SWORN TO AT the High
Court Registry, Ikeja,
Date this………. Day of December, 2007
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS
CHARGE NO: FHC/ABJ/CR/178/2007
FEDERAL REPUBLIC OF NIGERIA )COMPLAINANT
HENRY EMOMOTIMI OKAH )…. ACCUSED/APPLICANT
ACCUSED /APPLICANT’S WRITTEN ADDRESS
1.00 This is a summons for Bail brought under Section 35 of the 1999 Constitution, Sections 118 and 314 of the Criminal Procedure Code for an order admitting the Accused Person to bail pending the determination of the pending charge. Before arguing this application it is germane to state that the charge was withdrawn against the 2nd Accused on April 3, 2008. As he has been discharged by this Honourable Court this application now concerns the liberty of the Accused Person.
1.01 In support of this application there is a 12-paragraphed affidavit sworn to by Mr. Charles Okah, the Senior brother of the Accused. We seek the leave of this Honourable Court to rely on all the averments in the supporting affidavit. Briefly stated the Accused is a marine engineer resident in South Africa. His resident permit is Exhibit “A”. He and Mr. Edward Atatah traveled to Angola on 27/08/2007 to inspect a ship which the Accused wanted to purchase for a proposed trawler business. Both of them were arrested on 3rd September 2007 and detained by the Angolan Security Forces.
1.02 During their 5-month detention in Angola they were thoroughly investigated by the security forces. However, they were not charged as they were not linked with the commission of any offence. As soon as they were brought to Nigeria on 14th February 2008 they were railroaded into a military custody where the Accused has since been detained. Before his arrest the Accused was collaborating with the Federal Government in promoting peace in the Niger Delta. He had a telephone conversation with President Umaru Musa Yar’adua while Vice President Goodluck Jonathan led a Federal Government to hold a meeting with him in Pretoria, South Africa on August 3, 2007.
1.03 Before this Honourable Court the Accused has been charged with treason, treasonable felony, terrorism, illegal trading in and possession of firearms etc. No doubt, these are serious offences. Indeed, treason is a capital offence. But in spite of the seriousness of the 55-count charge the Accused is presumed innocent. Apart from maintaining his innocence in the supporting affidavit the Accused pleaded “not guilty” to counts 1 and 2 while this Honourable Court entered a plea of “Not Guilty” for him in respect of Counts 3-55. To that extent the presumption of innocence guaranteed of Section 35 of the Constitution inures in favour of the Accused.
1.04 In Fasehun v. Attorney-General of the Federation (2006) 43 WRN 99 at 111 it was held by the Court of Appeal (per Adekeye JCA) that:
“Section 36(5) of the 1999 Constitution presumes in favour of the liberty of the subject and particularly his innocence until found guilty. This is irrespective of the nature or gravity of the offence charged”.
1.05 It is our submission that since the Constitution presumes in favour of the liberty and innocence of the Accused he is entitled to bail notwithstanding the gravity or seriousness of the charge pending against him. In Adams v. Attorney-General of the Federation (2006) 44 WRN 46 at 73-74 the Court of Appeal listed the factors or criteria to be taken into consideration in granting bail pending trial. They include:
“a. The evidence available against the
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. detention for the protection 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 cases and they are not exhaustive. See Bamaiyi v. State (2001) 16 WRN 1; (2001) 8 NWLR (PT 715) 270 at 291 paragraph F- H”.
1.06 In the case of Dokubo-Asari v. Federal Government of Nigeria (2007) 12 NWLR (PT 1048) 320 at 362 the Supreme Court painstakingly outlined the general criteria for granting bail. According to Tobi JSC:
“The general criteria for granting bail at the trial court are as follows: (a) The availability of the accused to stand trial (b) The nature and gravity of the offence.(c ) The likelihood of the accused committing offence while on bail. (d) The criminal antecedents of the accused. (e) The likelihood of the accused interfering with the course of justice. (f) Interference with investigations. The above apart, the criteria for granting bail by the trial court include (a) Likelihood of further charge being made. (b) The probability of guilt. (c) Detention for the protection of the accused (d) The necessity to procure medical or social report pending a final disposal of the case.
The main function of bail is to ensure the presence of the accused at the trial. See R v. Jammal 16 NLR 54; State v. Okafor (1964) ENLR 96; R. v. Rose (1989) 18 Cox C.C. 717; R v. Robinson (1854) 23 LJ QB 286; Ex parte Milburn 34 US 704 (1835) ; US v. Ryder 110 US 729; Stack v. Boyle 342 US 1 (1951). Accordingly, this criterion is regarded as not only the omnibus one but also the most important”.
1.07 It is the view of the Supreme Court that the most serious of the criteria is the availability of the Accused to stand trial. While the accused has undertaken to make himself available for his trial there is no evidence that he has any criminal antecedent. In other words, the Respondent has not produced any evidence to contradict the serious averments in the supporting affidavit. In the instant case this Honourable Court is not in a position to assess the equality of the evidence against the accused. With respect, the Respondent’s counter affidavit is not admissible as it is full of arguments, conclusions, speculations and hearsay evidence which violate sections 86,87 and 88 of the Evidence Act. In Bamaiyi v. The State (2001) 16 WRN 1 at 20 the Supreme Court (Per Uwaifo JSC) held:
“I think the legal position is clear that in any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion”.
1.08 The Accused has averred that the learned Director of Public Prosecutions was not in Angola when he was arrested. Therefore, the failure of the said Director to disclose the source of his information is fatal to the case of the Respondent. Furthermore, the Respondent alluded to reports in the custody of the Honourable Attorney General of the Federation. The proceedings of the so-called trial before the Court Martial have not been produced by the Respondent. Since the said reports have not been attached to the counter-affidavit we urge this Honourable Court to invoke Section 149(d) against the Respondent accordingly.
1.09 This Honourable Court has been asked by the Respondent to believe that the accused is an “international terrorist, illegal dealer and supplier of missiles and anti-craft weapons wanted by other countries”. Yet there are no facts to back these grave allegations. Neither have the countries where the Accused is wanted been named. In the same vein the “Police Stations, military installations and other security agencies” allegedly attacked have not been mentioned. Critically examined the evidence in the counter-affidavit is weak in content and value. As it is of no probative value it cannot assist the Court in any material particular. Notwithstanding that it is devoid of substance the Accused has filed a reply to the counter –affidavit for what it may be worth. 1.10 In considering the application of the Accused for bail we urge this Honourable Court to take cognizance of the following facts:
“1. The Accused was arrested and detained since February 14, 2008.
2.. He was not brought to court within a reasonable time as he was not arraigned until 48 days later.
3.. Trial is yet to commence in the case even though the accused has been in detention for the past 4 months.
1.11 In view of the foregoing we urge this Honourable Court to invoke Section 35(4) of the 1999 Constitution which provides that:
“Any person who is arrested or detained in accordance with sub-section(1) of this Section shall be brought before a court within a reasonable time and if he is not tried within a period of
(a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail, shall be released either conditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date”.
1.12 Having regard to the mandatory nature of Section 35(4) of the Constitution we submit that right of the Accused to bail is unassailable. We therefore urge this Honourable Court to admit him to bail either conditionally or upon such terms necessary to ensure the availability of the accused at his trial. In M.K.O. Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (PT 370) 155 at 181 the Court of Appeal admitted the Appellant to bail in liberal terms even though he was charged with treason, treasonable felony and the like. Similarly, Messrs Gani Adams, Ralph Uwazurike and Asari Dokubo charged with treason and allied offences before this Honourable Court have since been granted bail. All the state governors who are on trial for grave corruption charges and money laundering to the tune of several billions of Naira have also been admitted to bail by this Honourable Court.
In view of the fact that the Accused has made a strong case for bail we urge this Honourable Court to grant the reliefs sought in this application. More so, that the supporting affidavit has not been challenged or controverted by the Respondent. Although the Respondent filed a counter-affidavit it is our submission that it does not attain the standard of credibility.
Dated this……….…day of June, 2008
OLUSOLA EGBEYINKA ESQ.
FALANA & FALANA’S CHAMBERS
PLOT 20 TY DANJUMA STREET,
OPP. KEBBI STATE GOVT. LODGE
FOR SERVICE ON:
THE DIRECTOR OF PUBLIC PROSECUTIONS
FEDERAL MINISTRY OF JUSTICE
IN THE COURT OF APPEAL
HOLDEN AT JOS
CHARGE NO: FHC/ABJ/CR/178/2007
HENRY IMOMOTIMI OKAH )…..APPELLANT
FEDERAL REPUBLIC OF NIGERIA )…. RESPONDENT
ACCUSED / APPLICANT’S REPLY ON POINTS OF LAW
In the Complainant/Respondent’s Written Address this Honourable Court has been urged to reject the application of the Accused/Applicant for bail. On this score reliance was placed on the cases of Adams Oshiomole v. Attorney-General of the Federation (2006) 11 NWLR (PT 991) 341 and Ikhazagbe v. Commissioner of Police (2004) 7 NWLR (PT 872) 346. But in both cases the Court of Appeal dwelt in extenso on the discretion of the Court which can only be exercised judicially and judiciously on the basis of the “cogency of evidence against the accused”.
Apart from the counter-affidavit the prosecution has failed to adduce any cogent evidence against the accused by filing the proof of evidence in support of the pending charge. In the case of Chinemelu v. Commission of Police (1995) 4 NWLR (PT 390) 467 at 498 – 499 Ejiwunmi JCA (as he then was) held:
“The only evidence about the case before the lower court and this Court remains the affidavit filed by the Inspector involved with the investigation of this case. And he only made references to what he considered to be the eye witnesses of the offence for which the Appellant stands charged. However, there is nothing that can be likened to a complete proof of evidence from the witnesses themselves. For the Respondent to justify the continued detention of the Appellant, I think it is only right for the Respondent to produce such evidence for the consideration of the Court”.
In the same vein in the case of Yahaya Farouk Chedi v. Attorney-General of the Federation (2006) 48 WRN 149 at 180-181 Mohammed JCA (as he then was) held inter alia:
“Another factor to be considered by the learned trial judge was the strength of the evidence against the Appellants. This, the learned trial judge could do only by looking at the proof of evidence. Although the learned trial judge was of the view that as a Federal High Court, which has summary jurisdiction in criminal matters and trials may proceed with or without the proof of evidence once the charge is filed, it is the general law that for the prosecution to oppose vehemently the grant of bail to an accused, these must be produced before the trial High Court proof of evidence. It is the one that will enable the learned trial judge to form his view on the strength of the evidence to be called and whether a prima facie case is a maintainable against the accused person. See Ukata v. COP (2001) 6 NWLR (PT 710) 765 at 772 F – H; (2002) FWLR (PT 766) 755. Although the learned trial judge has not stated the section which obviates the necessity of filing of proof of evidence at Federal High Court in criminal matters, my belief is that the Federal High Court is guided by the Criminal Procedure Act when considering criminal matters. In this case it is clear that the prosecution failed to produce its proof of evidence. Here is another exceptional circumstance. The trial court was certainly deprived of the opportunity to peruse at that stage, at legal or factual basis which would entitle it to grant or refuse bail”.
See also the cases of Jimoh v. COP (2004) 17 NWLR (PT 902) 389; (2005) All FWLR (PT 243) 648 and Musa v. COP (2004) 9 NWLR (PT 879) 483; Adegbite v.COP (2005) 51 WRN 179 on the effect of lack of proof of evidence against an accused person in the consideration of his application for bail.
At Page 5 of the Complainant/Respondent’s Written Address it was curiously submitted that the purported proof of evidence filed in Court “contains weighty evidence to prove the grievous charge against the Accused person”. We submit, with profound respect, that no where has the Accused admitted any of the 55-count charge pending before the Court. It is trite law that a confessional statement under Section 27 of the Evidence Act is an unequivocal and direct admission of the commission of an offence. See Agbor Ele v. The State (2006) 42 WRN 88; Rabiu v. The State (2005) 7 NWLR (PT 925) 491.
Finally, the Learned Director of Public Prosecutions of the Federation has urged this Honourable Court to rely on the case of Adams Oshiomole v. Attorney-General of the Federation (supra) and Dokubo Asari v. Federal Republic of Nigeria (2006) 11 NWLR (PT 991) 324 in depriving the Accused / Applicant of his right to bail pending trial. With respect, this Honourable Court has since granted bail to the Accused Persons in both cases in spite of the gravity of the offences alleged against them by the Prosecution. To that extent the reference to both cases by the prosecution is totally against the submissions of the Complainant/Respondent.
We are not unaware that this Honourable Court has ruled that the incomplete proof of evidence filed by the Prosecution is sufficient for the trial of the Accused person who is facing a 62-count charge of treason, treasonable felony, terrorism, kidnapping, illegal importation of arms and ammunition, illegal trafficking in arms and ammunition, illegal possession and storage of prohibited goods, management of unlawful society, incitement of soldiers to commit traitorous acts etc.
Notwithstanding the gravity of the offence and unsubstantiated averments in the affidavits filed by the Prosecution we urge this Honourable Court to have an open mind in the consideration of the Summons for Bail. Therefore, contrary to the finding of this Honourable Court that this case is different from other treason cases the pending case of the Federal Republic of Nigeria v. Asari Dokubo is similar to this case in every material particular. Even in the instant case the Accused is alleged to have sold catches of arms and ammunition to Mr. Asari-Dokubo. In spite of such grave allegations this Honourable Court admitted Mr. Asari-Dokubo to bail. In a similar vein, Mr. Ralph Uwazurike was granted bail by this Honourable Court despite the allegation of treason, secession etc. leveled against him.
In a desperate bid to confuse this Honourable Court the Respondent has alleged that the Accused passed some coded messages to some persons in order to facilitate his escape. Apart from the fact that such averments have been denied by a way of counter-affidavit we submit that the said coded messages alleged to be in writing has not been produced before this Honourable Court. Like all other documents which are not attached to any affidavit we urge this Honourable Court to discountenance them by virtue of section 149(d) of the Evidence Act.
Although this Honourable Court has held that the proof of evidence filed by the Prosecution is sufficient for the trial of the Accused we submit that it is not sufficient for the purpose of the summons for bail. To the extent that it has not shown that the evidence against the Accused is strong this Honourable Court cannot rely on it to deny the Accused his constitutional right to bail as the presumption of innocence enures in his favour until the contrary is proved by the Prosecution.
We therefore urge this Honourable Court to reject the weird submissions of the Prosecution and admit the Accused/Applicant to bail upon such terms as this Court may deem fit to fix in the circumstances.
Dated this…….. day of August, 2008
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS,
PLOT 20 TY DANJUMA STREET,
OPP. KEBBI STATE GOVT. LODGE,
FOR SERVICE ON:
THE DIRECTOR OF PUBLIC PROSECUTIONS,
FEDERAL MINISTRY OF JUSTICE,