Ishaya Bamaiyi V. The State & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The appellant is the 1st accused in charge No. LCD/108/99 still pending at the Lagos High Court. Five persons were arraigned on the charge. The offences in which the appellant was said to be involved read:

“Statement of Offence – Count 1

Conspiracy to commit murder contrary to Section 324 of the Criminal Code Cap 32 Laws of Lagos State, 1994.

Particulars of Offence

Ishaya Bamaiyi (M), James Danbaba (M), Hamza Al-Mustapha (M), Jubrin Bala Yakubu (M) and Mohammadu Rabo Lawal (M) on or about the month of February, 1996 at Ikoyi in the Lagos Judicial Division conspired to murder Alex Ibru.

Statement of Offence – Count 2

Attempted murder contrary to Section 320 of the Criminal Code Cap 32 Laws of Lagos State, 1994.

Particumrs of Offence

Ishaya Bamaiyi (M), James Danbaba (M), Hamza Al-Mustapha (M), Jubrin Bala Yakubu (M) and Mohammadu Rabo Lawal (M) on or about the 2nd day of February, 1996 at Ikoyi in the Lagos Judicial Division attempted to murder Alex Ibru.

Statement of Offence – Count 3

Grievous harm contrary to Section 335 of the Criminal Code Cap 32 Laws of Lagos State, 1994.

Particulars of Offence

Ishaya Bamaiyi (M), James Danbaba (M), Hamza Al-Mustapha (M), Jubrin Bala Yakubu (M) and Mohammadu Rabo Lawal (M) on or about the 2nd day of February, 1996 at Ikoyi in the Lagos Judicial Division, unlawfully caused grievous harm to Alex Ibru.

Statement of Offence – Count 4

Conspiracy to commit murder contrary to Section 324 of the Criminal

Code Cap. 32 Laws of Lagos State, 1994.

Particulars of Offence

Ishaya Bamaiyi (M), James Danbaba (M), Hamza Al-Mustapha (M), Jubrin Bala Yakubu (M)and Mohammadu Rabo Lawal (M) between the months of December, 1995 and January, 1996 at Ikoyi in the Lagos Judicial Division conspired to murder Isaac Seiya Porbeni.”

The appellant pleaded not guilty to each of the four counts above with which he was charged. The appellant was remanded in prison custody. On 16th December, 1999, an application for bail for the appellant was brought before the lower court. An affidavit was filed as is usual in such matters in support of the application. The 1st respondent, which is the State, filed a counter -affidavit and a further counter-affidavit. The lower court heard arguments on the application for bail on 7th March, 2000 and on 19-5-2000, Alabi J. who is the trial Judge in a considered ruling refused the application. Dissatisfied with the refusal of his application for bail, the appellant filed his appeal against the ruling. He raised four grounds of appeal. In the appellant’s brief filed, the issues for determination formulated from the four grounds of appeal are:

“3.1 Whether the conclusion reached by the learned trial Judge in refusing the appellant bail that the appellant will interfere with prosecution witnesses and avoid his trial are (sic) backed by evidence?.

3.2 Whether there are exceptional circumstances arising from the counter-affidavit and further counter-affidavit of the respondent to warrant a denial of bail to the appellant by the trial Judge having regard to the clear provisions of Sections 86, 87 and 88 of the Evidence Act?.

3.3 Whether there was sufficient materials (sic) placed before the trial Judge upon which he would have exercised his discretion and grant the bail sought?.

3.4 Whether the appellant is entitled to bail as of right under the 1999 Constitution and the African Charter on Human and People’s Rights?.”

The 1st respondent formulated two issues for determination. The issues are:

“3.1 Whether the appellant has adduced cogent argument to move the Court of Appeal to interfere with the exercise of discretion by the trial Judge?.

3.2 Whether by the interpretation of Section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and People’s Rights, the trial Judge is precluded from exercising his discretionary power under Section 118 of the Criminal Procedure Law Cap. 33 Laws of Lagos State?.”

The respondent’s issues are amply accommodated under the appellant’s issues. All the appellant’s issues could be conveniently considered together. I intend to do so in this judgment.

In the affidavit filed by the appellant in support of the summons for bail, the relevant paragraphs read:

“21. That a charge has been laid against the 1st accused/applicant and investigation in the issue has been concluded.

22. That the 1st accused/applicant informs me and that I verily believe him that he will not jump bail if admitted to bail.
23. That the 1st accused/applicant informs me and I verily believe him that, he had on several occasions travelled outside the country since his retirement and has returned to Nigeria despite the said allegations against him as evidenced in the charge.
24. That the 1st accused/applicant informs me and I verily believe him that, he is responsible for his aged mother and is a family man and as such will be readily available to face his trial if admitted to bail.
25. That the respondent will not suffer any injustice if the application is granted.
26. That the 1st accused/applicant will suffer grave and irreparable damage if in the event he is not admitted to bail he is found not guilty of the offences in the counts of the charge laid against him.
27. That the 1st accused/applicant is not being charged for a capital offence.
28. That the 1st accused/applicant informs me and I verily believe him that, he will be willing and ready to abide by any condition that may be imposed by this Honourable Court upon his admission to bail.
29. That the 1st accused/applicant’s case has generated so much interest both national international and the admission of the 1st accused/applicant to bail will not (sic) doubt enhance and project the administration of justice system in Nigeria.”

In paragraphs 5 to 18 of the counter-affidavit, it was deposed thus:

“5. That a careful consideration of the facts contained in the said case file, disclosed the offences of attempted murder and conspiracy to commit murder against the accused/applicant.

6. That an information was subsequently filed in the High Court of Lagos State alleging the said offences against the accused/applicant and four others.
7. That a copy of the said information is hereby attached and marked Annexture ‘A’ with suit No. LCD/108/99.
8. That this office expects the hearing notice in the case any moment from now.
9. That there is no reason to anticipate any delays in the prosecution of this case.
10. That the witnesses for the prosecution are available, willing and ready.
11. That the offences for which the applicant stands charged are grave indeed.
12. That if the accused/applicant is granted bail, it is not likely that he would appear for his trial.
13. That if the accused/applicant is granted bail, there is likelihood that he would intimidate and tamper with witnesses for the prosecution in view of his social status and professional training especially in security matters.
14. That there is good and compelling evidence against the accused/ applicant for the offence for which he is charged.
15. That by the statements of proposed witnesses attached to the information, the accused/applicant procured the weapons used to commit the act constituting the offence.
16. That in fact statements of the proposed witnesses indicate/disclose that the directive to commit the act constituting the offence issued from the accused/applicant.
17. That in fact the accused/applicant admitted in his statement that there was an “assassination list” at the time the offence was committed.
18. That by procuring those who committed the act and assisting them by providing logistic support, the accused/applicant became liable as a principal offender.”

And in paragraphs 5 to 17 of the further counter-affidavit, it was deposed thus:

“5. That there were a series of assassinations planned by the applicant and other top ranking members of the General Sani Abacha regime.

6. That these assassinations from all available security reports were designed to eliminate perceived enemies of the said regime.
7. That the conspiracies have led to criminal proceedings in Suit No.ID/43C/99 against Hamza Al-Mustapha and Rabo Lawal who along with the applicant have also been charged in another information before this honourable Court for offences arising from the conspiracy.
8. That the applicant and the persons named in paragraph (6) above, in-terms of their alleged involvement in the attempted murder carried out in pursuance of the conspiracy are inextricably interwoven in all the murders and other offences carried out during the period referred to in paragraph (4) above.
9. That the release of any of the applicants will have serious negative consequences in the prosecution of this and other offences with which the applicants are currently charged.
10. That all of the witnesses are subordinate to the applicant in the Military hierarchy and given the strict authoritarian/hierarchical control in the Armed Forces, there is a great likelihood that the applicant will constitute a threat both implicitly to the witnesses.
11. That considering the status of the applicant and his connection in the Military, security and law enforcement system of the country and the seriousness of the charge and the severity of the punishment if convicted, there is a reasonable likelihood that the applicant will tamper with the evidence/witnesses essential to the prosecution of the offences.
12. That having regard to the fact that the applicant has for the most part of his professional life acquired a high prestige and status in the Nigerian society, and served at the highest level of government, the possibility of conviction for life for the offence of attempted murder is sufficient to cause the applicant to abscond from the country.
13. That there is a strong likelihood that the applicant if released, will compromise and intimidate witnesses and investigators by virtue of his former post and status vis-a-vis these witnesses.
14. That in fact some of the witnesses have expressed great fears on account of threats received through different sources connected with the accused persons both in this trial and that referred 10 in paragraph 7 above.
15. That already an intended key witness in this case the armourer of the Lagos State Police Command, Insp. Joseph Oboh has been shot dead by assassins.
16. That neither the car that the said Insp. Oboh was driving nor any of his property was removed by the killers.
17. That the applicant’s release at this stage will highly be prejudicial to the successful prosecution of these cases and have serious security implications for the witnesses and police investigators.”

In considering whether or not to grant the appellant bail, the trial Judge in the ruling called to mind the factors governing the exercise of the discretion in the grant of bail. The court said:

“Judges have over the years worked out some criteria in the bail decision. Some of them at the pre-trial and trial level include the availability of the accused to stand trial, the nature and gravity of the offence, the likelihood of the accused committing another offence while on bail, the likelihood of the accused interfering with the course of justice and the criminal antecedents of the accused person. Others include the likelihood of further charge being brought against the accused, the probability of guilt, detention for the protection of the accused person, the necessity to procure medical or social report pending a final disposal of the case and the peculiarity of the health of the accused.”

Considering the several judicial authorities available on the grant of bail, there is no doubt that the trial Judge in the above passage captured almost exhaustively the factors which a court called upon to grant bail to an accused must always bear in mind. See Mamid Dantata v. Police (1958) NRNLR 3; Obekpa v. C.O.P. (1980) 1 NCLR 113; R. v. Rose (1895-9) All ER (reprint) 350 at 351. In Re Michael Patrick Philips (1948) 32 Cr. Appeal Report 47 at 48; Eyu v. State (1988) 2 NWLR (pt.78) 602.

Now, in refusing to grant bail, the lower court said:

“Taking a bird’s eye view of this case and all surrounding circumstances, it would appear to me that two criteria stand out prominently relevant and weighty. They are:

(i) Possibility of interference with respective witnesses and

(ii) Availability of the accused to stand trial. It is common ground in this case that investigations have been concluded.

Therefore, the possibility of any of the accused persons hindering investigation is no longer possible. There is however a world of difference between hindering investigation and interfering with witnesses. Incidentally, interference with witnesses could take any form.

It is agreed that the first accused person is a well known Nigerian of good and enviable reputation and personality. He has hitherto served this country meritoriously in various capacities and positions. He attained one of the highest positions attainable in his career. He is indeed the immediate past Chief of Army Staff, Nigerian Army. No one denies him of the attribute that he contributed in no small measure towards the attainment of the democratic dispensation which we have in Nigeria today.

By virtue of all the high positions, he has had the singular honour and privilege of holding, no one can doubt the fact that the first accused person is very well connected not only socially, politically, economically but also in all spheres of human endeavour. Consequently, no one can doubt that by virtue of his being well connected, he has tremendous influence in the society which he can wield easily. With that kind of influence and having regard to all the surrounding circumstances in this case, it is more realistic to believe that the possibility of interfering with prospective prosecution witness or witnesses is not remote at all if the first accused person is admitted to bail.” (Italics mine).

From the above passage, it is apparent that the trial Judge while effusive in the appreciation of the achievements of the appellant, still recognised that there was a chance that he could interfere with the witnesses. This basically was why the bail request for the appellant was refused.

In the appellant’s brief, the reasoning of the lower court has been faulted on diverse grounds including that the conclusion of the lower court that the appellant might, if granted bail interfere with prospective prosecution witnesses was not justified. Reliance was placed on the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria, 1999. The African Charter on Human and Peoples’ Rights. Counsel also relied on several judicial authorities which include Eyu v. The State (1988) 2 NWLR (Pt.78) 602; Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (pt.405) 1; Ebute v. The State (1994) 8 NWLR (Pt.360) 66 at 7172; Chinemelu v. C.O.P. (1995) 4 NWLR (pt.390) 467 at 484. On the exercise of discretion, counsel relied on University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143; Cee Kay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (pt.222) 132 SC; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 and Chief Igunibor Igbodim & Ors. v. Chief Ugbede Obianke & Ors. (1976) 9 – 10 SC 179 at 191.

Section 35(4) of the Constitution of the Federal Republic of Nigeria 1999 provides:

“(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of-

(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or

(b) three months from the date of his arrest or detention in the case of a person who has been released on bail.

he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”

It seems to me that the purpose of Section 35(4) above is to ensure that once a person is arrested and put in custody and such person is not granted bail, he shall within a reasonable time be brought before a court and his trial commenced within a period of two months after taking him into custody. To interprete it as meaning that the trial must be concluded in two months will create serious implementation problem as the country has not as yet the manpower and other allied facilities to ensure that trials of persons who because of the seriousness of the offences alleged against them cannot be granted bail are concluded in two months.

It may lead to a situation where armed robbery suspects or other persons arrested for murder or other violent crimes whose trial cannot be concluded in two months are let loose on our streets.

The reliance by the appellant’s counsel on African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation, 1990 does not in my view enhance, in the circumstances of this case, the entitlement of the appellant to bail. Counsel relied on Adekanye v. Comptroller of Nigerian Prisons (1999) 10 NWLR (pt.637)126 where I said:

“What we have done here was to recognise that the arraignment of the applicants before a tribunal for offences allegedly committed by them was not an infraction of Municipal or International Law or the African Charter on Human and Peoples’ Rights. It was however unlawful to presume them guilty before they were adjudged so or put obstacle in their way of getting bail. We needed therefore to steer a course that ensured they faced their trial while at the same time ensuring that they were released on bail while they faced the trial.”

What this court said in the above passage has no bearing whatsoever to the facts of the instant case. In the Adekanye case, we were considering the propriety of a decree which tied the entitlement of the accused persons to bail to their first depositing a percentage of the amount stated in the charge to have been stolen by them, a situation which assumed that once you were charged with stealing a particular sum of money, it was to be presumed that the money said to have been stolen was available in your hand to be deposited in court in order to secure bail. This we held was a negation of the Constitutional provision which presumes an accused person innocent until found guilty.

In the instant case, the entitlement of the appellant to bail was considered on the basis of the usual time honoured factors which govern the grant or refusal of bail. Nothing in the African Charter on Human and Peoples Rights prescribes that any person accused of committing a crime shall at all events be granted bail. Bail shall however not be unreasonably withheld. I think that the important matter in this case is whether or not the lower court in the refusal to grant bail took account of irrelevant factors or exercised its discretion on the wrong principles. Section 118 of the Criminal Procedure Law Cap. 33, Laws of Lagos State 1994 provides:

“118(1) A person charged with any offence punishable with death shall not be admitted to bail except by a Judge of the High Court.

(2) Where a person is charged with any felony other than a felony punishment with death, the court may if it think fit admit him to bail.

(3) When a person is charged with any offence other than those referred to in the two last preceding subsections, the court shall admit him to bail unless it sees good reason to the contrary.” (Italics mine).

This appeal is therefore one on the exercise by the trial Judge of his discretion in the grant or refusal of bail. Appellate courts do not as a matter of practice readily intervene in matters concerning the exercise of discretion by the trial Court. In Saffieddine v. C.O.P. (1965) 1 All NLR 54 the Supreme Court per Ademola, C.J.N. said:

“Now the principles to be applied in considering an appeal made by a Judge in his discretion have been enunciated in a few judicial decisions of which reference may be made to one or two.

In Evans v. Bartlam (1937) AC 473, Lord Atkin at pages 480 – 481 said:

“And while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the Judge’s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.”

“In the case of Blunt v. Blunt (1943) AC 517 which dealt with the exercise of discretion in divorce cases, Lord Simon at pages 526 and 527 of the report referred to the case of Charles Osenton and Co. v. Johnston (1942) AC 130 at 138, and made it clear that the appellate Tribunal does not reverse the order of the judge merely because it would have exercised the original discretion had it attached to the appellate tribunal in a different way; and he continued:

“But if the appellate tribunal reaches the clear conclusion that there has been a wrong exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations….. then the reversal of the order on appeal may be justified.”

“Lord Simon further referred with approval to what Swinfen Eady M. R. had said in Holland v. Holland (1918) 273 at 299 on the exercise of the judges discretion in divorce matters. There the learned master of the rolls had said:

”The question for consideration by this court is whether his judgment is erroneous, and not whether we should have exercised the discretion in the same manner as the judge below did. There is no appeal from his discretion, to our discretion and the appellant is not entitled to succeed unless the judgment is erroneous.”

The issue in the instant case had been simple and straightforward not involving any complicated question of law. The appellant had sought bail thus submitting himself to the exercise by the trial Judge of the discretion to grant bail or not. There was deposed to an affidavit in support of the application which stated facts why the appellant should be granted bail. The respondent on the other hand deposed to two counter-affidavits why the appellant, though an eminent citizen of this country should not in the particular circumstances of this case be granted bail. It was deposed to inter alia, that some of the witnesses for the prosecution were persons who had served under the appellant when he was Chief of Army Staff of the Nigerian Army. This created a chance that those witnesses could be intimidated or interferred with. The circumstances under which the appellant, a former Chief of Army Staff came to be arraigned on the offences brought against him were unusual. In the history of this country, there had been only very few trials like it. The trial Judge is a Nigerian residing in the Nigerian environment. He is not a somnambulist or a visitor from the moon. He is not to allow anything he hears or sees outside the court hall or any opinion he holds outside a case to influence his decision. But he is a judge because of his learning in law and his presumed experience in the affairs of the society he lives in.

The Judge in his wisdom decided to exercise his discretion to refuse bail. This appeal is not an invitation to us to substitute our discretion for the trial Judge’s; and as the appellant has failed to show that the discretion was exercised on the wrong principles, I must refuse this appeal.

The appeal is dismissed.

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Other Citations: (2000)LCN/0920(CA)