Supreme Court of Nigeria, June 8, 2007 Justices Aloysius Iyorgyer , Katsina-Alu, Niki Tobi, Francis Fedode, Tabai, Ibrahim Tanko, Muhammad, Pius Olayiwola, Aderemi, Anthony Ikechukwu Iguh S.C. 208/2006 Between Alhaji Mujahid Dokubo-Asari (Applicant) Vs Federal Republic of Nigeria (Respondents) Judgment 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.
Justice Walter Onnoghen and President Buhari Plan to cause civil disorder 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 Nigeria, 1990. On October 6, 2005 the appellant as accused, was arraigned before the Federal High Court Holden in Abuja. The appellant pleaded not guilty to all the 5 counts. On the same October 6, 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 November 11, 2005, the learned trial Judge refused to grant bail to the accused/appellant. Accused/Appellant was dissatisfied with the trial court’s decision and he filed his Notice and Grounds of Appeal to the Court of Appeal, Abuja Division. In its judgment of 6 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. 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 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. 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. 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. 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. Counts for which the appel lant-is standing trial 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. It is 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 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 Nigeria, 1990. 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. 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 Appeal Court.” 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.
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 some time, 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. Affidavit evidence and other processes 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 Nigeria disintegrates. Evidence available to the trial Judge and to us shows beyond doubt the threat to National Security.”’ 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 Czechoslovakia experience. If there is no peace the process leading to armed struggle cannot be ascertain (sic) as 1 am not God. The Niger Delta People’s Volunteer Force (NDPVF) which I led has (sic) totally disarmed. Hence, armed struggle will predicate on the actions and activities of the regime of the Nigerian State. I will pursue the course of the disintegration of Nigeria through the process of the Peoples National Conference. Power through the manipu lation of the electoral process 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 democratic. This has made me and others like me to resent the government of the regime of General Obasanjo. When Nigeria eventually disintegrates (sic) the Ijaws will form a country of their own……if the struggle outlives (sic) me. I will be grateful to God for other better than myself such as Isaac Adahaboro; Ken Saro-Wiwa had gone before me.” 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. 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 Nigeria to act towards overthrowing the current dictatorship and replacing it with a provisional government of National Unity and a National Conference that will structure Nigeria and restore sovereignty to its people. The Communiqué was jointly singed by the appellant and two others. Although these documents i.e. the appellant’s statement to the Police and the Communiqué just referred to above were not tendered as evidence, yet they formed part of the Police Diary. They also formed part of the proof of evidence. Although the defence/ applicant/appellant denied in paragraph 5 of its reply that proof of evidence was filed by the prosecution/respondent and that the trial court had nothing upon which to decide the nature of the evidence in the cases, there is evidence of receipt of proof of evidence which controverted appellant’s averment in his paragraph 5 of the reply referred to above. One Mr, Aniku, a legal practitioner and one of the defences Counsel deposed as follows:- “ 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. 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 Federal Republic of Nigeria a section which guarantees the right of bail whenever any charge is preferred against anyone, including a charge of treasonable felony. Learned Counsel equated the pronouncement of the Court of Appeal on section 35 of the Constitution to mean suspending a part of the Constitution through a judicial pronouncement. Learned Counsel for the appellant went on to submit 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 provisions of the Constitution. Learned Counsel went on to cite the Constitutional provisions relating to period of emergency which would justify derogation from the provision of section 35(4) of the Constitution. 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 Bendel State .v. Attorney-General of Federation & Ors. (1981) 10 SC 1 at 134 (1981) NSCC 314 However, if, in its role of interpretation, a court makes a pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the court must find support from the same Constitution or any other statute of equal force. The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right 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. This is not anything new.
The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist. Now, let me turn to the provisions of section 35 of the Constitution. These provisions in the first place are not absolute. The 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 d’état against him. He will certainly fight it to the end.