Fajana Ifedayo Eddi V. Commission of Police (2006)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The Appellant in this case, Mr. Fajana Ifedayo O, was arraigned before the Magistrate Court on a FIRST INFORMATION REPORT (F.I.R.) on the allegation of “being a member of Secret Cult contrary to Section 11(i) of the Secret Cult and Secret Societies in Educational Institution (Prohibition) Law 2004 of Kwara State. The learned Chief Magistrate refused to admit him to bail and ordered that he be remanded in prison custody thereafter filed an application before the High Court of Justice, Ilorin wherein he claims the following reliefs:-
(1) “AN ORDER of this Honourable Court Vacating the Order of detention made against the Accused/Applicant on the 3rd of November, 2004 by the Chief Magistrate Court Ilorin.
(2)AN ORDER of this Honourable Court admitting the Accused/Applicant to bail pending the final determination of this case.
(3) AND for such Order of further Order as Honourable Court may deem fit to make in the circumstances of this application,”
The learned trial High Court Judge, having heard both parties, refused the application, In conclusion, the lower Court held as follows:-
“In the light of the explanation given, I find that no special circumstances have been shown to warrant the court to admit the accused applicant to bail despite all the reasons enumerated above, the application is refused in its entirety as the court is not inclined to admit the accused applicant to bail.”
The Appellant being dissatisfied with this decision had by a Notice of Appeal dated 5/10/05 appealed to this Court on four (4) grounds of appeal. The grounds without their particulars are herewith reproduced:-
(1) The learned trial Judge erred in law in holding that there were no special Circumstances to warrant the admission of the Applicant to bail and that the Applicant was not entitled to bail pending trial considering the rampancy of the alleged offence in higher institutions of learning and the society
(2) The learned trial Judge erred in law in refusing the bail of the applicant on the ground that he will jump bail
(3) The learned trial Judge erred in law in refusing to admit the Applicant to bail.
(4) The ruling of the trial court is unwarranted and cannot be supported having regard to the affidavit evidence”
In compliance with the rules of this court, both parties filed and exchanged their respective Briefs of Arguments. The Appellant in his Brief of argument dated 17/11/05 formulated only one issue for determination as follows.
“Whether, taking the circumstances of this case into consideration, the learned trial Judge was not wrong to have refused to admit the Appellant to bail.”
The Respondent in its brief of argument dated 16/2/06 adopted the issues as formulated by the Appellant’s counsel.
The Appellant in this matter is a final year Higher National Diploma (HND) student of Account’s Department at the Federal Polytechnic, Offa, He was arrested on 28/10/2004 by the Police in the course of his writing an examination at the Polytechnic in the “Management Information System Course”. He, along with others arrested were transferred to the State Police Headquarters, Ilorin where they were arraigned before the Chief Magistrate Court, Ilorin on 3/11/2004. The Chief Magistrate refused to admit them to bail and ordered that they be remanded in the prison custody. It was this refusal that led to this application before the lower court and subsequently this appeal. It is to be noted that uptil now, no formal charge has be brought against the Appellant at the High Court of Justice, Ilorin, which is the court that has the jurisdiction and power to hear and determine the allegation against the appellant by virtue of Section 16 of the Secret Cults and Secret Societies in Educational Institutions (Prohibition) Law of Kwara State hereinafter referred as “Cults Law”.
At the hearing of this appeal before us on 8/3/2006, the learned counsel to both parties adopted their respective Briefs of arguments. The Appellant In his brief or argument submitted that the learned trial Judge certainly could not have been right in refusing bail to the Appellant He submitted that the offence of membership of a Secret Society, in whatever angle you look at it is not a Capital Offence. The offence is punishable by sentence to ten years imprisonment and fine of Fifty Thousand Naira (N50,000.00). The Appellant should have been peremptorily released on bail having spent five months in detention before the ruling of the trial Judge. He referred to Section 35 (4) of the 1999 Constitution and cited in support the case of Ogueri v. The State (2002) 2 C. L. E. N. 14 at 35: and Obekpa v. COP (1980) 1 NCR 113 at 117.
The Appellant has not been arraigned for trial before a competent court of law which is the High Court. His arraignment before the Chief Magistrate Court is only for cognizance (Holding Charge?) which has been declared as un-constitutional in the case of:- Enwere V. C.O.P (1993) 6 NWLR (part 299) P 333 at 341, and 342. He submitted further that the refusal of the trial Judge to admit the applicant to bail on the ground of the “rampancy of the offence” amounts to taking extraneous matter into consideration, as the accused/appellant under our system is presumed innocent until found guilty. That the finding of the lower court that the Appellant would jump bail if granted is without any basis. He submitted that the onus is on the Respondent to show that an accused person is one that should be refused bail. He relied on the case of Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (part 370) 155 at 175. The respondent, learned counsel further continues, woefully failed to discharge the onus placed on him by the law. He for that reason urged this court to allow the appeal.
The Respondent, in their brief, submitted that an appeal against the ruling of a court granting or refusing a bail application is certainly a challenge of the exercise of the discretion by the trial court, the cases of Likita Vs C.O.P (2002) 11 NWLR (part 777)145 at 161 and Chinwe Medu Vs C.O.P (1995) 4 NWLR (pt 390) 467 at 491, were cited.
The Respondent again referred to Section 341 (2) of the Criminal Procedure Code (C.P.C) and submitted that it is when the conditions stated therein are satisfied that the Court would exercise its discretion in favour of the Appellant. He therefore submitted that the lower court was right to have held that the offence against the appellant is serious and grave as it carries ten years imprisonment with Fifty Thousand Naira fine and therefore the trial court was right to have refused bail to the appellant.
Similarly the prevalence of “the offence” with its attendance lost of lives and properties was another justified reason for the lower court in refusing to admit the Appellant to bail, he cited the case of Chinemelu v. C.O.P (2000) 5 NWLR (pt 706) 215 at 222
On Section 35 (4) of the 1999 Constitution, the learned counsel submitted that Section 35(4) ought to be read together with subsection 1C which talks of the need for an accused to be brought before a court of law within a reasonable time. He therefore submitted that the Appellant has been arraigned before a court of law and is in custody based on the Order of the Court. It is trite that the Magistrate Court has power to take cognizance of an offence and remand an accused in custody or release him on bail, it is therefore a mis-conception that the Appellant’s detention in custody by the Magistrate’s Court was on holding change. The facts of delay alleged by the Appellant are not sufficient to envoke the discretion of the lower court in his favour, The Respondent then urged this court to dismiss the appeal
From the facts of this case as stated above, the followings are not in doubt or in dispute”-
- The Appellant was arrested on the 28/10/2004.
- He was arraigned before the Chief Magistrate’s Court on 3/11/2004, who ordered that he be detained in the prison custody.
- That by the Provisions of Section 16 of the “Cults Law” it is only the High Court of Justice, Kwara Stale that has jurisdiction to hear and determine the allegation against the Appellant.
- The order to detain the Appellant in prison custody made by the Chief Magistrate was made to remand the Appellant until his arraignment before the proper court with jurisdiction to determine the case; and
- Uptil this time, almost two years, after the Appellant was arrested and detained, no charge has been preferred against him before the High Court of Justice, Kwara State, which has the jurisdiction to try him.
My lords, and with tremendous respect to the learned counsel, it appears to me a misty and blurred in this matter – as to whether, it is right to have kept the Appellant in prison custody for a period extending to almost two years without formally filing a charge against him before the High Court of Justice that has jurisdiction to determine the allegation against him. The Respondent in its brief did not, in any way, make any effort to arraign the Appellant before the competent Court for trail. It is as if they were contended with the Appellant being remanded in prison custody. He can remain there for as long as they want, without bringing him to face justice. This definitely is against the spirit of the 1999 Constitution of the Federal Republic of Nigeria, Particularly Section 35(4) thereof:-
“Any Person who is arrested or detained in accordance with Subsection 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 unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”
Section 35 () of the 1999 Constitution provides thus:-
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
(a) ………………………………………….
(b) ………………………………………….
(c) for the purpose of bringing him before a court in execution of the Order of a Court or Upon reasonable suspicious of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence”.With respect, while the personal liberty of an accused may be denied under Section 35 (1) as it is in this case, he must under Section 35 (4) (a) be arraigned for trial within two months, failure of which the accused person is entitled to bail either un-conditionally or on conditions as may be reasonable necessary to ensure that he appears for trial at a later date.
In the case at hand, the Order made by the Chief Magistrate’s Court by which the appellant was remanded in prison custody was valid pursuance to Section 35(i) (c) of the constitution. What is Constitutionally required of the Respondent by virtue of Section 35 (4) (a) is to ensure that the Appellant is arraigned before a competent court within two (2) months from the date the Appellant was remanded in custody. This step, the Respondent, with respect, has failed woefully to actualize. As a result the Appellant is entitled to be released on bail. It is to be noted that this Section applies to both Capital and non -Capital offences. The main intention and purpose of this Section is to prevent a situation like this, where an accused would be perpetually detained in custody without arraigning him to court to face Justice. If the Respondent has been genuinely concerned with this problem of the prevalence of the allegation against the accused person in this case, he ought to have timeously arraigned him to face his trial before a competent court of law so that justice would be seen to be done to both parties and the society.
In view of the above, I hold that the appeal is meritorious and same is hereby allowed. Consequently the accused/appellant is admitted to bail on the following:-
(a) Bail is granted the Appellant in the sum of one hundred, Thousand Naira (N100,000.00) and one surety in the like sum.
(b) The surety shall be resident in Ilorin, Kwara State Capital, with evidence of ownership of a landed property evidence by Certificate of Statutory right of Occupancy.
(c) Any report that the appellant is involved in any Cultism the bail granted will stand revoked.
Appeal Allowed.
Other Citations:(2006)LCN/1966(CA)
