➥ CASE SUMMARY OF:
Bamaiyi V. The State (SC 292/2000, Supreme Court, 6th April 2001)
by Branham Chima.
Supreme Court – SC 292/2000
➥ JUDGEMENT DELIVERED ON:
Friday, the 6th day of April 2001
➥ SUBJECT MATTER
Affidavit containing extraneous matters;
Court of Appeal did not consider some issues which it ought to.
➥ THIS CASE IS AUTHORITY FOR:
⦿ INVOKING SECTION 22 OF THE SUPREME COURT ACT 1960 ON A MATTER OF LAW ONLY
I think the issue can now be examined by this Court by virtue of Section 22 of the Supreme Court Act, 1960. It does not require any further evidence. The existence of the depositions is not in dispute. Indeed, the nature of the depositions is open to interpretation only. The exercise therefore becomes a matter of law alone: see Orji v Zaria Industries Ltd (1992) 1 NWLR (Part 216) 124 at 141 where a similar exercise carried out by the Court of Appeal when the trial court failed to do so was approved by this Court. See also National Bank of Nigeria Ltd v Guthrie (Nigeria) Ltd (1993) 3 NWLR (Part 284) 643 at 659-660; Katto v Central Bank of Nigeria (1999) 6 NWLR (Part 607) 390 at 407-408. — Uwaifo, JSC.
⦿ AN AFFIDAVIT MUST BE CONFINED TO FACTS ADMISSIBLE IN COURT
An affidavit meant for use in court stands as evidence and must as near as possible conform to oral evidence admissible in court. Sections 86 and 87 of the Evidence Act provide as follows:- “86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. 87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.” … Looking at the counter-affidavit, paragraphs 12, 13 and 14 are fit for Counsel to urge upon the court by way of submission and, if there are facts and circumstances presented in support, the court may consider the submission attractive enough to dissuade it from granting the bail sought. Paragraph 18 contains a conclusion which ought to be left to the court to reach. Therefore paragraphs 12, 13, 14 and 18 are extraneous being in contravention of Section 87 of the Evidence Act. They ought to have been struck out. I accordingly strike them out. As for the further counter-affidavit, paragraphs 9, 10, 11, 12, 13 and 18 are also extraneous because they are fit for argument of Counsel to persuade the court. I strike them out as well. — Uwaifo, JSC.
⦿ CONCLUSION DRAWN IN AFFIDAVIT NEED NOT BE LEGAL CONCLUSION FOR STRIKING OUT
Besides, I do not think that view has any merit either by way of the interpretation of the said Section 87 of the Evidence Act or by looking broadly at the word “conclusion” which covers any conclusion based on fact or law as a result of a process of reasoning. It is the same process by which opinion or deduction is arrived at or inference drawn. Therefore to say that the conclusion meant under Section 87 is legal conclusion is restrictive and misleading. — Uwaifo, JSC.
⦿ AFFIDAVITS SHOULD NOT CONTAIN PRAYERS, LEGAL ARGUMENTS, AND CONCLUSIONS
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. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which Counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by Counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach. — Uwaifo, JSC.
⦿ FACTORS TAKEN INTO CONSIDERATION FOR BAIL
The learned trial Judge listed out a number of factors or criteria that may be taken into consideration by a Judge in granting or refusing bail pending trial. These include (1) the evidence available against the accused; (2) availability of the accused to stand trial; (3) the nature and gravity of the offence; (4) the likelihood of the accused committing another offence while on bail; (5) the likelihood of the accused interfering with the course of justice; (6) the criminal antecedents of the accused person; (7) the likelihood of further charge being brought against the accused; (8) the probability of guilt; (9) detention for the protection of the accused; (10) the necessity to procure medical or social report pending final disposal of the case. Generally, these are some of the factors that may be taken into consideration. It is by no means expected that all will be relevant in every case. I do not also think they are exhaustive. It may well be any one or others may be applied to determine the question of bail in a particular case. The learned trial Judge realised this when he said:- “The bailability of an accused depends largely upon the weight a Judge attached to one or several of the criteria open to him in any given case”. This is eminently a correct view. The learned trial Judge said further:- “The determination of the criteria is very important because the liberty of the individual stands or falls by the decision of a Judge in performing the function. A Judge wields discretionary power which, like all other discretionary powers, must be exercised judiciously and judicially. In exercising the discretion, a Judge is bound to examine the evidence before him without considering any extraneous matter”. This is also correct. — Uwaifo, JSC.
⦿ MATTERS TO BE CONSIDERED BEFORE BAIL IS GRANTED NEED NOT BE NECESSARILY ADMISSIBLE DURING TRIAL
There are paragraphs 10, 11, 18, 19 and 20 which also tend to implicate the appellant as to the procurement of weapons used for committing some of the crimes, the foreboding in the sudden killing in suspicious circumstances of the armourer who was a vital witness, and how proposed witnesses are now afraid of their safety. These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial but they are certainly worthy to be taken into account in an application for bail pending trial. That does not necessarily prejudice the presumed innocence of the appellant of the charge brought against him until the contrary is proved, but it at least tries to ensure avoidable interruptions of the trial. — Uwaifo, JSC.
⦿ FAILURE TO GIVE FAIR HEARING DOES NOT AUTOMATICALLY LEAD TO A MISCARRIAGE OF JUSTICE
On whether the court below was right when it failed to consider and pronounce upon all the issues submitted to it by the appellant for its determination, I agree with the submission of the appellant’s Counsel that the court below failed to consider and pronounce upon the second issue for determination submitted by the appellant in that court. However, I am unable to hold that the failure to do so led to any miscarriage of justice in the circumstances of the case. There was also no denial of fair hearing as enshrined in Section 33 of 1979 Constitution. Failure to consider and pronounce on all issues submitted to a court or tribunal will not, per se, amount to a denial of a right to fair hearing having regard to the judicial decisions on the principle. In some cases, it may occasion failure of justice which amounts to denial of fair hearing and in others as is the case in the present proceedings, it will not. See Kotoye v Central Bank of Nigeria & others (1989) 1 NWLR (Part 98) 419. — Ogwuegbu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Mike Okoye Esq.
⦿ FOR THE RESPONDENT
Prof. O. Osinbajo, Attorney-General Lagos State.
➥ CASE FACT/HISTORY
There is pending in the Lagos High Court in information filed on 27 January, 2000, charging offences against the appellant and four others on six counts. The appellant who is the first accused in that information is involved in four of the counts. Two of them relate to conspiracy to murder, two persons separately and at two different periods at Ikoyi, Lagos, namely, one Alex Ibru and one Isaac Seiya Porbeni. One other count is attempted murder of the said Alex Ibru while another is unlawfully causing grievous harm to him.
The trial is ongoing before Ade-Alabi, J. The appellant moved for bail and the learned trial Judge heard arguments on 7 March, 2000. On 19 May, 2000, he gave a considered ruling refusing bail.
The appellant’s appeal to the Court of Appeal, Lagos Division was dismissed on 11 December, 2000. Still dissatisfied, the appellant has appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal was right when it failed to consider and pronounce upon all the issues formulated by the appellant from the grounds of appeal validly filed and thereby occasioning a grave miscarriage of justice?
RULING: IN RESPONDENT’S FAVOUR.
A. THE LOWER COURT DID NOT CONSIDER THE ISSUE ON EXTRANEOUS MATTERS IN THE COUNTER-AFFIDAVIT TO THR BAIL APPLICATION
[‘The first question is, was the issue considered and resolved by the lower court. I have examined the judgment and can find nowhere where this was done although the paragraphs of the two counter-affidavits complained of were reproduced without a word about their propriety. It appears to me that the lower court considered that there was only one question for determination.’
‘Having regard to my foregoing discussion of Issue No 1 in the present appeal, I must come to the conclusion that a fair answer to the said issue is that the Court of Appeal was in error to have failed to consider and pronounce upon all the issues formulated by the appellant before it. However, the failure to consider Issue 2 which was one of those issues subjected to complaint in this appeal, did not, contrary to the submission of learned Counsel for the appellant before this Court, occasion a miscarriage of justice. I uphold the submission of the learned Attorney-General to that end.’]
II. Whether the Court of Appeal was right, in the circumstances of this case in affirming the decision of the trial court refusing appellant bail?
RULING: IN RESPONDENT’S FAVOUR.
A. PREMISED ON THE CIRCUMSTANCES OF THIS CASE, TRIAL JUDGE REFUSAL OF BAIL WAS RIGHT
[‘The learned trial Judge took this critical factor as to availability to stand trial into consideration. He added another crucial one, namely, the likelihood that witnesses may be tampered with, harassed or put at risk if bail was granted having regard, I think, to the affidavit evidence. I have already set out the statement of facts and circumstances contained in the affidavit evidence. It is no exaggeration to say that some of the facts are, to say the least, ominous or at any rate thoroughly disturbing. For instance, there are paragraphs 5, 6, 7, 8 and 17 which talk of assassination plan, assassination list which the appellant admitted in his statement, the ongoing proceedings connected with such assassination conspiracies, the involvement of the appellant in those crimes. There are paragraphs 10, 11, 18, 19 and 20 which also tend to implicate the appellant as to the procurement of weapons used for committing some of the crimes, the foreboding in the sudden killing in suspicious circumstances of the armourer who was a vital witness, and how proposed witnesses are now afraid of their safety. These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial but they are certainly worthy to be taken into account in an application for bail pending trial. That does not necessarily prejudice the presumed innocence of the appellant of the charge brought against him until the contrary is proved, but it at least tries to ensure avoidable interruptions of the trial. Our criminal justice system has its stipulations and safeguards for the prosecutor, the accused and the victim. In the proper operation of that system, it can be said that it is in the interest of the society, and within those safeguards, that if in an application for bail pending trial, there is good reason to believe or strongly suspect that the accused will jump bail thereby making himself unavailable to stand his trial and/or will interfere with witnesses thereby constituting an obstacle in the way of justice, the court will be acting within its undoubted discretion to refuse bail. It may be added that in such a situation, it will be desirable, as far as reasonably practicable, to accelerate the trial. I do not think it will be right to interfere with the decision of the learned trial Judge on the bail issue of the appellant. Upon no rational basis, looking at those facts and circumstances, can such interference be justified. In this particular case, my view is that to interfere with that decision may simply amount to taking the case out of the learned trial Judge’s hands and that may be as good as getting the trial aborted having regard that it is over bail, rather than a fair hearing within a reasonable time in line with the requirement of the criminal justice system and Section 36 of the 1999 Constitution, that so much effort, time and concern have been dissipated. For the reasons I have given, it would have been wrong for the lower court to interfere with the discretion of the learned trial Judge in refusing bail to the appellant.’
PER OGUNDARE JSC:
‘After expunging the offensive paragraphs of the counter-affidavit before the trial court, there was still enough case made out by the respondent on which the learned trial Judge could exercise his discretion judicially and judiciously as he appeared to have done. In effect, he did not act capriciously as submitted by learned Counsel for the appellant.’
PER OGWUEGBU JSC:
‘When the offending paragraphs of the counter-affidavit and further counter-affidavit are expunged, there are still sufficient facts which the learned trial Judge relied upon in exercising his discretion against the grant of bail. These paragraphs include various assassinations planned by the appellant and other influential members of the military regime of late General Abacha to get rid of persons believed to be on the way of the General succeeding himself, criminal proceedings against the appellant and others for offences of conspiracy to murder and attempted murder, the gravity of the offences charged, procurement by the appellant of weapons used in committing the offences as revealed in written statements made by possible witnesses, the admissions by the appellant of the existence of “assassination list”, that the offences were committed and the existence of fear and insecurity of the witnesses instilled in them by persons close to the appellant.’]
‘In the result, I find no merit in this appeal and therefore dismiss it.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FAILURE TO CONSIDER COMPETENT GROUND OF APPEAL WILL RESULT IN MISCARRIAGE OF JUSTICE
In Union Bank of Nigeria Ltd v Nwaokolo (1995) 6 NWLR (Part 400) 127: “The appellants, as clearly depicted on the Record and in the brief of argument they filed, had identified three issues for the consideration of the court below. It is also on record that appellants argued fully all three issues and by implication, the eight grounds, to which they related. At the hearing of the appeal by the court below, it is common ground that the appellants adopted their brief of argument. However, without justification the majority judgment of that court now assailed before this Court, failed to pronounce on Grounds 4, 5 and 6 covered by appellants’ Issues 2 and 3 thereat, both of which have prompted Ground 2 in the appeal to this Court which incidentally, is covered by Issue 2 now under consideration. The judgment of the majority in the court below neither adverted to nor pronounced on these grounds (4, 5 and 6 respectively).” “Having considered the grounds (4, 5 and 6) which the court below failed to consider or pronounce upon, the next logical question to ask is, what are the consequences of such a failure? Failure to consider grounds of appeal, it is now established by decisions of this Court, amount to lack of fair hearing and a miscarriage of justice. (See Atano v AG Bendel (1988)2 NWLR (Part 75) 201). See also Kotoye v CBN (1989) 1 NWLR (Part 98) 419 where Nnaemeka-Agu, JSC held at page 448 of the Report thus:- ‘For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside.’ Fair hearing within the meaning of Section 33(1) of the 1979 Constitution means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties vide Ntukidem v Oko (1986) 5 NWLR (Part 45) 909.”
➥ REFERENCED (OTHERS)