IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO………………..JUDGE
ON THURSDAY THE 26TH DAY OF MARCH, 2009
SUIT No. PLD/J15C/07
BETWEEN:
THE ATTORNEY GENERAL OF PLATEAU STATE ………… COMPLAINANT/RESPONDENT
AND
MORRIS ISAAC
SIMON AJWAN (alias Bobby) ..…ACCUSED/APPLICANTS
AMOS MONDAY
The three Accused persons/Applicants are standing trial before this Court on a three count charge of conspiracy, abetment and Armed robbery contrary to various sections of the robbery and firearms Act, CAP 398, Laws of the Federation of Nigeria, 1990.
By a motion on notice dated and filed on 1st August, 2008, learned counsel for the 2nd and 3rd Accused persons, Wende Cosmas Esq., applied for the bail of his clients pending the outcome of their trial. The Respondent was served with the application and in its response filed a counter affidavit on 24/11/08. However, there is no proof that as at 05/02/09 when the motion was moved, the Applicants counsel was served with the counter affidavit. It is the duty of counsel not only to file processes in the registry of the Court but also to ensure that the opposing party is served with the processes. This is a moral duty though. Legally speaking however, once a counsel filed and paid for his processes at the registry, it becomes the duty of the Court to bring the processes to the notice of the opposing party. Failure to do that cannot in law be visited on the party who filed the processes. In the instant application I am faced with two dilemas/options–
Having recourse to the first option will undoubtedly undermine the right of the respondent to have a say in the application thereby denying him a basic right in the adjudication process, i.e the right to hear both sides to a dispute.
Taking the second option will equally rob the applicants of the right of reply to the counter –affidavit, the same right to fair hearing. Both options offends the audi alteram partem principle. None of the parties however is to be blamed for the dilemma of the Court as it is a self induced problem, created by the inability of the staff of Court to draw my attention to the counter affidavit and to serve the respondent. I only came across the counter affidavit while perusing the case file preparatory to this Ruling.
But be that as it may, even if I discountenanced the counter affidavit, I have power under the law to refer to the proof of evidence in the case file to determine this application on its merit. This is what I intend to do in order not to waste the precious time of the Court and the parties.
In support of the application for bail are two separate affidavits deposed to on behalf of the 2nd and 3rd Accused persons/Applicants by one Agbane Ladi, the litigation clerk of Wende Cosmas and Associates, counsel to the 2nd and 3rd Accused persons/Applicants. The two affidavits are of 9 paragraphs each annexed to each of which are the following documents: -
The motion was also accompanied by a written address which contained the legal submissions of learned counsel for the Applicants. The said written address was adopted on 05/02/09 in the course of hearing the application.
In the address counsel formulated one issue for determination. The issue is : -
“Whether given the circumstances of this Case, the Applicants are entitled to be admitted to bail.”
He submitted that since the Applicants are standing trial for a capital offence, the grant of bail is at the discretion of the Court which can be exercised on the existence of a special circumstance. That the delay occasioned by first charging the Accused persons before a Magistrate Court before they were later arraigned before this Court has constituted a special circumstance that would warrant the Court to admit them to bail. He cited and relied on Bolakale Vs. The State (2006) 1 NWLR (Pt.962) 507 at 518.
Learned counsel further argued that the delay in the commencement of hearing long after arraignment is also another special circumstance that ought to weigh in favour of the Accused persons/Applicants. He urged the Court to grant the Accused persons bail.
Bail is a constitutional right of an Accused person in view of the presumption of innocence enshrined in the Constitution. This right is however not absolute, it has some restrictions and limitations depending on the offence charged or allegedly committed. Where the offence charged is of capital nature, bail is not a matter of right, it is rather at the discretion of the Court, which discretion must be exercised judicially and judiciously. In the instant case, the Accused persons are standing trial for Armed robbery, among other charges. This offence attracts the supreme penalty upon conviction. Therefore persons accused of such offence shall not ordinarily be released on bail.
In determining a bail application, the Supreme Court and the Court of appeal have laid down the principle that bail can be granted on special circumstances shown by the Applicant(s). The list of what constitute special circumstances are not closed but one of them is undue delay in the arraignment of the Accused /Applicant before a competent Court. Where such delay occurs, a competent Court ought to admit an Accused person to bail. What this means is that the application must have been filed before the Applicants are arraigned. Once a charge is preferred before a competent Court, the issue of delay in arraignment will no longer be a potent weapon at the disposal of an Accused person. In that case the Court will look at the merit of the application vis-à-vis the proof of evidence available in the case file in order to determine whether or not to grant bail. This is irrespective of whether the prosecution opposes the bail application or not. That was the decision of the Court of Appeal in Chinemelu VS. C.O.P (1995) 4P NWLR (pt.390) 467 at 484 where Achike, JCA (as he then was) said: -
“I must state emphatically that the mere fact that the respondent filed no counter affidavit nor opposed the application for bail is not conclusive to admit the applicant to bail as a matter of course. The decision to grant or refuse bail lies within the discretionary power of the Court which must be exercised judicially and judiciously. The exercise of that power, cannot, in my view, be prejudiced simply by the failure of the Respondent to file a counter affidavit or in fact his failure to oppose the application. Similarly the fact that the respondent has filed counter affidavit or oppose the application for admission to bail does not conclude the matter rather these acts or omissions are mere indices that will assist the exercise of the said discretionary powers of the Court, one way or the other.”
One of the grounds for this application is that of undue delay on the part of the prosecution to arraign the Applicants before this Court for their plea to be taken. I have since taken the plea of the Accused persons and the stage set for the commencement of trial. I have also carefully gone through the proof of evidence annexed to the charge and arrive at the conclusion that the proof of evidence discloses a strong prima facie case against the Accused persons/Applicants. Even though I cannot at this stage comment on the statements of witnesses and those of the Accused persons but these documents will definitely form part of my considerations in this application. I am of the humble view that even though the Respondent did not file a counter affidavit in opposition to the application, the nature of the offences charged and the proof of evidence in support are enough to compel me not to admit the Accused persons to bail. This is more so in view of the confessional statements made by the Accused persons to the Police. I therefore refuse to admit the Accused persons to bail.
Justice M. I. Sirajo
Judge
26/03/09
