(2018) LPELR-45103(CA)

Transcription

1 BASHIR v. FRN CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna ON FRIDAY, 22ND JUNE, 2018 Suit No: CA/K/453/2017 Before Their Lordships: UZO IFEYINWA NDUKWE-ANYANWU MOHAMMED AMBI-USI DANJUMA OBANDE FESTUS OGBUINYA Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal IBRAHIM BASHIR - Appellant(s) FEDERAL REPUBLIC OF NIGERIA And RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE - BAIL: Meaning and nature of bail - Respondent(s) "Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties and is accounted by law to be in their custody, though they may free themselves from further responsibility if they surrender him to the Court before the date assigned. OJO V FRN (2006) 9 NWLR (PT. 984) PG. 105, SHONEYE V STATE (2015) LPELR 25862, STATE V IBRAHIM (2014) LPELR "Per NDUKWE-ANYANWU, J.C.A. (Pp. 6-7, Paras. F-B) - read in context

2 2. CRIMINAL LAW AND PROCEDURE - BAIL: Guiding principles for grant of bail "Under the Nigerian Law, bail is a right of an accused person. An accused person is not usually denied bail, except where the offences is a capital offence where special circumstances genuinely exist. BOLAKALE V STATE (2006) 1 NWLR (PT. 962) PG The general Rule is that a person who has not been tried and convicted by a competent Court for an offence known in law is entitled to be admitted to bail as a matter of course, unless some circumstances militate against his admission to bail. ANI V STATE (2002) 1 NWLR (PT. 747) PG. 217, EYU V STATE (1988) 2 (PT. 78) PG In considering whether to grant or not to grant a bail to an accused person the Court is guided by the following factors: (a) nature of the charge; (b) the severity of the punishment in the event of conviction; (c) the strength of the evidence by which the charge is supported; (d) the criminal record of the accused, if any; (e) the likelihood of the repetition of the offence; (f) the probability that the accused may not surrender himself for trial, thus not bringing himself to justice; (g) the risk that, if released, the accused may interfere with witnesses or suppress the evidence likely to incriminate him, and (h) the necessity to procure medical treatment or social report pending the disposal of the case. BANKOLE V STATE (2006) 1 NWLR (PT. 962), BULAMA V F.R.N. (2004) 12 NWLR (PT. 888) 498, OLATUNJI V F.R.N. (2003) 3 NWLR (PT. 807) CA, 406, LIKITA V C.O.P. (2002) 11 NWLR (PT. 777) 145, ABACHA V STATE (2002) 5 NWLR (PT. 761) 638, OZOUGWU V STATE (2006) 9 NWLR (PT. 985) 243. The decision or not to grant an application for bail is at the discretion of the Court. However, such discretion must be exercised judicially and judiciously having regard to the Right of the accused person to his liberty until he is proven guilty to the crime alleged, and the need for the society to be protected from grievous criminal acts. DOKUBO-ASARI V FRN (2007) 12 NWLR (PT. 1048) PG. 320, BULAMA V F.R.N. (2004) 12 NWLR (PT. 888) PG. 498, ODO V COP (2004) 7 NWLR (PT. 874) PG. 46. In the instant case, after the plea was taken, the application for bail was moved and written addresses filed and adopted. In the considered Ruling, the learned trial Judge considered a lot of factors in the circumstances of this case, the learned trial Judge considered the proof of evidence already filed in the Court, including the accused/appellant statement. The offence carries a 7 years imprisonment, minimum and a maximum of 21 years without option of fine. The learned trial Judge held that the offence is a very serious one. The learned trial Judge held as follows: "Considering the seriousness of the offence and the proof of evidence and the punishment for the offence, there is serious risk of the accused jumping bail if granted bail. This belief is re-enforced by the fact stated by the Counsel for the Respondent in his written addresses that the accused had been granted bail but that he jumped bail; although the accused denied jumping bail. However, the accused/applicant did not deny he has a case at the Chief Magistrate Court and another at the High Court 9 in his further and better affidavit. This means there is a very strong probability that the accused may escape justice by jumping bail. Where an accused has more than one case in other Court, bail shall not be granted to the accused. See the case of AJUDUA V FRN & 10 ORS. (2005) ALL FWLR (PT. 246). I therefore refuse the application. From the foregoing, I am inclined to believe that the learned trial Judge considered properly, all the circumstances of this case and refused bail. Where an offence carries a sentence of imprisonment for a period of three years or more, grant of bail is not a mere matter of course. DAKUBO-ASARI V FRN (SUPRA)."Per NDUKWE-ANYANWU, J.C.A. (Pp. 7-10, Paras. C-D) - read in context

3 UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Kano State delivered on the 11th May, 2017 by Hon. Justice Aisha R.D Muhammad. The Appellant was arraigned before the lower Court on a one count charge for the offence of Obtaining by False Pretense contrary to the provision of Section 1(1)(a) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same Act. The Appellant pleaded not guilty to the charge. On 13th March, 2017 an application for bail for the Appellant was brought before the lower Court. An affidavit was filed in support of the application. The Respondent filed a counteraffidavit and the Appellant filed a further and better affidavit. The lower Court heard arguments on the application for bail and in its ruling refused the Appellant s bail application. Dissatisfied with the refusal of his application for bail, the Appellant filed his appeal against the ruling. He raised four grounds of appeal. In accordance with the rules of this Court parties have filed their brief. 1

4 The Appellant s brief was filed on 10th October, The Appellant formulated one (1) issue for determination from the Grounds of Appeal as contained in the Notice of Appeal as follows: Whether or not having regards to the provisions of Section 341(2)(a), (b) and (c) of the Criminal Procedure Code together with Section 35(4) and 36(5) and (6) of the Constitution of the Federal Republic of Nigeria (as amended) the trial Judge can be said to exercise his discretion judicially and judiciously arose from Grounds 1, 2 and 3 of the Notice of Appeal. The Respondent on the other hand filed his brief on 25th January, 2018 but deemed properly filed on 29th January, He also raised a sole issue for determination thus: Whether the trial Court has acted (sic) its discretion judicially and judiciously regarding the provision of Section 341(2)(a), (b) and (c) of Criminal Procedure Code and Section 35(4) and 36(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. SOLE ISSUE Learned counsel for the Appellant submitted that based on Section 341(2) (a), (b) & (c) of the Criminal Procedure 2

5 Code, Section 35(4) and 36(5) & (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the trial judge wrongly exercised his discretion to grant bail to the Appellant judicially and judiciously. It is the contention of counsel that though the Courts have discretion to grant or refuse bail, such discretion must however, be exercised judicially and judiciously. He submitted that the grant of bail to an accused pending trial of the case for a non-capital offence is a matter of course. He further contended that the Court in the exercise of its discretion to grant bail pending trial must consider certain factors which have been laid down in a plethora of judicial decisions. These factors includes: the nature of the charge, the severity of punishment, availability of the accused, the likelihood of accused committing another offence, the character of the evidence, the criminal record of the accused, etc. He referred to the cases of BAMAIYI V STATE (2007) 8 NWLR (Pt 715) 291; DOKUBO-ASARI V FRN (2007) 6 SCNJ 192; ADAMS V AGF (2007) ALL FWLR (Pt 355) 429; MUSA V COP (2005) ALL FWLR (Pt 243) 766; MAMAN V STATE (2012) ALL FWLR (Pt 621)

6 It is the contention of counsel that in the instant case the trial judge failed to exercise its discretion judicially and judiciously as it failed to consider the factors governing the exercise of its discretion in the grant of bail. He contended that the trial judge instead relied on irrelevant or extraneous factors of the Appellant standing trial in other cases before other Court in refusing the Application for bail. He thus urged this Court to so hold. He also submitted that the main function of bail is to ensure the presence of the accused at the trial. He relied on the case of DOKUBO-ASARI V FRN (SUPRA). He submitted that the Appellant having deposed to the fact that he was granted an administrative bail which was never breached by the Appellant, the trial Court ought to have granted the Appellant application for bail as same was not challenged by the Respondent and is therefore deemed admitted. He referred to paragraphs 5 & 6 of the Appellant s affidavit. He also submitted that in a bail application the onus is always on the prosecution to show that the Applicant is not entitled to bail. In the instant case it is the contention 4

7 of counsel that the Respondent did not discharge that burden. He referred to pages 13 & 14 of the record and pages of the record. He also referred to the case of ADEGITE V COP (2006) 13 NWLR (Pt 997) 252. He thus urged this Court to set aside the ruling of the trial Court and grant bail to the Appellant. Learned counsel for the Respondent on the other hand submitted that contrary to the contention of counsel for the Appellant the trial Court exercised its discretion judicially and judiciously having regard to the following factors: 1. The nature of the charge/gravity of punishment. It is the contention of counsel that the punishment for the offence with which the Appellant was charged carries a term of imprisonment for minimum of 7 years and maximum of 21 years without option of fine which the trial Court took into consideration in refusing the Application for bail. 2. Evidence that should he be granted bail he will not interfere with the prosecution case. It is the contention of counsel that in view of the severity of the punishment on the charge against the Appellant there is the likelihood that 5

8 he will interfere with the evidences and tamper with the prosecution s case. Hence the trial Court was right in refusing bail. 3. Likely hood of jumping bail. Counsel also contended that due to the nature of the charge and punishment coupled with the fact that he breached/jumped the administrative bail granted to him by the EFCC, the trial Court was right in refusing bail. He also contended that the fact that the Appellant is facing trial in other cases before other Courts the trial Court was right in refusing to grant the Appellant bail. He referred to the case of AJUDUA V FRN & 1 OR (2005) ALL FWLR (Pt 246) wherein the Court held that where the accused is facing another trial the Court is cautious to grant bail to such person. He thus urged this Court to order for a speedy trial of the main case pursuant to the provisions of the Economic and Financial Crimes Commission (Establishment) Act, RESOLUTION Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. 6

9 The accused/convict is delivered into the hands of sureties and is accounted by law to be in their custody, though they may free themselves from further responsibility if they surrender him to the Court before the date assigned. OJO V FRN (2006) 9 NWLR (PT. 984) PG. 105, SHONEYE V STATE (2015) LPELR 25862, STATE V IBRAHIM (2014) LPELR Under the Nigerian Law, bail is a right of an accused person. An accused person is not usually denied bail, except where the offences is a capital offence where special circumstances genuinely exist. BOLAKALE V STATE (2006) 1 NWLR (PT. 962) PG The general Rule is that a person who has not been tried and convicted by a competent Court for an offence known in law is entitled to be admitted to bail as a matter of course, unless some circumstances militate against his admission to bail. ANI V STATE (2002) 1 NWLR (PT. 747) PG. 217, EYU V STATE (1988) 2 (PT. 78) PG In considering whether to grant or not to grant a bail to an accused person the Court is guided by the following factors: (a) nature of the charge; (b) the severity of the punishment in the event of conviction; (c) the strength of 7

10 the evidence by which the charge is supported; (d) the criminal record of the accused, if any; (e) the likelihood of the repetition of the offence; (f) the probability that the accused may not surrender himself for trial, thus not bringing himself to justice; (g) the risk that, if released, the accused may interfere with witnesses or suppress the evidence likely to incriminate him, and (h) the necessity to procure medical treatment or social report pending the disposal of the case. BANKOLE V STATE (2006) 1 NWLR (PT. 962), BULAMA V F.R.N. (2004) 12 NWLR (PT. 888) 498, OLATUNJI V F.R.N. (2003) 3 NWLR (PT. 807) CA, 406, LIKITA V C.O.P. (2002) 11 NWLR (PT. 777) 145, ABACHA V STATE (2002) 5 NWLR (PT. 761) 638, OZOUGWU V STATE (2006) 9 NWLR (PT. 985) 243. The decision or not to grant an application for bail is at the discretion of the Court. However, such discretion must be exercised judicially and judiciously having regard to the Right of the accused person to his liberty until he is proven guilty to the crime alleged, and the need for the society to be protected from grievous criminal acts. DOKUBO-ASARI V FRN (2007) 12 NWLR (PT. 1048) PG. 320, BULAMA V F.R.N. (2004) 12 NWLR (PT. 888) PG. 498, ODO V COP (2004) 7 NWLR (PT. 874) PG

11 In the instant case, after the plea was taken, the application for bail was moved and written addresses filed and adopted. In the considered Ruling, the learned trial Judge considered a lot of factors in the circumstances of this case, the learned trial Judge considered the proof of evidence already filed in the Court, including the accused/appellant statement. The offence carries a 7 years imprisonment, minimum and a maximum of 21 years without option of fine. The learned trial Judge held that the offence is a very serious one. The learned trial Judge held as follows: Considering the seriousness of the offence and the proof of evidence and the punishment for the offence, there is serious risk of the accused jumping bail if granted bail. This belief is re-enforced by the fact stated by the Counsel for the Respondent in his written addresses that the accused had been granted bail but that he jumped bail; although the accused denied jumping bail. However, the accused/applicant did not deny he has a case at the Chief Magistrate Court and another at the High Court 9 in his further 9

12 and better affidavit. This means there is a very strong probability that the accused may escape justice by jumping bail. Where an accused has more than one case in other Court, bail shall not be granted to the accused. See the case of AJUDUA V FRN & 10 ORS. (2005) ALL FWLR (PT. 246). I therefore refuse the application. From the foregoing, I am inclined to believe that the learned trial Judge considered properly, all the circumstances of this case and refused bail. Where an offence carries a sentence of imprisonment for a period of three years or more, grant of bail is not a mere matter of course. DAKUBO-ASARI V FRN (SUPRA). With the foregoing, I am inclined to also refuse bail to the Appellant. however, I will order that this case be given accelerated hearing. This appeal is dismissed. I affirm the Ruling of the lower Court. MOHAMMED AMBI-USI DANJUMA, J.C.A.: In this appeal against the refusal of bail by the trial Court where at the hearing of the case, subject of this appeal is still pending,. I concur in the lead judgment of my learned brother, Uzo I. Ndukwe Anyanwu, JCA that the trial Court had not 10

13 been shown to have exercised its undoubted discretion in the grant of bail injudiciously. The conditions for the grant of bail and the host of cases upon which such circumstances have been applied have been so aptly set out in the lead judgment that I don t need a rehash of same, save to say that the meticulous reasons and reasoning based upon the evidence led before the learned trial judge per the affidavits and exhibits before him, amply justified the views and conclusions as reproduced on pages 7 and 8 of the lead judgment. I cannot make it better. The accelerated hearing of the case at the trial Court as ordered by my lord, is what the Administration of Criminal Justice Regime or Act, 2015 and the constitution of Nigeria envisage and enjoin. Interlocutory appeals are seldom encouraged. Appeal is dismissed. OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Uzo I. Ndukwe-Anyanwu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it. 11

14 Appearances: Alh. Abdullahi Sagir and Abubakar Mohammed Esq. For Appellant(s) -- For Respondent(s)