Usman Olanrewaju Bolakale V. The State (2005)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The appellant, with three others, were arraigned before he Chief Magistrate’s court for cognizance on an allegation of, to Wit:
“On Monday 12th July 2004, authorities of the University of Ilorin reported that you Kayode Adeniyi a.k.a Blank Jesus, Gospel Selepire Ogona, Oladipo Oluwole Eniola and Usman Olanrewaju Balakale conspired together and found a Society-Black-Axe- not registered or known to the University of Ilorin, a society that is prohibited (sic) and you thereby committed an offence contrary to section 7 of Secret Cults and Secret Societies in Educational Institution Law 2004”.
Upon the arraignment of the accused persons in court, this 4th accused person/appellant applied to be admitted to bail, by the Magistrate Court. The application was turned down. The appellant therefore filed an application before the High Court of Justice Ilorin, hereinafter called the lower court for the following prayers:
“Leave and order of this Honourable Court to admit the 4th suspect/applicant to bail pending the determination of this case”.
The application was supported by a 24 paragraph affidavit sworn to by the father of the applicant. The germane paragraphs of that application are herewith reproduced as follows:
- That the applicant since the period of his detention at the State Security Service (S.S.S) headquarters Ilorin and subsequent remand at the Federal Prison Yard Oke Juru Ilorin between the 12th day of July 2004 and to date has been afflicted with various sicknesses necessitating quick and adequate medical attention.
- That prior to his detention whenever the applicant is afflicted, he is normally subjected to both orthodox and/or traditional treatment on the hands of a native doctor at Ogbomosho in Oyo State whom he visits once every month.
- The applicant being a certified sickler in the circumstance referred to above will have his deplorable health condition further worsened if he remains in detention without recourse to the monthly traditional treatment he normally observes as the prison authorities’ medical treatment has so far proved insufficient and inadequate.
- That the 4th suspect/applicant will not jump bail if granted.
- That the investigation of this case by the police will not be interfered with as the applicant is not in a position to interfere with police investigation.
- That the 4th suspect/applicant will not commit any further offence if granted bail.”
The respondent filed a counter affidavit dated 18/8/2004 and the main thrust of the objections are contained in paragraph 8 of the counter-affidavit as follows:
“8. That I was further informed by the DPP in the circumstances aforesaid in paragraph 7 and I verily believed her as follows:
(a) That medical facilities and qualified medical personnel are available in the prison to those in custody;
(b) That the prison authorities do give adequate medical attention to those in custody and further undertake to make the service of any medical personnel available to the accused person;
(c) That investigation into the case is still in progress as most of the other cult members mentioned by the accused person are still at large.
(d) That the applicant will likely commit other or similar offences if released on bail.
(e) That the applicant will likely interfere with the investigation if granted bail.
(f) That the interest of justice will be better served if this bail application is refused”.
The learned counsels to both parties were heard. On the 6/9/2004, the learned High Court Judge, Adewoye J. refused the application for lacking in merit. In arriving at this conclusion, the learned Judge held as follows:-
“With the deposition in the respondent’s counter-affidavit that most of the other cult members mentioned by the accused are still at large; I do not think I am so convinced that the accused/applicant if granted bail will not jump bail; with regards to the issue of ill-health of the accused/person/applicant, I share the learned DPP’s view that the mere fact that a person in custody is ill or sick does not, without more, entitle him to be released from custody unless there are compelling grounds for doing so. See Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) page 467. This of course, is because as the learned Acting DPP has said there are medical facilities and qualified personels available at the Federal Prisons to take care of inmates as and when need arises.
It is true though that the father of the applicant deposed to the fact that the applicant being a certified sickler will have his deplorable health condition worsened if he remain (sic) in detention without recourse to the monthly traditional treatment. Exhibit U.O.B. 3 i.e. the receipts of drugs purchased however shows that the accused/applicant has since his detention been subjecting himselfto orthodox treatment to cushion his failing health. Why must he now prefer the native way of treatment. I do not share the view that the accused’s ill-health constitute (sic) special circumstance to warrant his being release (sic) on bail”. See pp.33, 34 of the record.
Dissatisfied with this ruling, the appellant appealed to this court.
In the notice of appeal dated 20/9/2004, five grounds of appeal with their particulars were filed. I consider it unnecessary to reproduce them here.
In accordance with our rules, order 6 RR 2 & 4 of the Court of Appeal Rules, both counsel to the parties filed and exchanged their respective briefs of argument. In the appellant’s brief of argument dated 25/1/2005, three issues for determination were formulated as follows:
1.Whether the learned trial Judge was justified in law and in fact in refusing the appellant’s application for bail on the premise that he will jump bail as other cult members were at large.
- Whether the learned trial Judge was right in refusing the appellant’s application for bail and for describing same as lacking in merit having regard to the materials placed before him.
- Whether the learned trial Judge had any justification whatsoever to warrant his conclusion that the appellant’s ill-health does not constitute exceptional circumstances calling for the grant of his bail application”.
The respondent adopted these issues as formulated. The appeal was heard by us on 26/4/2005. The learned counsel for the appellant O. Dada Esq. adopted his brief and urged this court to allow the appeal and admit the appellant to bail. On the 1st issue, the learned counsel submitted that the lower court’s judge considered irrelevant issues in arriving at his decision. After stating the points to be considered in granting bail, such as likelihood of an accused coming to court and seriousness of the charge, he veered off to irrelevant issues, such as other accused persons being at large. He had failed to consider the averments in paragraphs 14 and 19. He relied on the case of Abacha v. The State (2002) 5 NWLR (Pt.761) 638, (2002) FWLR (Pt. 98) at P. 863/890.
On the second issue, the learned counsel submitted that even though the offence allegedly committed by the appellant is not ordinarily bailable, it is a bailable offence under section 341(2) of the Criminal Procedure Code (CPC). He submitted that the appellant had sufficiently complied with the conditions stated there under. Counsel further submitted that the appellant is on a holding charge before a court that has no jurisdiction. That even up till now no formal charge has been filed at the High Court, hence the proper order to make is to grant the appellant bail. He cites in support the case of Ukatu v. C.O.P. (2001) 6 NWLR (Pt.710) 765, (2001) FWLR (Pt. 66) page 755 at 764. He therefore submitted that the appellant is still presumed to be innocent, hence the onus is on the prosecution to show why the appellant should not be admitted to bail, he cites the case of Ogbehmhe v. C.O.P. (2002) FWLR (Pt. 103) page 358 at 367, (2001) 5 NWLR (Pt.706) 215.
On the third issue, the learned counsel submitted that the issue of the ill-health of the appellant constitutes a special circumstance to warrant the appellant being admitted to bail- Ogbehmhe v. C.O.P. (sllpra).
The respondent’s counsel Saka Isau Esq. Hon. Attorney-General, Kwara State argued 1st and 2nd issues together. He submitted that the lower court was abundantly justified both in law and in fact to have refused the application for bail on the ground that the appellant would jump bail. The alleged offences against the appellant are conspiracy and belonging to secret society which, by virtue of section 11 of the Secret Cult Law 2004 carries 10 (ten) years imprisonment and N50,000.00 fine, thus making it a serious offence. Since other accused persons are still at large, the appellant is likely to interfere with the investigation. He further submitted that ground exists that if the appellant is released on bail, he would commit other or similar offences. This is so because the activities of cultists are at alarming rate with its deadly consequences and attendant loss of lives and properties. The court is therefore entitled to take judicial notice of the prevalence of an offence in this society. He cites the cases of:
- Ogbhemhe v. e.O.P (2001) 5 NWLR (Pt.706) 215
- lbekwe v. FRN (2004) All FWLR (Pt.213) 1780 paragraph A.
He then submitted that arraignment of the appellant before the Chief Magistrate’s court is not a holding charge. The Magistrate has power to take cognizance of the offence and also to remand him in prison. He relies on sections 143 and 145 of the C.P.C.
On the 3rd issue, the learned Attorney-General submitted that the lower court was correct, based on the affidavit evidence before it, to have concluded that alleged ill- health of the appellant does not constitute special circumstances to warrant his being released on bail. ill-health does not ipso facto constitute special circumstances. To constitute special circumstance there must be affidavit evidence that shows appellant’s particular ailment constituting a special circumstance. He cited lbekwe v. FRN (2004) All FWLR (Pt. 213) 1780 at 1809. He therefore submitted that there is a designate medical facilities and personel in the prison to sufficiently take care of the appellant’s ailment. He relies on Abacha v. The State (2002) 5 NWLR (Pt. 761) 638-656.
The above little analysis I made contains submissions of both counsel to the parties. From the affidavit evidence, the following facts are not in dispute i.e.:
(a) The offences the appellant is alleged to have committed though serious are nonetheless bailable.
(b) The appellant was only arraigned before the Magistrate Court for cognizance and not for trial.
(c) Up till now, no charge has been brought against the appellant before a competent court which has the jurisdiction to try the alleged offences i.e. High Court.
(d) The appellant has ill-health that is either being attended to or needed to be attended.
The lower court refused to admit the appellant to bail for two main reasons i.e. that other accused persons are at large hence there is the likelihood of the appellant jumping bail, and that investigation is still in progress. I must state emphatically, with tremendous respect, that bail under our law is a right of an accused person, except where the alleged offence is a capital offence, accused person is not usually denied bail, except where special circumstances genuinely exist.
Where offence is of a serious nature, as the prosecution has submitted in this case, once the accused person has satisfied the conditions stipulated under the provisions of section 341(2) of the C.P.C. the court shall exercise its discretion in granting all accused person bail.
These conditions are:
(i) That by reason of granting bail, the proper investigation of the offence would not be prejudiced.
(ii) That no serious risk of the accused person escaping from justice would be occasioned; and
(iii) That no ground exists for believing that accused, if released, would commit other or similar offence.
While it is the duty of the applicant to make the application with affidavit stating reasons why he should be granted bail, in a case of offence not ordinarily bailable, as in this case, the onus is on the prosecution to show why the appellant should not be admitted to bail; i.e. showing that these conditions have not been satisfied by the accused. See Ogbhemhe v. C.O.P. (2001) 5 NWLR (Pt.706) 215, (2002) FWLR (Pt. 103) 358 at 367.
In addition, it is also necessary to point out, with due respect, that it is an aberration and an abuse of judicial process for an accused to be arraigned before a Magistrate for an offence for cognizance over which it has no jurisdiction only for the accused to be remanded in prison custody. The accused is neither being tried nor any proper charge brought against him before a competent court for trial. It is clearly an infraction on the rights to fair hearing and liberty of the accused person. I refer to sections 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria. It places the accused in a position of hopelessness as to how to enforce his right. This court has made the position clearer in the case of Ukatu v. C.O.P. (2001) 6 NWLR (Pt.710) 765 at 773, (2001) FWLR (Pt.766) 755 at 764 -765 where Akpabio, JCA of blessed memory held as follows:
“It is on the analogy with the case of Anaekwe (supra) that I am bound to consider the present case in hand. Whatever charge that is before this court was filed before the Magistrate Court, Onitsha, which clearly had no power or jurisdiction to try the case, in view of the colossal amount of N35,000,000.00 that was involved in it. Only a High Court Judge had jurisdiction to try that case. However, what is the position in a situation where no information has been filed before the Onitsha High Court, and therefore no proof of evidence whatsoever placed before the Judge of the High Court? Can he entertain the application? Can he release or refuse to release the accused on bail? One is minded to say that the case should be struck out for absence of materials to enable the judge exercise his discretion.
But to do so will not help the accused in any way, as he would continue to be kept in the prison custody in which he has been kept under the “holding charge” at the Magistrate Court. As far as anybody knows he could be there “infinitum”. See the dictum of Achike, JCA (as he then was of blessed memory) in the case of Emmanuel Chinemelu v. C.O.P. (1995) 4 NWLR (Pt.390) 467 in which the facts were similar, and the court had to grant the accused bail for want of a better thing
to do..”
To my mind, it does not lie in the mouth of the prosecution to say that an accused person should not be released on bail because the offence is a serious offence, when he (prosecutor) has failed to arraign the accused before a competent court for trial with proof of evidence. It is the seriousness that should have spurred the prosecution to do or perform his functions timeously and properly because the liberty of a Nigerian is at stake. The Constitutional position is clear, whether the offence is of a serious nature or not, the accused is still presumed innocent. Ours is not an acquisitorial but an accusatorial system. See section 36(5) of the 1999 Constitution. It is when the prosecution has done what it is supposed to have done, that it can properly object to the bail of the accused person.
In the instant case, the prosecution has submitted that the accused person would jump bail if admitted to bail, no further facts to support this assertion was proferred. It was also contended that if the accused person is admitted to bail he would interfere with investigation was not also stated. From the record before us, the appellant was arrested on the 12th day of July, 2004 and nothing was shown to us why the investigation has not been concluded since then. Appeal is pregnant with some merits, same is allowed. It is my view, with all sense of responsibility, that the appellant is entitled to bail.
However, this court would not overlook the seriousness of the offence as alleged by the prosecution and the activities of cultists in the society in recent time, this of course will determine the bail terms.
The appellant, my Lords, will be allowed on bail in the following terms.
(a) Bail is granted the appellant in the sum of five hundred thousand Naira (N500,000.00) with two reliable sureties in the like sum one of which must have landed property situated in Ilorin.
(b) Both counsel shall supervise and interview the proposed sureties before the appellant is finally released on bail
(c) Any evidence of the accused person committing any crime or similar offence, or any attempt to commit such
offence shall automatically attract the instant revocation of this bail.
Other Citations: (2005)LCN/1748(CA)
