AMAGBE STEVEN VS THE FEDERAL REPUBLIC OF NIGERIA
In the Court of Appeal
Holden at Lagos
Thursday, November 3, 2016
JOSEPH SHAGBAOR IKYEGH
YARGATA BYENCHIT NIMPAR
FEDERAL REPUBLIC OF NIGERIA
(DELIVERED BY YARGATA BYENCHIT NIMPAR)
The Appellant and one other were arraigned before the Federal High Court sitting in Lagos on a two count charge of conspiracy and unlawful dealing in Cannabis Sativa on the 5thof May, 2014 and pleaded not guilty. He applied for bail pending trial (pages 40-44 of the Record of appeal). It was opposed by the Respondent and upon its consideration, the application was refused. The Appellant alleged that the trial court's refusal was based on the depositions in the Respondent's counter affidavit, paragraphs 3(1) which states as follows:
"That the Applicant is presently standing trial before Justice Tsoho of the Federal High Court 2, Lagos for a similar offence and it was while on bail granted by the Honourable Court that he was again arrested and charged before My Lord for conspiracy and unlawful dealing in 22.3kgs of Cannabis sativa."
The trial court in refusing the application for bail held as follows;
"Bail application refused since the 2nd accused is standing trial for similar offence before Justice Tsoho, its a reason bail can be denied him because he can still commit similar offences over and over." Aggrieved with the ruling, the Appellant filed a Notice of Appeal dated 11th August, 2015 filed on the 12/8/15 setting out one ground of appeal thus:
"The learned trial judge erred in law when he refused to judicially and judiciously consider the facts contained in the application for bail." The Appellant filed its Appellant's Brief of Arguments dated 2nd October, 2015 and filed on the 5/10/15 wherein it distilled one issue for determination thus:
"Whether the trial court was right to rely on facts not before it to deny the Appellant bail pending his trial."
The Respondent did not respond to the appeal despite several notices and processes served on it. The Respondent was served with the Appellants Brief on the 8/4/16 but it did not file a Respondent's brief in reaction to the Appellant's Brief. The effect of failure to file a Respondent brief is that the appeal is uncontested and the Respondent is deemed to have conceded to the points canvassed by the Appellant but that notwithstanding, the failure does not automatically guarantee the success of the uncontested appeal. The appeal shall be determined on the merit.
See JOHN HOLT VENTURES V OPUTA (1996) 9NWLR (PT.470)1011; ECHEREVIZIRIKE (2006) 12 NWLR (PT. 994)3861and SOFOLAHAN V FOLAHAN (1999)10NWLR (PT.621)861.
SUMMARY OF SUBMISSION
The Appellant proffered arguments in support of the sole issue for determination. He submitted that the Appellant is entitled to be admitted to bail pending his trial. He referred this court to the Supreme Court decision in ALHAJI MUJAHID DOCUBO- ASARI V THE FEDERAL REPUBLIC OF NIGERIA (2007) 5-6 S.C. 150, which set out the criteria for the grant or refusal of bail pending trial of an accused person by the trial court.
In applying the relevant principles set out in ALHAJI MUJAHID DOCUBO- ASARI V THE FEDERAL REPUBLIC OF NIGERIA (SUPRA), learned counsel to the Appellant submitted thus:
(i) That the charge against the Appellant is a bail able offence under Section 118 of the Criminal Procedure Act, Laws of the Federation and the gravity of the punishment in the event of conviction is about three years.
(ii) That the Appellant is entitled to the Constitutional presumption of innocence until the contrary is proved, referring to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999.
(iii) That the Appellant has no previous criminal record and that the case alleged to be pending before HONOURABLE JUSTICE TSOHO was not placed before the trial court.
He also submitted that there is no record that Appellant neither jumped bail nor has been convicted.
(iv) That the probability that Appellant may not surrender himself for trial, or that the Appellant will interfere with witnesses or suppress any evidence that may incriminate him is nil because of the supporting Affidavit deposed to by his father and the fact that the Appellant is an ordinary student.
(v) On the issue of the likelihood of further charges being brought against him, the Appellant submitted that Appellant will still be entitled to bail pending his trial as any such further charge or charges would be akin to those already brought.
(vi) Finally, the Appellant submitted that a further detention of the Appellant cannot be said to be for his protection; rather it will amount to denying his family of their livelihood as their breadwinner who is also a student is no longer available to engage in after school petty trading.
He therefore urged the court to set aside the order of the trial court and admit the Appellant to bail on liberal terms pending his trial.
The sole issue questions the ruling of the trial court basically on its reliance on paragraph 3(i) of the Respondent's counter affidavit refusing the bail application. The offending aspect is the Court's reliance on the statement that the Appellant is standing trial before HON. JUSTICE TSOHO on a similar charge which consequently made the court exercise his discretion against the Appellant. The Appellant contends that the trial judge's reliance on the allegation was wrong because no materials were placed before him in support of the assertion. This appeal therefore is simply a challenge to the exercise of discretion against the Appellant.
Generally, a court's exercise of discretion is not interfered with except in the face of certain conditions, see IKENTA BEST (NIG) LTD V A. G. RIVERS STATE(2008) 6 NWLR (PT. 1084) 612 where the apex court held as follows:
"It is settled that an appellate court should be wary of setting aside the exercise of discretion by the lower court as the court is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the judge or lower court except where the appellate court or tribunal reaches a clear conclusion that there has been a wrong exercise of discretion, that no weight or no sufficient weight was given relevant consideration, or that the exercise was done mat fide, arbitrarily, illegally, or either considering extraneous matter."
Discretion is exercised upon material placed before the court and it must do so judicially and judiciously. In considering the manner a court exercises discretion, the authority of EGERTON V JONES (1939) 3 ALL E.R 889 (C.A) 891-892 comes to aid. It was observed in that case as follows:
"It is quite certain, on the one hand, that the discretion of a court is not to be fettered by rules. The discretion is given by statute, and must be exercised according to the circumstances of each particular case. On the other hand, it is equally true that, when a matter involving discretion comes before a judge, there must be in every case a number of considerations which he ought to have in mind for the purpose of enabling him to exercise his discretion. If it appears that he has taken into consideration or has omitted to take into consideration which he ought to have taken into consideration, or if on all the facts the court is satisfied and convinced that the discretion has been wrongly exercised, it is the duty of the court to interfere."
See also ADIGWE V FRN (2015) LPELR - 2694 (SC) where the court held:
"Courts of law do not embark on conjecture or guess work as same can hardly produce a just and equitable decision. Where an applicant prays the court to exercise its discretion in his favour judicially and judiciously, it is his duty to place before the court sufficient materials upon which the court will rely in granting his application. This court has held in several authorities that the exercise of discretion is not based on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. In other words, it is not an indulgence of a judicial whim, but the exercise of judicial judgment based on fact guided by the law or the equitable decision."
The simple argument of the Appellant is that apart from the mere assertions made by the Respondent, no materials were placed before the lower court upon which it could have concluded that the Appellant is standing trial before JUSTICE TSOHO. Indeed, there was nothing annexed to the Counter Affidavit which ought to back the assertion in paragraph 3(i) of the counter affidavit against the Appellant stating that the Applicant therein was standing trial before another court and that it was while on bail that he was again arrested and charged before the lower court.
Standing trial suggest that he has been arraigned before a court on a charge. All these are documentary and court processes. It is trite that court proceedings are established or proved in a particular form as required by law. The Evidence Act stipulates how to prove judicial proceedings; Certified True copies are the only form of establishing that judicial proceedings are either on or have been conducted, see Section 105 of the Evidence Act, 2011. See also the case of ARAKA v. EGBUE (2003) 17 NWLR (PT.848)1. There was nothing like that before the court. The relevant material would have been the certified true copy of the proceedings or the charge. There was nothing annexed to the counter affidavit placed before the court. It is only from any such annexure that the lower court could have ascertained that the Appellant was truly standing trial before a court of competent jurisdiction and the nature of the charge.
The failure of the Appellant to counter the deposition that the Appellant was standing trial on similar charges is tempting for the court to be swayed in to believing it is true but the fact still remains that judicial proceedings are conducted in a particular manner and failure to follow procedure could affect the outcome of a determination. When it relates to judicial record, the position is crystallized. Sentiments and speculations have no place in judicial proceedings. The requirement is that the discretion be exercised upon materials placed before the court and from both sides.
The Appellant on his own part did not refute the oral assertion that he was standing trial. There was no further and better affidavit denying the fact that he was standing trial even though the proof of the pending charge was not attached. A party that does not deny an assertion in an affidavit is deemed to admit such facts. See the case of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT.135) 688.
Notwithstanding the failure to deny or refute by the Appellant, the application was before a court of record and in that regard, the Respondent should have exhibited a certified true copy of the proceedings before the said JUSTICE TSOHO since he was not the one hearing the particular case. He could only take judicial notice of his own proceedings in this regard. The relevant material is required to properly ground the counter affidavit in support of the fact of the Appellant standing trial for a similar offence. The absence of such relevant material has an impact on the court's exercise of discretion, it becomes perverse having not been done on relevant materials before the court, thus improper. In such a situation, the appellate court must interfere to redeem the damage done and do justice.
The application was one for bail pending trial and the lower court had discretion to grant or refuse and it refused bail. Having just held that the discretion was not properly exercised, this court shall now proceed to consider the application based on the materials before the court. The Appellant sought from this court a relief in that regard and pursuant to the powers bestowed by Section 15 of the Court of Appeal Act which provides thus:
"The Court of Appeal may from time to time, make any order necessary for the determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the court of appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or account to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of appeal as court of first instance and may re hear the case in whole or in part or may remit it to the court below for the purposes of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the court below, in that courts appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction."
This court therefore has the powers to determine the bail application and this is further informed by the fact that all materials required for the determination are before the court and it is just so to do.
The Appellant as applicant filed a motion praying the court for the following orders:
1. An order of the Honourable court admitting the Applicant/ 2?d Accused person to bail pending his trial.
2. An order or such further order or other orders as the court may deem fit to make in the circumstance.
The motion is supported by an affidavit of 8 paragraphs sworn to by Mr. Francis Welle Pupu, the applicant's father. The relevant paragraphs are paragraphs 3-7 which is reproduced herein thus:
"3. That the Applicant has been charged with the offences of conspiracy, unlawful possession of Indian hemp.
4. That the Applicant/2nd Accused person informed me and I verily believe him that he did not commit the said offences.
5. That Mr. H.A. Ikoghode Esq. of counsel informed me and I verily believe that the offences with which the Applicant has been charged are bail able.
6. That I am willing and able to sign a recognizance either alone or with another as the court may direct, for the approval of the bail of the Applicant if this application is granted.
7. And that I undertake to produce the Applicant in court any time and place his presence is required till the disposal of his case."
The Respondent opposed the application and filed a counter affidavit of 4 paragraphs deposed to by Kareem Ahmed Abayo, a litigation officer with National Drug Law Enforcement Agency, Lagos Command. The relevant paragraph is paragraph 3 and it is reproduced here thus:
3. That I have been informed by the prosecuting counsel in this case, J. I. Aernen Esq of Counsel in our office at NAHCO at about 1.30pm on the 19/6/15 and I verily believe him to be true as follows:
(i) That the Applicant is presently standing trial before Justice Tsoho of the Federal High Court, 2, Lagos for a similar offence and it was while on bail granted by the Honourable court that he was again arrested and charged before my lord for conspiracy and unlawful dealing in 22.3kgs of cannabis Sativa.
(ii) That paragraphs 4 and 5 of the affidavit in support offends provisions of the Evidence Act, 201(as amended).
(iii) That this application for bail amounts to abuse of court process of this court,
(iv). That it will best serve the interest of justice if this application is refused.
Learned counsel to the Applicant in his written address submitted thus:
i. That on the nature of the charge against the Appellant, we state that it is a bail able offence under Section 118 of the Criminal Procedure Act, Laws of the Federation.
ii. On the issue of the strength of the evidence, it is our humble view that at this stage of the trial, Appellant is entitled to the Constitutional presumption of innocence until the contrary is proved; we refer to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999.
iii. The gravity of the punishment in the event of conviction is about three years.
iv. That the Appellant has no previous criminal record.
v. The probability that Appellant may not surrender himself for trial is nil because the supporting Affidavit deposed to by his father is to the effect that he would produce credible surety if bail is granted.
vi. The likelihood of Appellant interfering with witnesses or suppressing any evidence that may incriminate him, virtually nil because the Appellant is an ordinary student; he does not possess any such power and neither is he capable of welding any influence or authority that may interfere with any of the prosecution witnesses or of suppressing any evidence that may incriminate him.
vii. On the issue of the likelihood of further charges being brought against him, it is our humble submission that Appellant will still be entitled to bail pending his trial as any such further charge or charges would be akin to those already brought.
viii. On the issue of probability of guilt, we submit that Appellant is still entitled to the constitutional presumption of innocence until he is proved guilty as he has aptly pleaded not guilty to the two count charges.
ix. On the issue of detention for the protection of an accused person, it is our humble submission that further detention of the Appellant cannot be said to be for his protection; rather it will amount to denying his family of their livelihood as their breadwinner who is also a student is no longer available to engage in after school petty trading."
Learned counsel to the Respondent on his part also argued against granting the application. According to him, bail is at the discretion of the court, referred to S. 118(2) of the Criminal Procedure Act, 2004 and that the charges against the accused is grievous and carries a maximum sentence of life imprisonment upon conviction. He also submitted that in consideration of an application for bail, the presumption of innocence is irrelevant, referring to EKWENUGO V FRN (2001) 6 NWLR (PT 708) 171, ANAEKWE V COP (1996) 3 NWLR (PT 436) 320, and urged the court to refuse the application.
Bail is a discretionary exercise and therefore there is no one or standard way of carrying out the exercise. It is a judicial exercise carried out on the materials before the court without any regard to extraneous considerations. The court cannot exercise discretion indiscriminately. The main function of bail is to ensure the presence of the accused at the trial and this is the cynosure of all criteria. The offence named in the charge is a bailable offence and the bail is pending trial. In a consideration for bail, a court is to consider certain settled criteria. The consideration borders around the following factors:
i. The availability of the accused to stand trial
ii. The nature and gravity of the offence;
iii. The likelihood of the accused committing offence while on bail;
iv. The criminal antecedents of the accused;
v. The likelihood of the accused interfering with the course of justice;
vi. Interference with investigations;
vii. Likelihood of further charge being made; the probability of guilt;
viii. Detention for the protection of the accused.
ix. The necessity to procure medical or social report pending a final disposal of the case.
The list is not exhaustive and all may not come into play in every determination but is dependent on the peculiarity of the main ground of each application. The supporting affidavit determines the main factor relied upon to ground the application for bail.
Here, the main fact the Applicant relied upon is that the offence for which he is charged is a bailable offence and his father went on to offer to stand surety as directed by the court if the application is granted. From the affidavit in support, the application is founded on the fact that the Applicant shall present himself for trial. This is indeed is the pith of bail consideration. There is no other reason more profound than to affirm to be present for trial.
There is however nothing peculiar in the fact that the offence is bailable, this is because persons standing trial for bailable offences could be denied bail if the situation warrants it and when it is not established that the applicant would be available for trial. Conversely, applicants facing non-bailable offences could still be granted bail. It all depends on the circumstances and grounds of the application. See the case of CHINEMELU V C.O.P (1995) 4 NWLR (PT. 390) 476 where the court held that the prosecution's delay in preparing the proof of evidence or information against an accused is a special circumstance warranting the court granting him bail. Ill health could also be a special ground amongst several other factors. So the mere fact that an offence is one that the law says an accused can enjoy bail, the applicant still has the bounden duty to present materials before the court for the exercise of discretion. If that was automatic, there would have been no need to make the application at all.
Generally, the burden is on the Respondent to show cause why the applicant should not enjoy the presumption of innocence, see BOLAKALE V. STATE (2006) 1 NWLR (PT. 962) 507 and the case of SHAGARI V. C.O.P. (2007) 5 NWLR [PT. 1027] 275 where the court held thus:
"The onus is always on the party that opposes an application for bail to provide some prima facie evidence to show that the case against the accused is strong and that he is not likely to turn up to face his trial if admitted to bail, and that he will likely repeat the commission of such an offence. In the instant case, the Respondent failed to provide such necessary materials while opposing the appellant's application for bail."
At that stage which is before trial, the Applicant is presumed innocent and has a lighter burden compared to the Respondent who must show cause why the applicant cannot enjoy bail. I had earlier found that the Respondent presented an incompetent challenge to the grant of the application for bail by its failure to put before the trial court the relevant materials upon which the application should be refused on the basis that the Applicant is facing another trial can be verified. That would have been a good reason to refuse the application. Appeal is hereby allowed and the ruling of the Lower Court refusing bail is hereby set aside. Having not established a good reason upon which to refuse bail, bail is hereby granted to the Applicant on the following terms; Bail bond in the sum of N250,000 (Two hundred and fifty Thousand Naira) and two sureties in like sum who must be people of means and who must present signature verification letters from their bankers. I make no order as to costs.
YARGATA BYENCHIT NIMPAI
JOSEPH SHAGBAOR IKYEGH. J.C.A.
I agree with the judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., which I had the honour of reading in draft.
TIJJANI ABUABKAR, JCA
I had the privilege of reading the lead Judgment prepared and rendered by my learned brother NIMPAR, JCA.
I adopt the entire reasoning and conclusion. I have nothing extra to add.
I. OKORIE ESQ. APPELLANT
G. AGUBOSIM (MRS) RESPONDENT