Ralph Uwazurike & Ors. V. Attorney General of the Federation (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an Appeal against the Ruling of the Federal High Court Abuja in an application for bail delivered on the 27th day of January, 2006 in charge No.FHC/ABJ/76/05 Attorney General of the Federation AND Ralph Uwazurike & 6 others .
In a considered Ruling, the Learned Trial Judge held at pages 105 to 106 of the record thus:-
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It is argued that criminal cases before the Federal High Court are conducted in a summary manner which means it cuts out the technicalities and as much as possible but I believe without compromising the fundamental requirement that an accused needs to know the evidence against him so as to prepare his defence. There is no standard format that a proof of evidence is expected to take. What the prosecution has filed is titled summary of Overt Act. It goes ahead to itemize the acts alleged against the accused persons and the times and places. Even though it is not called proof of evidence. It has given the accused persons all they need to know to prepare for their defence. If they need more all they need do is apply to the Court to order the prosecution to provide more facts or be more explicit.
I fail to see how this is fatal to the case bearing in mind that the trial has not commenced without these. The Court can order that proof of evidence be provided thus regulating its procedure and moving away from summary trial to a full fledged trial.
Consequently, I hereby order that the prosecution files a proof of evidence in the trial of this case.
On the issue of bail, treason by its nature being one that carries a capital punishment is not ordinarily bailable both by the C.P.A. and the C.P.C. Bail can be granted in capital offences in certain cases and had been granted in certain cases of murder .
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Bail is at the discretion of the court but enough material must be placed before the Court to persuade it to exercise the discretion in favour of the Applicants. I am mindful of the averment of the Respondent that investigations are still going on in the matter and will find it difficult to grant bail under such circumstances. Bail there (sic) refused.
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Dissatisfied with the above decision the Appellants now appealed to this Court. The Learned Counsel for the Appellants formulated four issues for determination as follows:-
(a) Whether the failure of the trial Judge to dismiss the charges against the Appellants was proper in law.
(b) Whether the refusal of the trial Judge to grant bail to the Appellants was justified under the law.
(c) Whether a capital offence was triable summarily under Nigerian Law.
(d) Whether the trial Judge’s failure to invoke the disciplinary jurisdiction of the Court to quash the charges against the Appellants was proper in the face of a clear order of the Federal High Court Owerri to the contrary.”
The Respondent on the other hand formulated three issues for determination as follows:-
“1. Whether in the circumstances of this case the Appellants application for bail ought to have been granted by the lower Court.
2. Whether the procedure under which the Accused/Appellants were charged before the lower Court was proper.
3. Whether the Learned Trial Judge was bound by the order of the Federal High Court, Owerri”
At the hearing, Learned Counsel for the Appellants referred to the Appellants’ Brief of Argument dated and filed on 4/10/07, the Appellants Joint Reply Brief of Argument dated and filed on 4/4/08. He adopted and relied on the two briefs and urged that the Appeal be allowed.
The Learned Counsel for the Respondent referred to the Respondent’s Brief dated 25/3/08 and filed on 26/3/08. Filed along with the Respondent’s Brief is the supplementary record, pages 150 to 209.
Learned Counsel adopted and relied upon the said brief in urging that the Appeal be dismissed. She also referred to Adeyemi vs. The State (1991) 6 NWLR Part 195 Page 1 to support her contention that the Appeal should be dismissed.
The learned Counsel for the Appellants replying on point of law relied on Section 35 (3) of the 1999 Constitution and he submitted that Adeyemi vs The State (supra), had been overtaken by Abacha vs. The State (supra).
He also stated that the Appeal is not pre-emptive because trial begins at the moment the accused is brought to Court and the charge is read to him.
The issues formulated by learned Counsel on behalf of the parties are similar. However, the issues set out in the Respondents’ Brief are considered relevant and apt to determine this Appeal.
I will start with issue No.3 i.e.-
Whether the Learned Trial Judge was bound by the order of the Federal High Court, Owerri.
The learned Counsel for the Appellants referred to the order of the Federal High Court Owerri made on 18th January 2005 which states that:-
“The leave hereby granted shall act as a stay of any arrest, threat of arrest, invasion of the Applicant’s privacy or any act that would deprive the Applicant of free movement in the country pending the hearing of the substantive application.”
He submitted that the Respondent charged the 1st Appellant to Court in flagrant disrespect of the order of the Federal High Court referred to above. He went further that the order was brought to the attention of the Learned Trial Judge but that she declined to act upon the complaint of the Appellants.
Learned Counsel submitted that sanction over acts done in disobedience to Court order is not limited to only Committal Proceedings under the Judgment Enforcement Rules but includes reversal of acts done in disregard of subsisting orders.
He referred to the following cases:- Erisi vs. Idika (1987)4 NWLR Part 66 Page 503 at 512; Ezegbu vs. FATB (1992) 1 NWLR part 220 Page 699 at 725.
He went further that the order referred to in the instant case was not made by the same Judge, but it was made by the same Court i.e. the Federal Court. And since the Court is one, any order made in one division binds the other.
Learned Counsel also relied on the case of Alhaji Anwal Ibrahim vs. Col. Cletus Emein & Others (1996) 2 NWLR Part 430 at 322 where this Court held among others that the Court has the power and indeed the duty to order reversal of any action taken by any person in contravention of its order.
On the other hand Learned Counsel for the Respondent submitted that the lower Court was not bound by the decision or order of the Federal High Court, Owerri.
She referred to Section 45(1) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the law must always take its course when there is infringement of the Constitution by any person or group of persons. And that law enforcement agents like the State Security Services have the power to prosecute the Accused/Appellants.
She referred to:- National Security Agencies Decree of 1986 Cap 278 Laws of the Federation of Nigeria 1990 and the case of:- Fawehinmi vs. I.G.P. (2002) 7 NWLR Part 767 Page 606.
And she finally urged that the Appeal be dismissed.
It is apparent that Federal High Court Owerri and Federal High Court Abuja are Courts of concurrent jurisdiction, therefore the contention by the Counsel for the Appellants that 1st Appellant was charged to Court maliciously in flagrant disrespect of an order of Federal High Court Owerri cannot be correct, because Courts that are of similar or concurrent jurisdiction are not bound to follow the decision of each other.
See – Prof A. D. Olutola vs. University of Ilorin (2005) 3 W.R.N. Page 22.
Furthermore on this issue, the parties in the case before the trial Court at Abuja is not the same with that of the case filed at the Owerri Federal High Court.
I also agree with the submission of Learned Counsel for the Respondent that the order granted by the Federal High Court, Owerri was an ex-parte order for the Applicant i.e. the 1st Appellant in this Court, to enforce his Fundamental Human Rights, it was not an order directed to the proceedings before same Court sitting in Abuja. And apart from the above there was no evidence of service of the Court processes on the Attorney-General of the Federation.
Consequently, it is my view that the trial Judge was right not to have given credence to the order of the Federal High Court, Owerri as the order given by that Court was not binding on her.
In view of the foregoing this issue is resolved against the Appellants.
Issues 1 & 2 Taken Together
– Whether in the circumstances of this case the Appellants’ Application for bail ought to have been granted by the lower Court
– Whether the procedure under which the Accused/Appellants were charged before the lower Court was proper.
Learned Counsel for the Appellants submitted that a Judge of the High Court is empowered to grant bail in capital offences and that the Learned Trial Judge ought to have granted bail to the Accused Persons.
He relied on the following cases:-
Ani vs. The State (2002) 1 NWLR Part 747 Page 217
Anaekwe vs. C.O.P (1996) 3 NWLR Part 436 Page 320
Ogueri vs. The State (2001) 2 A.C.L.R. Page 96.
The complaint of the Appellants is that the trial Judge should have dismissed the charges since there was no statement alleging anything against the Appellants. Learned Counsel for the Appellants relied on the cases of:-
Mohammed Sanni Abacha VS. The State (2002) 11 NWLR Part 779 page 437 particularly page 485 8-D.
Ikomi VS. The State (1986) 3 NWLR Part 28 Page 340 at 356.
The Learned Counsel for the Appellants also contended that treason, like any other capital offence or serious crime is an indictable offence. Under the Criminal Procedure Act indictable offences are triable only on information. On the other hand, the learned Counsel for the Respondent submitted that the learned Trial Judge was right when she refused the bail application of the Appellants because there was no material fact placed before the Court to support the application.
She relied on the following cases:-
Bamaiyi vs, The State & others (2001) 8 NWLR Part 715 Page 270 at 291.
Abacha vs. The State (2002) 5 NWLR Part 761 Page 638 at 674.
Reference was also made to the counter affidavit against the application for bail particularly paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 25, 26, 27, 28 and 29. Learned Counsel for the Respondent also relied on the supplementary record pages 150 to 209 which contained the following:_
(a) The proof of evidence made pursuant to order of Court dated 27th January 2006.
(b) The Statement of all the accused persons, and
(c) The additional charge sheet filed on the 6th day of March 2006.
She also submitted that the procedure under which the Accused Persons/Appellants were charged before the lower Court was not fatal to the case of the Appellants. She relied on Sections 33 (1) & (2) of the Federal High Court Act Cap F 12 laws of the Federation, 2004.
It was also submitted that it is only the Federal High Court that has jurisdiction in causes relating to treason and treasonable felony. Reference was made to Section 251 (2) of the 1999 Constitution of the Federal Republic of Nigeria.
She went further in her submission that having regards to the provisions of Sections 33 (1) & (2) and 64 of the Federal High Court Act read in conjunction with Section 251 (2) of the Constitution, the offence of treason or treasonable felony can be tried summarily at the Federal High Court. She made references to Sections 77 and 151 of the Criminal Procedure Act, Laws of the Federation, Cap 141 2004 to buttress her point.
It was also submitted on behalf of the Respondent that the decisions relied upon by the Appellants to wit:-
1. Ikomi vs. State (supra)
2. Abacha vs. The State (supra)
are not relevant because:-
(a) The cases were filed before the State High Court where proof of evidence is required by statute.
(b) The present suit was instituted in the Federal High Court where under and by virtue of Section 33 (1) and (2) of the Federal High Court Act, such offences like treason and treasonable felony can be summarily tried in the Federal High Court without the proof of evidence.
She then urged that the Appeal be dismissed.
In his Reply Brief the Learned Counsel for the Appellants submitted that this Court cannot consider the said supplementary records as the lower Court did not have the benefit of the evidence therein in reaching its decision.
It was further submitted that if an Applicant can show exceptional circumstance that entitles him to bail, it is sufficient for the Court to grant bail. Under the 1999 Constitution of the Federal Republic of Nigeria there is provision for bail, and by virtue of Section 36 (5) of the same Constitution-Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
The Appellants were charged among others for treason which is a capital offence and granting of bail in a capital offence is not as a matter of grace but purely on the discretion of the Court.
By virtue of the provisions of Section 118 (1) and (2) of the Criminal Procedure Act :-
(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 punishable with death, the Court may if it thinks fit, admit him to bail.
Irrespective of the nature or gravity of offence with which a person is charged, the onus is on the prosecution to show Criminal Culpability of the accused which will serve as a pointer to the fact that an accused should not be released on bail. On the other hand, the accused has a duty to show that he is not criminally liable in order not to jeopardize his chances of bail.
The Courts have an unfettered discretion to grant bail and the discretion must be exercised judicially as well as judiciously. In other words, the discretion must be based on facts and not invacuo.
The Courts have over the years in numerous decided cases established criteria or guidelines that should be taken into consideration in an application for bail.
In Bamaiyi vs The State (supra) the following factors were taken into consideration in deciding an application for bail.
(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 accused persons;
(g) The likelihood of further charge being brought against the accused;
(h) The probability of guilt;
(i) The detention for the protection of the accused;
(j) The necessity to procure medical or social report pending final disposal of the case.
See also the following cases:-
Nwude vs. F.G.N. (2004) 17 NWLR Part 902 Page 306; Danbaba VS. The State (2000) 14 NWLR Part 687 Page 369; Olatunji vs. FRN (2003) 3 NWLR Part 807 Page 406; Jimoh vs. C.O.P. (2004) 17 NWLR Part 902 Page 389.
It should be noted that the factors listed above are not exhaustive in guiding any trial Court in granting or refusing bail pending trial. Also it is not necessary that all or many of these factors must apply’ in any given case, even one factor may be applied in a particular case to guide trial court in granting or refusing bail pending before it.
In the instant Appeal under consideration, it was the contention of the Learned Counsel for the Appellants that lack of valid proof of evidence was enough to serve as an exceptional circumstance that should entitle the Appellants to bail.
Learned Counsel for the Respondent urged that the Appeal be dismissed in view of the weighty dispositions in the counter affidavit against the motion for bail and further that treason could be tried summarily by the Federal High Court. She relied on Section 33 (1) and (2) of the Federal High Court Act Cap F. 12 Laws of the Federation of Nigeria 2004. She also relied upon the supplementary record on pages 150 to 209 which contained among others – The proof of evidence.
She also submitted that under Section 251 (2) of the 1999 Constitution of the Federal Republic of Nigeria, it is only the Federal High Court that has jurisdiction in causes relating to treason and treasonable felony.
Sections 35 (3) and 36 (6) of the 1999 Constitution states as follows:-
“35 (3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”
“36 (6) Every person who is charged with a criminal offence shall be entitled to:-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence.
(b) be given adequate time and facilities for the preparation of his defence.
(c) …………………………………………
(d) …………………………………………
(e) …………………………………………”
It is therefore clear that, the Constitution guaranteed the accused the right to know the details of the offence before hand and he is guaranteed adequate time to prepare the defence. In this case the Appellants are facing the offence of treason which is a capital offence and carrying a death penalty, it therefore follows that the Constitutional guarantee would naturally be further emphasized because of the seriousness of the offence. By Section 285 of the Criminal Procedure Act, which deals with summary trial, the accused is only entitled to know the substance of the complaint against him when he is brought before the Court and he is asked instantly to plead to the charge. Conversely by Sections 347, 348 and 349 of the Criminal Procedure Act which deals with trial by information, the accused person is given adequate time and facilities to prepare for defence. It is therefore my view that it is not in the spirit of the 1999 Constitution of the Federal Republic of Nigeria that a man charged with treason, which is an offence punishable by death to only have the benefit of a brief explanation of the substance of complaint against him only when he is brought to Court and he is called upon to plead instantly to the charge. I am sure, that was not the intention of those who drafted the Constitution, The accused must know the details of the offence before hand and he is guaranteed adequate time to prepare the defence by the Constitution.
The view of Pats – Acholonu JCA (as he then was of blessed memory) in Vincent Ogueri vs. The State (supra) readily comes to mind at this juncture that:-
“We must avoid being intellectually captured by the shrine of formalism. We would not therefore follow false gods who are satisfied with primitive obligation, rites and ceremonies. In that case, the authority of the law would have been preserved and law will be used as an instrument of abiding justice.”
The next thing to consider is the proof of evidence contained in the supplementary record filed along with the brief of the Respondent.
It is clear that the Learned Trial Judge heard the application of the Appellants without a proof of evidence. It was after the refusal of the application that the Respondent was ordered to file proof of evidence. The lower Court therefore did not have the benefit of the evidence in reaching its decision.
The law has now assumed a trite dimension that where at the commencement of a prosecution, the information filed by the prosecution does not expose any fact supportive of a prima-facie case against the accused the charge must be quashed.
In Abacha v. The State (supra) Belgore JSC while elucidating on the need to file a proof of evidence stated thus:-
“It is now more so when there is no more provision for preliminary investigation by a Magistrate. It is not a mere formality to accept the information without considering the proofs of evidence. To face a trial is not a matter to be treated with levity, the trial somehow infringes on the liberty of the subject, most especially when it involves a serious offence punishable by death or life imprisonment.
– Ikomi v. The State (1986) 3 NWLR Part 28 at Page 316
– Adeyemi v. The State (1991) 6 NWLR Part 195 page 1 at 35;
What the information must disclose is certainly not the guilt of the accused but a prima facie case for the accused to answer. There is allusion to Circumstantial evidence that may not appear on the face of the proofs of evidence attached to the information and that must be in the mind of the Court. I believe this is a misconception because nothing must be read into an information which will amount to failure of information on what facts or evidence the accused will face at the trial. It is true, cross-examination may bring new facts during trial, but the prosecution must submit along the information for indictment all the facts that will reveal not only an offence but a prima-facie connection between that offence and the accused whereby the accused has an explanation to make at a trial. (R. vs. Coker. & Others (1952) 20 NLR Page 62). In many cases on an information, only proofs of evidence by potential witness are attached, but when the statement of the suspect is also attached it gives the authorizing Judge proper scope to decide if there is prima-facie case against him. See also Ikomi vs The State (Supra)Therefore in view of the clear Constitutional provisions enunciated earlier in the judgment, it is my humble view that the lower Court ought to have granted bail to the Appellants as soon as it became clear that proof of evidence did not accompany the charge against them.
It is the duty of Courts in a democratic setting to prevent abuse of Court process by the parties, whether the prosecution or the defence. Where the prosecution has nothing to offer at the time of arraignment in support of the offence charged, it would amount to an abuse of process of the Court to allow such an indictment to proceed.
A situation as in this case where there was no proof of evidence in a charge of treason certainly qualifies as a special circumstance in which this Court can grant bail. The proof of evidence which was filed after the Ruling of the lower Court on the bail application cannot be regarded as fair hearing to the Appellants.Consequently, Issues 1 & 2 are therefore resolved in favour of the Appellants.
In view of the foregoing bail is hereby granted to each of the 1st to 7th Accused Persons in the sum of Five Million Naira with two sureties in the like sum. One of the sureties for each of the Accused Persons must be a Civil Servant whose position is not below that of Deputy-Director either in the State or Federal Civil Service of Nigeria. Each of the Accused Persons and their sureties must deposit two passport size photographs with the Deputy Chief Registrar, Court of Appeal Abuja.
Furthermore, the sureties who must be house owners anywhere in Nigeria must swear to affidavit of means.
Other Citations: (2008)LCN/2768(CA)
