CASE SUMMARY OF:
Alhaji Mujahid Dokubo-Asari v. Federal Republic Of Nigeria (2007) - SC
Section 35 CFRN 1999;
AlhaJi Mujahid Dokubo-Asari
Federal Republic of Nigeria
(2007) 12 NWLR (Pt.1048) 320;
(2007) 5-6 S.C.150;
(2007) 5-6 S.C.150;
LEAD JUDGEMENT DELIVERED BY:
Tanko Muhammad, JSC
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Festus Keyamo
* FOR THE RESPONDENT
- S. Aliyu
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 the 6th day of October, 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 6th day of October, 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 the 11th day of November, 2005, the learned trial Judge refused to grant bail to the accused/appellant.
Accused/appellant was dissatisfied with the trial courts decision and he filed his notice and grounds of appeal to the Court of Appeal, Abuja Division. (court below). In its judgment of 6th 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.
1. Whether the Court of Appeal was right when it reached a conclusion of fact that there was acceptable evidence of threat to national security by the appellant in the cases put forward by the respondent.
2. Assuming (without conceding) that the cases of the respondent revealed a strong prima facie cases of threat to national security, whether that suspends the right to bail as enshrined in section 35 of the 1999 Constitution.
HOLDING & RATIO DECIDENDI
1. For ISSUE 1, judgement was given in favour of the respondent.
i. 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 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 I am not God. The Niger Delta People's Volunteer Force (NDPVF) which I led have (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... The Government of General Obasanjo is illegitimate. It retain (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 democrative. This has made me and others like me to resent the government of the regime of general Obasanjo. When Nigeria eventually disintegrate (sic) the Ijaws will form a country of their own ... if the struggle outlive (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.
ii. Secondly, in a communique 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 Governor, 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 communique was jointly singed by the appellant and two others. Although these documents i.e. the appellant's statement to the Police and the communique 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 defendant/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 with controverted appellant's averment in his paragraph 5 of the reply referred to above.
2. For ISSUE 2, judgement was given in favour of the respondent.
i. 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.
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 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. Such criteria include, among others, the following:
(i) the nature of the charge;
(ii) the strength of the evidence which supports the charge;
(iii) the gravity of the punishment in the event of conviction;
(iv) the previous criminal record of the accused if any;
(v) the probability that the accused may not surrender himself for trial; the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
(vii) the likelihood of further charge being brought against the accused;
(viii) the probability of guilt;
(ix) detention for the protection of the accused;
(x) the necessity to procure medical or social report pending final disposal of the cases. - Tanko, JSC. Dokubo-Asari v. FRN (2007)
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. - Tanko, JSC. Dokubo-Asari v. FRN (2007)
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. - Tanko, JSC. Dokubo-Asari v. FRN (2007)
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. - Tanko, JSC. Dokubo-Asari v. FRN (2007)
The end of this brief.
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