that the gravamen of the affidavits of the applicant which is a distinguishing factor in the case is that the applicant is being prosecuted vicariously for an act said to have been committed by her husband. Her only connection with the matter is that she is the widow of late Chief Ikechukwu Anajemba, who was said to have been involved in the business the subject-matter of the charges in this matter.

Referring to paragraphs 2-12 of the affidavit in support as well as paragraphs 3(1) – (13) of the further and better affidavit and exhibit ‘J’, learned Counsel submitted further that even a cursory look at the proof of evidence will show and confirm that none of the witnesses mentioned the name of the 2nd accused but only her husband’s name was mentioned…

Chief Uche learned Senior Advocate highlighted the principles that courts normally consider in granting pre-trial bail and submitted that the applicant qualifies to be granted bail.

I have carefully considered the principles applicable in the exercise of the discretion to grant or refuse bail. I have also read through the proof of evidence. I also note the counter-affidavit filed by the prosecution in opposition to the application. I note the submission of Mr. Jacobs learned prosecution counsel in the application filed by Mr. Nwude and his (Jacobs) adoption of those submissions in the present application. I observe however that from the proof of evidence there are statements suggesting that the applicant (Mrs. Anajemba) played active roles in the alleged fraud.

Similarly there are allegations even though she had denied them that from 1995- 1996 she was a Director of Fynbaz (Nig.) Ltd., the 4th accused in the main trial. It cannot therefore be correct to say that there is nothing in the proof of evidence linking the applicant to the alleged fraud.

Again there is the issue of likelihood of jumping bail raised by Mr. Jacobs wherein he explained that if released on bail, the applicant will jump bail because she did not make herself available when invited by EFCC to make statements on 14/5/03 and remained in hiding till July 2003 and only appeared when her lawyer thought he had paved the way for her coming out by bribing officials of the EFCC including the Chairman of that organisation. These are serious allegations. If the applicant went into hiding and refused to come out to make a statement at a time when she had not even been charged with any crime, it is very likely as urged by the prosecution that she may jump bail now that she has been charged with more than 80 counts for offences, ranging from money laundering to bribing of public officers.

In view of the foregoing, I do not think it will be proper to exercise my discretion in her favour. In my view her recent antics have disqualified her from the enjoyment of pre-trial bail I refuse the application.”

Judging from the briefs submitted by the parties they are agreed that:-

The exercise of the discretion of the learned trial Judge is called for in this application for bail.

They are also agreed that in the exercise of that discretion, it is within the duties of the learned trial Chief Judge under sections 341 and 342 of the Criminal Procedure Code as well as sections 35(1) and (4) and 36 of the Constitution to consider the averments of the parties in the affidavit evidence but while the learned Counsel for appellant insists that in the exercise of the discretionary powers of the lower court, the court can only look at the averments in the affidavit evidence of the parties, it is the submission of learned Counsel for the respondent that the lower court is entitled also to look at the proof of evidence.

By judicial interpretation of the provisions of section 341(2) and 342 of the Criminal Procedure Code, it appears settled law that when a Judge is considering whether to release an applicant on bail pending trial, the following are paramount – viz:-

(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.

In the matter of Etienne Barronet and Edmond Allian 1E and B1 (1852) Deans 51; 118 E.R. K.B. 337: and Also Re Robinson (1854) 23 L.J.Q.B. 286;

While the relevant considerations for a decision in respect of the above requirements can be listed as:

(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.

It may well be that anyone or other may be applied to determine the question of bail in a particular case.

It is the essence of the matter that the evidence available (usually by the proofs of evidence) filed by the prosecution in court be examined when considering bail. Further facts and circumstances may be brought forward by way of affidavit evidence. It could well be that it is the likelihood of the accused making himself available to stand his trial in any given case that may be of paramount concern.

There is authority for saying that it is a proper and useful test whether bail should be granted or refused to consider the probability that the accused will appear in court to take his trial: See R. v. Robinson (1854) 23 L.J.Q.B. 286; Mamuda Dantata v. Police (1958) NRNLR 3.

(1) Bamaiyi v. State (2001) 8 NWLR (Pt.715) 270 at pp. 291-2;

(2) Abacha v. State (2002) 5 NWLR (Pt.761) 638 at p. 674.

It is apparent that this is the authority that a court in considering an application for bail need not restrict himself to the affidavit evidence but his consideration should include the contents of the proof of evidence.

In any event, in my humble view the proof of evidence is included in the list of attachments by which the prosecution sought for and obtained the leave of the court to prefer a criminal charge under section 185(b) of the Criminal Procedure Code – (See page 1 of the record of proceedings).

It stands to reason and it is logical therefore that the proof of evidence should be included in the matters upon which to consider the entitlement of the accused/applicant to bail.

One of the points of complaint in the brief of appellant is that in the ruling the learned trial Judge was in breach of the provision of section 36 of the Constitution of 1999 in that part of the ruling when the learned trial Chief Judge stated at p. 170 of the record:-

“I observe however that from the proof of evidence, there are statements suggesting that the applicant (Mrs. Anajemba) played active roles in the alleged fraud.

Similarly, there are allegations even though she denied them that from 1995 – 1996, she was a Director of Fynbaz (Nig.) Ltd., the 4th accused in the main trial. It cannot therefore be correct to say that there is nothing in the proof of evidence linking the applicant to the alleged fraud.”

The complaint is put in the appellant’s brief, at p. 30 as follows:

“(5) In the face of all the evidence proffered by the appellant before the court, it is therefore premature and prejudicial for the court to arrive at the conclusion that she played active roles in the alleged fraud. If the learned trial Judge has formed such a view at such earl y stage of the trial, can he at the end of the trial come to a conclusion that she no longer played active roles in the alleged fraud? This underscores the tragedy of the effect of this prejudicial finding which founded the refusal of bail to the appellant.”

With due respect to learned Senior Counsel to the appellant, the complaint as framed in the brief is unfortunate.

It is not only a misrepresentation of the statement of the learned trial Chief Judge, it is also in my respectful view, unfair.

The part of the ruling complained of is already included in the extracts of the ruling which I have quoted in this judgment.

It appears to me that the learned trial Chief Judge exercised restraint and chose his words with deliberation and great care. There is nothing in the portion of the judgment which could in the remotest sense reasonably be interpreted to mean that the court had arrived at the conclusion at that stage that the 2nd accused played active roles in the alleged fraud.

I think I have said enough.

I have myself had a look into the affidavit evidence of the parties as well as the contents of the proof of evidence.

I am convinced that the conclusion of the learned trial Chief Judge is the result of the judicial and judicious exercise of the discretion vested in him. He has taken into consideration all factors relevant for consideration in the ruling.

I have no reason whatsoever to interfere with his decision.

In the result, this appeal fails. I dismiss it.

I affirm the decision of the learned trial Chief Judge of the High Court of the Federal Capital Territory, Abuja, given on 23rd day of February, 2004 in FCT/HC/CR/15/2004; suit No. M/1034/04 to refuse the application of the 2nd accused/applicant for bail.

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Other Citations: (2004)LCN/1628(CA)