IN THE COURT OF APPEAL (LAGOS DIVISION)
CORAM
IBRAHIM KOLAPO SULU-GAMBARI. JUSTICE, COURT OF APPEAL (Presided and Read Judgment)
UMARU ATU KALGO. JUSTICE, COURT OF APPEAL
SAMSON'ODEMWINGIE UWAIFO. JUSTICE, COURT OF APPEAL
BETWEEN
1. AMEH EBUTE APPELLANTS
2. CHIEF POLYCAP NWITE
3. REVEREND MAC ONYEMECHI NWULU
4. ONYEKA AMADI OKOROAFOR
5. ABU IBRAHIM
6. BOLA AHMED TINUBU
AND
THE STATE RESPONDENT
Names of Counsel: ChiefG.O.K. Ajayi (SAN) (With him, Senator A.A. Adesanya, Alhaji K.O. Tinubu, Dr. B.A. Akinyemi, A. Ajayi, M.O. Okosun (Miss) and A.O. Falae ) for the Appellant
Bayo Manuwa, Esq. - Director of Public Prosecutions. Ministry of Justice Lagos State - for the Respondent.
SULU-GAMBARI, J.C.A. (Delivering the Leading Judgment):
The 1st to 6th appellants are in custody having been refused bail by the learned Chief Judge of the Federal High Court on the 22nd of June, 1994. They are facing a charge brought under S.41(a) of the Criminal Code for an offence of treasonable felony which is stated as follows:-
"That you Ameh Ebute; (2) Chief Polycap Nwite: (3) Rev. Mac. Onyernechi Nwulu; (4) Onyeka Amadi Okoroafor; (5) Abu Ibrahim and (6) Bola Ahmed Tinubu and others at large on the 30th day of May. 1994 at Lagos in the Lagos Judicial Division of the Federal D High Court formed an intention to remove during his term of office other than by Constitutional means the Head of State of the Federal Republic of Nigeria and Commander-in-Chief of the Armed Forces.
General Sani Abacha as Head of State and manifested such intention by issuing a Press Statement declaring the Federal Government illegal and thereby committed an offence contrary to Section 41 (a) E of the Criminal Code Act 77, Laws of the Federation, 1990 and punishable under the same section."
The first and second appellants were arraigned before the learned Chief Judge on the 6th day of June. 1994. on two counts-
(i) treasonable felony: and
(ii) Conspiracy.
The two appellants applied for bail which the learned trial judge refused giving as reason the seriousness of the offence. the gravity and severity of the punishment attached thereto and that there are others still at large.
The 3rd. 4th and 5th appellants were arraigned before the same trial judge on the 14th day of June, 1994 on similar counts as the 1st and 2nd appellants. The learned trial judge considered their applications for bail and granted same, saying:-
"I have taken into account the very nature of the substance of the charge and I do not consider anything grave enough or injustice enough to prevent me from exercising my discretion of granting bail and I do so."
On the 22nd day of June, 1994, by leave of the trial court, the Director of Public Prosecution amended the whole charges by filing a single charge against all the 1st to 5th appellants and included a new accused as the 6th appellant in a charge as set out earlier in this judgment.
Following this amendment, the learned Senior Advocate for all the 6 accused persons at the trial court applied for their bail pointing out that the court had already granted bail to the 3rd, 4th and 5th appellants on the same count.
In opposing the application for bail for all the appellants, the learned Director of Public Prosecutions, Lagos State Ministry of Justice gave as reason the seriousness of the offence and the gravity and severity of the punishment thereto.
In refusing bail for all appellants, the learned trial judge said that in view of the proof of evidence. particularly the press release and the statement of the majority of the accused persons, different consideration has arisen for him to refuse bail; and he so refused and revoked the bail he had already granted to the 3rd, 4th and 5th appellants on the 14th of June, 1994.
The learned counsel for the appellants filed a total of eight grounds of appeal which he argued together. The gravamen of his submissions is to the effect that (i) the learned Director of Public Prosecutions opposed the bail on the ground of the seriousness of the offence and the gravity and severity of the punishment; whereas: the trial judge relied on proof of evidence as constituting changed circumstances for deciding the issue of bail.
Learned Senior Advocate argued that the learned trial judge should not have considered what was not canvassed before him by the Director of Public Prosecutions because if the prosecution had raised the question of the proof of evidence as constituting changed circumstance, he would have been in position to respond to that. This opportunity had been denied him by the way the learned trial judge considered the mailer and consequently, the appellants have not been given a fair hearing.
I think there is merit in this submission. The law is clear on this matter that the court should not make a case for a party or create a situation where fair hearing is denied to a party as in this case. See Nwokoro v, Onuma (1990) 3 NWLR (Pt 136) 22: Mbele v. The State (1990) 4 NWLR (Part 145) 484 SC. and The State v Onagoruwa (1992) 2 NWLR (PI 221) 33 SC.
(ii) The learned Chief Judge stated that there was a changed circumstance in view of the proof of evidence but he did not indicate the factors therein which informed his discretion to revoke the bail already granted to the 3rd. 4th and 5th appellants and to refuse the bail of the 1st, 2nd and 6th appellants.
Learned Senior Advocate submitted with much conviction that the trial court having granted bail to the 3rd., 4th and 5th appellants ought not in law revoke such bail unless there is evidence of some changed circumstance placed before him because such situation is analogous to res judicata - which is issue estoppel. He cited R. v.Nothingham Justices ex parte Davies ( 1980}17 Cr. App. Rep. 178 at 182-183.
I feel inclined to agree with him and wish to add that a court exercising judicial discretion must do so judicially and make plain what material it took into consideration in the exercise of that discretion. The appellate court in such t circumstance may interfere with the exercise of the judicial discretion of the lower court if it is shown that the discretion has been wrongly exercised or it took into consideration irrelevant materials or failed to consider relevant material in arriving at his decision- University of Lagos v. Aigoro (1985) I SC. 265 at 271(1985) I NWLR (Pt. 1) 143. In the exercise of a discretion,the court must state the reason relied upon- see Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Part 222) 132 Sc. This is so because the duty on judges or courts is to do substantial justices: see Akpan v. The State (1992) 6 NWLR (Part 248) 439 SC.
In the case of the 6th appellant, the facts are that he voluntarily submitted himself for arrest by the police. This fact was not adverted to by the learned trial judge in considering the 6th appellants bail. Before this court, the learned Director of Public Prosecutions did not wish to oppose the appeal of the 6th appellant on this ground. I think this was forthright of him and I commend him. I agree that the 6th appellant's bail ought to have received favourable consideration.
In the circumstance, I think the learned Chief Judge erred in his exercise of the judicial discretion by refusing to grant bail to the appellants. I therefore allow B the appeal and make the following orders.-
(i) Bail is granted to each of the appellants in his own recognizance.
(ii) Each of the appellants shall within 24 hours hereof deposit his passport (s) with the Deputy Chief Registrar of this court pending the determination of his charge before the trial court.
(iii) Each of the appellants should show his presence to the Deputy C Inspector General in charge of C.I.D. Alagbon, Alagbon Close, Lagos, or any other officer designated by him in an area nearest to the place of abode of the particular appellant on every Friday at 10 to 11 a.m. of the week beginning from 29th, day of July, 1994 pending the determination of his charge before the trial court.
KALGO, J.C.A. I agree.
UW AIFO, J.C.A. I agree.
Appeal allowed
Counsel:
Chief G.O.K. Ajayi (SAN) (With him, Senator A.A. Adesanya, Alhaji K.O. Tinubu, Dr. B.A. Akinyemi, A. Ajayi, M.O. Okosun (Miss) and A.O. Falae )- for the Appellant
Bayo Manuwa, Esq. - Director of Public Prosecutions, Ministry of Justice Lagos State - for the Respondent.