BROUGHT PURSUANT TO SECTION 35(4) ,S.36(5)OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), SECTION 341(2) & (3) OF THE CRIMINAL PROCEDURE CODE ACT AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on the …….day of ……. 2015 at the Hour of 9 O’clock in the forenoon or so soon thereafter as Counsel to the Accused persons/ Applicants will be heard praying this Court for:
AN ORDER admitting the Applicants to bail pending the determination of the trial.
AND FOR SUCH FURTHER ORDERS AND OTHER ORDERS as this Court may deem fit to make in the circumstances.
DATED THIS ……… DAY OF ………………………….2015.
COUNSEL TO THE ACCUSED/APPLICANTS
Whose address for service is:
Compos Mentis Chambers
No. 15 Binta Close Bwari, Abuja
FOR SERVICE ON :
The Attorney-General of the Federation,
Federal Ministry of Justice,
Maitama , Abuja,
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
CASE NO: …………….
FEDERAL REPUBLIC OF NIGERIA ………..…….. COMPLAINANT/RESPONDENT
1.BURAGO …………………2ND ACCUSED PERSON/APPLICANT AFFIDAVIT IN SUPPORT OF MOTION (SUMMONS) FOR BAIL OF THE 2ND ACCUSED
I, Alhaji Mohammed, Male, Adult, Muslim, businessman and a Nigerian citizen of No. 40 Bwari Close, Bwari, Abuja do hereby make oath and state as follows:
I am the elder brother of the 1st Accused person/Applicant and by virtue of which I am conversant with the facts of this case.
I have the authority and consent of the 2nd Accused/Applicant to depose to this Affidavit.
Certified true copy of the first true information report and also certified copy of the magistrate ruling refusing bail
On the 10 day of December 2014 the accused/Applicants were arrested by the police for allegedly stealing the sum of N20,000.00 from one Mrs Ene Agbo about 2 kilometres from the Law School gate, Bwari, Abuja.
The Accused/Applicants is standing trial for the Charge of stealing which is a felony.
The 2nd accused/Applicant is a person of good character having no previous criminal record.
The 2nd Accused/Applicant was diagnosed of renal failure and Kidney stones in 2010 and he is still undergoing medical check-up monthly at Gwagwalada Specialist Hospital, a copy of the Medical Report is hereby attached and marked as Exhibit ‘A’.
The Prison service in Bwari is unable to provide the medical services to the 2nd Accused/Applicant.
I was informed by the 2nd Accused/Applicant on the 5th of January 2015 at 5.00 pm at the Bwari Prison and I verily believe him that he will not
I am ready to stand as surety for his bail on such terms imposed by the Court.
I swear to this affidavit in good faith believing its content to be true and correct in accordance with the Oaths Act.
Sworn to at the High Court Registry, Abuja
This …..day of …… 2014.
COMMISSIONER OF OATHS
HOW TO MOVE AN APPLICATION FOR BAIL (Have to check this out again)
My Lord, I am Emokiniovo Dafe-Akpedye appearing for the accused person. My Lord, before this honourable Court is an application for bail on behalf of the accused persons
The motion is brought pursuant to section 35(4) and section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), section 341(2) & (3) of the Criminal Procedure Code Act and under the inherent jurisdiction of this court
My lord, we seek the following reliefs:
An order of the court admitting the 2nd accused person/applicant to bail pending the determination of his trial
A-my lord, our motion is supported by a 11 paragraph affidavit sworn to by Alhaji Mohammed
We rely on all the paragraphs of the affidavit particularly paragraphs 4-10. Accompanying the affidavit is an exhibit marked EXHIBIT A.
We have also filed a written address in support of our application. We wish to adopt same
My lord it is trite law that for an applicant to be granted bail, certain factors must be established such as the medical condition of the accused, previous convictions of the accused, interference with the police investigation, the availability of the accused for trial among others. My Lord, these factors have been judicially noted in cases such as Abacha v The State (state the citations), Bamaiyi v State, Fawehinmi v The State…. My Lord, the applicant has satisfied these conditions by showing his renal condition is severe and requires adequate medical attention which cannot be provided by the Bwari Prison Service; that he has no previous criminal conviction, that he will not interfere with the police investigation or jump bail and he has provided Samuel Ikpo as surety.
We humbly pray this honourable court to grant bail to the accused on liberal terms
May it please the court/ we are grateful, my lord.
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA
IN THE BWARI JUDICIAL DIVISION
HOLDEN AT BWARI
CASE NO: …………….
FEDERAL REPUBLIC OF NIGERIA ………..…….. COMPLAINANT/RESPONDENT
2.BURAGO SHEHU ………………… ACCUSED PERSONS/APPLICANT
I, Kene Omalicha, Adult, female, Nigerian Citizen and Medical Doctor with the Nigerian Prison Service, Minimum Prison Abuja do make oath and state as follows:
1. I am the Chief Medical Officer at the Nigerian Prison Service Abuja where the 1st Accused/Applicant has been in custody and by virtue of which I am conversant with the facts of this case.
I admit paragraphs 3 and 4 of the Applicant’s Affidavit in support of his bail application.
On the 30th day of December 2014, the 1st Accused/Applicant was brought to our clinic for check-up from custody following his complaints.
I ran a major test on the 1st accused/Applicant to reveal any medical disorder in the 1st Accused/Applicant, a copy of the test result is hereby attached and marked Exhibit ‘A1’.
It is untrue that the 1st Accused/Applicant is suffering from either renal failure or kidney stone disease.
The result showed that the 1st Accused/Applicant is depressed from anxiety.
The 1st Accused/Applicant was provided with relevant drugs to control the condition and the Prison has the medical capacity to handle his condition.
The Accused/Applicant has again been brought for a second check-up, the result showed a better emotional condition, a copy of the test result dated the 14 days of March 2014 is hereby attached and marked Exhibit ‘B1’.
The 1st Accused/Applicant’s application for bail should be refused in the interest of justice.
I make this statement in good faith believing its content to be true and correct and in accordance with the Oaths Act 2004.
CONSTUTIONAL SAFEFUARDS FOR FAIR TRIAL The Constitutional safeguards are as follows:
1. THE RIGHT TO BE INFORMED OF THE CRIME ALLEGEDLY COMMITTED. See S. 36(6) (a) of the 1999 Constitution as amended.
The accused is to be informed promptly during arrest or arraignment in the language that he understands of the details/ nature of the offence he is charged with (e.g. the law under which he is charged). See S. 3(1) of the ACJL and S. 5 of the CPL. He must be informed in the language he understands. Services of an interpreter would be required at no cost to the accused.
This is in addition to s35(3) CFRN which states that any person who is arrested or detained shall be informed in writing within 24hours (and in a language that he understands) of the facts and grounds for his arrest or detention. Note that failure to inform the accused of the nature of the offence he is charged with will vitiate the trial: Ogunpe v State held that the language of the CT is English. Therefore even with pidgin English, must get an interpreter.
Okeke v State: this provision contemplates an illiterate who cannot speak and understand English Language and not to burden the CT pretending he cannot speak English Language. If the CT can show evidence that accused understands English, no need for an interpreter.
Nwachukwu v State (1986); Maja v State; s179(2) CPL, s218(2) CPCL: Held that if an accused was properly arraigned for a higher offence but the evidence adduced substantiates a lesser offence he will be convicted for a lesser offence. He will be deemed to have been informed of the lesser offence (an exception). Note the two offences must be closely related e.g. charged with aggravated robbery but later convicted of simple robbery as in Nwachukwu case (later offence must be subsumed in the higher offence i.e. ingredients required to prove the lower offence must be found in the ingredients to prove the higher offence
IMPORTANCE-to enable the accused prepare adequately for his defence
EFFECT-A breach of the above provision will render trial a nullity-YAHAYA V.STATE
Exceptions to the above are as follows:
When an accused is caught in the act of committing the offence: S. 352 of the CPL and S. 186 of the CPCL
Can be convicted for a lesser offence flowing from the offence he is actually charged with and he is deemed to have had notice of it as he had notice of the greater offence charged with. NWACHUKWU VS .THE STATE and MAJA VS THE STATE;
s.179(1)&2 CPL; S.218 CPCL; S.171 ACJL 2. Right to fair hearing. See S. 36(1)&(4) of the 1999 Constitution as amended; Effiong v State. Section 36(4) provides for the right to fair hearing otherwise known as the principle of natural justice.
Section 36(1): In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Section 36(4): Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:
Provided that -
(a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;
(b) if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.
This right consists of two pillars:
a) nemo judex in causa sua meaning that one should not be a Judge in his own case – a man cannot be judge in his own cause
b) Audi alterem partem meaning that the other party should be heard (hear both parties)
NEMO JUDEX IN CAUSA SUA:
The maxim means that a person shall not be a judge in his own cause. This principle demands that justice must not only be done but must be seen to have been done i.e. there must be no aorta of bias. The question here is not whether the judge was biased in fact. Rather it is whether a detached bystander looking at what the court or judge has done will have the impression that the judge was biased
The judge must not only be free from bias but also from any likelihood of bias-
AZOKWU V. NWOKANMA;
YAGBUGBE V. COP: laid down the test for bias – bias is not determined by the mind of the judge to show whether the judge was in fact biased. Appellate CT looks at the surrounding person i.e. the impression that a neutral party would have
Where a person has an interest in any of the parties or the subject matter or the outcome of the proceedings, he should refrain from presiding over the matter.-GARBA V. UNIVERSITY OF MAIDUGURI (1986): The students were rioting and destroyed property and assaulted some people. The Chairman for the Panel of Inquiry was one of the victims of the students’ action. The students were found guilty by the Panel and expelled. They went to CT and issue of whether there was fair hearing since Chairman was affected by the act of the students. The CT held no fair hearing since he had a personal interest in the outcome of the proceedings.
Babatunde v State (2014): the Supreme CT held that fair hearing is only applicable in trial of cases before a competent Ct of law or panel or inquiry ad not pre-trial matters like police investigation as the police don’t adjudicate on the matter.
However, in Orugbo v Una: held that the constitutional provision has no tribal insinuation of the composition of the tribunal i.e. cannot say no fair hearing because the judge in the case is from a particular tribe unless he can prove that because of the judge’s tribe, he is interested in the subject matter, the appellate CT can hold that there is no fair hearing
The principle of fair hearing cuts across all courts and tribunals; thus must be observed-FALODUN V. OGUNSE
Justice must not only be done but must be seen to be done. The appellate CT is not concerned with whether or not in fact there was bias but rather the surrounding circumstances and infer whether there was a likelihood of bias – reasonable man test – whether a reasonable person/bystander would infer there was bias: Ajibaiye v Ajibaiye (2007)
AUDI ALTERAM PARTEM
Court MUST listen to and consider the evidence of both sides in a matter. -ODESSA V. FEDERAL REPUBLIC OF NIGERIA the court suo motu raised the issue of the validity of the charge against the appellant and ruled on it without giving the appellant the opportunity to respond. HELD;WRONG
The mere fact that a trial was conducted in a speedy manner does not necessarily affect the accused person’s right to fair hearing. He must show the speedy trial has adversely affected his case.-OYAKHERE V. STATE
A party who alleges that he was denied fair hearing must prove specific act or acts of such denial-EJEKA V.STATE
Denial of right to counsel is a breach of fair hearing-AKABUEZE V.STATE
In the case of Padawa & 8 ors v Jatau: it was held that the principle of audi alterem partem under the Constitution and the common law entails not only hearing each side but that each side must be given ample opportunity to present or defend the case either personally or through a legal representative
Section 287 CPL; Otapo v (1987) 5 SCNJ 57
EXCEPTIONS TO ABOVE RULE ARE
Where an accused person chooses to remain silent during the trial and his defence-S.287 CPL
Where a person refuses/ignores initiation of proceedings by a tribunal-NBA V.AKINTOKUN – where a party was availed the opportunity of presenting his case or defending same and he wilfully refused he cannot be heard to complain later that he was not given fair hearing
Ex parte applications in criminal proceedings.
No fair hearing where there is an inordinate delay of the case – must be concluded within a reasonable time. In Effiom v State (1995): Supreme Ct stated 4 factors in relation to reasonable time: (a) the length of the delay in the trial, (b) the reason given by the prosecutor for delay, (c) the responsibility of the accused asserting his rights, (d) the prejudice to which the accused is exposed. In Effiom case, the case lasted for 5yrs and he was convicted for murder (conviction upheld by Ct of Appeal). He contended at the Supreme CT that the trial was too long. The Supreme CT held the trial was not delayed because all the adjournments granted were necessary to lead to proper adjudication of the matter
Okeke v. State;(the appellant’s trial lasted about six years. From the circumstances of the case, six years was not an unreasonably long period.)
Right to fair hearing also entails: Right to be heard, easy access to CT, impartiality of the adjudicating body, speedy trial. Where any of these is lacking, there is absence of fair hearing: Effiom v State (1995)
The accused person must show that the unreasonable delay has occasioned a miscarriage of justice. ASAKITIPI V. STATE: (4 year long trial continued by judge after transfer) HELD-unreasonable- Ozuluonye & Ors v. The State;
PUBLICITY OF TRIALS.
S. 36(3) & (4) CFRN 1999 provides that criminal trials are to be held in public, where the public can have free access
Members of the public are to have free access to the CT. A Judge cannot obtain evidence in a matter in absence of either party to the case (prosecution and defence). All parties must be given equal access to the CT/equal treatment/equal opportunity
Publicity of trial means trial in a place where the public has unimpeded access. Trial in this sense starts from arraignment – Edibo v State (2007)
Exceptions to the above right are (i.e. where judge can hold trial in camera: check the section 36(4), 204 CPL, S6(5) Children and Young Persons Law, S13(1) Recovery of Public Property (Special Military Tribunal) Decree 1984
i. In the interest of defence, public safety, public order or public morality e.g. public defence and public safety is when state secrets/information will be revealed which will affect Nigeria’s defence or security.
ii. Welfare of a person who has not attained the age of 18
ii. When a young person is to give evidence in the case of an offence, which is contrary to decency or morality.
iii. When it is considered necessary due to special circumstances to protect the private lives of the parties to the proceedings Proviso (a) to Section 36(4) CFRN
iv. When a Minister or a commissioner satisfies the court that it will not be in the public interest for any matter to be publicity disclosed, the court may hear the evidence in relation to such matter in private.- Proviso (b) to section 36 (4) CRFN:
Tokunbo v Federal Republic of Nigeria: charge of treason held in camera due to public defence and security (crisis in the Niger Delta)
Mandara v AGF – during Shagari’s regime – trial held in camera. Charge of treason saying the person wanted to takeover the government.
v. The trial of juveniles are not opened to the members of the public- S. 6(5) children and Young Persons Law, Lagos.(under 17);s.204(2) CPL
vi. Where a statute expressly provides that trials shall not be open to members of the public. e.g. S. 13(1) Recovery of Public Property Special Military Tribunal Decree 1984 prohibits public trial of alleged offenders. 3. RIGHT TO THE PRESUMPTION OF INNOCENCE.-
An accused is presumed innocent until he is proven guilty- S.36(5) of the 1999 Constitution as amended: Every person charged before a Ct of Law for any offence shall be presumed innocent until he is proved guilty. Section 135 Evidence Act: must prove a crime beyond reasonable doubt. Section 139 EA 2011: places the burden of proof on the prosecution
The judge should not say or write anything pointing to suspect’s guilt-
OLAWOYE& ORS V. COP,- The application for bail was refused by both the Magistrates Court and High Court on the ground that the offence of cultism was rampant. HELD- WRONG
Section 141 -144 Evidence Act: provides for prove by the accused of facts within his knowledge –an evidential burden of proof (the standard is on the balance of probabilities and whoever asserts must prove so can shift from side to side)
Eyu v State (1988) , Okoro v State (1988) Held that the proof required is beyond reasonable doubt. Accused cannot be called upon to prove his innocence
Okoro v State (1988): 7 people were trailed for murder and the 3rd accused was discharged after raising the plea of no case to answer. The others were asked to enter their defence. Appellate CT held since the crime was committed jointly and one was discharged due to no case to answer. Why were the others not discharged? The CT held that the judge had asked them to prove their innocence which was wrong
The defence of the accused must be properly considered however weak or fanciful or bereft with lies as they may appear to be-AGBITI v. NIGERIAN NAVY
Bail before trial should not be denied as punishment
Any doubt raised in the mind of the Court must be resolved in the favour of the accused. -TULU VS. BAUCHI N.A
EXCEPTIONS TO THE ABOVE ARE;
The accused is to prove facts within his special knowledge e.g. the defence of insanity, intoxication etc -
Proviso to S. 36(5);
S. 139 (3) (c) Evidence Act 2011
A convict appealing against his conviction is no longer presumed innocent