Cosy Emenike Ezenwafor V. Commissioner Of Police (2009)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, J.C.A.
This is an appeal against the ruling of the High Court of the Federal Capital Territory holden at Abuja delivered on 5/9/07 by Hon. Justice A. M. Taiba.
The Appellant is standing trial on the following five-count charge of armed robbery and culpable homicide:
”COUNT ONE:
That you: Cosy Emenike Ezenwafor, ‘M’, 32 years of Efab Estate, Jabi – Abuja and others now at large on or at about 4/6/2007 at about 2000hrs at Gosa village along Airport Road, Abuja within the Jurisdiction of this Honourable Court did conspire with one another to commit felony to wit: Armed Robbery and you thereby by committed an offence punishable under Section 97 of Penal Code Law of the Northern Nigeria.
COUNT TWO:
That you: Cosy Emenike Ezenwafor, ‘M’, 32 years of Efab Estate, Jabi-Abuja and others now at large on or at about 4/6/2007 at about 2000hrs at Gosa Village along Airport Road, Abuja within the Jurisdiction of this Honourable Court did conspire with one another to commit felony to wit: Culpable Homicide punishable with death and you thereby by committed an offence punishable under Section 97 of Penal Code Law of the Northern Nigeria.
COUNT THREE
That you: Cosy Emenike Ezenwafor, ‘M’, 32 years of Efab Estate, Jabi-Abuja and others now at large on or at about 4/6/2007 at about 2000hrs at Gosa Village along Airport Road, Abuja within the Jurisdiction of this Honourable Court did commit Culpable Homocide punishable with death in that you caused the death of one Uchenna Anakor, ‘M’ by shooting the said Uchenna Anakor with a gun on the right side of his chest with the knowledge that his death would be the probable consequence of your act after you Cosy Emenike Ezenwafor earlier promised to kill the deceased over a dispute involving the sum of N109, 000.00 and you thereby committed an offence punishable under Section 221 of the Penal Code Law of Northern Nigeria.
COUNT FOUR
That you: Cosy Emenike Ezenwafor, ‘M’, 32 years of Efab Estate, Jabi- Abuja and others now at large on or at about 4/6/2007 at about 2000hrs at Gosa Village along Airport Road- Abuja within the Jurisdiction of this Honourable Court while armed with guns and other dangerous weapons robbed on Uchenna Anakor, ‘M’ now late of undisclosed amount of money, 3 G.S.M handsets and other valuables – value not known and you thereby committed an offence punishable under Section 298 of the Penal Code Law of Northern Nigeria.
COUNT FIVE
That you: Cosy Emenike Ezenwafor, ‘M’, 32 years of Efab Estate, Jabi-Abuja and others now at large on or at about 4/6/2007 at about 2000hrs at Gosa Village along Airport Road, Abuja within the Jurisdiction of this Honourable Court while armed with guns and other dangerous weapons robbed Mr. and Mrs. Christopher Ajoku of N8, 000.00 cash, 1 Motorolla G.S.M. Handset, 2 Woman bags and 1 wrapper – value not disclosed and Anah Agada, ‘F’, of 1 G.S.M. Handset with Glo line – make and value not disclosed and you thereby Pending the determination of his trial, the Appellant filed an application seeking the trial Court to admit him to bail. The prosecution now Respondent in this appeal filed a counter-affidavit in opposition to the said application of the Appellant. After due consideration of the submissions of the learned counsel for both parties for and against the application for bail, the learned trial Judge in his considered ruling delivered on 5/9/07, refused to grant but dismissed the application. He held “inter alia” as follows:
“…………The grant or refusal of a bail is entirely within the discretionary powers of the court. Like in all matters of discretion, the court must act judicially and judiciously.
Therefore in exercising its discretion the court is not to be guided by its whims and caprices but by rules and procedure. The Constitution had guaranteed the innocence of an accused to be presumed until he is proved guilty. In criminal trials the courts must duly observe the rules of criminal procedure. The prosecution must proof their case beyond reasonable doubt. The learned Justice Oputa JSC (as he then was) in Ukwumeyi Vs. State (1989) 8 NWLR (Pt. 113) 137 at 156 he said:
“……… saying few words about proof beyond reasonable doubt.
This is the policy of our law. The policy derives from the fact that human justice has its limitations if is not given to human justice to see and know as the great eternal knows the thoughts and actions of all men. Human justice has to depend on evidence and inferences dealing with the irrevocable issues of life and death she has to tread cautiously lest she sends an innocent man to an early and ignoble death. In our system it is therefore better that nine guilty persons escape than one innocent man be condemned. And that is why the court gives the benefit of any reasonable doubt to an accused person. ”
It is on this note I hold the view that in considering a bail application the presumption of innocence of an accused person is not in any way tampered with.
Now in considering this application I have given due regard to the provisions of the CPC because the allegation made against the accused /applicant, Section 341(1) of the CPC provides that persons accused of an offence punishable with death shall not be released on bail. Thus in view of the above provision of the CPC the accused/applicant who is alleged to have committed armed robbery and culpable homicide is not entitle to bail. In Oladele Vs. The State (1993) 1 NWLR (Pt.269)294 at 308. The Supreme Court held that it is very unusual for a person accused of murder to be on bail pending the trial. Murder being a very serious offence it is not in the interest of the public that a person charged with murder should be released on bail. And in Anaekwe Vs. C.O.P.(1996) 3 NWLR (Pt.436) 320 at 332-33 the Court of Appeal held:
“Where the prosecution merely provides to the court the word murder without tying it with the offence a court of trial is bound to grant bail. And the only way to intimidate the court not to grant bail is to prefer an information and proof of evidence to show that there is a prima facie evidence of commission of the offence. Thus although bail is normally not granted, a person accused of murder a situation where there is no material before the trial court to show that the accused is facing a charge of murder including proof of evidence certainly qualifies as a special circumstance on which the court can grant bail.
In the instant case there is an information filed and a proof of evidence on which case there is no special circumstance to consider for the release of the accused on bail.
Again by virtue of section 341(3) the court is empowered to release an accused on bail pending inquiry notwithstanding subsections (1) and (2) where it appears to the court that there are not reasonable grounds to believing that a person accused has committed the offence but that there are sufficient grounds for further inquiry. This subsection does not avail the accused person hence the court has no reason to think that there are no sufficient grounds for believing that the accused/applicant has committed the offence but there are grounds for further inquiry.
Now having regard to the circumstance of this case as outlined above, I am not in a position to exercise my discretion in favour of granting ball to the accused/applicant.
Accordingly the application is refused and dismissed”
The Appellant aggrieved by the said ruling of the trial Court, has filed an appeal to this Court against same. The notice and grounds of appeal dated and filed on 07/09/07 by the Appellant contained six grounds of appeal. The six grounds of appeal state as follows:
“GROUND ONE:
The Learned Trial Judge erred in law when his Lordship held that there was information filed and a proof of evidence in the case before him.
PARTICULARS OF ERRORS
(a) There is no information and proof of evidence filed before the learned trial Judge.
(b) Exhibit “AA” annexed to the further and Better Affidavit only shows that the Respondent filed an application to prefer a charge to which is attached a proof of evidence.
(c) Respondent’s application to prefer a charge which has an attached proof of evidence has not been granted
(d) The learned trial Judge has no jurisdiction to hold that an information with a proof of evidence have already been filed when what was before His Lordship was only an application to prefer a charge that has not been granted
GROUND TWO:
The Learned Trial Judge erred in law when His Lordship failed to consider and act upon the admitted facts before him.
PARTICULARS OF ERRORS
(a) The Respondent in its counter affidavit to the appellant’s affidavit in support of his application for bail never disputed the following facts contained in the appellant’s affidavit evidence:
(i) That none of the victims of the alleged crime mentioned the accused person or make any description similar to him as been among the persons that attacked them and killed one Uchenna.
(ii) That throughout the investigation of the case, no person ever came forward to say that the applicant was connected with the robbery or the death of one Uchenna in any way.
(iii) That the Respondent decided to accuse the Appellant of committing armed robbery and culpable homicide to ensure that the trial court denies the appellant bail.
(iv) That the police knew that the appellant cannot do what they are alleging he did as the applicant needs the deceased to be alive to enable him (appellant) recover the debt the deceased is owing him.
(v) That the Respondent previously secured a Court order to remand the applicant in prision without any proof of evidence or affidavit.
(vi) That the FCT Police Command conducted a search of the applicant’s home and found nothing incriminating.
(vii) That the FCT Police Command called a meeting between the family of the applicant and the deceased to settle the matter and in another meeting, one Mr. Francis Ogugua confessed that he had to use the Police to detain the appellant so that the real family of the deceased would not accuse him of complicity in the death of the deceased
(viii) That releasing the appellant on bail would enable him to fully and adequately consult with his counsel on how to effectively defend the allegation against him.
(ix) That appellant would not tamper with Police investigation into the case.
(x) That appellant would not jump bail as he with always be in court to stand his trial.
(xi) That he will not commit offence if admitted to bail
(xii) The Mr. Ogugua who is behind the allegations against the appellant had boasted using his connection to teach the applicant a bitter lesson of his life.
(b) The Learned Trial Judge is bound in law to consider and act on these admitted facts.
(c) The failure of the Learned Trial Judge to act on these admitted facts was fatal to the entire decision reached and also prejudicial to the interest of the appellant in respect of the application.
GROUND THREE:
The Learned Trial Judge erred in law when he held that there is an information filed and a proof of evidence in which case there is no special circumstance to consider for the release of the accused on bail
PARTICULARS OF ERRORS
(a) The mere filing of information and proof of evidence in this case does not in law mean that special circumstances cannot exist to warrant the release of the appellant on bail (b) The facts as stated in paragraphs 4(c) (d), (e), and 5 (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (I), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w), (x) and (y) of the appellant’s affidavit in support of his application for bail clearly show special circumstances to warrant granting the appellant bail
(e) The alleged proof of evidence as shown in Exhibit “AA” annexed to the appellant’s further and better affidavit also clearly shows that the appellant was never shown to be involved in the alleged crimes for which the proposed charges are based and that by itself is a special circumstance.
GROUND FOUR:
The Learned Trial Judge erred in law when His Lordship failed to consider the content of Exhibit ”AA” accompanying the appellant’s better and further affidavit.
PARTICULARS OF ERRORS
(a) The said Exhibit “AA” which contains the proof of evidence in support of the application to prefer charges which application has not been granted clearly shows that there is no prima facie case made out against the appellant in respect of the proposed charges.
(b) The failure of the Learned Trial Judge to consider the sold proof of evidence amounts to an improper exercise of judicial discretion in the circumstances of the appellant’s application before the trial Judge.
GROUND FIVE:
The Learned Trial Judge erred in law when His Lordship held that Section 341(3) of the Criminal Procedure Code does not avail the accused person.
(a) The appellant stated in his application for bail that he was not linked with the commissioning of the alleged offences,
(6) The Respondent even in its counter affidavit never said it was the appellant that robbed and killed the deceased but that the appellant had a previous misunderstanding with the deceased in respect of debt which the deceased is owing the appellant and which remained unpaid till now.
(c) The Appellant is in the circumstances of the above entitled to the benefits of Section 341 (3) of the Criminal Procedure Code.
GROUND SIX:
The Learned Trial Judge erred in law when His Lordship held that the Appellant is standing trial on a 5-count charge of armed robbery and culpable homicide.
PARTICULARS OF ERRORS
(a) Appellant’s not standing trial on any 5-count charge of armed robbery and culpable homicide,
The Appellant’s brief of argument dated 12/2/08 was filed the same date. In it, one sole issue was distilled from the six grounds of appeal for determination. The issue states thus:
Whether from the circumstances of the case, the refusal to grant the Appellant bail was in proper exercise of the discretion of the learned trial Judge.
The said Appellant’s brief of argument was duly served on the Respondent. However, the Respondent Failed to file the Respondent’s brief of argument in reply thereto within the time prescribed under the rules of this Court. Therefore, by a motion on notice dated 5/6/08 and field on 10/6/08, the Appellant applied to this Court “inter alia” for an order granting the Appellant leave to argue the appeal on the Appellant’s brief of argument only. Apparently, the said motion was duly served on the Respondent because by a motion on notice dated 16/6/08 and filed on 17/6/08, the Respondent applied for the orders of this Court extending time for the Respondent to file the Respondent’s brief of argument out of time and deeming the Respondent’s brief filed on 17/6/08 as properly filed and served. On 4/11/08, the date fixed for the hearing of the Appeal the Respondent again was absent and not represented by any counsel despite service of the hearing notice and the motion papers on them. On that day, the earlier motion of the Appellant filed on 10/6/08 was heard and granted; while the Respondent’s motion filed on 17/6/08 was struck out for want of diligent prosecution. A return date was fixed for the hearing of the appeal accordingly.
On 13/1/09 the return date, the Respondent and his counsel were absent. There was evidence that hearing notice was duly served on them on 9/1/09. Consequent upon the above stated scenario, this appeal was heard on the Appellant’s brief of argument only. The Appellant’s learned counsel identified and adopted the Appellant’s brief of argument filed on 12/2/08. He urged this Court to allow the appeal, set aside the decision of the trial Court and grant bail to the Appellant in liberal terms pending the time the Appellant will be charged to court.
I find it convenient to adopt the sole issue distilled by the Appellant’s learned counsel as this will adequately resolve the complaint in the appeal. The learned counsel for the Appellant submitted that it is a well settled and frequently applied principle of law that the grant or refusal of bail to an accused person is one of a discretion to be exercised judiciously and judicially by the judex. Hence, the mere allegation that a person has been accused of an offence with capital punishment is not sufficient to automatically deny him bail. It is an abounding judicial duty of the court to take into consideration how weighty the pieces of evidence against the accused person are in respect of the alleged capital offence. This position was singed on the cases of:
(1) Ogueri Vs. State (2002) 2 CLRN p.14 at p. 24 paras A-B;
(2) Ozougwu vs. State (2006) Q.C.C.R. Vol.5 p. 207 at p. 217 and
(3) Bamaiyi Vs. The State (2001) 8 NWLR p. 270 at p. 291 paras. G-H
The Supreme Court in the case of Bamaiyi Vs. The State supra, the Appellant’s learned counsel reiterated, laid down the principles to guide our judicial system as to the granting of bail to an accused person. The fair prescription therein is for the court to consider some of the following:
(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.
(9) 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 of procuring medical or social report pending final disposal of the case.
In the opinion of the learned counsel for the Appellant, the learned trial Judge was wrong in the circumstances of this case to hold that an accused person who is accused of culpable homicide is not entitled to bail because he was so accused.
It was argued in favour of the Appellant that in the Southern part of this country where the Criminal Procedure Act applies, “information”, is the equivalent of ”a charge” under the Criminal Procedure Code (hereinafter referred to as the CPC.) applicable in the Northern part and the Federal Capital Territory, Abuja. Therefore ”ipso facto”, to file an information can only mean to file a charge. In the instant case, there is an application for leave to prefer charges against the Appellant but this application having not being moved and granted, it cannot be said that the charge or information has been filed. For the prosecution is at liberty to withdraw the unmoved application for leave at anytime; the court is also not bound to grant the application for leave. Hence, the trial Court may on the long run refuse the application for leave. Section 185 of the CPC provides that leave must be sought and obtained to prefer or fife a charge. An application to prefer a charge cannot be a filed charge. In this situation, in law no charge or information has been filed against the Appellant before the trial Court.
The learned counsel for the Appellant submitted further that there must be proof of evidence to enable the trial Court examine whether there is a “prima facie” evidence of commission of the offence to justify its proper and lawful exercise of discretion in an application for bail to an accused person. It is therefore mandatory for the trial Judge in considering the bail application to look at the proof of evidence filed, to satisfy his conscience that an obviously innocent man is not sent to custody for an offence against which there is no ”prima facie” evidence made out against him in the proof of evidence. Any contrary proposition to this will bring about a floodgate of detention of so many innocent persons with the use of judicial orders. It is to prevent this flood that our law prescribes and insists that there must not only be a proof of evidence but there must be disclosed in the proof, a strong evidence showing a “prima facie” case against the accused person. It is that strong evidence that will justify any decision to deny the accused person bail.
The Appellant’s learned counsel contended that neither the offence of culpable homicide nor armed robbery has been disclosed in the purported proof of evidence. The Appellant was alleged to have conspired with unidentified persons to commit armed robbery at Gosa Village along Airport Road, Abuja on the 4/6/2007 He was alleged to have robbed Uchenna Anakor, Mr. & Mrs. Christopher Ajoku and one Anah Agada of various items including telephone handsets, bags and clothes. He was also alleged to have killed one Uchenna Anakor in the course of the robbery. In the proposed witnesses’ statements, that is, the proof of evidence, the Appellant’s name was never mentioned as being among the thieves that killed the said Uchenna. If the learned trial Judge had examined the contents and the character of evidence against the appellant as disclosed in the proof of evidence, His Lordship would have been alerted and come to the irresistible conclusion that at best or worst the case against the Appellant from the proof of evidence is based on suspicion and cannot amount to armed robbery and culpable homicide as stated in the proposed charges. This is so because mere threat or promise to kill by words of mouth cannot amount to culpable homicide under any Nigerian law. By the provisions of Sections 220 and 221 of the Penal Code, death can only be caused if and only if a person is shown to have done a specific act against another which act led to the death of the victim. In the instant case, there is no evidence at all, that the Applicant did any act. The prosecution stated in count three of the proposed charge that the Appellant shot the deceased with a gun on the right side of the deceased’s chest. In the proof of evidence, no witness attested to this assertion.
The Appellant’s learned counsel argued that there is no ”prima facie” evidence that it was the act of the accused person that caused the death of the deceased. The prosecution merely said that the Appellant previously threatened the deceased. The said threat was unreported and uninvestigated. To that extent, there is only a strong suspicion in this case against the Appellant. The prosecution has not provided “prima facie” evidence of the commission of the alleged offences that it is proposing to prefer against the Appellant. In this circumstance, the learned trial Judge was wrong to refuse a bail application on the omnibus ground that the Appellant is facing a charge of culpable homicide and that an information had been filed against him. The law puts a legal duty on the learned trial Judge to examine the proof of evidence and ensure that a ”prima facie” case not based on suspicion but on cogent and believable evidence has been made out in the proof of evidence. On this position, reliance was placed on the cases of:
(1) Oteri Vs. Okorodudu & Anor. (1970) 1 All NLR p. 194 at p. 200 and
(2) Ozougwu Vs.State (2006) Q.C.C.R Vol.5 p. 207 at p. 217
It was canvassed for the Appellant that the only evidence the prosecution has in support of Its proposed charges is that there was a misunderstanding between the Appellant and the deceased in a business transaction. The facts of the case from the purported proof of evidence also indicate that the Appellant had no misunderstanding with the other persons alleged to have been robbed, shot and nearly killed by the robbers that killed the deceased. The Appellant’s learned counsel opined that where there is an allegation that a person threatened to kill another person, that cannot mean that the person had killed that other person by the threat. A threat remains a threat and it will only amount to a speculation if the threat is not upgraded to the act threatened. The learned trial Judge overlooked these relevant issues when he held that Section 341(3) of the CPC did not avail the Appellant. A similar act of a trial Judge in overlooking relevant averments in an affidavit of one of the parties before him attracted an angry frown from this Court earlier in the case of: Shagari Vs. C.O.P. (2005) Vol. 3 Q.C.C.R. p. 17.
The Appellant’s learned counsel submitted that the main function of bail is to ensure the presence of the accused at the trial. On this submission, he relied on the case of: Dokubo Vs. FRN (2007) 12 NWLR (Pt.1048) p. 320. He distinguished the instant case from both the cases of: (1) Oladele Vs. State and (2) Dokubo Vs. FRN both supra. According to the Appellant’s learned counsel, in the instant case, the Appellant is not mentally disabled, but he is said to be a successful business man, who was being owed a certain sum of money by the deceased, unlike in the Oladele’s case. Equally, unlike in Dokubos case, in the instant case, both the prosecution and the defence agreed that the Appellant would not jump bail and would always be in court to stand his trial.
This appeal is on bail pending trial. It is where a trial court may admit an accused person to bail while he is awaiting trial or during his trial. It is a bail application sought by the accused after arraignment.
I have perused the record of appeal, the brief of argument and the submissions of learned counsel in this undefended appeal. It is beyond all known and unknown legal argument that the grant of bail to an accused person pending the trial of the case, particularly in a capital offence is not as a matter of course but that of grace, as such grant is ordinarily unmerited. The grant rests purely on the discretion of the trial or appellate court. The exercise of the discretion must be judicial, judicious and always hinged on nothing but the justice of a particular case. To put in another way, the exercise of such discretion is indeed governed by several factors which are not necessarily constant. See the cases of:
(1) University of Lagos & Anor. Vs. Aigoro (1985) 1 NWLR (pt. 1) p.143;
(2) Likita and Lother Vs. C.O.P. (2002) 11 NWLR (Pt. 777) p. 145 and
(3) Adegbite Vs. C.O.P (2006) 13 NWLR (pt. 997) p. 252.
By the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, there is the presumption in favour of the liberty of the subject and his innocence in criminal allegations until he has been proved and found guilty in accordance to the relevant law(s). This is irrespective of the nature or gravity of the offence with which he is charged. In any given case, the burden is on the prosecution to show that an accused person is not one that should be released on bail. Under Section 35(7) of the Constitution, bail pending trial is not usually granted where the offence with which the applicant is charged is a capital offence punishable with death.
The general provisions relating to offences committed within the Northern States including the Federal Capital Territory, Abuja, are in the main, governed by the Criminal Procedure Code (CPC). Thus, the issue of bail generally, including the grant or refusal of ball is provided for under Chapter XXIX, Sections 340 and 355 of the said CPC. Indeed the application to admit the Appellant in the present case to bail was sought at the trial Court pursuant to Section 341(2) of the PC. This deals with situations when bail may be taken in respect of non-bailable offences.
Section 341(1), (2) and (3) of the CPC provide as follows:
- (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; nevertheless the court may upon 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) 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 such person may pending such inquiry, be released on bail.
Thus, under Section 341(1), bail shall not ordinarily be granted to a person accused of a capital offence. This prohibition not being absolute, by virtue of sub-section (3) of Section 341, if it appears to the court that there are no reasonable grounds for believing that a person accused has committed the offence such person may be admitted to bail. The law is therefore trite that a person charged with murder shall only be released on bail upon establishing special circumstances warranting the exercise of discretion of Court in his favour. The evidence or the facts upon which an applicant is alleged must be placed before the court by the prosecution.
For it will be difficult for the court to satisfy itself as to whether or not there are reasonable grounds for believing that the accused person has committed the offence alleged without such evidence or facts.
From the above case law, in an application for grant or refusal of bail, the following are some of the factors or criteria that are taken into consideration by the trial Judge:
(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 of the accused;
(I) Detention for the protection of the accused;
(j) The necessity to procure medical or social report pending final disposal of the case, e.t.c.
See the cases of:-
(1) Dantata vs. Police (1958) NWLR p.3;
(2) Olatunji vs. F.R.N (2003) 3NWLR (pt. 807) p. 406 at p. 425;
(3) Ekwenugo vs .F.R.N (2001) 6 NWLR (pt. 708)p. 171;
(4) Bamaiyi vs. State (2001) 8 NWLR (pt. 715) P.270 at p. 291;
(5) Chedi vs. A.-G., Fed. (2006) 13NWLR (pt. 997)p. 308;
(6) Ikhazuagbe vs. C.O.P (2004) 7 NWLR (pt. 872) p. 346 and
(7) Jimoh vs. COP. (2004) 17 NWLR (Pt. 902)p. 389.
It is pertinent to state at this juncture that the above listed factors are by no means exhaustive in guiding any trial court in the grant or refusal of bail applications pending trial.
In the instant case what calls for consideration and determination is whether the learned trial Judge was right in refusing the Appellant’s bail application filed before him. Attached to the bail application among others is Exhibit “AA”, a copy of the application for leave to prefer a criminal charge against the Appellant. Accompanying Exhibit “AA” is the proof of evidence, that is, the provisional charge, the list and statements of witnesses and the accused person, etc.
The Appellant also filed an affidavit of five paragraphs and a further and better affidavit of four paragraphs. These are contained in pages 18 to 90, 2 to 6 and 16 to 17 of the record of appeal respectively.
The Respondent filed a counter affidavit of seventeen paragraphs in opposition to the Appellant’s application before the trial court – see pages 91 to 92 of the record of appeal. The counter affidavit was deposed to by one Inspector Azuka Oboli of the Nigeria Police, attached to the Federal Capital Territory Police Command, C.I.D Abuja. He was the Investigating Police Officer (IPO) in the case. He deposed to the counter affidavit in paragraph 7 therein as follows:-
“7 …………………………….
(a) That there is evidence to prove that the Applicant had a misunderstanding over N109,000.00 business transaction whereof the Applicant threatened and promised to kill the deceased in this case.
(b) That nobody influenced the investigation of this case.
(c) That the thorough investigation was carried out in this case wherein a prima-facie case was made against the Applicant.”
Previously, one Joshua Akor, a counsel in the law firm of God’s People Legal Consult, counsel to the Appellant swore to an affidavit in support of the motion – see pages 2 to 6 of the record of appeal. The affidavit was firstly placed before the trial Court. In the affidavit, the deponent stated “inter alia”.
“4 That I know the following:
a. that the accused person briefed us to handle this matter in our professional capacity on his behalf
b. that the complainant brought an application before this Honourable Court to take cognizance of an offence against the accused person which led to the consequential remand of the applicant in Kuje Prison on the 19th July, 2007.
c. that the complainant since the remand, has only been able to file an application for leave to prefer a charge against the applicant.
d that all the proposed charges are based on the fact that some persons whose statements are attached as proof of evidence said some unknown and unidentifiable armed robbers attacked them
and also killed one Uchenna who was their neighbour that was equally attacked by the robbers.
e. that none of the said victims ever mentioned the accused person/applicant or make any description similar to him (applicant) as among the persons that attacked them and killed Uchenna.
- I was informed by Ndidiamaka Ezeafulukwe on Sunday being the 22nd day of July, 2007 at about 11: 00 am in our office at BS 302 Banex Plaza, Wuse II, Abuja as follows and I verily believe her to be true:
(u) that the applicant has been in detention since 7th day of June, 2007 and is now having a failing health which is deteriorating.
(t) that he is ready to produce reasonable surety if he is granted bail.
(u) that he will not tamper with police investigation into the case if it has not been completed
(v) that releasing him on bail will enable him to fully and adequately consult with his counsel an how to effectively defend the allegation against him.
(w) that he will not jump bail if granted bail as he will always be in court to stand his trial.
(x) that he will not commit any offence if admitted on bail.”
I have earlier on in this judgment reproduced “in extenso” the ruling of the learned trial Judge. I have also quoted the very salient portions of the affidavit evidence placed before the trial Court with the aim of having a bird’s eye-view of these. From a very careful consideration of the ruling of the trial Court and putting this side by side with the factors that a trial Judge in the shoes of the learned trial Judge in the instant case ought to consider in the issue of a bail application as already stated above; I found that nothing was said about:
(i) the presumed innocence of the Appellant;
(ii) non-availability of any criminal record against the Appellant;
(iii) the way and manner of how the Appellant will impede Police continued investigation, if any;
(iv) whether there has been any evidence to suggest that the Appellant will escape justice.
In the case of: Chedi Vs. A.-G., Fed. supra at page 325, paragraphs E-G and page 326 paragraphs F-G, this Court held the following view per I. T. Muhammad J.C.A (as he then was):-
“…A trial court, no doubt, is a court of law and facts. It has no other sources of generating its decision except from the solid facts established before it and from the law governing the subject matter of litigation before it, It is its primary role therefore to even handedly evaluate the evidence placed before it by the parties not only through witnesses but including evidence by affidavits. A trial court, in other words has the primary duty to fully and consciously consider the totality of the evidence proffered by all parties before it in whatever way, ascribe probative value to it and put it on the imaginary scale of justice in order to determine the party in whose favour the balance tilts. Certainly where a trial court has credibly done that, no appeal court has any business to tamper with its evaluation. ………………..
It is trite law in civil and criminal proceedings that where there is failure by a trial court to properly appraise the evidence placed before it, the result is that whatever findings and conclusions arrived at by that trial court would be perverse. It is on this premise that the appeal court finds itself in the inescapable position of rendering the duty omitted to be done or which was wrongly done by the trial court. ”
I am in complete agreement with the earlier position of this Court as reproduced above. Indeed, that is the correct and age-long settled position of the law. There are a legion of judicial authorities in respect of this principle of law which I need not mention here. It is my bounding duty to conform therewith accordingly. In the present appeal, it is very evident that the learned trial Judge dwelt majorly, indeed solely on the nature and gravity of the offence the Appellant was alleged to have committed. The learned trial Judge with all due respect to His Lordship failed to properly consider the evidence available against the Appellant as contained in the alleged proof of evidence, that is, the statements of the witnesses attached to the application of the Appellant regarding the probability of the guilt of the Appellant. I am at one with the learned counsel for the Appellant that if the learned trial Judge had properly considered the affidavit evidence placed before him, he would have founded and ruled contrariwise.
In the first instance, there is the nagging question as to whether the Appellant has been duly charged to court. The learned counsel for the Appellant submitted that what the Respondent has done so far was to file an application for leave to prefer the alleged charges against the Appellant; but that the said application has neither been moved nor granted. Having perused the record of appeal, I could not find any evidence to show that the Appellant has been properly charged to court.
I must say that the holding of the learned trial Judge that the said application for leave has been granted and that charges have been preferred against the Appellant is not borne out of the affidavit evidence and other facts before His Lordship in the matter of the Appellant’s application for bail. I am in tune with the submissions of the Appellant’s learned counsel that “filing an application for leave to prefer charges” is not the same as “preferring charges” properly so called. What is more, as stated previously in this judgment, the Respondent has not controverted this assertion having not filed a brief of argument and thereby Failed to defend this appeal. The law is settled that where a claim remains unchallenged and uncontroverted, the consequences are that the court will accept the available evidence as true and act on it. See the cases of:
(1) Lawal vs. UTC (Nig.) Plc. (2005) 13 NWLR (pt, 943) p. 601 and
(2) Aprofim Eng. Const. Ltd vs. Sidov Ltd (2006) 13 NWLR (Pt. 996) p. 73.
Secondly, the learned trial Judge refused to grant the Appellant’s bail application because in his view the Appellant had been charged with capital offences punishable with death. He further held that there are sufficient grounds for believing that the Appellant committed the offence and that there was the possibility of further inquiry by the Respondent.
The Respondent on its part did not either precisely or impliedly claim that the Appellant will in any way interfere or impede any further investigation that the Respondent might want to conduct in the case. In fact, there was no allegation that thus far the Appellant has been a clog in the Respondent’s wheel of performing its constitutional duty of investigation in this matter. The law is very trite as submitted by the learned counsel for the Appellant that the fact that the alleged offences are those of murder and armed robbery is not conclusive without more for refusal of the bail application.
Another factor cognate to refusal of a bail application is whether there is a serious risk of an accused person jumping bail thereby escaping from paying for the crime committed by him. I have earlier on reproduced the very cogent averments in the Appellant’s supporting affidavit at the trial court. He stated that he will not tamper with further Police investigation or jump bail if granted. The Respondent’s replies in its counter affidavit were mere, bare, general and non-specific denials. The Respondent did not supply facts to show that the Appellant had ever jumped bail or will jump bail if granted by the trial Court. There was no evidence that the Appellant will not attend his trial at all times if released on bail. The only phrase hinged upon by the Respondent is that “it will not be in the interest of justice” to grant the Appellant bail. The phrase “in the interest of justice” is not a magic wand that can be hinged upon by any single party.
It is not a shield for or tool to be wielded by anyone party. Indeed, all parties in an action are entitled to that: “interest of justice”. It must be applied and made available to all and sundry in accordance to applicable laws in a matter. From the proof of evidence prepared by the Respondent and exhibited by the Appellant at the hearing of the Appellant’s application, it does not seem to me that the learned trial Judge properly formed his view on the strength of the evidence to be called and whether indeed a ”prima facie” case is maintainable against the Appellant. See the cases of:-
(1) Ukatu vs. COP. (2001) 6 NWLR (pt. 710) p. 765 and
(2) Chedi vs. A-G., Fed supra.
Quite apart from the fact that there was and still is no formal charge against the Appellant as required by law, it is evident that the learned trial Judge with great respect to him did not thoroughly examine the circumstances of the allegation of the offences of murder and armed robbery paraded against the Appellant by the Respondent as borne out of the statements of the intended prosecution witnesses contained in the proof of evidence presented before him.
As stated supra, by the combined effect of the provisions of Section 35 of the 1999 Constitution and Section 341 of the CPC, a trial court has the discretion to grant bail to an applicant accused of a capital offence where the circumstances permit the exercise of such discretion. In the instant case, the learned trial Judge fearfully shied away from this legally bounding duty placed on him by his failure to properly consider the circumstances of the case. This is a contravention of the oath of the office of a Judge deposed to by the learned trial Judge that he will dispense justice to all manner of men without “fear” or favour, “inter alia”. In this case, the Respondent alleged the very serious and twin capital offences of murder and armed robbery which the Appellant tried to debunk in his affidavit evidence and that there are in existence special and exceptional circumstances as would entitle him to bail at the trial court. The onus therefore shifted back to the Respondent to prove otherwise. See the cases of:-
(1) Evu vs. State (1988) 2 NWLR (Pt. 78) p. 602;
(2) Emordi vs. COP (2000) 19 NWLR (Pt. 670) p. 46;
(3) Abiola vs. FR.N (1995) 7 NWLR (Pt. 445) p. 115 and
(4) Alaya vs. State (2007) 16 NWLR (Pt. 1061) p. 483.
The decisive factors in capital offence cases are not only limited to the gravity of the offence, but include among others, the cogency of the evidence or the facts alleged against an applicant. Therefore, a court which considers only the gravity of the offence involved but fails to look into the facts relied upon in support of a “charge” can not be said to have exercised its discretion judicially and judiciously under the circumstances of this case, the guiding rules of this Court and the principles of law as stated above. Where as in the instant case there is a wrong, unsound and unreasonable exercise of discretion by a trial court, a decision reached thereat is regarded as perverse thereby leading to a miscarriage of justice.
The effect of a miscarriage of justice is the nullification of the decision reached by the trial court. See the cases of:-
(1) Oyedeji vs. Akinyele (2002) 3 NWLR (pt. 755) p. 586 and
(2) Irolo vs. Uka (2002) 14 NWLR (pt. 786)p.195.
For it is the general principle of law that the exercise of discretion by a lower court will not ordinarily be questioned; but where the exercise of the discretion is found to be perverse as in the instant case, it is within the competence of this Court, an appellate court to have it reviewed. See the cases of:-
(1) Odusote vs. Odusote (1971) 1 All NLR p. 219:
(2) Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 S.C p.145:
(3) Adejumo vs. Ayantegbe (1989) 3 NWLR (pt. 110) p. 417 and 33
(4) Gbadamosi vs. Gov., Oyo State (2006) 13 NWLR (pt.997) p. 363.
Before I wind up this judgment, I wish to refer again to the earlier observation of this Court in the case of Chedi vs. A.-G., Fed Supra at pages 330 – 331, paragraphs G – B per L T Muhammad. JCA, (as he then was) thus:-
”It is my belief that a court of law properly established by the Constitution of the Federal Republic of Nigeria must not shy away from carrying its responsibilities placed upon it by the Constitution and other Statutes. The plenitude of the judicial powers of courts under the 1999 Constitution especially section (sic) 6(a) (b) 34 and 35, including the provisions of section 118 of the Criminal Procedure Act and its corresponding section in the Criminal Procedure Code provide the necessary checks and balances for undue or imagined excesses of the executive, (sic) so that where the circumstances warrant any citizen who is arbitrarily incarcerated will, by force of law, regain his liberty. My humble understanding of the general law is that where the police (sic) or the executive (sic) arbitrarily detains a citizen in questionable circumstances, and refuses him the liberty to his person and movement, whereas the law so permits, then that is derogatory to due process of law and an antithesis to our nascent democracy. That will, of course signal a head-on romance with anarchy and a state of despondency.”
From the foregoing, I find merit in this appeal and I allow same.
Consequently, the order made in the ruling of the trial Court delivered on 5/9/07 refusing the Appellant bail is hereby set aside. I substitute the order with an order admitting the Appellant, Mr. Cosy Emenike Ezenwafor to bail pending the hearing and determination of any such criminal case that may be preferred against him by the Respondent; on the condition that the Appellant is admitted to bail in the sum of One Million Naira and two sureties severally in the like sum. It is hereby ordered that each of the sureties shall have landed property in a prime area of and be resident in Abuja.
It is further ordered that the title documents of the relevant properties shall be deposited with the Registrar of this Court.
Other Citations: (2009)LCN/3485(CA)
