Tanko Mohammed Rajab & Anor. v. The State (2010)
by Branham Chima.
➥ PARTIES:
⦿ APPELLANT
Tanko Mohammed Rajab
Dattijo Aliyu
⦿ RESPONDENT
The State
➥ COURT:
Court of Appeal – CA/A/128C/2009
➥ JUDGEMENT DELIVERED ON:
Thursday, the 11th day of March, 2010
➥ SUBJECT MATTER
Granting of bail
➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.C.A.
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Niger State High Court sitting in Minna presided over by justice Christopher I. Auta, delivered on the 28th April, 2009 dismissing an application for bail by the Appellants.
On the 30th March, 2009, the Appellants were arraigned before Chief Magistrate Court 1, Minna on a First Information Report (FIR) of Criminal Conspiracy, forgery, injurious falsehood, false information with the intent to mislead public servant by obtaining, circulating official classified documents contrary to Sections 97, 364, 393, 140 and Section 7(1) of the Penal Code and the Official Secrets Law of Niger State respectively. Their application for bail before the Chief Magistrate Court was refused and they were ordered to be remanded in prison custody.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the court below properly exercised its discretion by refusing to grant bail to the Appellants pending their trial having regard to the materials and affidavit evidence before the court?
RULING: IN APPELLANT’S FAVOUR.
A. THERE NO EVIDENCE WHY THE APPELLANTS SHOULD NOT BE GRANTED BAIL
[‘In the instant case, the Appellants applied to the lower court by way of motion supported by an affidavit asking that they be admitted to bail. No formal charge was prepared against the Appellants before the High court. There is therefore no proof of evidence of the offence alleged to have been committed for the lower court to consider and determine the strength of evidence if any against the Appellants. However, the Appellants have deposed in their paragraph 2(i)(a) and (f) and paragraph 3(a), (b) and (c) to the fact that they are respectable and responsible members of the society and that they have never committed any offence previously and that if admitted to bail they will provide reasonable and responsible sureties and undertake always to attend court to face their trial. They also undertake not to in anyway interfere with the investigation of this matter. These facts notwithstanding, the lower court ruled against the Appellants’ application for bail on the reason that the allegations against the Appellants involve the commission of serious offences and that the Appellants are influential members of the society and may therefore interfere with police investigation. The learned trial Judge came to this conclusion because according to him the Appellants averment in paragraphs 7, 8, and 9 of the further and better affidavit have been controverted by the Respondent’s counter affidavit in paragraphs 9 to 18 and that the Appellants did not file a reply to contradict the facts stated in the Respondent’s counter affidavit. In an application for bail pending trial, the applicant has the first onus of placing such materials before the Court for its consideration to show that he is entitled to be released on bail. Thereafter, the onus shifts to the Respondent to show that the Applicant is not entitled to bail. See CHINEMELU VS C.O.P (1995) 4 NWLR (PT. 390) 476, ABIOLA VS FRN (1995) 1 NWLR (PT. 370) 155, ANI VS STATE (2002) 1 NWLR. The onus therefore placed on the Applicant to establish his entitlement to bail is on the balance of probability while the burden placed on the prosecution to deny bail to accused person is proof beyond reasonable doubt … It is clear from the record of the Court that the prosecution presented no evidence before the trial Court to support their averment that if Appellants are released on bail they will not appear to stand their trial. It is a settled principle of law that mere averments by the prosecution that an accused person will not appear for his trial in the absence of real concrete material to support such an allegation, should not warrant the denial of bail by a court. In ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (supra) the principle is stated that since the court presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show in a given case, that an accused or applicant for bail is one that should be refused bail. The Appellants have deposed to the fact that they are respectable and responsible members of the society and that if admitted to bail, they undertake to always attend court and shall not in any way interfere with the investigation of this matter. The Respondent also deposed to the fact that the 1st Appellant is a strong party stalwart, while the 2nd Appellant was the immediate past commissioner of Health in the State. The fact that the Respondent’s averment in paragraphs 9 to 18 have not been controverted by the Appellants is not sufficient to deny bail to the Appellants having regard to the fact that what was not denied were mere assertions without concrete evidence.’]
B. BAIL CANNOT BE REFUSED IN VACUUM
[‘Bail will not be granted if by the granting of bail proper investigation of the case would be prejudiced or serious risk exist of the applicants escaping from justice. However, the Court cannot exercise its discretion to refuse bail in vacuum. There must be materials placed before it to exercise its discretion and where there are no materials but bare assertion by the prosecution, the Court will not exercise its discretion to refuse bail. Bail under our criminal justice system is a right of an accused person except where the alleged offence is a capital offence; accused person is not usually denied bail. Based on what I have said so far, this issue is hereby resolved in favour of the Appellants against the Respondent.’]
.
.
.
✓ DECISION:
‘The appeal therefore has merit and it ought to be and is hereby allowed. The Ruling of the lower court delivered on the 28th April, 2009 refusing bail to the Appellants is hereby set aside. Consequently, the Appellants are hereby granted bail pending the determination of the case against them before the lower court in the sum of N500,000.00 with two sureties each in like sum. The sureties must be owners of a landed property and must file affidavit of means.’
➥ FURTHER DICTA:
⦿ WHEN APPELLATE COURT WILL NOT INTERFERE WITH TRIAL COURT’S DISCRETION NOT TO GRANT BAIL
By the judicial interpretation of the provisions of Sections 340 and 341 of the Criminal Procedure Code, it appears settled law that the power to grant or not to grant bail is entirely at the discretion of the Judge, and when a judge is considering whether to release an applicant to bail pending trial, the following are paramount, viz:- a) The nature of the charge; b) The evidence by which it is supported; c) The sentence which by law may be passed in the event of a conviction and; d) The probability that the accused will appear to take his trial. Where these are weighty, an Appellate Court will not interfere with exercise of discretion by the trial Court not to grant bail, see MAMUPA DANTATA VS IGP (1958) NNLR 3, see BAMAIYI VS THE STATE (2001) 8 NWLR (PT.715) 270, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145; and ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT.890) 267. The relevant considerations for a decision in respect of the above requirements can be listed as:- a) The evidence available against the accused; b) Availability of the accused to stand trial; c) The nature and gravity of the offence; d) The likelihood of the accused committing another offence while on bail; e) The likelihood of the accused interfering with the course of justice; f) The criminal antecedents of the accused person; g) The likelihood of further charge being brought against the accused; h) The probability of guilt; i) The detention for the prosecution of the accused j) The necessity to procure medical or social report pending final disposal of the case. These factors may not be relevant in all bail application cases and they are not also exhaustive. It may well be that any one or other may be applied to determine the question of bail in a particular case. — U.M.A. Aji, JCA.
⦿ STANDARD OF PROOF IN BAIL APPLICATIONS
The onus therefore placed on the Applicant to establish his entitlement to bail is on the balance of probability while the burden placed on the prosecution to deny bail to accused person is proof beyond reasonable doubt. — U.M.A. Aji, JCA.
⦿ THERE MUST BE A VALID REASON FOR OPPOSING BAIL
A prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See ADAMS VS ATTORNEY GENERAL OF THE FEDERATION (2006); BOLAKALE VS STATE (supra); ANAKWE VS COMMISSIONER OF POLICE (1996) 3 NWLR (PT 436) 320 and OMODARA VS STATE (2004) 1 NWLR (PT.853) 80. — U.M.A. Aji, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Aminu Sadauki, Esq.
⦿ FOR THE RESPONDENT
Olajide Ayodele, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
➥ CASE SUMMARY OF:
Tanko Mohammed Rajab & Anor. v. The State – CA
by Branham Chima.
➥ PARTIES:
⦿ APPELLANT
Tanko Mohammed Rajab
Dattijo Aliyu
⦿ RESPONDENT
The State
➥ COURT:
Court of Appeal – CA/A/128C/2009
➥ JUDGEMENT DELIVERED ON:
Thursday, the 11th day of March, 2010
➥ SUBJECT MATTER
Granting of bail
➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.C.A.
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Niger State High Court sitting in Minna presided over by justice Christopher I. Auta, delivered on the 28th April, 2009 dismissing an application for bail by the Appellants.
On the 30th March, 2009, the Appellants were arraigned before Chief Magistrate Court 1, Minna on a First Information Report (FIR) of Criminal Conspiracy, forgery, injurious falsehood, false information with the intent to mislead public servant by obtaining, circulating official classified documents contrary to Sections 97, 364, 393, 140 and Section 7(1) of the Penal Code and the Official Secrets Law of Niger State respectively. Their application for bail before the Chief Magistrate Court was refused and they were ordered to be remanded in prison custody.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the court below properly exercised its discretion by refusing to grant bail to the Appellants pending their trial having regard to the materials and affidavit evidence before the court?
RULING: IN APPELLANT’S FAVOUR.
A. THERE NO EVIDENCE WHY THE APPELLANTS SHOULD NOT BE GRANTED BAIL
[‘In the instant case, the Appellants applied to the lower court by way of motion supported by an affidavit asking that they be admitted to bail. No formal charge was prepared against the Appellants before the High court. There is therefore no proof of evidence of the offence alleged to have been committed for the lower court to consider and determine the strength of evidence if any against the Appellants. However, the Appellants have deposed in their paragraph 2(i)(a) and (f) and paragraph 3(a), (b) and (c) to the fact that they are respectable and responsible members of the society and that they have never committed any offence previously and that if admitted to bail they will provide reasonable and responsible sureties and undertake always to attend court to face their trial. They also undertake not to in anyway interfere with the investigation of this matter. These facts notwithstanding, the lower court ruled against the Appellants’ application for bail on the reason that the allegations against the Appellants involve the commission of serious offences and that the Appellants are influential members of the society and may therefore interfere with police investigation. The learned trial Judge came to this conclusion because according to him the Appellants averment in paragraphs 7, 8, and 9 of the further and better affidavit have been controverted by the Respondent’s counter affidavit in paragraphs 9 to 18 and that the Appellants did not file a reply to contradict the facts stated in the Respondent’s counter affidavit. In an application for bail pending trial, the applicant has the first onus of placing such materials before the Court for its consideration to show that he is entitled to be released on bail. Thereafter, the onus shifts to the Respondent to show that the Applicant is not entitled to bail. See CHINEMELU VS C.O.P (1995) 4 NWLR (PT. 390) 476, ABIOLA VS FRN (1995) 1 NWLR (PT. 370) 155, ANI VS STATE (2002) 1 NWLR. The onus therefore placed on the Applicant to establish his entitlement to bail is on the balance of probability while the burden placed on the prosecution to deny bail to accused person is proof beyond reasonable doubt … It is clear from the record of the Court that the prosecution presented no evidence before the trial Court to support their averment that if Appellants are released on bail they will not appear to stand their trial. It is a settled principle of law that mere averments by the prosecution that an accused person will not appear for his trial in the absence of real concrete material to support such an allegation, should not warrant the denial of bail by a court. In ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (supra) the principle is stated that since the court presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show in a given case, that an accused or applicant for bail is one that should be refused bail. The Appellants have deposed to the fact that they are respectable and responsible members of the society and that if admitted to bail, they undertake to always attend court and shall not in any way interfere with the investigation of this matter. The Respondent also deposed to the fact that the 1st Appellant is a strong party stalwart, while the 2nd Appellant was the immediate past commissioner of Health in the State. The fact that the Respondent’s averment in paragraphs 9 to 18 have not been controverted by the Appellants is not sufficient to deny bail to the Appellants having regard to the fact that what was not denied were mere assertions without concrete evidence.’]
B. BAIL CANNOT BE REFUSED IN VACUUM
[‘Bail will not be granted if by the granting of bail proper investigation of the case would be prejudiced or serious risk exist of the applicants escaping from justice. However, the Court cannot exercise its discretion to refuse bail in vacuum. There must be materials placed before it to exercise its discretion and where there are no materials but bare assertion by the prosecution, the Court will not exercise its discretion to refuse bail. Bail under our criminal justice system is a right of an accused person except where the alleged offence is a capital offence; accused person is not usually denied bail. Based on what I have said so far, this issue is hereby resolved in favour of the Appellants against the Respondent.’]
.
.
.
✓ DECISION:
‘The appeal therefore has merit and it ought to be and is hereby allowed. The Ruling of the lower court delivered on the 28th April, 2009 refusing bail to the Appellants is hereby set aside. Consequently, the Appellants are hereby granted bail pending the determination of the case against them before the lower court in the sum of N500,000.00 with two sureties each in like sum. The sureties must be owners of a landed property and must file affidavit of means.’
➥ FURTHER DICTA:
⦿ WHEN APPELLATE COURT WILL NOT INTERFERE WITH TRIAL COURT’S DISCRETION NOT TO GRANT BAIL
By the judicial interpretation of the provisions of Sections 340 and 341 of the Criminal Procedure Code, it appears settled law that the power to grant or not to grant bail is entirely at the discretion of the Judge, and when a judge is considering whether to release an applicant to bail pending trial, the following are paramount, viz:- a) The nature of the charge; b) The evidence by which it is supported; c) The sentence which by law may be passed in the event of a conviction and; d) The probability that the accused will appear to take his trial. Where these are weighty, an Appellate Court will not interfere with exercise of discretion by the trial Court not to grant bail, see MAMUPA DANTATA VS IGP (1958) NNLR 3, see BAMAIYI VS THE STATE (2001) 8 NWLR (PT.715) 270, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145; and ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT.890) 267. The relevant considerations for a decision in respect of the above requirements can be listed as:- a) The evidence available against the accused; b) Availability of the accused to stand trial; c) The nature and gravity of the offence; d) The likelihood of the accused committing another offence while on bail; e) The likelihood of the accused interfering with the course of justice; f) The criminal antecedents of the accused person; g) The likelihood of further charge being brought against the accused; h) The probability of guilt; i) The detention for the prosecution of the accused j) The necessity to procure medical or social report pending final disposal of the case. These factors may not be relevant in all bail application cases and they are not also exhaustive. It may well be that any one or other may be applied to determine the question of bail in a particular case. — U.M.A. Aji, JCA.
⦿ STANDARD OF PROOF IN BAIL APPLICATIONS
The onus therefore placed on the Applicant to establish his entitlement to bail is on the balance of probability while the burden placed on the prosecution to deny bail to accused person is proof beyond reasonable doubt. — U.M.A. Aji, JCA.
⦿ THERE MUST BE A VALID REASON FOR OPPOSING BAIL
A prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See ADAMS VS ATTORNEY GENERAL OF THE FEDERATION (2006); BOLAKALE VS STATE (supra); ANAKWE VS COMMISSIONER OF POLICE (1996) 3 NWLR (PT 436) 320 and OMODARA VS STATE (2004) 1 NWLR (PT.853) 80. — U.M.A. Aji, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Aminu Sadauki, Esq.
⦿ FOR THE RESPONDENT
Olajide Ayodele, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
