Olawale Olawoye & Ors V. Commissioner of Police (2005)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
This is an appeal against the decision of the Kwara State High Court of Justice sitting at IIorin, Coram Daibu J. delivered on the 14th day of September, 2004 refusing to admit appellants/applicants to bail.
The appellants are students of the Federal Polytechnics, Offa, Kwara State with the exception of the 1st appellant who wanted to return to the school for his Higher National Diploma (HND) having completed his National Diploma (ND) in the same institution.
The appellants who were arrested at Offa on the 17th August, 2004 by the police were detained till 23rd August, 2004 when they were taken before a Chief Magistrate Court in Ilorin for the offence of being members of secret cult and secret societies in Educational Institutions of Higher Learning in the state. On the 16/9/2004, their bail application was refused by the Learned Chief Magistrate on the ground that the offence of cultism is rampant in Institutions of Higher Learning in the state.
By a motion dated 17th day of September, 2004, the appellants, through their counsel filed a motion on notice praying the High Court at Ilorin to admit them to bail pending the determination of their case which as at that date was yet to be filed at the High Court. Here also their bail application was refused on the ground inter alia that the offence of cultism is rampant in Higher Institutions of Learning in the state.
Another reason given by the learned Judge is the seriousness of the offence.
Dissatisfied with the decision of the learned Judge, the appellants through their counsel appealed to this court and filed notice of appeal consisting of four grounds. Relief sought from this court reads thus:-
“An order of the court allowing the appeal and admitting the applicants/appellants to bail pending the criminal allegation by a competent court of law.”
Learned counsel for the appellants formulated one issue for determination. Learned counsel for the respondent for his part also formulated one issue for determination. Both issues are similar and this appeal can be disposed of by giving consideration to any of the two issues formulated by both counsel.
Having said that, I will now proceed to consider the issue as formulated by the learned counsel for the appellants which as stated a while ago is essentially the same with the one formulated by the respondent. The issue reads thus:
“Whether, taking the circumstances of this case into consideration, learned trial Judge was not wrong to have refused to admit the appellants to bail.”
Learned counsel submitted that the offence of cultism as provided by virtue of section 11 (1) of the secret cult and secret societies in Educational Institutions (Prohibition) Law No.6 of 2004 of Kwara State under which the appellants were arraigned before the Chief Magistrate Court carries a punishment on conviction to a period of 10 years and a fine of N50,000.00.
That being the case, learned counsel went on, the appellants who have been in prison custody for close to 4 months are entitled to bail under section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria, the offence for which they were arrested since 17th August, 2004 not being a capital offence. Learned counsel referred to the cases of Ogueri v. State (2000) 2 CLRN 14 at p. 25 and Obekpa v. C.O.P. (1980) 1 NCLR p.113 at p.117 where a provision of the 1979 Constitution in para materia with section 35(4) was judicially interpreted to confer bail as a right to a person charged with a criminal offence other than capital offence. The right is even said to be more basic if the trial is going to last more than two months for a non-capital offence.
Learned counsel referred to paragraph 13 of the counter affidavit where the respondents averred that police investigation into the matter has not been concluded and submitted that it is apparent that the detention without trial of the appellants has no end in sight. This, learned counsel contended should have prompted the lower court to have released the appellants on bail relying on the case of Ariyo v. C.O.P. (1989) 1 CLRN P. 287 at p. 291, per Adekeye, J. (as his Lordship then was).
The appellants were taken before a Chief Magistrate Court that has no jurisdiction to try the offence for which they have been arrested. Section 16 of the secret cults and secret societies in Educational Institutions (Prohibition) Law of Kwara State vests jurisdiction in the State High Court. That being the case, learned counsel contended that the appellants were only taken before the Magistrate Court to take cognizance of the offence but could not try them. The scenario learn counsel submitted tantamounts to a holding charge which has been declared as unconstitutional by this court relying on the case of Enwere v. C.O.P (1993) 6 NWLR (Pt. 299) p. 333 at pages 341 to 342. The rampancy at which the offence is being committed in the Educational Institution in the state which was taken into account by both courts is a negation of section 36 (5) of the Constitution which presumes an accused person innocent till proved otherwise. That apart, it has been held in a plethora of authorities that bail ought not to be refused as a punishment. He cited the case of Dogo v. C.O.P. (1981) 1 NCR 14 at 19 to buttress his submission on this point.
The question of whether the appellants would jump bail if released on bail had paled into insignificance in the light of the continued detention of the appellants for more than four months without even being arraigned before a court of competent jurisdiction, learned counsel further posited.
At any rate, learned counsel went on, the evidence of appellants absconding when released on bail must be furnished by the respondents which they failed to do.
Learned counsel contended that the appellants have shown by their affidavit that the offence for which they were accused of committing is no more than a frame up. All the respondent did in controverting the contents of the affidavits of the appellant was a general denial. Learned counsel further contended that the law is trite and well settled that blanket and general denial of averments in affidavit are improper for purposes of controverting depositions in an affidavit relying on the case of Osawe v. Osawe (2003) FLWR (Pt. 183) per Muntaka Coomassie, J.C.A. learned counsel submitted that the onus is on the prosecution to show that an accused person or appellant is one that should be refused bail relying on the case of Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 3 70) p. 155 at p. 179.
Learned counsel contended that the refusal of the lower court to admit appellants to bail is an unbridled license to the respondent to keep the appellants in perpetual or inordinate custody. This is obvious, learned counsel further contended, from the fact that there was no indication as to when they would be properly charged to court. This is so, opined the learned counsel, because four months after the arrest and detention of the appellant’s investigation by the police is said not to have been concluded.
Learned counsel finally urged us to answer the solitary issue in the affirmative and admit the appellants to bail pending their trial on the offence alleged against them. To do otherwise would amount to a perpetuation of injustice. This court, no doubt would interfere with discretion of a lower court where to do otherwise would precipitate injustice relying on the case of Atiku v. State (2003) FWLR (Pt. 139) p. 1466 at Pp. 1476 – 1477; (2002) 4 NWLR (Pt. 757) 265. Learned counsel for the respondent on the other hand submitted that matters of bail are at the discretion of the court but judicial authorities have enjoined our courts, over the years to exercise such discretion judicially and judiciously. He referred the court to the cases of Ikhazuagbe v. C.O.P (2004) 7 NWLR (Pt. 872) p. 346 at p.365, paragraph B; Bulama v. FRN (2004) 12 NWLR (Pt. 888) p. 498 at p. 509, paragraph F – G.
Learned counsel argued that from the available evidence, it is not in dispute that the appellants were arraigned before the Magistrate Court for the offence of being members of secret cult. The offence, learned counsel further argued carries a punishment on conviction to a term of 10 years and a fine of N50,000.00. That being the case, the offence is not ordinarily bailable. Bail will only be granted if the provisions of section 341 (2) of the C.P.C are complied with, i.e.;
(i) That by reason of the granting of bail, the proper investigation of the offence, would not be prejudiced.
(ii) That no serious risk of the accused escaping from Justice would be occasioned.
(iii) That no ground exists for believing that the accused, if released would commit an offence. ”
Learned counsel cited the case of J. S. Tarka and Ors v. D.P.P. (1961) NMLR p. 63 to buttress his submission on this point.
Learned counsel contended that the lower court was right in refusing the application because of the seriousness of the offence and the gravity of the punishment. Learned counsel further contended that the court has the right to take into account the rampancy which the offence of cultism is being committed in institutions of higher learning in the State. The court must be careful and cautious in granting application to that class of people relying on the case of Ogbemhe v. C.O.P (2001) 5 NWLR (Pt. 706) p. 215 at p. 222 para C-D. Discretion must be exercised judicially and judiciously even where there is no opposition to the bail application. He referred us to the case of Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) p. 467 at p. 491.
Learned counsel submitted that the contention of the learned counsel for the appellants to the effect that failure to commence trial of the appellants four months after their detention entitles them to be released on bail in accordance with section 35 (4) of the 1999 Constitution is bereft of any substance in view of the fact that they are detained based on an order of court (Magistrate Court). Learned counsel argued that the respondent cannot be caught up by the time lapse of two or three months. It is his submission that to hold otherwise will create an absurdity where the power of a court of law to order an accused person to be remanded in custody will be eroded relying on Atiku v. The State (2002) 4 NWLR (Pt. 757) p. 265 and Olatunji v. FRN (2003) 3 NWLR (Pt. 807) p. 406. The cases cited by the appellants (Ogueri, Obekpa and Ariyo) are not apposite and learned counsel urged us not to be persuaded by the decisions of 2nd and 3rd cases which were decided by a High Court.
It is a misconception, learned counsel contended, for the appellants to think that they were taken to a Magistrate Court on holding charge since the said court can take cognizance of an offence and remand an accused in custody or release on bail.
Learned counsel further contended that the fact of delay alleged by the appellants is not sufficient (if any) to warrant the decision of the court to be exercised in their favour. There is nothing on record to show that the prosecution has been unreasonable or inordinate in delaying the commencement of the appellants’ trial. The delay must be assessed against the background of the facilities available to the prosecution relying on the case of Effiom v. The State (1 SCNJ) 1 at p. 34; (1995) 1 NWLR (Pt. 373) 507.
Learned counsel submitted that the learned Magistrate Court was right in taking into consideration, the rampancy of cultist attacks and referred us to exhibit OOA and urged us not to accord any substance to the appellant’s submission in holding the view that the rampancy of the attacks is an extraneous matter and submitted that the court below has power to take judicial notice of the rampancy of the offence, referring to the case of Ogbemhe v. C.O.P. (supra) to support his submission on this point.
Learned counsel for the respondents contended that the appellants made heavy weather on their presumption of innocence. The right to personal liberty is a qualified right. He referred to section 35(1)(c) of the 1999 Constitution and submitted that, that right is lost on reasonable suspicion of having committed a criminal offence. He also referred to the case of Anaekwe v. C.O.P. (1996) 3 NWLR (Pt.436) at p. 320 paras C-D.
He further submitted that the affidavit evidence and the content of exhibits MOJ 1 – 5 have whittled down the presumption of innocence in favour of the appellants. The learned trial Judge was also right to have found that all odds weighed heavily against the grant of the appellants’ bail in view of the uncontroverted depositions by the respondent that the other suspects are at large and that police investigation is still on.
Learned counsel urged us not to interfere with the exercise of discretion of the trial court since same was exercised judicially and judiciously and he (trial Judge) did not proceed on wrong principles in making the order.
In his reply brief, learned counsel for the appellants submitted that the applicability of section 341(2) has been robbed of its cardinal importance by the provisions of section 35(4) of the 1999 Constitution in the case we have at hand. Though, a court is at liberty to take prevalence of a particular offence into consideration on issue of bail, that in itself does not mean that, bail should be denied solely thereupon irrespective of the merit or otherwise of the application.
In the case of Ogbemhe v. C.O.P. (supra), bail was granted not withstanding the prevalence of offence of robbery in the society, because the court found that the interest of justice would be better served by granting bail to the accused.
Learned counsel, once more referred to the case of Ukatu v. C.O.P. (supra) cited and relied by the respondents and contended that in that case, bail was granted even though no information or charge or proof of evidence had been filed, just as in the situation we have at hand. The interpretation sought to be placed by the respondents of section 35 (4) of the 1999 Constitution is totally wrong. The provision is very clear and unequivocal and “trial” is defined in Black’s Law Dictionary, 8th Edition as: –
“A formal judicial examination of evidence and determination of legal claims in adversary proceeding.”
Since this exercise has not taken place in the case at hand, it means the appellants have not been tried. That being the case, the appellants are constitutionally entitled to be released from custody either conditionally or unconditionally having spent more than the prescribed two months in custody in accordance with section 35(4) of the Constitution.
Now, whether or not to grant bail to an applicant is entirely at the discretion of the court hearing the application having regard to materials placed before it in the affidavit in support of the application. However, such discretion must be exercised judicially and judiciously. See the case of Likita and 1 Other vs. Commissioner of Police (2002) 11 NWLR (Pt. 777) p. 145.
But where a trial court fails to exercise its discretion judicially for example by basing its decision on extraneous considerations or on wrong principles, the appeal court will intervene to set the decision aside. See the case of: –
“1. The President of Ibadan Province v. Lagunju (1954) 14 WACA, p. 549.
- Enekebe v. Enekebe (1964) 1 All NLR P. 102.” The first point is whether the appellants have adduced cogent and compelling argument to move this court to interfere with the exercise of discretion of the learned Judge who refused the application.
The learned Judge who heard and refused the application was faced with the primary consideration as to whether the appellants had discharged the burden placed on them to enable him exercise that discretionary power. The learned Judge stated at page 9 of his ruling thus:
“With the depositions in the counter affidavit that the other members are still at large, I find it difficult to believe that if admitted to bail the applicants will not jump bail having known the gravity of the offence they are charged with.
Since the primary considered (sic) in determining the issue of bail is to secure appearance in court for trial, then to admit the accused applicant to bail may not be in the interest of justice and may amount to perverting the cause of justice as justice should not be to the accused applicant alone but to the respondent and the society at large.”
The learned trial Judge further stated at page 10 of the said ruling thus:-
“I am also in agreement with learned counsel to the respondent that the court cannot close its eyes to the rampancy of secret cult and secret societies in the educational institution (sic) in recent years which no doubt has affected the education and even the life of fellow students in higher institution (sic). The menace of secret cult has been an embarrassment to both parents and tertiary institutions in Nigeria today. Therefore, any measure to curb such activities has to be taken in the interest of justice.”
Though not contesting the views expressed by the learned trial Judge as regards to the rampancy of cultism and offences that are being committed in our institutions of higher learning throughout Nigeria by such miscreants, one cannot run away from the fact that an accused person under the present democratic dispensation and the Constitution of the Federal Republic of Nigeria, 1999, charged with an offence is presumed to be innocent until he is proved guilty.
The question to be asked at this stage is, whether the appellants have been charged with a criminal offence. Learned counsel for appellants submitted that the appellants, for more than four months after their arrest and detention have not yet been arraigned before a competent court for their trial.
Learned counsel anchored his submission on section 16 of the secret cults and secret societies in Educational Institutions (prohibition) Law of Kwara State which vests jurisdiction to try offenders in the High Court. The arraignment before a Magistrate Court tantamounts to a holding charge which has been described as unconstitutional and illegal by this court.
In the case of Enwere v. C.O.P. (supra) it was held that “holding charge” is unknown to Nigeria Law and an accused person detained thereunder is entitled to be released on bail within a reasonable time before trial more so in a non-capital offence. This court per Onu, J.C.A. (as he then was) held thus:
“As it is palpable that the appellant in the instant case up till 8th March, 1993 when he was granted bail by this court still being detained under what is called a purported “holding charge” without any information filed against him before any law court, I hold that this act constitutes improper use of power or a flagrant abuse of power by the police for which they stand condemned. This particular abuse of power is all the more condemnable when it is known that there have not been exhibited proofs of witnesses’ evidence evidencing police desire to prosecute the appellant placed before the trial court.”
The learned Attorney General, counsel for the respondent in an answer to the issue of “holding charge” as canvassed by the appellants’ counsel submitted that Magistrate Court has power to take cognizance of an offence and remand an accused person in custody or release on bail relying on the case of Chinemelu v. C. O.P (supra). With due respect, to the learned Attorney General, the facts of the two cases and the law applied in each case are quite different. In the case of Chinemelu, it is section 243 of the CPL, Laws of Anambra State of Nigeria, 1986 which stipulates the relevant procedure after the charge has been read or after the accused person has elected to be tried by the High Court. It provides that the magistrate before whom the charge is pending shall record the followings:
“(i) the charge against the accused;
(ii) the fact that the accused has elected to be tried by the High Court;
(iii) whether bail was granted or refused to the accused and, where bail was refused, the fact that the accused was informed of his right to apply to the High Court for bail and,
(iv) any other fact or matter relevant to the charge which transpired in the proceedings before the magistrate, and shall thereafter direct the prosecuting police officer to transmit forth with to the Attorney General:-
(a) the police case file relating to the charge, and
(b) an inventory of all exhibits relating to the charge.”
In the case we have at hand, the appellants have not been charged to court, whereas the case of Chinemelu (supra) contemplates a situation whereby an accused person has been charged with an offence. Secondly in that case, an accused person can be tried either by a magistrate court or a High Court for the procedure confers a right on the accused to elect to be tried by a High Court. In the case under consideration, jurisdiction to try the offence is exclusively vested in a High Court. In the light of this analysis, I hold with ease that the case of Chinemelu (supra) cannot be called in aid of the respondent.
In the case of Anaekwe v. C.O.P. (supra), a 1996 decision of this court, Tobi, J.C.A. held thus:
“Learned counsel for the respondent, in his brief referred to the charge preferred against the appellant in the Magistrate Court. Can he really do that in law?
How can he refer to a charge before a court without jurisdiction in a court with jurisdiction but is asked to take a bail application without a formal charge by way of information? The so-called charge (No. M0/844C/94) before the Chief Magistrate (Onitsha) is moribund and the law treats it so.”
This brings me to the examination of section 35(4) (a) and (b) of the Constitution of the Federal Republic of Nigeria which provides thus:
“35(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.”
The provisions of the Constitution quoted (supra) are clear and unambiguous and it has been held in a plethora of decided cases that where the provisions of a statute are clear and unambiguous, they must be so construed as to give effect to their ordinary or literal meaning and enforced accordingly. See the cases of:-
(1) Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258
(2) Berlick (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478;
(3) A.-G., of the Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 18 7 referred to p. 729, paragraphs E – G.”
It is pertinent to state at this juncture that it is not in dispute that the appellants have been in detention since 17th August, 2004, a period of over nine months without being charged to court for trial. This, needless to say, is a flagrant violation of the right of the appellants as provided under the provisions of the Constitution of the Federal Republic of Nigeria, 1999. Without much ado, the appellants are entitled to be released unconditionally or upon such “condition as are reasonably necessary to ensure that they appear later date.
In the case of Chinemelu v. C.O.P. (supra) Achike, J.C.A. (as he then was) held thus:-
“the appellant says that even though there is an insinuation or allegation of murder of certain persons, neither has any formal charge of murder as required by law preferred against the appellant nor have the proofs of evidence been prepared as prescribed by law… In such circumstances, the further detention of the appellant would appear unreasonable and unjustified… To now allow the respondent to continue the detention of the appellant as it were, in perpetuity, in these circumstances would unreasonably deprive a citizen of his right of liberty and unwittingly sow the seed of improper use, or abuse, of power by the police or the executive to the chagrin of a citizen whose innocence in relation to certain sordid acts of murder is yet to be disproved. Such posture, the courts must of necessity, roundly condemn.”
May I say at this stage that the appellants at the risk of repeating accused of being cultists and related cult offences which are by the provisions of the Kwara State Law referred in this judgment not capital offences but as we have seen a short while ago in the case of Anaekwe, the appellant was released on bail for the failure on the part of the respondent to prefer any formal charge of murder as required by law. In the case of Ogbemhe v. C.O.P (supra) the appellant was admitted to bail not withstanding the prevalence of the offence of robbery in the society because the interest of justice would better be served by granting bail to the accused.
In the light of all that I have been saying, I am of the considered opinion that this is a case in which the learned trial Judge preceded on wrong principle of law and that this court in the interest of justice and fair play will interfere with the exercise of discretion of the learned Judge.
The appellants in the circumstances of this case as set out in this judgment are entitled to be released on bail. They are accordingly released on bail in the sum of N500,000.00 and two sureties each, one of whom must have landed property in Ilorin and the genuiness of the title document must be verified by both counsel.
Other Citations: (2005)LCN/1771(CA)
