Whether an Accused Can Be Held in Prison Custody on First Information Report without a Formal Charge and Proof of Evidence

CASE TITLE:       LAWAN v. C.O.P JIGAWA STATE (2023) LPELR-60508(CA)

JUDGMENT DATE:      9TH JUNE, 2023

JUSTICES:                   ITA GEORGE MBABA, JCA

UCHECHUKWU ONYEMENAM, JCA

USMAN ALHAJI MUSALE, JCA

DIVISION: KANO

PRACTICE AREA:           CRIMINAL LAW AND PROCEDURE

FACTS:

This appeal is against the ruling of Jigawa State High Court in Application No. JUD/009C/2021, whereof the Judge, Hon. Justice Musa Ubale, on 10/2/2021 dismissed an application for bail, pending trial of Appellant at the Magistrates Court.

By way of F.I.R. (First Information Report), dated 10th day of October, 2020, the Respondent charged the Appellant to the Chief Magistrate Court, Dutse, on allegation of Sodomy pursuant to Section 284 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 20/10/2020 upon his denial of the allegation, and was remanded in prison custody, till date of the hearing of the appeal.

Counsel for Appellant had applied for the bail of the Appellant at the Chief Magistrate’s Court on 20/10/2020, which was opposed by the Respondent (Police Prosecutor) and the learned Chief Magistrate refused Appellant bail, on the basis of Sections 172 and 173 of the Administration of Criminal Justice Law (ACJL). Appellant’s application to the High Court for the bail was dismissed, despite the fact that there was no formal charge against the Appellant in the appropriate Court. Hence, this appeal to the Court of Appeal.

ISSUES:

Appellant donated two (2) Issues for the determination of the appeal, as follows:

“(1) Whether the trial 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)?

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

The Respondent distilled a single Issue for the determination of the appeal, as follows:

“Whether in the circumstances of this appeal, the learned Judge of the Court below is right in holding that, based on Sections 35 of the Constitution (as amended) and Section 172 (2) (b) of the ACJL of Jigawa State, the appellant is not entitled to the Court’s discretion to admit appellant to bail pending trial?”

The Court determined the appeal based on issues formulated by the parties.

COUNSEL SUBMISSIONS:

The Appellant’s counsel argued that the trial Court’s refusal to grant the application for bail pending trial was unjustified. Counsel argued that it has been established in various legal precedents that when the prosecution presents an offense in a First Information Report (FIR) without providing particulars or proof of evidence, this alone constitutes special circumstances warranting bail for the defendant, even in capital offenses carrying the death penalty. Counsel cited several cases, including Mamman Vs State (2012) ALL FWLR (Pt.621) 1542 at 1547 and Anaekwe Vs C.O.P. (1996) 3 NWLR (Pt.436) 320. He asserted that the Respondent’s failure to file information and proof of evidence against the Appellant within a reasonable timeframe is also a special circumstance entitling the Appellant to bail until the Respondent decides to prosecute him. Counsel relied on the case of Jack Vs C.O.P. (2011) LPELR 3855.

The Appellant’s counsel emphasized that mere allegations in an FIR should not lead to the indefinite incarceration of the Appellant in prison custody. Even under Section 300 of the ACJL, which allows for remand on a holding charge, such remand is not indefinite, and if there is no valid reason for continued remand, the suspect should be released, with or without a formal application for release. Counsel referred to Section 35(4)(a) and (b) of the 1999 Constitution, which stipulates a period not exceeding two months for the prosecution to file charges against a suspect in any offense. He urged the Court to resolve the issue in favor of the Appellant and grant bail.

In response, Counsel for the Respondent argued that the issue of bail pending trial is within the discretion of the Court, which must exercise it judiciously. He referred to Dokubo-Asari Vs FRN (2007) LPELR – 958 (SC) to support this point.

DECISION/HELD:

In the final analysis, the Court allowed the appeal. The decision of the High Court was accordingly set aside. The appellant was ordered to be released from prison custody unconditionally.

RATIO:

CRIMINAL LAW AND PROCEDURE – BAIL: Whether holding charge/merely parading a suspect on first information report without a formal charge and proof of evidence can be basis for denial of bail

“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 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 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 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 the 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 the 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.

As earlier stated in this judgment, it is quite scandalous that the Appellant had been held in prison custody in the circumstances of the case (the gravity of the offence alleged against him notwithstanding), without any formal charge in a competent Court against him, and without trial or hope of trial. He ought to be released from prison and I so order, unconditionally, without prejudice to his being arraigned, when the prosecution, through the office of DPP, is ready and willing to arraign him.” Per MBABA, J.C.A.