CORAM

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ITA GEORGE MBABA JUSTICE OF THE COURT OF APPEAL

UCHECHUKWU ONYEMENAM JUSTICE OF THE COURT OF APPEAL

USMAN ALHAJI MUSALE JUSTICE OF THE COURT OF APPEAL

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PARTIES

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MUHAMMED MUSA  APPELANT(S)

 

APPELLANTS 

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C.O.P. JIGAWA STATE  RESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

By way of F.I.R. (First Information Report), dated 3rd day of November, 2020, the Respondent charged Appellant to the Chief Magistrate Court, Dutse, on allegation of rape pursuant to Section 282 of the Penal Code Law of Jigawa State, and the matter was by way of remand proceedings. The F.I.R. was read over and explained to the Appellant, pursuant to which he was remanded in prison custody, on 3/11/2020 upon his denial of the allegation, and has since been remanded in the prison custody, till date. Counsel applied for bail at the magistrate court but it was denied. He then proceeded to the Jigawa state High court in hope of better outcome.

This appeal emanated from the ruling of Jigawa State High Court whereof the learned Vacation Judge dismissed Appellant’s application for bail, pending trial of appellant at the Magistrates Court.

 

 

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HELD

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Appeal allowed

 

 

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ISSUES

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Whether the trial (sic) Court was right not to have declared Section 172 (2) (b) ACJL of Jigawa State 2019 null and void for offending Section 35 (4) (a) & (b) of the 1999 Constitution of Federal Republic of Nigeria (as amended)?

Whether having regard to the applicable laws, the lower Court was right in dismissing the application for bail of the appellant?

 

 

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RATIONES DECIDENDI

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PARTIES – CONDUCT OF PARTIES ON APPEAL – THE POSITION OF PARTIES ON APPEAL

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Appellant never raised any issue of conflict between Section 172(2) (b) of the AJCL and Section 35 of the 1999 Constitution, to suggest any unconstitutionality of Section 172(2)(b) of the AJCL, and for the lower Court to consider the same. He rather sought accommodation of the Application under the said Section 172(2)(b) of AJCL for Applicant’s bail, and so cannot turn hostile to the said provision on appeal, seeking to declare it, null and void and unconstitutional, simply because the application at the lower Court failed…

Of course, Appellant cannot seek the nullification of that provision at the lower Court, which he rather relied on it, for the bail application. He cannot be allowed to blow hot and cold, or approbate and reprobate on the same issue, or about the same law. The law is also that a party cannot seek a position on appeal, different from what he canvassed at the lower Court on a given issue. See FBN PLC Vs Ghanny International Ltd & Anor (2022) LPELR – 58083 (CA), where Abiru JCA said:

“It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court -V S Steel (Nig.) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus: “It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”

See also Abba Vs Abba Aji & Ors (2022) LPELR – 56592 (SC), where it was held:

“The appellant cannot be allowed to set out a case at the trial Court and change course on appeal. He cannot approbate and reprobate at the same time. See ALHASSAN V. ISHAKU (2017) ALL FWLR (PT. 866) 209 AT 300, Okpala & Sons v. Nig. Breweries Ltd (2018) All FWLR (pt. 928) 1 at 15, Nwokoro v. Nwogu (2009) All FWLR (pt. 476) 1868 and Osuji v. Ekeocha (2009) All FWLR (pt. 490) 614.” Per PETER-ODILI, JSC (P. 40, paras. A-D) – Per I. G. Mbaba, JCA.

 

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APPEAL – WHERE A PARTY SEEKS TO RAISE FRESH/NEW ISSUES/POINTS ON APPEAL

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the practice in appellate jurisprudence remains that, where an appellant seeks to argue a ground of Appeal or issue, which did not flow from the judgment/decision appealed against (as ratio decidendi therein), he has to seek and obtain the leave of the appellate Court to raise and argue that ground/issue as a fresh ground/issue of the appeal. Failure to seek and obtain leave to raise and argue such ground/issue is fatal, as the same cannot be smuggled into the Appellant’s argument/brief. See the case of Organs & Ors Vs NLNG Ltd & Anor (2013) LPELR – 20947 SC:

“It must also be stated that generally leave of Court is required to raise a new issue on appeal. Where a party seeks to file and argue any fresh issue, being an issue that was not raised and determined by the trial Court and is being raised for the first time in the appellate Court, he must first seek and obtain leave of Court before filing such issue. Except the point or issue being raised by the appellant touches on jurisdiction which can be raised at any time, he would not be allowed to, without leave sought and obtained, raise and argue a point not raised or argued at the trial Court.” Per MUHAMMAD, JSC (Pp. 26-27, paras. F-B)

See also UBA Plc Vs Lawal & Anor (2021) LPELR – 56286 CA:

“… a party who wishes to raise an issue which did not form part of what was considered in the judgment of the lower Court may raise such issue as a fresh issue of law with the leave of the Appellate Court. In other words, leave of the Appellate Court must be sought and obtained to raise and argue a fresh issue on appeal. By so doing, the opponent is given the opportunity to prepare to contest the said fresh issue. See CHIKE VS. NOSIKE (2017) LPELR – 42618 (CA) AND SALISU & ANOR. VS. MOBOLAJI & ANOR., (2013) LPELR – 22019 (SC). The issue under consideration is a fresh issue. It did not emanate from the ratio decidendi of the judgment of the lower Court. For the Appellant to competently raise it, leave of this Court to so do must have been sought and obtained. There is no evidence on record that such leave was obtained. It is incompetent and it is needless dissipating energy on it. It is incompetent and it is hereby struck out.” Per OJO, JCA (Pp. 40-41, paras. B-A) – Per I. G. Mbaba, JCA.

 

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BAIL – CIRCUMSTANCES IN WHICH THE COURTS SHOULD GRANT BAIL

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“By Section 35(4) of the 1999 Constitution of the CFR:

“Any person who is arrested or detained in accordance with subsection (1) (c) of this Section shall be brought before a Court of law 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; or

(b) Three months from the date of his arrest or detention, in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”…

The law is settled, that a parade of a suspect in FIR before an inferior Court, without a formal charge, backed by a proof of information or proof of evidence, remains a speculation and cannot be used as credible basis to throw a citizen into prison custody without bail or to deny him bail. See the case of Mamman Vs State (2012) ALL FWLR (Pt.621) 1542, where it was held:

“… bail may be considered whether or not an applicant has been formally charged to Court. Courts are always enjoined to approach the question of bail liberally. It is from the proof of evidence that a Court will be persuaded whether or not to grant or refuse bail to an accused/applicant, especially in a murder charge, so as to ascertain whether or not there is a prima facie evidence. Thus, where the prosecution merely parades to the Court the word “murder” without tying it with the offence, a Court of law is bound to grant bail. The only way to intimidate Court not to grant bail is to prepare an information and proof of evidence of commission of the offence. Therefore, a situation where there is no material before the Court to show that an accused person is facing a charge of murder, including proof of evidence, qualifies as a special circumstance in which the Court grant bail.” See also Anaekwe Vs COP (1996) 3 NWLR (Pt.436) 320; Abacha Vs State (2002) FWLR (Pt.118) 1224; (2002) 11 NWLR (Pt.779) 437.

In the case of Jack Vs COP (2011) LPELR – 3855 CA, my Lord Eko JCA (later JSC) held:

“The failure and/or refusal of the State to file information together with the proofs of evidence within a reasonable time is a special circumstance both in accordance with the CHINEMELU case (supra) and under Section 35 (4) of the 1999 Constitution entitling the appellant to bail pending when the State would decide when to start prosecuting him. The State cannot use the holding charge as a pretext to curtail the appellant’s personal liberty ad infinitum. That will offend the letters and spirit of Section 35 (1) of the same Constitution. Sub-section (4) of Section 35 of the Constitution provides a ready tool to enhance the powers of the Court either to enforce the personal liberty of the accused or to insist on his speedy trial within a reasonable time under Sections 35 (1) and 36 of the Constitution.”

Even Section 300 of the ACJL of Jigawa State, which permits a holding charge and remand of an accused person in custody, especially in capital offence, does not allow such remand be open-ended, as it stipulates restraint and review mechanism, which also stipulates unconditional release of the accused person, when no formal charge is brought for his trial after a given period. See Section 300(5)(6)(7) of the ACJL of Jigawa State, 2019. – Per I. G. Mbaba, JCA.”

 

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CASES CITED

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NIL

 

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Penal Code Law of Jigawa State

3. Administration of Criminal Justice Law (ACJL) of Jigawa State, 2019

 

 

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