1
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE THE HONOURABLE JUSTICE A. B. MOHAMMED
ON THE 16TH
OF FEBRUARY, 2012.
SUIT NO. FCT/CR/38/12
BETWEEN
COMMISSIONER OF POLICE - COMPLAINANT /RESPONDENT
AND
MRS HADIZA ABUTU IBRAHIM - ACCUSED / APPLICANT
RULING
Vide a Motion on Notice No. M/7553/12, dated 3rd
of February, 2012, filed
on the same date, and brought pursuant to Sections 341(2) & (3) of the Criminal
Procedure Code, Section 35 and 36 of the Constitution of the Federal Republic of
Nigeria 1999 (as amended), and the inherent jurisdiction of the Court, the
Accused/Applicant prayed the court for the following:-
(i) An Order of this Honourable Court granting bail to the
Accused/Applicant pending the hearing and determination of this
case.
(ii) And for such further order or orders as this Honourable Court may
deem fit to make in this circumstance.
2
The application was supported by a 7-paragraph Affidavit deposed to by
AbdullahiShehu, a litigation secretary with Zenith Chambers, the Solicitors to the
Accused/Applicant. The pertinent averments in the affidavit were as follows:
“3 That I was informed by P.O. Okolo Esq, Counsel to the
Accused/Applicant in our office at about 3.30pm on the 2nd
of
February, 2012 of the following facts which I verily believe to be the
truth:
a. That the Accused/Applicant was arraigned before this
Honourable Court on charges of culpable homicide under
Section 221 of the Penal Code.
b. That the charges were preferred against the
Accused/Applicant following the mysterious death of the
Accused/Applicant’s husband late Ibrahim Abutu on
28/12/2011 at Abuja.
c. That the Accused/Applicant pleaded not guilty to the charge.
d. That the Accused/Applicant has brought this application for
bail pending trial.
e. That applicant promised to undertake that if granted bail, she
will not temper with any investigation into this case.
f. That if granted bail she will not jump bail or run away from
justice.
g. That she will always attend court promptly and regularly to
take her trial.
h. That if granted bail she will not commit any offence.
3
i. That there are no reasonable grounds for believing that the
Applicant committed the offence she is being charged with.
j. That the Applicant shall if granted bail provide reasonable and
reliable sureties to stand for her.
k. That the Accused person is a law abiding citizen of this
country.
l. That the Accused/Applicant is the wife of the deceased Ibrahim
Abutu.
m. That the Accused/Applicant got married to the deceased
Ibrahim Abutu in 2005 at Kano, Nigeria.
n. That since the marriage, they had lived happily and peacefully
without any quarrel or misunderstanding at any timeduring
the married life.
o. That the marriage was blessed with one child by name Imran
Ibrahim Abutu who is now 6 years old.
p. That Imran Ibrahim Abutu is now in primary one and a day
student (meaning he goes to school from the home).
q. That it is the Accused/Applicant that carries the child to and
from school.
r. That since the incident happened and the Accused/Applicant
was in detention, the son had not gone to school.
s. The education of this son of the marriage has now been
stopped due to the detention of the Accused/Applicant, the
mother.
4
t. That the Accused/Applicant is presently 3 months pregnant for
the husband late Ibrahim Abutu.
u. That this early pregnancy of the Accused/Applicant has been
said to be fragile requiring careful medical attention close
observation by her doctor, bed rest, physical, psychological
and mental stability.
v. That the Accused/Applicant had had 5 years delay in
pregnancy due to some medical problems.
w. That her doctor has therefore recommended that for the
sustenance of the pregnancy and her good health and survival,
frequent doctor’s attention and free accessibility to her doctor
is very crucial and essential.
x. That the Accused person’s medical condition require the
frequent attention of a medical doctor that is a specialist in
obstetrics and gynaecology and who is also conversant with
her long and complete medical history.
y. That her detention in Police cell and Keffi prisons has caused a
drastic degeneration in her health.
z. That I attach her medical report to this affidavit as ‘Exhibit A’.
a1. That by ‘Exhibit A’ the Accused/Applicant was scheduled to
meet her Doctors in January, 2012 for further medical care and
examination but this had not been possible due to her
detention.
b1. That her request to meet up this appointment was turned
down by the Respondents.
5
c1. That no antenatal medical facility is made available to her in
her detention.
d1. That her life and the life of the unborn child isnow at serious
risk.
e1. That there is a serious risk of the Accused/Applicant having
miscarriage if she is not allowed on bail to entitle her to full
medical attention.
f1. That the Accused/Applicant holds a B.Sc. Degree in Mass
Communication/English from Bayero University, Kano.
g1. That the Accused/Applicant graduated in 2004/2005 academic
year and she is presently gainfully employed at the NYSC
National Headquarters, Maitama, Abuja.
h1. That if the Accused person is not granted bail, she stands the
risk of losing her job and the means of livelihood of sustaining
herself, the children and the dependents so much so that
should she be eventually discharged for lack of evidence, these
damages will be irreversible.
i1. That the Accused/Applicant has aged parents, uncles and
aunties who depend on her for survival and upkeep.
j1. That the Accused/Applicant has brothers and sisters in school
and out of school depending on her for their livelihood.
k1. That the Accused/Applicant is now a widow without any
support from anybody.
l1. That she was arrested on the 28th
of December, 2011. That she
was detained in Police Cell, then later transferred to
6
Keffiprisons, back to police cell and now Keffi prisons from
where she was brought to this Honourable Court.
m1. That by her continued detention, she has no access to her
counsel to prepare her defence.
n1. That P. O. Okolo Esq Counsel to the Accused/Applicant
attempted to secure an affidavit from the Accused to support
this motion but the detaining authorities refused her access to
her counsel.
o1. That all the properties of the Accused person are in the custody
of the Police (Homicide Section of the FCT Police Command)
because the keys to the Accused person’s family house in
Abuja at No. 67, Parakou Crescent, Off Aminu Kano Way,
Wuse II, Abuja is with the Police (Homicide Section of the FCt
Command).
p1. This case was first taken to High Court No. 13. The said Court
granted the Accused/Applicant bail on the 23/01/2012 before
she was rearrested again.
q1. She stayed out of detention on bail from Monday to
Wednesday when news of her re-arrest filtered into our office.
r1. That within the time she was on bail she never violated any
condition of the bail before her re-arrest.
s1. That she was available to the Respondents at all times when
she was on bail.
7
t1. That during investigations the Police arrested the accused with
three other persons, they are OmodialeAnthonia, OyifieOkoh
and Nefisat S. Afegbua.
u1. These three persons lived with the accused and the deceased
in the same three bedroom flat the scene of this incident.
v1. That these three persons made statements to the police as
they were the persons present in the flat at the time the
incident happened.
w1. That none of the statements are in the possession of the
prosecution and they have refused to make it part of the proof
of evidence.
5. That it will be in the interest of justice to grant this application.
6. That the Respondent will not be prejudiced by the grant of this
application.”
Attached to the Affidavit as Exhibit A was a Medical Report on the
Accused/Applicant dated 18th
January, 2011 and issued by a Dr. G.C. Okoronkwo,
MD of Aso Hospital Limited.
In opposition to the Application, the Complainant/Respondent filed a 26
paragraph Counter Affidavit sworn to on the 8th
of February, 2012 by EtimInyang,
DSP of the SCID, FCT Police Command, Garki, Abuja. The pertinent paragraphs of
the Counter-Affidavit were:
“4. That on 29th
December, 2011, a case of culpable homicide was
referred to me for investigation following the transfer of the case
from Utako Police Station.
8
5. That I interrogated the Accused person, who said she was in the
kitchen when her husband shot himself. She said she was with her
junior sister and the cousin to the deceased.
6. That when I took the Accused to her house at No. 61, Parakou
Crescent to re-enact the scene as to where she was and to interview
her witnesses, her witnesses Nafisat and OyifieOkoh said they were
not together in the kitchen but in the children’s room and bathroom
respectively.
7. That I also discovered that the crime scene has been tampered with
as the blood stains in the bedroom has been cleaned up and
disinfected. Moreover, the pellets from the expended cartridge had
also been removed from the scene.
8. That the expended cartridge, the pump action gun and nine live
cartridges were recovered from the crime scene and later sent for
forensic analysis.
9. That upon further taking statements from the Accused’s neighbours
and in-laws, I discovered that the deceased have no reason to have
killed himself. My grounds are:
(a) That the Accused has been known to be very temperamental
and prone to violence.
(b) That the deceased got married to one Habiba on 24th
December, 2011 in Kaduna as his second wife.
(c) That on the day of his death, he brought down his travelling
bag, put same in his vehicle and told the gateman that he was
9
travelling to Kaduna and that the gateman should wash his
car.
(d) That the deceased gave a cheque of $500 to Nefisat to pay
into an account on 28/12/11.
(e) That one of the neighbours heard the Accused and the
deceased arguing afterwards before the deceased was shot
dead by the Accused.
(f) That the Accused did not call for help or rush the deceased to
the hospital until about 40 minutes later.
(g) That the deceased told his brother Dr. Gabriel Abutu that he
was hot by the Accused/Applicant.
10. That upon examination of the body of the deceased in the mortuary
and in the course of post mortem, I was present and saw that there
were two perforations on the side of the deceased under his armpit
from which two pellets had exited the body. There was also another
pellet lodged in the upper part of his body above the breast.
11. That the wounds on the body of the deceased were consistent with
wounds from a gunshot from a distance. Pellets from pump action
gun spread if shot from a distance hence the two perforations under
the armpit and upper chest. At close range, the velocity of a pump
action gun would have left a gaping hole as its exit point on the
deceased.
12. That a 12 bore cartridge has 32 or 60 pellets depending on the size.
Less than six pellets were retrieved from the body of the deceased.
The other pellets are unaccounted for. The Accused could not explain
10
why she cleaned up the crime scene, disinfected same and tampered
with by removing the incriminating evidence against her in the
bedroom.
13. That while undergoing investigation, the Accused informed me that
she was 3 months pregnant and should therefore be given bail. This
fact was also relied upon by her lawyers in asking for bail.
14. That the Accused was taken to the police clinic for observation and
examination by the police doctors and nothing was found to be
wrong with her.
15. That assuming the Accused is pregnant, pregnancy is not a decease
or an illness and a pregnant woman goes to the farm, work, drive
vehicle etc and can stand trial.
16. That assuming the Accused is pregnant, she should be five (5)
months pregnant now and not three months. No sign of pregnancy is
evident on the Accused. The Accused cannot be 3 months pregnant
on 5th
December, 2011 and still be three months pregnant on 5th
February, 2012.
17. That whatever undisclosed illness she is suffering from can be treated
in the prison.
18. That the Accused has not remained in police custody since 28/12/11.
She was arraigned before the Chief Mgistrate Court, Karu for
conspiracy and giving false information. She was remanded in Keffi
prison for about two weeks before being granted bail along with two
others. She could not meet the bail conditions.
11
19. That she was again taken before the FCT High Court No. 13 on
24/1/12 for consent to remand her in police custody pending
investigation under Section 129 of the CPC.
20. That the application to remand was refused and the Accused granted
bail suomotu by the learned High Court Judge. No bail application
was moved.
21. That the evidence against the Accused is overwhelming and there
exists the risk of her escaping from justice as she has often boasted
of her being from the wealthy and influential family of Afegbua in
Edo State.
22. That a person charged with culpable homicide punishable with death
is not ordinarily entitled to bail and the Accused/Applicant has not
shown any exceptional circumstance.
23. That the deceased is still in the mortuary and has not been buried.
24. That it is not in the interest of justice to grant this application.
25. That the Accused/Applicant will not be prejudiced by the refusal of
this application.”
In his adopted Written Address in support of the Application, learned
Counsel for the Accused/Applicant, Patrick OchejaOkolo Esq, raised three
grounds for bringing the application, namely –
(i) Ill health and unstable condition of pregnancy;
(ii) Lack of reasonable grounds for believing that the Applicant
committed the offence; and
(iii) Lack of access to her Counsel for the preparation of her defence.
12
On the first ground, learned Counsel referred the Court to the deposition
in the Affidavit where it was averred that the Accused/Applicant was pregnant
after five years of struggle. He referred also to the medical report attached to the
affidavit as Exhibit A and argued that the pregnancy requires close medical
attention and monitoring and if not carefully managed, it could result in the
death of the unborn child and the Accused person. Citing the cases of OFULUE v
FGN (2005) 3 NWLR (Pt. 913) 571, ratio 7, JIMOH v COP (2004) 17 NWLR (Pt. 902)
359 and the pronouncement of Onnoghen, JSC in ABACHA v THE STATE (2002) 5
NWLR (Pt. 761) 638, Counsel submitted that health condition of an Accused
Person is a special circumstance to be considered by the Court in the exercise of
its discretion and urged the Court to consider the Accused/Applicant’s health
condition as a special circumstance that warrants the granting of bail.
On the second ground, learned Counsel observed that since the
Accused/Applicant was arrested on the 28th
of December, 2011, she had been in
custody of the Police for more than five weeks, except for the two days respite
which she had as a result of the aborted bail. Counsel submitted that there was
no evidence before the Court to show any link between the Accused and the
death of her deceased husband. He argued that the Proof of Evidence has not
shown any reasonable ground to believe that the Applicant committed the
offence. Referring to Section 341(3) of the Criminal Procedure Code, learned
Counsel argued that where an accused person is charged with a capital offence,
the onus is on him/her to prove special circumstance and exceptional
circumstance by placing material before the court, and thereafter the
prosecution will have the burden of proving that the accused is not entitled to
13
bail. Counsel cited in support, the case of ABIOLA v FRN (1995) 1 NWLR (Pt. 370)
155 at 179.
Referring to the Proof of Evidence, Counsel submitted that there is nothing
incriminating against the Accused/Applicant and that the Prosecution has not
discharged the burden placed on it by law to explain or convince the Court not to
grant bail. He argued that the Proof of Evidence attached to the Charge
contained only the statement of the accused person and a medical report.
Counsel observed that it is clear from paragraphs 4(t1 – x1) of the supporting
affidavit that the statements of three persons, OmodialeAnthonia, OyifieOkoh
and Nefisat S. Afegbua, who were present at the scene of the incident were
recorded by the Police, but that the latter had refused to allow the Court to see
the statements of the three persons. Counsel submitted that by virtue of Section
167D of the Evidence Act, 2011, concealed evidence is presumed to be against
the person concealing same. He urged the Court to hold that there is lack of
sufficient evidence to sustain a charge of murder against the accused person.
It was also the learned Counsel’s argument that although the Prosecution
had summarised the evidence of the 7 persons listed in the Proof of Evidence,
their statements were not attached to the Proof of Evidence for the Court to
determine whether a prima facie case could be established. He submitted that
the failure to attach the statements of the witnesses showed clearly that the
statements made by them are unfavourable to the case of the prosecution, and
citing the case of ADAMU SULEIMAN & 1 OR. v COP PLATEAU STATE (2008) 2-3 SC
(Pt. 1) 185, Counsel prayed the Court to so hold. Further referring to the cases of
CHINEMELU v COP (1995) 4 NWLR (Pt. 390) 467 at 472 and ALAYA v THE STATE
(2007) 16 NWLR (Pt. 1061) 483 and Section 341(3), learned Counsel prayed the
14
Court to hold that there is no reasonable ground to believe that the
Accused/Applicant committed the offence.
Learned Counsel to the Accused/Applicant also referred the Court to the
case of MUSA v COP (2004) 9 NWLR (Pt. 879) 483 and contended that the onus is
on the party who opposes an application for bail to provide some prima facie
evidence to show that the case against the accused is strong and that he is not
likely to make his trial if admitted to bail, and that if the prosecution fails in
opposing bail, particularly vide the proof of evidence, the court is entitled to
invoke the provision of Section 167(d) of the Evidence Act. Counsel submitted
that the failure to include in the proof of evidence the statements of other
witnesses who made statements to the police and who were present at the scene
of the incident meant that those statements were not favourable to the
Complainant/Respondent as envisaged by Section 167(d) of the Evidence Act.
Learned Counsel expressed that the Accused/Applicant is gainfully
employed and now a widow of the deceased and a single parent of Imran Ibrahim
Abutu, the first son of the deceased, and that the Accused/Applicant is also an
expectant mother, carrying a three months pregnancy for the deceased.
Additionally, learned Counsel drew attention of the Court to the fact that all the
properties of the Accused/Applicant were in the custody of the Homicide Section
of the FCT Police Command, because the keys to the Accused/Applicant’s family
house at No. 67, Parakou Crescent, Off Aminu Kano Way, Wuse II, Abuja is with
the Police. Counsel also stated that when the Accused/Applicant was earlier
granted bail which was short-lived only for two days, she did not jump bail and
she appeared instantly and immediately the Police recalled her. He submitted
that that provides a reasonable confirmation that the Accused/Applicant cannot
15
escape from justice, since all she has are in the custody of the Police.He referred
the Court to the following cases on the consideration for bail to an accused
person: OFULUE v FGN (supra), OLATUNJI v FRN (2003) 3 NWLR (Pt.807) 406,
SHAGARI v COP (2007) 5 NWLR (Pt. 1027) 272 and MUSA v COP (2004) 9 NWLR
(Pt. 879) 483.
On the third ground, learned Counsel for the Accused/Applicant argued
that the affidavit in support of this application was in agreement with the fact
that the Accused/Applicant has been in detention since 28th
December, 2011 and
that the Accused/Applicant had never had access to her counsel and relations.
Placing reliance on Section 36(6)(c) of the 1999 Constitution, Counsel submitted
that if granted bail, the Accused/Applicant would be able to work with her
counsel and prepare her defence.
Concluding, learned Counsel cited the case of THEODORE AHAMAEFULE
ORJI & 4 ORS. v F.R.N. (2007) 13 NWLR (Pt. 1050) 55 at 88 and urged the Court to
uphold the first two grounds of ill-health and lack of prima facie evidence as
special and exceptional grounds, as they have remained unchallenged and
uncontroverted. He submitted that as a result of her detention, the
Accused/Applicant had been unable to attend her scheduled antenatal clinic with
Dr. G.C. Okoronkwo of Aso Hospital, Mabushi, Abuja where she was last
examined on 5th
December, 2011. Counsel urged the Court to grant the
Accused/Applicant’s application.
In his adopted Written Address in opposition to the application, learned
Counsel to the Complainant/Respondent, UmohInah Esq, raised a sole issue for
determination, which was whether the Applicant who is standing trial for
16
culpable homicide punishable with death has satisfied the conditions for the
grant of bail.
Learned Counsel cited Section 341(1) of the Criminal Procedure Code and
drew the attention of the Court to the fact that Accused/Applicant is facing a two
count charge which include that of culpable homicide punishable with death
contrary to Section 221 of the Penal Code. Counsel observed that the first ground
of the Accused/Applicant’s application is ill-health and unstable condition of
pregnancy pursuant to which a medical report (Exhibit A) was submitted. Counsel
submitted that the purported medical report did not state what illness the
Accused/Applicant was suffering from. He stated that the medical report only
stated that the Accused/Applicant was pregnant. He argued that the fact that a
woman is pregnant is not a sickness or a disease, but a thing of joy which ought
to be celebrated. He submitted that the medical report did not even support the
Accused/Applicant’s assertion of illness, as the report stated that the
Accused/Applicant had no complaints, she was not anaemic, had normal body
temperature and her chest was clear. He added that the medical report gave the
Accused/Applicant a clean bill of health.
It was also the learned Counsel to the Complainant/Respondent’s
submission that the medical report is highly suspect as it is from a private
hospital and was dated 18/1/11 and the address stated therein was
“NnomdiAzikiwe Express way in Mabushi District, Abuja. Counsel stated that no
such street exists in Mabushi, and that the error was not typographical.
Counsel also pointed out that paragraph 4(1) of the supporting affidavit
stated that the Accused/Applicant is presently 3 months pregnant. Counsel
observed that if the Accused/Applicant was expressed in the medical report to be
17
three months pregnant as at 05/12/11, she cannot still be 3 months pregnant as
at 05/02/12. He stated that the reason why the defence wanted the Court to
continue to believe that the Accused/Applicant is still three months pregnant is
not far-fetched. Counsel further submitted that the Accused/Applicant was
earlier examined by the Police doctor and found not to be pregnant. He
submitted that the purported pregnancy ought to have grown, but there are no
tell-tale sign(s) of any pregnancy on the Accused/Applicant. He argued that
pregnancycannot be a matter of speculation or conjecture. Counsel cited the
pronouncement of Uwaifo, JSC in ABACHA v STATE (2002) 5 NWLR (Pt. 461) 638
and that of Muhammad, JCA (as he then was) in OFULUE v F.G.N. (2005) 3 NWLR
(Pt. 913) 571 at 600 and submitted that mere allegation of ill-health will not be
sufficient as special circumstance for the grant of bail. He added that the
Accused/Applicant has not only failed to show what her ill-health is, but that the
affidavit and the medical report are not cogent enough to satisfy the conditions
stated in ABACHA v STATE and OFULUE v F.G.N. (supra). He submitted that this
ground for seeking bail must fail and urged the Court to so hold.
With respect to the other grounds, learned Counsel for the
Complainant/Respondent submitted that there exists reasonable grounds from
the Charge, Proof of Evidence and the Counter-Affidavit that the Complainant has
made out a prima facie case of culpable homicide punishable with death against
the Accused/Applicant. Counsel observed that the fact that the
Accused/Applicant was previously granted bail by High Court No. 13 is not
sufficient to sway the discretion of the Court, since there was no charge pending
before Court 13 as at 24/01/12 when it refused an application to remand the
Accused/Applicant in custody and instead suomotu granted her bail. Learned
18
Counsel also stated that it is not the law that bail must be granted where the
prosecution does not attach the statements of witnesses (from whom statements
were obtained) to the proof of evidence.
Learned Counsel to the Complainant/Respondent cited Section 35(7)(a) of
the 1999 Constitution and submitted that the provision is an exception to the
right to personal liberty and to trial within reasonable time. He submitted that
the section had covered the delay in charging the Accused/Applicant before this
Court. Counsel also cited OLATUNJI v FRN (2003) 3 NWLR (Pt. 807) 406 and
DANBABA v STATE (2000) 14 NWLR (Pt. 687) 396 and contended that where the
evidence of the prosecution against the Accused is strong and direct, her chances
of being set free are remote because the temptation of jumping bail and escaping
from justice is very high.
Counsel submitted that the third ground for seeking bail is superfluous,
since the Accused/Applicant is in prison custody. He pointed out that the
Accused/Applicant had admitted in paragraph L1 of the supporting affidavit that
the Accused/Applicant has been in detention both in the police cell and in Keffi
Prison. Citing I. B. W. A. v UNAKALAMBA (1998) 9 NWLR (Pt. 565) 245 at 264, para
G – H, Counsel submitted that what had been admitted needs no further proof.
He added that where the defence failed to visit and access the Accused/Applicant
in custody, that failure cannot be visited on the prosecution and be used as a
ground for sourcing for bail before the Court.
Counsel contended that the onus is on the Accused/Applicant to place
sufficient materials before the Court in order to be granted bail, and that it is only
where the Accused/Applicant has discharged this burden that the onus shifts to
the prosecution to show cause why bail should not be granted. In support of this
19
argument, Counsel cited the cases of OSAKWE v FRN (2004) 14 NWLR (Pt. 817)
305 and BAMAIYI v STATE (2001) 8 NWLR (Pt. 715) 270. Counsel contended that
the Accused/Applicant has failed to place sufficient materials before the Court in
order to secure the judicial and judicious exercise of the Court’s discretion in her
favour. He cited in support the case of JIMOH v COP (2004) 17 NWLR (Pt. 902)
389.
Concluding, Counsel stated that the Accused/Applicant had raised false
alarms in her supporting affidavit about the risk of miscarriage, having aged
parents and dependants, being a widow, etc. Counsel submitted that these
alarms and sentiments command no place in judicial deliberations. He referred to
the pronouncement of Ogwuegbu, JSC in ABACHA v STATE (supra) at page 661,
paragraphs G – H. Learned Counsel urged the Court to discountenance the
application and refuse the Accused/Applicant bail in the interest of justice.
I have examined the Accused/Applicant’s bail application and the objection
thereto raised by the Complainant/Respondent. The Accused/Applicant in this
case is charged with culpable homicide punishable with death under Section 221
of the Penal Code. In EZENWAFOR v. COMMISSIONER OF POLICE (2009) LPELR-
CA/A/34C/08, the Court of Appeal, Per Omoleye, JCA, stated that:
"The general provisions relating to offences committed within the Northern
States including the Federal Capital Territory, Abuja, are in the main,
governed by the Criminal Procedure Code (CPC). Thus, the issue of bail
generally, including the grant or refusal of ball is provided for under
Chapter XXIX, Sections 340 and 355 of the said CPC. Indeed the application
to admit the Appellant in the present case to bail was sought at the trial
20
Court pursuant to Section 341(2) of the CPC. This deals with situations
when bail may be taken in respect of non-bailable offences.
Section 341(1), (2) and (3) of the CPC provide as follows:
341. (1) Persons accused of an offence punishable with death shall not be
released on bail.
(2) Persons accused of an offence punishable with imprisonment for a term
exceeding three years shall not ordinarily be released on bail; nevertheless
the court may upon application release on bail a person accused as
aforesaid if it considers -
(a) that by reason of the granting of bail the proper investigation of the
offence would not be prejudiced and
(b) that no serious risk of the accused escaping from justice would be
occasioned and
(c) that no grounds exist for believing that the accused, if released would
commit an offence.
(3) Notwithstanding anything contained in subsections (1) and
(2) if it appears to the court that there are no reasonable grounds for
believing that a person accused has committed the offence, but that there
are sufficient grounds for further inquiry such person may pending such
inquiry, be released on bail.
Thus, under Section 341(1), bail shall not ordinarily be granted to a person
accused of a capital offence. This prohibition not being absolute, by virtue of
sub-section (3) of Section 341, if it appears to the court that there are no
reasonable grounds for believing that a person accused has committed the
offence such person may be admitted to bail." (Pp. 30-31, paras. B-E)
21
Further, in ABACHA V. THE STATE (2002) LPELR-SC.290/2001(-R), the
Supreme Court, per Ogwuegbu, JSC held that “it is not usual to grant bail in
capital offences or where the applicant has been convicted and sentenced and his
appeal is pending. This can only be done where exceptional circumstance is
shown.” (P. 16, Para. F).
The issue in this instancetherefore, is whether the Accused/Applicant has
shown any exceptional circumstance as to warrant the grant of her application
for bail. The grounds upon which the Accused/Applicant’s application is
predicated, which were stated in the Written Address of the learned Counsel to
the Accused/Applicant, were those of:
(i) Ill-health and unstable condition of pregnancy;
(ii) Lack of reasonable grounds for believing that the Accused/Applicant
committed the offence she is being charged; and,
(iii) Lack of access to her counsel for the preparation of her defence.
With regards to the first ground, the learned Counsel to the
Accused/Applicant had argued relying on the averments in the supporting
affidavit quoted above, and the medical report attached as exhibit A constitute a
special circumstance of ill-health which the Court should consider to grant the
Accused/Applicant bail. He had cited in support the cases of OFULUE v FGN,
JIMOH v COP and ABACHA v THE STATE (supra). The relevant averments relied
upon were to the effect that the Accused who is three months pregnant and said
to be fragile would require careful medical attention and close supervision and
that her doctor had recommended that for the sustenance of the pregnancy
frequent doctor’s attention and free accessibility to her doctor is crucial and that
her detention had caused a deterioration in her health. It was also averred that
22
the Accused/Applicant could not meet her doctor in January as scheduled as her
request to do so was turned down and no anti-natal facility was made available
to her in detention and as such she stands the serious risk of having miscarriage.
To buttress the averments, Exhibit A, the medical report issued by a Dr. G.C.
Okoronkwo MD of Aso Hospitals Ltd, was attached to the supporting affidavit.
On the other hand, the learned Counsel to the Complainant/Respondent
had countered,relying on the averments in the Counter Affidavit, that the
Accused/Applicant was examined by Police doctors and there was nothing wrong
with her, and that in any event singular fact that a woman is pregnant does not
mean she is ill, and that the medical report attached as exhibit A by the
Accused/Applicant did not state any illness which the Accused/Applicant suffers
from, apart from that she is pregnant, and that in fact the report did not support
the assertion of ill health and had stated that the Accused/Applicant had no
complaints and there was nothing wrong with the Accused and gave her a clean
bill of health. Counsel had expressed his suspicions on the medical report and
observed that it was from a private hospital and was dated 18/1/11 and the
address was stated as NnomdiAzikiwe Express Way in Mabushi District and that
no such street exists in Mabushi. In addition, it was averred that assuming the
Accused was even pregnant, she should have been 5 months pregnant by now,
since she was expressed to be pregnant on 5th
December, 2011 and cannot
therefore still be three months pregnant on 5th
February, 2012 and that no sign
of pregnancy is evident on the Accused/Applicant. It was also averred that
whatever undisclosed illness the Accused/Applicant may suffer from could be
treated in the Prison.
23
I have examined the averments in the supporting affidavit and in particular
Exhibit A on which the ground of ill-health and unstable condition of pregnancy
was predicated. The Medical Report was dated 18-01-2011 and issued by Dr. G.C
Okoronkwounder the letter head of Aso Hospitals Ltd., whose address was stated
to be Plot. 897, NnomdiAzikiwe Expressway, Opp. Premier International School,
Mabushi, District, P.O. Box 1966, Garki, Abuja. The Report had the following
words:
“TO WHOM IT MAY CONCERN
MEDICAL REPORT ON MRS. HADIZA ABUTU FEMALE
The above named client reported for antenatal clinic in our hospital on 5th
December, 2011. She had no
complaints. Her body temperature was 36.70C, B.P. 110/70 mmHg. On examination she was not anaemic.
The chest was clinically clear. Abdomen, liver spleen were normal. Fundus was 12 weeks pregnant. She
was booked for ANC and an appointment was given for 1st
week of January, 2012, when the result of
other laboratory investigations must have been ready.
The report is written on request by the client.
Sgd.
Dr. G.C. Okoronkwo M.D
Medical Director.”
From the wordings of the Medical Report reproduced above, it is clear that
as rightly observed by the learned Counsel to the Complainant/Respondent that
apart from stating that the Accused/Applicant was 12 weeks pregnant and had
reported for antenatal clinic, there was no any ill-health condition indicated in
the report. Hence, the report does not support any of the averments or
submissions of learned counsel that the Accused/Applicant has any ill-health
condition. On the contrary, the report had indicated that the Accused had
24
reported with no complaints other than for antenatal clinic and that upon
examination she was found to be normal, with a 12 weeks pregnancy.
It is the law, as expressed by Muhammad, JCA (as he then was) in ADAMU v
F.R.N (2008) ALL FWLR (Pt.420) 787 at 796, paras. C-D, that "for an applicant to be
admitted to bail on the ground of ill-health, apart from the deposition that the
applicant is sick, it must be supported by documentary evidence of the state of
health of the applicant and a medical doctor ought to give evidence in that regard
in compliance with the provisions of section 57 of the Evidence Act, Cap.112 Laws
of the Federation of Nigeria, 1990.” See also: FAWEHINMI v. STATE (1990) 1
NWLR (Pt.127) 486 which was cited by the learned Justice.
In the instant case, whilst the deposition in paragraphs 4u -4y in the
supporting affidavit attempted to portray the Accused/Applicant’s condition of
pregnancy as fragile, requiring careful medical attention, close observation by
doctor, bed rest, physical, psychological and mental stability and at the risk of
losing the pregnancy, the Medical Report as quoted above did not support those
facts. Such averments relating to medical and health condition of the
Accused/Applicant, coming from a Litigation Secretary as informed by the learned
Counsel to the Accused/Applicant, P.O. Okolo Esq, cannot, in my humble view, be
relied upon to provide the ill-health condition of the Accused/Applicant, since
none of them is a medical expert. Since the averments are not supported by
Exhibit A, they cannot therefore be relied upon.
Learned Counsel to the Accused/Applicant had relied on JIMOH v COP
(supra) and quoted the dictum of Onnoghen, JCA (as he then was)in the case of
ABACHA v THE STATE (supra) to contend that “…the heath of every citizen is of
very important consideration to the state, whether he is an accused/suspect or
25
free man”, and as such the Court should consider the health condition of the
Accused/Applicant. True. But in the same case of MOHAMMED SANI ABACHA v.
THE STATE,this time decided by the Supreme Court and cited as (2002) LPELR-
SC.290/2001(-R),Ayoola, JSC stated that"were it the law that an accused person
remanded in custody to await trial is entitled to be granted bail pursuant to a right
to have access to a medical practitioner or medical facility of his choice, hardly
would any accused person remain in custody to await trial. There is no general
principle of law affording that right to an accused person remanded in custody.
The duty of the State to ensure that the medical needs of persons in custody are
met does not create such extravagant right as claimed that a person in custody is
entitled to be treated by a doctor of his own choice." (Pp. 12-13, Paras. G-B).
In the instant case therefore, since the Medical Report was that the
Accused/Applicant had reported for anti-natal with no complaints and was
examined and found to beof normal health condition with a 12 weeks pregnancy,
the scheduled appointment of January, 2012 for anti-natal clinic cannot in my
view be relied upon as a special health circumstance. Indeed in ABACHA v THE
STATE (supra), Uwaifo, JSC stated that:
"It must be made quite clear that everyone is entitled to be offered access
to good medical care whether he is being tried for a crime or had been
convicted or simply in detention. When in detention or custody, the
responsibility of affording him access to proper medical facility rests with
those in whose custody he is, invariably the Authorities. But it ought to be
understood that the mere fact that a person in custody is ill does not entitle
him to be released from custody or allowed on bail unless there are really
compelling grounds for doing so: See Chinemelu v. Commissioner of Police
26
(1995) 4 NWLR (Pt.390) 467. An obvious ground upon which bail would be
granted for ill-health is when the continued stay of the detainee poses a
possibility of a real health hazard to others, and there are no quarantine
facilities of the Authorities for the type of illness. A person being tried or
who has been convicted for a serious offence will normally be kept or
maintained in custody while he receives available medical treatment." (Pp.
26-27, Paras. C-A)
In the instant case, the Accused/Applicant’s pregnant condition cannot, as
rightly observed by the learned Counsel for the Complainant/Respondent, be
regarded as an illness, since pregnancy is a natural consequence of womanhood.
The Accused/Applicant in this case is being remanded atKeffi Prison where there
is facility for female prisoners and it has not been shown that there is no
provision for anti-natal medical facilities.For all the reasons and authorities
aforementioned therefore, I find that the Accused/Applicant had not made out
any exceptional ill-health condition. As such this ground of the application fails.
With respect to the second ground, which is that there are no reasonable
grounds for believing that the Accused/Applicant committed the offence being
charged, learned Counsel for the Accused/Applicant had contended that there is
no evidence before the Court to show any link between the Accused/Applicant
and the death of her deceased husband. Counsel had argued that in the Proof of
Evidence the prosecution only summarised the evidence of seven witnesses
listed, but failed to attach the copies of the witnesses’ statements to the proof of
evidence to determine whether a prima facie case could be established. For that
reason, Counsel had contended, relying on SULEMAN & 1 OR. v COP, PLATEAU
STATE (supra) that the failure to attach the statements of the witnesses to the
27
proof of evidence meant that the statements were unfavourable to the
prosecution and urged the Court to invoke Section 167(d) of the Evidence Act,
2011 and so hold that the Proof of Evidence is not one properly so called and
cannot stand in the way of the grant of bail to the Accused/Applicant.
The learned Counsel for the Complainant/Respondent on the other hand
had contended that it is not the law that statements of witnesses must be
attached to Proof of Evidence before it can be properly so called. He had
submitted that from the Charge, the Proof of Evidence and the Counter-Affidavit,
the Complainant /Respondent had made out a prima facie case of culpable
homicide punishable with death against the Accused/Applicant. He had
contended relying on OLATUNJI v FRN and DANBABA v STATE (supra), that since
the evidence against the Accused/Applicant disclosed in the Proof of Evidence is
strong and direct, the chances of her being set free are remote because the
temptation of jumping bail and escaping from justice is very high.
In ABACHA v THE STATE (supra), the Supreme Court, per Onu, JSC, stated
that "the purpose of serving proof of evidence upon an accused, it may pertinently
be pointed out, is to give him (the accused) the opportunity of knowing what the
prosecution witnesses will state in court against him. See: Ede v. The State (1977)
1 F.C.A. 95 at 115."(p.59, Paras.B-C).
Further, in UKET v F.R.N. (2008) All FWLR (Pt. 411) 923 at Pp. 937 - 938,
paras. H – A, Rhodes-Vivour, JCA (as he then was) stated that "Proofs of evidence
are served to give the accused person an opportunity of knowing what the
prosecution witnesses are coming to court to say against him. It is the duty of the
Judge to examine the entire proof of evidence to see if he can conclude that a
28
prima facie case of the offences charged has been made out against the accused
person. See Ede v. State (1977) 1 FCA (Pt. 95) 115"
In the instant case, the Proof of Evidence filed by the
Complainant/Respondent contained 7 witnesses, with a summary of the
testimony that each witness will give in Court. The Proof of Evidence had
contained a fair description of the evidence to be given by each witness sufficient
enough for the Accused to know what each of the witnesses will state in Court
and cogent enough for the Court to assess the strength of the evidence in relation
to the charge against the Accused/Applicant. From my examination of the Proof
of Evidence, I am satisfied that a prima facie case has been made out. As Counsel
to the Complainant/Respondent rightly observed, there is indeed no law that
stipulates that written statements of witnesses must accompany a Proof of
Evidence before it can be properly so called. From the foregoing cited judicial
authorities of ABACHA v STATE and UKET v FRN (supra) it will suffice if the Proof
of Evidence summarized what each of the witnesses will be coming to say in proof
of the Charge against the Accused person, sufficiently for the Court to determine
whether a prima facie case has been made out against the Accused Person and
for the Accused person also to adequately prepare for his defence.
As for the averments and submission of counsel in relation to the failure by
the Complainant/Respondent to include in the Proof of Evidence the statements
of three other persons initially arrested with the Accused/Applicant and the
submission that same be treated as unfavourable to the
Complainant/Respondent, I am of the humble view that, just as the Prosecution is
free to conduct its case with the witnesses it deemed appropriate, the Defence is
also at liberty to call vital witnesses it felt were excluded by the prosecution
29
because their testimonies may be unfavourable to them. These are however
matters that are more appropriate at trial but not at this stage of the proceedings.
Suffice it to state that at this stage that the task before the Court is to determine
whether the Proof of Evidence as filed by the Complainant/Respondent discloses
a prima facie case. That I have found as aforementioned. In the circumstance, the
second ground of the application also fails.
The third ground of the application was that the remand of the
Accused/Applicant at the Keffi Prisons will prevent her from having access to her
counsel to enable her prepare for her defence. Counsel had placed reliance on
paragraphs 4l1 – 4n1 of the supporting affidavit which was to the effect that the
Accused/Applicant had remained in police custody since 28/12/11 when she was
arrested and had never had access to her counsel or even relations. Citing Section
36(6)(c) of the 1999 Constitution, which guarantees the right to counsel of one’s
choice, Counsel had argued that if granted bail, it will enable the
Accused/Applicant to prepare her defence. The Complainant/Respondent on the
other hand had relied on paragraph 18 of the Counter Affidavit to argue that this
ground is superfluous since the Accused/Applicant had not remained in police
custody since 28/12/11, but was arraigned before the Chief Magistrate and was
remanded in Keffi Prison. Being in prison custody, I do not believe that the
Accused/Applicant will be denied access to her counsel or relations, since the
Prisons do have visiting arrangements for counsel and relations of prisoners.
Hence I do not think that the Accused/Applicant had shown any special
circumstance in this regard. This ground therefore also fails.
As for other averments in the supporting affidavit to the effect that the
Accused/Applicant has a small boy in primary school and aged parents, uncles,
30
brothers and sisters who depend on her for livelihood, I must state right away
that this ground is of no exceptional circumstance. Were the Courts to regard this
ground as one for granting bail in capital offences, then most of such offenders
would have been on bail, since the mere assertion that they are the
breadwinners of their families would qualify them for such bail. As observed by
Niki Tobi, JSC in ADAMU SULEMAN & ANOR. V. COMMISSIONER OF POLICE,
PLATEAU STATE (2008) LPELR-SC.19/2005, 'In exercising its discretion, the court is
bound to examine the evidence before it without considering any extraneous
matter. The court cannot exercise its whims indiscriminately. Similarly, there is no
room for the court to express its sentiments. It is a hard matter of law, facts and
circumstances which the court considers without being emotional, sensitive or
sentimental.''(P. 20-21, Paras. F-G). Hence, those averments cannot constitute
exceptional grounds for purposes of bail in capital offences.
On the whole, I find that the three grounds upon which this application
was based have all failed. The Accused/Applicant had not made out any special or
exceptional circumstance that will warrant the judicial and judicious exercise of
the Court’s discretion in her favour. Consequently, the application is hereby
accordingly dismissed. The Applicant is to remain on remand at the Keffi Prison
pending trial.
HON. JUSTICE A. B. MOHAMMED
JUDGE
16TH
FEBRUARY, 2012
31
Mr.Inah: We are agreed on 09/03/12 for hearing, subject to the Court’s
convenience.
Court: Case is adjourned to the 9th
of March, 2012 for hearing.
Appearances: UmohInah Esq for the Complainant/Respondent
P. O. Okolo Esq, with I. S. Afegbua Esq, K Asunogie Esq, J. J.
Mohammed Esq, V. Momoh Esq and A. Ebiloma (Miss) for the
Accused Person.
A. O. Agbonlahor Esq, with E. Jonathan Esq, watching brief for
Nominal Complainant.