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In The Supreme Court of
On Friday, the 8th day of June
2007
Before Their Lordships
S.C. 208/2006
Between
And
Judgement of the Court
Delivered by
Ibrahim
Tanko Muhammad.
J.S.C
From the facts contained in
the printed Record of appeal placed before this court, the appellant
Alhaji Mujahid
Dokubo-Asari was a one time leader of the Niger
Delta Peoples Salvation Front (NDSF) but now leader, Niger Delta Peoples
Volunteer Force (NDPVF). He is also a member, Pro-National Conference
Organisation. He, along with one Mr. Uche
Okwukwu and others, now at large, were said to
have signed one communiqué which castigated Governors, Local- Government
Chairmen and NDDC Directors in connivance with the Federal Government that
they looted the oil revenue accruing to the people of Niger Delta while
pursuing their personal projects and
aggrandizement. This, they felt, had left the people in a state of neglect
and abject poverty. They also cited the recent hike in fuel pump price as
one of their grievances. They therefore threatened to take-up arms against
the government after lodging their protest with Pro-National Conference
Organisation
(PRONACO). The Association also
revealed its plan to cause civil disorder that would lead to the overthrow
of the present Government. Dokubo
Asari was arrested by the Police and taken to
court on a five count charge of conspiracy; treasonable felony; forming,
managing and assisting in managing an unlawful society; publishing of false
statement and being a member of an unlawful society. These are offences
created by and punishable under the
Criminal Code Act, Cap 77, Laws of the Federation of
On the 6th day of October, 2005 the appellant as accused, was
arraigned before the Federal High Court Holden in
On the same 6th day of October, appellant's Counsel moved his
summons on Notice dated 10th day of October, 2005, praying the trial court
to admit the accused/appellant to bail. After taking arguments from the
learned counsel for the respective parties, the learned trial Judge examined
their submissions along with the affidavit evidence laid before him. In a
considered ruling delivered on the 11th day of November, 2005,
the learned trial Judge refused to grant bail to the accused/appellant.
Accused/Appellant was dissatisfied with the trial courts decision and he
filed his Notice and Grounds of Appeal to the Court of Appeal, Abuja
Division. (Court below). In its judgment of 6th June, 2006, the
court below dismissed the appeal and
affirmed the ruling
of the trial court.
Further dissatisfied, the accused/appellant sought and was granted leave by
the court below to appeal to this court. Two Grounds of Appeal were set out
in the Notice of Appeal which was filed within the time granted by the court
below for filing same.
Learned Counsel for the
appellant, Mr. Keyamo, filed on behalf of the appellant a brief of argument
in which he distilled two issues for the determination of the appeal by this
court. These are the issues:-
"(i)
Whether the Court of Appeal was right when it reached a conclusion of
fact that there was acceptable evidence of threat to national security by
the appellant in the case put forward by the respondent.
(ii)
Assuming (without conceding) that the case of the respondent revealed
a strong prima facie case of
threat to national security, whether that suspends the right to bail as
enshrined in section 35 of the 1999
Constitution."
Learned Director of Public
Prosecution of the Federation, who appeared for the
respondent, filed the respondent's brief of
argument. The learned DPP, Mr. Aliyu, formulated one issue for determination
of the appeal by the court. The issue reads:-
"Whether in view of the
totality of the facts and circumstances of this case and the evidence
properly before the trial court, the court below was right when it confirmed
the decision of the trial court.”
In his submissions on issue 1,
learned Counsel for the appellant argued that the concurrent findings of
fact of both courts below as to threat to National Security cannot stand in
the face of available evidence. He stated further that what is called
"threat to National Security" can only be distilled from paragraphs 5(d) of
the respondent's counter-affidavit at the trial court. These, he argued
further, were just depositions without anything more to support them when
the burden is on the prosecution to prove why bail should not be granted.
Bail pending trial, learned Counsel submitted, is a Constitutional right and
there is a presumption of innocence of the individual. He cited and relied
on the cases of
Enebeli .v. Chief of Naval
Staff (2000) 9 N.W.L.R. (Pt. 671) 119 at 124-125; Ani
v. State (2002) 1N.W.L.R. (Pt. 747) 217 at 230. Learned Counsel stressed
the point that it was not the duty of the Court of Appeal to believe or not
to believe anything at this stage of the proceedings when exhibits have not
been tendered at the trial. It was a grave error for that court to prejudice
the appellant by believing that he actually granted an interview contained
in a newspaper cutting which was part of a bundle of papers given to the
appellant's Counsel (but not filed along with the charge, purportedly as
proof of evidence. Learned Counsel urged this court to interfere with the
finding of fact of the court as it violated the known principle of law that
an accused is presumed innocent until proven guilty. He urged this court to
resolve issue No 1 in favour of the appellant.
In his submissions on issue No.
2, the learned Counsel for the appellant stated that a mere allegation of
threat to National Security cannot automatically suspend the provisions of
Chapter 4 of the 1999 Constitution
which includes section 35 thereof, on right to bail. In disagreeing with the
Court of Appeal in it's reasoning process, learned Counsel for the appellant
argued that the only time human rights can take a second place is not when a
mere charge relating to threat to National Security is brought against
anyone, but when a formal declaration of a State of Emergency is proclaimed
in line with the provision of the Constitution. It was argued further for
the appellant that if "threat to National Security" is to be taken as a
factor to consider in the grant or refusal of bail, the court must still
have recourse to the competing depositions in the affidavit as filed by both
parties and see whether the prosecution has successfully discharged this
burden to show that there is a threat to National Security. Even if it is,
it does not preclude altogether the consideration of that right to bail as
enshrined in the Constitution. Learned Counsel referred to the case of
Abiola
v Federal Republic of Nigeria (1995) 1 N.W.L.R. (Pt. 370).155.
He urged this court
to resolve issue No. 2 in favour of the appellant. Learned Counsel
finally urged us to allow the appeal and admit the appellant to bail.
The learned Director of Public
Prosecution for the respondent submitted that the trial court took into
consideration all the relevant criteria for the grant of bail as have been
laid down in a plethora of cases and the court rightly held that all the
requisite conditions for the grant of bail did not co-exist. He cited and
relied on the cases of
Anajemba
v. Federal Government of Nigeria (2005) 1 N.C.C.
390 at page 3981; Ani v State (2002) 1
N.W.L.R. (Pt 747) 217 at page 230 A-C;
Nakutama Likita v.
C. O. P, (2002) 11 N.W.L.R. (Pt 777) 145 at page 160 E-H; 161 - B. It
was his further submission that there is a strong probability of guilt of
the accused and that there is a likelihood of the accused person interfering
with the cause of justice if released on bail. He relied on the affidavit
evidence as well as the interim Police Investigation Report; the accused
person's confessional statement; Communiqué of meeting held at
Further submission made on
behalf of the respondent are that where an offence carries a sentence
exceeding 3 years imprisonment, bail in such a case is not a mere matter of
course, but rather, at the discretion of the court which must be exercised
judicially and judiciously as has been done in this case. The learned
Director of Public Prosecution cited
section 118(2) of the Criminal Procedure Act (CPA). The charges against
the appellant carry a. maximum sentence of life imprisonment. It is in the
interest of justice to refuse the appellant bail and uphold the concurrent
findings of the two lower courts. The learned Director of Public Prosecution
urged this court to dismiss the appeal.
When it comes to the issue of
whether to grant or refuse bail pending trial of an accused by the trial
court, the law has set out some criteria which the trial court shall
consider in the exercise of its judicial discretion to arrive at a decision.
These criteria have been well articulated in several decisions of this
court. Such criteria include, among others, the following:
(i)
the nature of the charge;
(ii)
the strength of the evidence which
supports the charge;
(iii)
the gravity of the punishment in the event
of conviction;
(iv)
the previous criminal record of the
accused if any;
(v)
the probability that the accused may not
surrender Himself for trial;
(vi)
the likelihood of the accused interfering
with witnesses or may suppress any evidence that may incriminate him.
(vii)
the likelihood of further charge being
brought against the
accused;
(viii)
the probability of guilt;
(ix)
detention for the protection of the
accused.
(x)
the necessity to procure medical or social
report pending final
disposal of the case.
See:
Bamaiyi
v. State (2001) 8 N.W.L.R. (Pt. 761) 670; Abacha
v. State (2002) 5 N.W.L.R. (Pt. 761) 638; Ani v.
State (2002) 1 N.W.L.R. (Pt. 747) 217; Ekwenugo
v.
These criteria are not
exhaustive. Other factors not mentioned may be relevant to the determination
of grant or refusal of bail to an accused. They provide the required
guideline to a trial court in the exercise of its discretion on matters of
bail pending trial. My learned brother, Uwaifo,
JSC, had this to say on these factors:-
"In that regard it is proper
to consider the nature of the offence, the nature of the evidence in support
of it, and the severity of the punishment which conviction will entail. The
learned trial Judge took this crucial factor as to availability to stand
trial into consideration. These are not matters that should be glossed over.
Some of them may not be admissible as evidence in the main trial but they
are certainly worthy to be taken into account in an application for bail
pending trial."
See the case of
Bamaiyi
v. State (Supra).
In his contribution in the
above case, Ogwuegbu JSC,
stated:-
"That court has in most cases,
discretion to admit an accused person to bail pending trial, but in the
exercise of the discretion, the nature of the charge, the evidence by which
it is supported, the sentence which by law may be passed in the event of
conviction, the probability that the appellant will appear to take his
trial, are the most important ingredients for the guidance of the court and
where these are weighty, an appellate court will not interfere. See:
In the matter of Etienne
Barronent and Edmond Allian
I. E. and B. I. (1852) Dears 51; 118 E.R. K.B. 337 and
Re Robinson (1854) 23 LJ.
Q.B. 286."
As the appellant is facing
criminal charges at the trial court it is very pertinent for me at this
juncture for clarity sake, to set out in full the counts for which the
appellant-is standing trial. They read as follows:-
"Charge
Count 1
That you: (i)
Alhaji MujahidDokubo
Asari 'm' 41 years old of No. 13
Agudama Street, D-Line, Port Harcourt; and
others (presently at large) on or about 28th August, 2005 at
Samsy Hotel, Benin City, Edo State within the
jurisdiction of the Federal High Court did conspire among yourselves to
commit felony to wit: treasonable felony; by forming an intention to:-
(a)
Remove during his term of office otherwise than by constitutional
means, President Olusegun
Obasanjo as Head of State of the Federation and Commander-in-Chief of
the Armed Forces thereof: and
(b)
Levy war in order by force, constraint, to compel the President to
change his measures, counsel and manifested such
intention by overt acts; and you thereby committed an offence contrary to
section 41 and punishable under
section 516 of the Criminal Code Act,
Chapter 77,Laws of the Federation of Nigeria 1990.
Count 2
That you: (1)
Alhaji Mujahid
Dokubo Asari (m), 41
years old of No. 13 Agudama Street,
D-Line, Port Harcourt, and others (presently at large) on or about 28th
August, 2005 at Samsy Hotel, Benin City, Edo
State within the jurisdiction of the Federal High Court did commit
treasonable felony against the Federal Republic of Nigeria by respectively
belonging to Militant Groups known as the Niger Delta People Volunteer Force
(NDPVF); Congress For the Liberation of Ikwere
People (COLIP) and Chikoko
Movement which threatened to take up arms in order to intimidate and overawe
the President and Government of the Federal Republic of Nigeria and
manifested such intention by overt acts and you thereby committed a felony
contrary to and punishable under S.
41 of the Criminal Code Act Chapter 77 Laws of the Federation of Nigeria
1990.
Count 3
That you: (1)
Alhaji Mujahid
Dokubo Asari (m) 41
years old of No. 13 Agudama Street,
D-Line, Port Harcourt; and others (presently at large) on or about 28th
August, 2005 at Samsy Hotel, Benin City, Edo
State within the jurisdiction of the Federation High Court formed, managed
and assisted in the management of unlawful societies of more than ten
persons respectively known and called "Niger Delta Peoples Volunteer Force"
(NDPVF), Congress For the liberation of Ikwere
People (COLIP) and Chikoko
Movement with the objective of:
(a)
Levying war on the government of the federal
(b)
Encouraging the killing and injuring of persons;
(c)
Destroying, injuring and encouraging the destruction and injuring of
property;
(d)
Subverting or promoting the subversion of the Government of the
Federal
(e)
Committing, inciting acts of violence and intimidation;
(f)
Interfering
with, resisting; encouraging interference with or resistance to the
administration of Law; and
(g)
Disturbing and encouraging the disturbance of peace and order in the
Niger Delta States of Rivers; Delta; Edo of the Federal Republic
of Nigeria contrary to
section 62(2)(1) and punishable
under section 63 of the Criminal Code
Act Capt. 77, LFN 1990.
Count 4
That you: (1)
Alhaji Mujahid
Dokubo Asari (m), 41
years old of No. 13 Agudama Street,
D-Line, Port Harcourt and other (presently at large) on or about 28th
August, 2005 at SAMSY Hotel, Benin City, Edo State within the jurisdiction
of the Federal High Court published a statement, rumour, report which is
likely to cause fear and false alarm to the public knowing or having reason
to believe that such statement, rumour, report, is false and thereby
committed an offence contrary to and punishable under
section 59 of the Criminal Code Act
Chapter 77 LFN 1990.
Count 5
That you: (1)
Alhaji Mujahid
Dokubo Asari (m), 41
years old of No. 13 Agudama Street,
D-Line, Port Harcourt; and others (presently at large) between year 2004 and
2005 at Port Harcourt, Rivers State, Nigeria within the jurisdiction of the
Federal High Court are members of unlawful societies respectively called;
(1)
"
(2)
Congress for the Liberation of Ikwere
People (COLIP); and
(3)
Chikoko Movement
and you thereby committed a felony contrary to
and punishable under section 64 of
the Criminal Code Act Chapter 77 LFN 1990.
Overt Acts of the Offences of
Counts I and II
1.
That you: (1)
Alhaji Mujahid
Dokubo Asari and
others presently at large respectively formed the following Organization:
Niger Delta Peoples Volunteer Force (NDPVF); Congress for the Liberation of
Ikwere People (COLIP);
and Chikoko Movement; all of whom want Nigeria
to disintegrate so that its ethnic nationalities, particular the
Ijaw and Ikwere
people, would create their own nations;
2.
That you: (1)
Alhaji Mujahid
Dokunbo Asari; and
others presently at large, attended a meeting of "The Pan Niger Delta Action
Conference/Council (PANDAC)"; the meeting was attended by leaders and
members of representative nationality organizations, militant formations,
youth and civil society organizations from Niger Delta region, including the
Niger Delta Peoples Volunteers Force (NDPVF),
Chikoko Movement, Great Commonwealth of The
Niger Delta (GCND), Movement for the Survival of Ogoni
People (MOSOP), Ijaw
Youth Council (IYC),
Itsekiri National Youth Council, National Youth Council of
Ogoni People (NYCOP),
Civil Liberties Organization (CLO), Niger Delta Women for Justice (NDWJ),
Congress for the Liberation of Ikwere People (COLIP),
Supreme Egbesu Assembly (SEA), Delta Stakeholder
Today Peoples Council, Socialist Workers Party, Federated Niger Delta
Ijaw Communities (FINDIC),
National Association of Ijaw Female Students,
People with Disability Action Network (PEDANET) among others on or about
August 28, 2005 at Samsy Hotel Benin City in Edo
State of Nigeria and issued a communiqué:
"Communique
of The Strategy and Mobilization Meeting of The Pan Niger Delta Action
Conference/Council (Pandac) at The
Samsy Hotel, Benin City, Edo State On
Sunday,August, 28, 2005";
3.
That in the said communiqué referred to in paragraph 2 above and
signed by Alhaji Mujahid
Dokubo Asari, you
alleged that the irresponsible Governors of the Niger Delta, Local
Government Chairmen and NDDC Directors in connivance with the Federal
Government of Nigeria looted the oil revenue accruing to the people of Niger
Delta while pursuing their personal projects and aggrandizement, and
therefore threatened to take" up arms against the Government of the Federal
Republic of Nigeria;
4.
That at the said meeting of August 28, 2005 at
Samsy HOTEL, Benin City, Edo State of Nigeria you: (1)
Alhaji Mujahid
Dokunbo Asari: and
others presently at large planned to cause civil disorder that would lead to
the overthrow of what you called "the dictatorial government of Chief
Olusegun Obasanjo"
and replace same by a Provisional Government of National Unity.
5.
That you: (1)
Alhaji Mujahid
Dokunbo Asari;
granted
interview to the Independent Newspaper that was published on September 10,
2005 in which you said:
"Nigeria is an evil entity. It has
nothing to stand on and I will continue to fight and try to see that
Nigeria dissolves and disintegrates and I am
ready to hold on to the struggle to see to this till the day I will die. I
do not see any reason why I should continue to live with people that have no
relationship with me whatsoever."
Dated this 4th day
of October 2005
Chief
Bayo Ojo (SAN).
Hon. Attorney-General of the
Federation and
Minister
of Justice."
It is thus clear that all the
counts are of criminal nature. The offences were all created by the Criminal
Code Act and punishable by same.
The various offences set out
above, if proved will each, attract a punishment of not less than three
years of imprisonment. See the various sections
under which the
offences are punishable .i.e. Section
41; 59, 63, 64 and 516 of
the Criminal Code Act Cap 77, Laws of the Federation of
Section 118 (2) of the
Criminal Procedure Act (CPA) Cap 80, LFN, 1990
provides as follows:-
"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."
(Emphasis supplied by me)
The interpretative section,
section 2 of the CPA assigns the following
interpretation to the word "felony" -
"'felony' means an offence on
conviction for which a person can, without proof of his having been
previously convicted of an offence, be sentenced to death or to
imprisonment for three years or more, or which is declared by law to be
a felony."
(Underlining supplied for
emphasis)
Section 118(2) of the CPA,
in my view, makes the grant of bail to an accused person standing trial
before a High Court, purely a discretionary matter in the hands of the trial
Judge. Furthermore, 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. It is a settled principle of law that except where a miscarriage of
justice has been established or that there is a violation of some principles
of law or procedure; or that the discretion is known to have been wrongly
exercised, or where the exercise was tainted .with some illegality "or
substantial irregularity, an appeal court seldom interferes with the learned
trial Judge's exercise of discretion. This is because discretion is of the
trial court and not of the appellate court hence it cannot substitute its
own discretion. See the case of
Efetiroroje v. Okalefe
II (1991) 5 N.W.L.R. (Pt 193) 517; Royal Exchange Assurance (Nig.) Ltd, v.
Aswani Textiles Ltd (1992) 3 N.W.L.R. (Pt. 227)
1 at page 5; The
In Sarami
v. Kotove (1990) 4 N.W.L.R.
(Pt. 143) 144 at page 151,
Obaseki, JSC, put it
this way:-
"The proper role of the Court
of Appeal where there is a proper exercise of discretion is not to interfere
with the decision. To do so merely on the ground that the Appellate Court
would have exercised the discretion differently is an assault on justice and
not within the statutory powers of the
It is worthy of note as well,
that on a question of exercise of discretion authorities are not of much
value. No two cases are exactly similar and even if they are, the court
cannot be bound by a previous decision to exercise its way because that
would be putting an end to discretion. No discretion in one case can be a
precedent to another. See: the holding of Kay, L.J. in the case of
Jenkins v.
Bushby (1891) 1
It is clear in this appeal
that at the close of oral arguments by the parties before it and after
considering, all the, submissions made by the learned Counsel for the
respective parties, the court below, per Rhodes-Vivour,
JCA; made the following conclusion:
"In the light of the above the
learned trial Judge was right in refusing the application for bail by the
appellant. This court will not interfere with the decision of the learned
trial Judge."
The practice of the appeal
courts generally, and this has been on for quite sometime, is that where
there is a concurrent finding of two lower courts, the appeal court hardly
interferes with it except on exceptional circumstances. See:
Igogo
v. The State (1999) 12 SCNJ
140; Dogo & Ors. v. The State (2001) 1
SCNJ 315. This principle of concurrent findings/decisions of two lower
courts not to be ordinarily disturbed by a higher court is respected by the
courts because it is founded on the understanding that the facts that have
been deliberated on by two courts carefully before they arrived at certain
conclusions can be supported from the evidence laid before them particularly
if much of the findings or conclusions depended on the trial court having
heard and seen vital witnesses testify. In this regard it is an exclusive
preserve of the trial court and an appellate court certainly lacks power to
interfere. But, where the evaluation of evidence is only through documentary
evidence, an appellate court has liberty to evaluate the affidavit evidence
with a view to either affirming or reversing the trial court's decision
depending, on the substantiality of the dispositions made by the parties. In
the appeal on hand the court below made some findings of fact on the
affidavit evidence. Below is what the court said:-
"Evidence available to the
trial Judge and to us shows beyond doubt the threat to National Security.
A close scrutiny of the charge
and documentary evidence available reveals Offences that are a real threat
to National Security."
The evidence available before
the two lower courts was that of affidavit evidence. The appellant as
applicant before the trial court deposed to the following facts in support
of his application for bail, through Daniel Nuesiri:
"1.
That I am a litigation officer in Festus Keyamo
Chambers, solicitors to the Accused/Applicant.
2.
That I have the consent of the Applicant and my employers to depose
to this affidavit.
3.
That I was informed by the Accused/Applicant and I verily believe
that:
a.
That on Monday, September 19, 2005 the Applicant received a phone
call from the Commissioner of Police,
b.
That on getting there he was asked whether he knew anything about the
threat to blow up oil installations over the arrest of
the Bayelsa State
Governor which he answered in the negative,
c.
That he was then told that his attention was needed in
d.
That from the 19th of September, 2005, the Applicant was
in detention until the 6th of October, 2005, when he was
arraigned before this Honourable Court on a five-count charge,
e.
That the Accused has no criminal record and has never been tried for
any offence before,
f.
That the accused will not commit any similar offence or any at all if
granted bail,
g.
That the Accused will not impede any further investigation if granted
bail,
h.
That the Accused will not jump bail and will make self
available for trial,
i.
That the accused is worthy enough to be granted bail in self
recognizance and alternatively can provide credible sureties for his bail.
4.
That there is no prima facie evidence that the Accused has committed
the offences for which he is charged.
5.
That it will be in the interest of justice to grant this application.
6.
That I depose to this affidavit in good faith."
The respondent
filed a counter-affidavit.
It was sworn to by one Y. S. Abubakar
who averred to the
following facts:-
"1.
That I am a Senior Police Officer of
2.
That I am also one of the officers that investigated this case.
3.
That by virtue of my said position, I am sufficiently conversant with
the facts, which I herein depose.
4.
That I have the consent and authority of the Complainant/Respondent
to depose to this counter affidavit.
5.
That I was informed by the Hon.
Attorney-General of the Federation and Minister of Justice on Tuesday,
October 11, 2005, at 1200 hrs in his office at Federal Ministry of Justice,
Federal Secretarial Complex Abuja, and I verily
believe him as follows:-
(a)
That if the Accused/Applicant is released on Bail, the prosecution of
the charge against him will be at risk.
(b)
That most other suspects in this ease are still at large.
(c)
That the available evidence against the Accused/Applicant so far is
over whelming.
(d)
That the Accused/Applicant is a militant Leader of a dangerous, armed
and unlawful society called the Niger Delta People's Volunteer Force
(NDVPF).
(e)
That the Accused/Applicant have had access to and can on grant of
bail, have access to dangerous weapons.
(f)
That Accused/Applicant is from the riverine area of the Niger Delta
of Nigeria.
(g)
That the Niger Delta is an area consisting of
(h)
That if granted bail the Accused/Applicant will commit similar
offences, interfere with the investigation of the case
and not make himself
available for trial.
6.
That after the arrest of the Accused/Applicant, his statement was
obtained wherein he confessed to the commission of the crimes
7.
That I was also informed by the Hon. Attorney-General of the
Federation and Minister of Justice on Tuesday,
October 11,2005, at 1200 hrs in his office at Federal Ministry of Justice,
Federal Secretariat Complex Abuja, and I verily believe him that the
Accused/Applicant has not shown any special circumstances warranting the
grant of this application.
8.
That the Accused/Applicant is healthy and he is being taken care of
by the State as was seen from his entire appearance when he was arraigned
before the court.
9.
That the Complainant/Respondent will do all in its power to ensure a
very speedy trail of the substantive case.
10.
That it will be prejudicial to National Security to grant bail to the
Accused/Applicant.
11.
That it will be in the interest of justice to refuse this
application.
12.
That I do solemnly and sincerely declare that I make this
declaration conscientiously believing same to be
true and by virtue of the provisions of
the Oath Act."
In a reply to the
counter-affidavit, Festus Keyamo learned Counsel for the appellant, deposed
to the following facts:-
"1.
That I am the Counsel to the accused person.
2.
That I have the consent and authority of the accused person to
depose to this affidavit.
3.
That the applicant himself could not depose to this affidavit because
he is remanded in custody but he informed me and I verily believe the
under-mentioned facts.
4.
That no other person has been declared wanted by the Federal
Government in relation to this charge.
5.
That there is no proof of evidence filed with this charge as such the
court has nothing upon which to decide about the nature of the evidence in
this case.
6.
That the accused/applicant has no access to dangerous weapons.
7.
That the Accused/Applicant is prepared to provide sureties from
8.
That the Accused/Applicant has never confessed to the commission of
any offence.
9.
That the Accused/Applicant was never found committing any offence or
arrested in the course of committing any offence as he voluntarily went to
the State Command,
10.
That I swear to this affidavit in good faith."
The court
below commented on
the affidavit evidence and other processes placed before the trial court.
The trial court considered these processes in arriving at its decision. This
is what the court below said:-
"Indeed the depositions in the
affidavit and interview granted the Independent Newspaper on 10/9/05 is
ominous and very disturbing. For example the appellant granted interview to
the Press wherein he says that he will continue to fight until
A close scrutiny of the
charges and documentary evidence available reveals offences that are a real
threat to National Security. They involve creating a situation where the
government of the Federal Republic of Nigeria could yield to force or expose
the public to serious danger.
Indeed paragraph 1.0 of the
counter-affidavit supports that fact. It states that it would be prejudicial
to National Security to grant Bail. I agree. This deposition easily covers
all the counts against the appellant."
From the above, it is clear to
me that the court below was right in its conclusion that there was evidence
which the trial court accepted to show the existence of threat to the
National Security. For instance, in his statement to the Police, signed by
him the appellant made strong statements. It suffices to quote the following
statements:-
"The objective of
Pronaco is to organize a Sovereign National
Conference. The Conference will kick-off in October, 2005. The Niger Delta
Sovereign National Conference is a mini Conference of the
Pronaco People's National Conference. Because
General Olusegun Obasanjo
manipulated himself to power through massive rigging of the 2003 election.
The people must seize power through the process of democratic, progressive
mass action that will lead to the formation of a provisional government of
National Unity. We can achieve peace without fighting by going our separate
ways like the
The Government of General
Obasanjo is illegitimate. It retains (sic) power
through the manipulation of the electoral process. This is a negation of
elementary principle of democratic governance. No man with self respect will
allow his right of choice taking away (sic) from him by a regime claiming to
be democrative. This has made me and others like
me to resent the government of the regime of
general.Obasanjo. When
These statements were neither
denied nor controverted. They were made by the appellant. In fact in
paragraph 10 of the counter-affidavit the deponent averred that it will be
prejudicial to National Security to grant bail to the accused/applicant. No
reply to this averment by the appellant when he filed a reply. It thus
stands to be an uncountered averment which in law is deemed admitted. See:
Adesina
v. Osogbo (1996) 4 SCNJ
111. Attorney-General of Anambra
State v. Okeke (2002) 5
SCNJ, 318; Stephen Lawson-Jack v. The
Shell Petroleum Development Company of Nigeria Ltd. (2002) 7 SCNJ 121.
Secondly, in a Communiqué of the Strategy and Mobilization Meeting of the
Pan Niger - Delta Action Conference/Council (PANDAC) held at the
Samsy Hotel Benin City, Edo State on Sunday
August 28, 2005, which was released to the Media on August 31, 2005 and
which formed part of interim Police Investigation Report, it was alleged
that the irresponsible Governors, Local Government Chairmen and NDDC
Directors in connivance with the Federal Government of Nigeria looted the
oil revenue accruing to the people of Niger Delta while pursuing their
personal projects and aggrandizement. This, they felt had left the people in
a state of abject poverty and neglect. The Pandac
called on the peoples of
"2.
That attached as exhibits A, B and C are
the letter (sic) received to collect proof of evidence, the proof of
evidence received and the acknowledgement of the proof respectively."
The trite position of the law
is that in exercising the discretion given to him by the law in the grant or
refusal of bail the trial Judge is bound to consider the weight of facts
deposed to in an affidavit' evidence placed before him. Other considerations
enumerated earlier such as the strength of the evidence which supports the
charge, the gravity of the punishment in the event of conviction, the
likelihood of the accused interfering with proposed witnesses or may
suppress any evidence that may incriminate him; the likelihood of further
charge being brought against him and the probability of guilt are weighty
issues in this case that the trial, court cannot gloss over.
See
Mamuda
Dantata v. Inspector-General of Police (1958)
NRNL 3; Abacha v.
The State (2001) 3 N.W.L.R (Ft. 699) 35;
Abiola v. Federal Republic of Nigeria
(1995) 1 N.W.L.R. (Pt 370) 155.
What assurances are put in place such that the appellant if released on
bail, will not eventually translate into action
his threat of continued "armed struggle" which in his words "cannot be
ascertain (sic)" as he was not God, if there was no "peace"? "Peace" may be
taken in the context of what he meant, to be a
relative term. Even the Devil cannot know or draw inference in what that
unpredictable and oft oscillating organ in human body called heart/mind,
conceals. The applicant in my view has failed to meet the minimum demands
for the grant of bail, looking at the totality of the circumstances
surrounding his case. I resolve issue 1 in favour of the respondent.
Appellant's issue No. 2
touches on appellant's right to bail as enshrined in
section 35 of the 1999 Constitution.
It is the contention of learned Counsel for the appellant that a mere
allegation of threat to National Security cannot automatically suspend the
provisions of Chapter 4 of the 1999
Constitution, which includes the right to bail. This learned Counsel
further argued, was the major plank upon which the Court of Appeal based its
decision to uphold the ruling of the trial court. The effect of this holding
is to erroneously suspend section 35
of the 1999 Constitution of the
Let me observe from the
outset, that although the respondent did not advert its mind to fully
address the appellant's issue, I must draw the attention of learned counsel
for the appellant that the main discourse of his submission on issue two is
on state of emergency. I think this is an unnecessary voyage in a world of
fantasy. What is the relationship between grant of bail or refusal thereof
with the suspension of a part of the Constitution i.e.
section 35 of that Constitution?
What brought about the provisions of the constitution which relate to the
Declaration of Emergency? If refusal of bail to any person accused to have
committed a crime will amount to jettisoning some part of this constitution,
or will invoke the Declaration for a period of emergency, then this country,
which I believe, is populated by majority of law abiding citizens, who
always carry out their normal day to day life without instilling any fear or
causing any havoc to anyone, at any lime, will be doomed. The reference made
by learned counsel to provisions on Emergency situations is nothing other
than mere concoction of facts to whip-up sentimental, sympathy. The learned
counsel is aware that courts do not make laws. They interpret laws. Courts
cannot amend the Constitution. Courts cannot suspend the Constitution or any
part thereof. See: the case of
Attorney-General of
Now, let me turn to the
provisions of section 35 of the
Constitution. These provisions
in the first place are not absolute. The relevant provisions of
the section are as follows:-
"35
(1)
Every person shall be entitled to his
personal liberty and no person shall be deprived of such liberty save in the
following cases and in accordance with a procedure permitted by law -
..................................................
..................................................
(c)
For the purpose of bringing him before a court in execution of the
order of a court or upon reasonable suspicion of his having committed a
criminal offence,
or to such extent as may be reasonably necessary to prevent his
committing a criminal offence;
(4)
Any person who is arrested or detained in accordance with subsection
(l)(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.
..................................................
(7)
Nothing in this section shall be construed -
(a)
in relation to subsection (4) of this section, as applying in the
case of a person arrested or detained upon reasonable suspicion of having
committed a capital offence; and
(b)
as invalidating any law by reason only that it authorizes the
detention for a period not exceeding three months of a member of the armed
forces of the Federation, or a member of the Nigeria Police Force in
execution of a sentence imposed by an officer of the armed forces of the
Federation or of the Nigeria Police Force, in respect of an offence
punishable by such detention of which he has been found guilty."
(Underlining supplied for
emphasis)
The above provisions of
section 35 of the Constitution
leave no one in doubt that the section is not absolute. Personal liberty of
an individual within the contemplation of
section 35(1) of the Constitution
is a qualified right in the context of this particular case and by virtue of
subsection (l) (c) thereof which permits restriction on individual liberty
in the course of judicial inquiry or where, rightly as in this case, the
appellant was arrested and put under detention upon reasonable suspicion of
having committed a felony. A person's liberty, as in this case, can also be
curtailed in order to prevent him from committing further offence(s). It is
my belief as well that if every person accused of a felony can hide under
the canopy of section 35 of the
Constitution to escape lawful detention then an escape route to freedom
is easily and richly made available to persons suspected to have committed
serious crimes and that will not augur well for the peace, progress,
prosperity and tranquillity of the society. I find support in so saying from
Irikete's JSC, (as
he then was) earlier pronouncement in the case of
Echeazu
v. Commissioner of Police (1974) N.W.L.R. 308 at page 314.
I entirely agree with the
court below that a charge of treasonable felony is a very serious offence
and is prejudicial to National Security. I believe neither the appellant nor
his counsel would sit down to fold up his arms, if on the seat of power, to
allow any citizen to put his reign into terror and utter hopelessness or
despondency while dancing to the music of a citizen who plots a
Coup detat
against him. He will certainly fight it to the end. I resolve
issue No. 2 in favour of the respondent.
Finally, I find no merit in
this appeal. Same is hereby dismissed by me. I find nothing wrong in the
judgment of the court below which affirmed the trial court's judgment.
Judgment
Delivered By
Aloysius
Iyorgyer Katsina-Alu.
J.S.C.
I have read in draft, before
now, the judgment delivered by my learned brother Muhammad JSC in this
appeal. I agree with his reasoning and conclusion. I also dismiss the
appeal.
Judgment
Delivered By
Niki
Tobi.
J.S.C.
The applicant was arraigned at
the Federal High Court,
The appellant filed a Summons
on Notice with an affidavit in support asking for bail. The prosecution
opposed bail. The learned trial Judge refused bail,
Olayiwola, J. said at page 50 of the Record:
"In the matter on hand, a
five-count treason charge has been preferred against the applicant; count 2
of the charge attracts life imprisonment. In my view, this is weighty enough
for court to exercise due care in the exercise of its discretion especially
in the light of exhibit (b) the interim Police investigation report which in
the word of the Counsel to the Applicant, the prosecution intends to rely
upon as proof of evidence when it is filed eventually... In my view, the
security fear-envisaged by the prosecution in this case has not been
assuaged by the accused in the application and it also weighs in the mind of
the Court in the light of the other circumstances highlighted above. The
Court would therefore refuse the applicant to bail pending trial."
On appeal to the Court of
Appeal, that court dismissed the appeal, thus refusing the appellant bail
pending trial. In his judgment, Rhodes-Vivour,
JCA, said at page 138 of the Record:
"A close scrutiny of the
charge and documentary evidence available reveals offences that are a real
threat to National Security. They involve creating a situation where the
government of the Federal Republic of Nigeria could yield to force or expose
the public to serious danger... My Lords, where National Security is
threatened or there is the real likelihood of it being threatened Human
rights or the individual rights of those responsible take second place.
Human rights or individual rights must be suspended until the National
security can be protected or well taken care of."
Dissatisfied, the appellant
has come to this court. He formulated two related issues in respect of the
threat to national security as held by the Court of Appeal. The respondent
formulated a single issue for determination on whether the trial Judge was
right in refusing the appellant bail and whether the Court of Appeal was
right in confirming the decision of the trial Judge.
The general criteria for
granting bail at the trial court are as follows: (a) The availability of the
accused to stand trial, (b) The nature and gravity of the offence, (c) The
likelihood of the accused committing offence while on bail, (d) The criminal
antecedents of the accused, (e) The likelihood of the accused interfering
with the course of justice, (f) Interference with investigations. The above
apart, the criteria for granting bail by the trial court include (a)
Likelihood of further charge being made, {b) The probability of guilt, (c)
Detention for the protection of the accused, (d) The necessity to procure
medical or social report pending a final disposal of the case.
The main function of bail is
to ensure the presence of the accused at the trial. See
R. v. Jamal 16 NLR 54; State v.
Qkafor (1964) ENLR
96; R. v. Rose (1898) 18 Cox C.C. 717; R. v. Robinson (1854) 23 LJ QB 286;
Ex parte Milburn 34 US 704 (1835; US v. Ryder 110 US 729; Stack v. Boyle 342
U.S. 1 (1951). Accordingly, this criterion is regarded as not only the
omnibus one but also the most important. As a matter of law and fact, it is
the mother of all the criteria enumerated above. Dealing with the criterion,
the Working Party on Bail
Procedure in Magistrates' Courts in the
"There are a number of other considerations to be taken into account in
deciding a bail application, but in general they are not in themselves
reasons for granting or refusing bail, but indicatory of the likelihood or
otherwise -of the defendant's appearance."
As a matter of fact, all other criteria are parasitic on the omnibus
criterion of availability of the accused to stand trial. Arising directly
from the omnibus criterion is the criterion of the nature and gravity of the
offence. It is believed that the more serious the offence, the greater the
incentive to jump bail although this is not invariably true. For instance,
an accused person charged with capital offence is likely to flee from the
jurisdiction of the court than one charged with a misdemeanor, like affray.
The distinction between capital and non-capital offence in one way
crystallized
from the realization that the atrocity of the offence is directly
proportional to the probability of the accused person absconding. But the
above is subject to the qualification that there may be less serious
offences in which the court may refuse bail, because of its nature. This
does not however apply in this case because the appellant is charged with
treasonable felony, a heinous offence carrying a prison term of life.
It does not appear that learned counsel for the appellant has examined the
confessional statement of the appellant. I should quote some extracts from
that statement:
"The Niger Delta People Volunteer Force (NDPVF) which I led has totally
disarmed. Hence armed struggle will predicate on the activities of the
regime of the
I clearly see signs of "war" from the above. I therefore agree with the
Court of Appeal that there is a threat to national security. There is
instability in the Niger Delta area and I do not think the appellant will
assist in reducing the instability and turbulence there. On the contrary, it
is clear from his statement
that there is every likelihood for him to foment or instigate more trouble.
This is certainly not in the interest of the region and
I therefore agree with my
learned brother, Muhammad, JSC, that the appeal should be dismissed.
I accordingly dismiss the appeal.
Judgment
Delivered By
Francis
Fedode Tabai. J.S.C.
I have had the privilege of
reading in advance the leading judgment by Muhammad JSC and I agree that the
appeal lacks merit and ought to be dismissed and is accordingly also
dismissed by me.
Judgment
Delivered By
Pius
Olayiwola Aderemi. J.S.C.
I agree with my learned
brother, Muhammad JSC whose views for judgment I have been privileged with a
preview. The facts and the law applicable have been exhaustively articulated
by my learned brother in the leading judgment. As I have nothing useful to
add, I join him in saying that the judgment of the Court of Appeal, Abuja
Division, is unassailable and I equally affirm it. This appeal, in my
judgment, is unmeritorious and it is accordingly dismissed.
Counsel
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