James Danbaba V. The State & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 1st accused person against the ruling of Alabi J. dated 10th of May, 2000 wherein the learned Judge refused the application for bail dated the 16th of December, 1999.

I will summarise the facts leading to this application. On the 3rd of February, 1996, one Alex Ibru was shot by gunmen at the Falomo flyover in Lagos. He however survived the attack. The appellant and four other persons were accused and subsequently charged for offences including conspiracy to murder and attempted murder in the information filed by the State and dated the 26th of January, 2000

Meanwhile, the appellant and the four accused persons have been arraigned before Alabi J. Evidence of 1st prosecution has been taken at the trial.

On the 16th of December, 1991, the appellant brought a summons for bail which was supported by a 30-paragraph affidavit and 7 exhibits. The respondent in opposition to bail deposed to a counter-affidavit and further counter-affidavit dated 17th December, 1999 and 21st December, 1999 respectively.

On the 7th of March, 2000, arguments on the application was taken and ruling was delivered on the 10th of May, 2000. The learned trial Judge refused the application for bail and accordingly dismissed it.

Being dissatisfied with the said ruling, the appellant has further appealed to this court on five grounds.

Four issues formulated by the appellant for the determination of this court are as follows:

Issue 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 backed by evidence.

Issue 2

Whether there are exceptional circumstances arising from the counter-affidavit and further 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.

Issue 3

Whether there are sufficient materials placed before the learned trial Judge upon which he would have exercised his discretion and grant the bail sought.

Issue 4

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

The two issues which the respondent formulated for the determination of this court are as follows:

Issue one

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

Issue two

Whether by the interpretation of section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples’ 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, 1994”.

While I do not think that the four issues formulated by the appellant’s counsel for determination as distilled from the 5 grounds are proliferated, however, I am of the firm opinion that the two issues formulated by the learned counsel for the respondent are apt, terse and are sufficiently adequate to deal with this appeal.

Accordingly, I shall be so guided by them.

The first point is whether the appellant has adduced cogent argument to move this court to interfere with the exercise of discretion by the learned trial Judge.

The decision to grant the appellant bail or refuse it lies entirely within the discretionary power of the court. The learned trial Judge was faced with the primary consideration as to whether the appellant had discharged the burden placed on him to enable him exercise that discretionary power. The learned trial Judge stated at p.10 of the ruling that the most important consideration in the bail decision is the determination of what criteria a Judge should apply in granting or refusing bail. Having carefully reviewed the surrounding circumstances of the case, he stated that the two criteria that were relevant and weighty in the determination of the application are as follows:

(a) The possibility of interference with prospective prosecution witnesses; and

(b) Availability of the appellant to stand his trial.

The learned trial Judge then proffered some reasons why he believed that the appellant would not appear to stand his trial if released on bail. He stated thus:

“It is common ground in this case that investigations have been concluded. Therefore the possibility of any of the accused persons hindering the investigation is no longer possible. There is however a world of difference between hindering investigation and interfering with witnesses. Incidentally, the interference with witnesses could take any form.

There is no doubt that the second 2nd (sic) 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 the rank of Commissioner of Police in the Nigerian Police. Indeed, he was Commissioner of Police for Lagos State and Oyo State at different times.”

The learned trial Judge stated further thus:

“By virtue of all the sensitive positions he has had the singular honour and privilege of holding, it cannot be in doubt that the second accused person is very well connected not only socially, politically, economically but also in all spheres of human endeavour.

Consequently, it becomes obvious that by virtue of his being well connected, he has capacity to wield tremendous (sic) influence in the society.”

This is the analysis of the profile of the appellant by the learned trial Judge. He thereafter concluded that the whole trial and everything connected therewith must be an unwarranted irritant to the appellant, and for this reason, it is more realistic to believe that if he was admitted to bail he would want to avoid and evade his trial altogether.

These statements of the trial Judge can be justified when viewed against the background of the status of the appellant, the influence and authority the appellant commanded prior to his arrest and trial. I refer to paragraphs 12-16 of the respondent’s counter-affidavit which reads thus:

“12. That the offence for which the accused/applicant stands charged are grave indeed.

13. That if the accused/applicant is granted bail it is not likely that he would appear for his trial.
14. 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 in security matters.
15. That there is good and compelling evidence against the accused/applicant for the offence for which he is charged.
16. That by the statements proposed witnesses attached to the information the accused/applicant procured the weapons used to commit the act constituting the offence”.

In addition, paragraphs 9-17 of further counter-affidavit deposed by Olakunle Ligali, a Legal Officer in the Department of Public Prosecutions Lagos State, further present the following scenario:

“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 by the applicant in the police hierarchy and given the strict authoritarian/hierarchical control in the Police Force there is great likelihood that the applicant will constitute a threat both implicitly and explicitly to the witnesses.
11. That in considering the status of the applicant and his connection in the Police, security and law enforcement system of the country and 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 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 fear on account of threats received through different sources connected with the accused persons both in this trial and that referred to 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 Insp. Oboh was driving nor any of his property was removed by the killers.
17. That the applicant’s release at this stage will be highly prejudicial to the successful prosecution of those cases and have serious security implications for the witnesses and Police investigations.”

It is the contention of the learned counsel for the appellant in the appellant’s brief that two grounds considered by the trial Judge in arriving at his conclusion for refusing the appellant bail were applicable to applications brought under section 341 of the Criminal Procedure Code and not under sections 118 and 123.

I do not see the basis for this submission. Section 118(2) of the Criminal Procedure Law provides that:

“Where a person is charged with any felony other than a felony punishable with death, the court may if it thinks fit admit him to bail (italics supplied for emphasis).

On the other hand, section 341 (2) of the Criminal Procedure Code provides that persons accused of an offence punishable with imprisonment for a term exceeding three years must not ordinarily be released on bail unless by doing so the proper investigation of the offence would not be prejudiced and that no serious risk of the accused escaping from justice would occasion and finally that grounds exist for believing that the accused if released, would commit another offence.

Reading these sections together, it leaves no one in any doubt that Criminal Procedure Act does not provide any criteria to guide the courts in the exercise of its discretion.

The courts in Southern States of Nigeria where the Criminal Procedure Act applies largely have therefore on many occasions resorted to judicial pronouncement on the issue for guidance.

The usual conditions or matters which the court considers in its exercise of the discretion are:

(a) Whether the proper; investigation of the offence would be prejudiced if the accused person is granted bail and whether there is a serious risk of the accused person’s escape from justice by jumping bail;

(b) The nature of the offence or charge which the accused person is facing before the court and the risk of his interference in the prosecution of the case; and

(c) The strength of the evidence against the accused person. See also the following cases: Eyu v. State (1988) 2 NWLR (Pt. 78) 602 at 607, Okpe v. State (1994) 5 NWLR 490 at 499, Chinemelu v. COP (1995) 4 NWLR (pt. 390) 489 at 490.

I have read Abiola v.FRN (1995) 1 NWLR (Pt. 370) 155 at 179 relied upon by the learned counsel for the appellant for his proposition. This is the Court of Appeal decision. It did not state that the conditions prescribed by section 341 of the Criminal Procedure Code were not applicable to applications brought under sections 118 and 123 of the Criminal Procedure Act. In that case, one of the issues for determination was whether the Criminal Procedure Act or Criminal Procedure Code was applicable to an application for bail instituted at the Federal Capital, Abuja. It was in this light that my learned brother Abdullahi JCA (as he then was) made the pronouncement first at p. 177 and at p. 179.

The objection of my learned brother was the reference by the Solicitor-General of the Federation to the bail conditions under the Criminal Procedure Code in his argument when the trial court had ruled that the application was governed by the Criminal Procedure Act.

I have observed that in Okpe v. State (supra) and Chinemelu v. COP (supra) the conditions in section 341 of the Criminal Code were applied, although no reference was made to the Criminal Procedure Code in the judgment.

It is in Oyeyemi v. Irewole Local Govemment (1993) 1 NWLR (Pt. 270) 462 at 477, the Supreme Court succinctly stated that judicial discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between colourable glosses and pretences.

It is in exercising this discretion that the Judge is required to weigh all the circumstances of a particular case in the interest of justice. Thus in Echaka Cattle Ranch Ltd. v. NACB Ltd (1998) 4 NWLR (Pt. 547) 526 at 544, Iguh JSC stated thus:

“accordingly, since the circumstances constantly change or are never exactly the same, it is for the trial court to meet the ends of justice and to be fair and just in all the circumstances of each and every case. While it is the law that the exercise of its discretion by the trial court may be reviewed on appeal, an appellate court must not interfere unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was male fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was exercised in a manner that was inconsistent with the ends of justice”.

It would appear that the learned trial Judge in considering and exercising this discretion not to grant the appellant bail, he was not only guided by the criteria which had been established by case law over the years, but he also considered the guidelines and criteria for bail set out by Akin Ibidapo Obe and Clement Nwankwo in their research work titled “The Bail Process and Human Rights in Nigeria.” Published by the Constitutional Rights Project in 1992. At page 40 of this book the learned authors stated thus:

“We have noted that the court bail is granted virtually as of right in minor offences in line with the provisions of the Constitution and the Criminal Procedure Laws. However, with regard to more serious offences, the discretionary role of the courts become the significant factors…”

In the preceding pages, the learned authors condemned the attitude of some judicial officers in denying accused persons bail on flimsiest exercise of interfering with witnesses where a charge has political colouration. However, the quotaton at p.40 of that book reproduced above, to my mind, supports the position of the respondent. I am of the view that a charge of conspiracy to murder and attempted murder are not political offences but offences against the state. These offences attract grave penalties and, therefore certainly qualify as serious offences over which the trial Judge has the power to exercise his discretion whether or not to grant bail.

The appellant argued in his brief that paragraphs 12-15 and 18 of the first counter-affidavit and paragraphs 5-17 of the further counter-affidavit of the respondent offend Sections 86-89 of the Evidence Act, and that the said paragraphs should be struck out. It was further submitted that once these paragraphs are struck out there would be no ground by the respondent to oppose the appellant’s bail.

The respondent does not concede that these paragraphs (supra) offend Sections 86-89 of the Evidence Act. I am of the opinion that these paragraphs of the respondent’s counter-affidavit and further counter affidavit do comply substantially with Sections 86-89 of the Evidence Act. Assuming that this humble opinion is adjudged wrong, the appellant would still have to cross the hurdle of convincing or proffering good reasons why the court should exercise its discretion in his favour. Where no counter-affidavit was filed at all by the respondent the trial Judge would still be entitled, based on the circumstances of the case, to exercise his discretion; whilst relying on the affidavit of the appellant.

In Chinemelu’s case (supra) the Court of Appeal per Achike J.C.A. (as he then was) stated thus:

“I must state emphatically that the mere fact that the respondent filed no counter-affidavit nor opposed the application for bail is not conclusive to admit the appellant to bail as a matter of course. The decision to grant or refuse bail lies within the discretionary power of the court which must be exercised judicially and judiciously.

The exercise of that power cannot, in my view, be prejudiced simply by the failure of the respondent to file a counter-affidavit or in fact his failure to oppose the application. Similarly, the fact that the respondent has filed a counter-affidavit or opposed the application for admission to bail does not conclude the matter rather these acts or omissions are mere indices that will assist in exercise of the said discretionary powers of the court in one way or the other”.

The point made from the above statement is that the discretionary power of the Judge will be exercised with or without a counter-affidavit. The affidavits are only to assist in the exercise of that discretion.

The learned trial Judge in refusing the appellant bail has considered the nature of the charge the severity of the punishment and the character of the evidence, These are factors to, my mind, which may show whether the accused is likely to abscond or not.

It is my respectful opinion that the learned trial Judge exercised his discretion bona fide and not mala fide, and completely uninfluenced by irrelevant consideration in not granting bail to the appellant. It is now well settled that where a judicial discretion has been exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrarily or illegally but judicially and judiciously on sufficient materials the general rule is that an appellate court will not ordinarily interfere. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; and Okpe v. State (supra).

The second issue is whether by the interpretation of section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples’ Rights the trial Judge is precluded from exercising the discretionary power under section 118 of the Criminal Procedure Law of Lagos State, 1994.

I wish to digress, albeit briefly to mention that African Charter on Human and Peoples’ Rights were ratified and brought into force in Nigeria on 17/3/1983 by African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria, 1990.

Essentially, the Charter provides for those areas which are covered by our own Constitution in its Fundamental Human Rights Provisions in chapter 4 of the 1999 Constitution as well as the same chapter in 1979 Constitution.

Where there is conflict between the provisions of the Charter and those of the Constitution, then those of the Constitution must prevail. The provision of a treaty cannot override the provisions of our Constitution.

This position is even more aptly re-stated in Abacha v. G. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 315-316 by Achike, J.S.C.

“Both counsel in the appeal hold divergent views on the scope and nature of the local enactment in comparison with the African Charter… It is necessary to get our bearings right. The Constitution is the Supreme Law of the land; it is the grundnorm. Its supremacy has never been called to question in ordinary circumstances.”

Indeed section 1(1) of the 1999 Constitution provides that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provision of the Constitution, the Constitution shall prevail, and the other law shall to the extent of the inconsistency be void. See also section 1(3) (supra).

Since its enactment the African Charter has been accorded legislative force in its section 1.

I find that the provisions of Article 6 of the Charter relied upon by the appellant is the same as that of S. 35(4) of the 1999 Constitution. The section provides that a person’s liberty may be deprived for the purpose of bringing him before a court or upon reasonable suspicion of having committed a criminal offence.

The process of being brought before the court is not the same as the process of the trial when being conducted; up to the conclusion stage. The trial commences from the time a charge is laid against a suspect. The suspect in the case at hand was first taken to court and charged though his plea was not taken on 23/11/99 which is clearly within the constitutional time limit. The application for bail was brought on the 16/12/1999 while the information charging the suspect is dated 9/12/1999. To my mind the constitutional right to pre-trial bail in section 35(4) is applicable where the suspect has not been charged before a court of law within the stipulated time. See COP v. Amalu (1984) 5 NCLR 443. It would appear that the provision does not mean that a suspect must be released on bail if trial is not concluded within 2 or 3 months as the case may be.

The learned counsel for the appellant relied on the authority of the High Court in Obekpa v. COP (1981) 2 NCLR 420 to buttress his argument that for non capital offences, bail is a constitutional right.

An interpretation of section 35(4) suggesting that the Constitution intended an obligatory release, under any circumstances after 2 or 3 months, without giving the trial Judge before whom the application is brought any discretion in the matter cannot be supported. I do not think that the courts have so interpreted the section.

In the case of Eyu v. State (1988) 2 NWLR (Pt. 78) at page 602 my learned brother Oguntade JCA agreed with the view of the appellant’s counsel in that case that a liberal approach should be adopted in the consideration of an accused’s entitlement to bail in non-capital offences having regard to section 32(1) of the 1979 Constitution yet he duly cautioned thus:

“This is of course not laying it down that at all events, bail should be granted. There are cases in which even if the liberal approach is followed, discretion may still indicate it is better to refuse bail.”

Quite a number of judicial pronouncements on question of bail both under the Criminal Procedure Act and under the Criminal Procedure Code is to the effect that the grant of bail is discretionary. As we have seen above the courts have as well set out the criteria to be followed in exercising this discretion.

For the appellant to argue that section 118 of the Criminal Procedure Act is inconsistent with section 35(4) of the 1999 Constitution and that a trial Judge has no discretion to exercise in granting of bail is certainly a narrow and erroneous interpretation of the constitutional provision.

My understanding of section 35(4) of the Constitution is that the real intendment of this provision is that a suspect is entitled to early trial or to be released on bail. In a case where early trial cannot be guaranteed then the suspect should be released on bail.

In this case, the trial has already commenced in earnest and the application for bail was brought while the trial was on. In Anakwe v. C.O.P (1996) 3 NWLR (Pt.436) 320 at 331 Tobi JCA stated thus:

“If the constitutional provision is applied to the letter in the bail decision, then every accused must be released on bail awaiting trial and this will not be in the interest of the enforcement of the criminal process. Such a chaotic situation was never intended by the makers of the Constitution.”

In the final analysis, this appeal fails in its entirely. I cannot grant the appellant bail in the circumstances. The respondent should however ensure speedy trial thereby maintaining the tempo of trial to enable the appellant know his fate soonest.

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Other Citations: (2000)LCN/0902(CA)