3PLR – MARGARET AKUNG EPHRAIM NENE EYU (MRS) V THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MARGARET AKUNG EPHRAIM NENE EYU (MRS)
V
THE STATE
COURT OF APPEAL, ENUGU
CANE/5M/88
TUESDAY, 22ND MARCH, 1988
3PLR/1988/56 (SC)
OTHER CITATIONS
( 1988) 2 NWLR (pt. 78) 602
BEFORE THEIR LORDSHIPS
ABAI IKWECHEGH, J.C.A. (Presided)
ALOYSIUS IYORGYER KATSINA-ALU, J.C.A.
GEORGE ADESOLA OGUNTADE, J.C.A. (Read the Lead judgment):
REPRESENTATION
C.O. Akpamgbo SAN (with him Miss Azie) – for Appellant
A.G. Izundu (Mrs) S.S.C. (with her Mrs., Amaonwu) – for Respondent
MAIN ISSUES
CONSTITUTIONAL LAW – Section 33(4) of 1979 Constitution – Fair hearing – Effect of lack of jurisdiction thereon.
COURT – Lack of jurisdiction – Proceedings therein and order of – Effect
CRIMINAL LAW AND PROCEDURE – Application for bail pending trial – Application opposed by prosecution – Onus on prosecution to show why application must fail.
CRIMINAL LAW AND PROCEDURE – Bail – Amount of – Need to curb excessiveness – S.120 C. P. A.
CRIMINAL LAW AND PROCEDURE – Bail – Basis of jurisdiction of High Court for the grant thereof- Consideration of S.123 C.P.A.
CHILDREN AND WOMEN LAW:- Women in Business – Women in Crime – Dud Checks – Woman obtaining credit by way of bank check which on presentation bounces – Criminal charges pursuant thereto – How treated
CRIMINAL LAW AND PROCEDURE – Bail – Considerations for its grant – Need for liberal approach in the light of 8.32(1) of 1979 Constitution.
CRIMINAL LAW AND PROCEDURE – Bail – Grant of – Discretion of Court – Principles guiding the exercise thereof.
CRIMINAL LAW AND PROCEDURE – Bail- Purpose of-Introduction of pecuniary consideration for achievement of – Impropriety.
CRIMINAL LAW AND PROCEDURE – Plea of not guilty – Effect – S.217 C.P.A.
PRACTICE AND PROCEDURE – JURISDICTION- Court acting without jurisdiction – Effect.
MAIN JUDGEMENT
OGUNTADE, J.C.A. (Delivering the Lead Judgment):
On 13/3/87, appellant was brought before the Chief Magistrate’s Court, Enugu, on two separate charges. The first of the charges which is ME/322C/87 reads:
“That you Margaret Akung Ephraim, alias Eyu, female on the 5th day of July, 1985 at Enugu in the Enugu Magisterial District obtained Credit and Commerce International Nigeria Limited, Port Harcourt Cheque No.0100578 of 5th July, 1985 for the sum of N400,000.00 (four hundred thousand naira) which when presented was dishonoured on the ground that insufficient fund was standing at your credit and thereby committed an offence to Section 1 (1)(b)(1) of the Dishonoured Cheque (Offences) Decree No. 44 of 1977.
COUNT II: That you Margaret Akung Ephraim Nene Eyu (female) on the 7th day of November, 1986 at Enugu in the Enugu Magisterial District obtained credit to yourself by means of Savannah Bank of Nigeria Limited, Port Harcourt Cheque No. 6590/834751 of 7th November, 1986 for the sum of N250,000.00 (Two hundred and fifty thousand Naira) which presented was dishonoured on the ground that insufficient fund was standing to your credit and thereby committed an offence contrary to Section 1(1)(b)(1) of the Dishonoured Cheque (Offences) Decree No.44 of 1977.”
The second charge which is no. ME/323C/87 reads as follows:
“That you Margaret Akung Ephraim Nene Eyu (F), on the 18th day of April, 1985 at Enugu in the Enugu Magisterial District with intent to defraud obtained the sum of N400,000.00 from one G.M. Nsofor by falsely pretending that you had 100,000 packets of office pins to deliver which you know to be false and thereby committed an offence punishable under Section 419 of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria 1963 applicable in Anambra State.
COUNT II. That you Margaret Akung Ephraim Nene Eyu female on the 18th day of April, 1985 at Enugu in the Enugu Magisterial District stoic the sum of N400,000.00 (Four hundred thousand Naira) property of one G.M. Nsofor and thereby committed an offence punishable under Section 390 of the Criminal Code Cap. 30 Vol. II Laws of Eastern Nigeria 1963 applicable in Anambra State. ‘
As is manifest on the first of the above charges, the offence therein brought against the appellant could not be tried by the Chief Magistrate’s Court. The offences are triable only by the High Court. It is therefore difficult to understand why she was charged before the Chief Magistrate’s Court. No plea was taken from appellant. Her counsel Mr. Anyogu applied for bail. The Police Sergeant prosecuting opposed the application for bail. The Court then remanded appellant in prison custody.
On the same date i.e. 13/3/87, the appellant pleaded not guilty to the second charge. Following the prosecutor’s objection to bail which was resisted by appellant’s Counsel – Mr. Anyogu, the Chief Magistrate, Mr. C.O. Okpala, refused appellant bail. She was accordingly remanded in prison custody.
The appellant then carried her request for bail to the High Court, Enugu presided over by Ononiba, J. There was a consolidated application for bail in respect of the two different charges brought against the appellant. In his ruling delivered on 24/4/87, Ononiba, J. granted appellant bail. I reproduce hereunder an excerpt of the ruling of the High Court on bail: “Again, learned counsel for the applicant laid a lot of emphasis on whether the applicant is an accountant by profession. My view is that her profession will not influence the Court unless the relevance of her profession can be proved. In any case, the fact of the applicant being an accountant seems to me to place on her the duty of knowing the consequences of issuing a cheque or cheques without financial backing for them. I must say that I am by no means trying the issue here but learned counsel for the applicant stated before me that there is no dispute whatsoever as to whether the applicant obtained a sum of N400,000 from the complainant in this Court.
I do not propose to delve into the intricacies of the extraordinary misfortunes of the applicant. The principles under which bail is granted to an accused person pending his trial are now well settled. Among those principles are:
(a) the nature of the charge;
(b) the severity of the punishment;
(c) the character of the evidence;
(d) the likelihood of the accused appearing for her trial;
(e) the likelihood of the accused interfering with prosecution witnesses; and
(f) the possibility of the accused committing more offences. From the affidavit, counter-affidavit together with the documents exhibited in this application, it is clear to me that applicant is deeply involved in so many other cases either as a complainant or accused person. In order to allow her sought (sic) out the entire plethora of litigations and having regard to her state of health, I consider that bail ought to be granted to the applicant on the following terms:
(a) The accused/applicant is to deposit in this Court vide the Assistant Chief Registrar, High Court, Enugu, a sum of N400,000.00 either in cash or in bank draft.
(b) The accused/applicant to enter into bond with one surety in the sum of N5,000 each to appear to stand her trial on each of the adjourned dates until this case is disposed of.
On fulfilment of the above conditions, the accused/applicant is ordered to be released from prison custody.”
The appellant has appealed before us on two grounds of appeal against the above order. One of the grounds of appeal is original and the other additional. The grounds read:
“The learned trial Judge erred in law by granting the appellant bail on the condition that she deposits in court the sum of N400,000.00 (four hundred thousand Naira) the amount on the charge, bail which is excessive and against the spirit of the 1979 Constitution.
Particulars of Error
(i) Depositing the sum of N400,000.00 in Court as a condition of bail amounts to no bail.
(ii) Trial Court had impliedly acted against the liberal approach to bail explicit under Section 32(1) of the 1979 Constitution and especially so in a non-capital offence.
(iii) The said condition of bail is excessive and contrary to Section 120 C.P.A.
- The learned trial Judge erred in law by granting bail on excessive conditions when in law the teamed Chief Magistrate had no jurisdiction to grant or refuse bail in Charge No.ME/322C/87 and took into account facts extraneous to those contained in the affidavit and counter-affidavit a procedure that occasioned a miscarriage of justice.
Particulars of Error –
(i) By Sec.3(1) of Dishonoured Cheques (Offences) Act No. 44 of 1977, only the High Court has jurisdiction to entertain the facts disclosed in Charge ME/322C/87.
(ii) Not having jurisdiction, the trial Court should have ignored the proceedings in the Magistrate’s Court and dealt afresh with appellant’s application.
(iii) Having said that the applicant is deeply involved in so many cases either as a complainant or accused person, cases not before his Lordship, the trial court exercised his discretion based on extraneous grounds.”
I find it convenient to consider the 2nd ground of appeal first. As I pointed out earlier, the Chief Magistrate’s Court before which appellant was arraigned has no jurisdiction to try appellant for issuing a dud cheque. She could only be tried by the High Court. It is, therefore, arguable that her arraignment before the Chief Magistrate’s Court and the order of the Chief Magistrate remanding appellant in prison custody when the Chief Magistrate had no jurisdiction are nullities. But then, what is the remedy of a citizen who is arraigned before a Court without jurisdiction to try him? Section 33(4) of the Constitution of the Federal Republic of Nigeria stipulates that a citizen charged with a criminal offence shall be entitled to a fair hearing within a reasonable time by a Court or Tribunal. There can be no doubt that such Court or Tribunal should be one competent in terms of jurisdiction to try the offence charged. See Sokefun v. Akinyemi & Ors (1980) 5 – 7 S.C. –
The respondent did not argue that there exists an Edict in Anambra State which empowers accused persons to be brought before the Magistrate’s Court for the purpose of remand orders in cases where the Magistrate’s Court has no jurisdiction. My researches have not revealed that there exists such law in Anambra State as it does in some States of the Federation (i.e. Lagos State). It is therefore possible that the order remanding appellant in prison custody is invalid. I have advisedly used the words employed in the last sentence. I would hesitate to pronounce on the validity of the remand order without the benefit of fuller argument. It will suffice there to say that if appellant felt that she was improperly remanded on issuing a dud cheque, that could at her election be the subject matter of Habeas Corpus proceedings. She could similarly proceed under the Fundamental Rights (Enforcement Procedure) Rules 1979.
The appellant had herself brought composite application before the High Court in respect of the two charges. This is on the basis that the charges were both validly laid. I notice that no plea was taken from the appellant in respect of the charge for issuing dud cheques. It cannot therefore be said that she was being tried by the Chief Magistrate’s Court. Having brought a composite application for bail before the High Court in respect of the two charges, it is difficult to understand how the High Court could have split into two the consideration for bail in respect of the two charges.
Section 123 of the Criminal Procedure Law provides:
“A Judge of the High Court may, if he thinks fit, admit any person charged before a Court in the State subject to the jurisdiction of the High Court to bail although the Court before whom the charge is made has not thought fit to do so.”
The basis of the jurisdiction conferred on the High Court in the above provision is that a charge ought to have been before a Court and that that Court had refused to grant bail. If the argument of appellant is indeed that there was no charge, she ought not to have brought a composite application before the High Court. The existence of a charge before an inferior Court is the foundation of the jurisdiction of the High Court to grant bail where the inferior Court refused to grant one. Appellant cannot approbate and at the same time reprobate. I think it is the easy who say that a man may not be allowed to speak with the two sides of his mouth.
If we agree that the contention of the appellant is correct, then the proceedings before the High Court would ex hypothesis be a nullity as the application before it was upon a charge invalidly laid. In the same way, we in this Court should be without jurisdiction to sit upon an appeal founded on null proceedings.
It seems to me that in as much as no formal proceedings have been taken to invalidate the proceedings before the Chief Magistrate’s Court in respect of the offence relating to Dud Cheques, we should in this Court proceed on the basis that there existed jurisdiction in the Magistrate’s Court to remand appellant in custody pending her trial.
The 2nd ground of appeal which postulates that the proceedings before the Chief Magistrate’s Court on the dud cheque are a nullity must therefore fail.
The first ground of appeal is a complaint that bail was granted to appellant on very onerous terms as to amount to refusal of bail. The discretion in a Court to grant bail is as laid down in Sections 119,120 and 123 of the Criminal Procedure Act which provide:
“119. Where any person is brought before a Court in respect of any matter not included within Section 118, such person may, in the discretion of the Court, be released upon his entering in the manner hereinafter provided, into a recognisance conditioned for his appearing before such Court or any other Court at the time and place mentioned in the recognisance.
- The amount of bail to be taken in any case shall be in the discretion of the Court by whom the order for the taking of such bail is made, shall be fixed with due regard to the circumstances of the case and shall not be excessive.”
(Italics mine).
In the exercise of its discretion on whether or not to grant bail pending trial, the usual factors to be taken into account are:
(1) The nature of the charge.
(2) The severity of the punishment.
(3) The character of the evidence.
See Mamuda Dantata v. Police (1958) N.R.N.L.R. 3.
(4) Another important factor to be borne in mind is the criminal record of the accused and the likelihood of the repetition of the offence.
In Re Michael Patrick Philips (1948) 32 Cr. Appeal Report 47 at 48, the Court of Appeal in England said:
“In cases of felony, bail is discretionary and the matters which ought to be taken into consideration include the nature of the accusation, the nature of the evidence in support of the accusation and the severity of the punishment which conviction will entails Some crimes are not likely to be repeated pending trial and in those cases there may be no objection to bail; but some are, and house-breaking particularly is a crime which will very probably be repeated if a prisoner is released on bail, especially in the case of a man who has a record for house breaking ………
It seems to me that since the law presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show in a given case that an accused/applicant for bail is not one that should be released on bail. What were the facts placed before the lower Court? The husband of the appellant deposed to an affidavit in support of the application for bail in the High Court. Paragraphs 5, 6, 7, 8 and 13 of the affidavit are germane and read thus:
“5. That the applicant is an Accountant by profession and the protem General Manager of a proposed Merchant Bank – Banc Verine (Nig.) Limited with officers in Port Harcourt.
- That a substantial part of the sum involved in the charge would have been refunded but for the fact that in or around May 1986, our house was burgled in my absence and that of the applicant, and I am informed by the applicant, and I verily believe her, that the amount i.e. N220,000.00 (Two hundred and twenty thousand Naira) was part of the property removed from our premises.
- Further that money, the subject matter of this charge, was in order to meet the demands of the complainant, handed over to an agent, one Sonny Adidi who made away with the money, After pressures from the applicant, two for N50,000.00 each and the third for N300,000.00.
- That the appellant if admitted to bail will neither jump bail nor interfere with the police in their investigations and will always appear to answer the charge. Further that when the applicant was to have appeared at the police station on the 12th day of November, 1986, her absence was because she was at an interview in Lagos. Three documents relating thereto are attached herewith and marked Exhibit D-D2.”
A police sergeant, Amos Akande, who was one of the Investigating Police Officers deposed to a Counter-affidavit. Paragraphs 6, 7, 8, 9 and 10 of the Counter-affidavit read thus:
“6. That counter to paragraph 6 of the affidavit I state that nowhere in her statement did the applicant mention that their house was burgled instead she told the obvious lie that a cheque given to her by a debtor was dishonoured by the bank.
- That knowing what I know from the investigations so far carried out the applicant can do anything including jumping bail.
- That Akin Osewa, a legal practitioner based in Lagos, said in the open Court, Magistrate’s Court Enugu, on 13/1/87 and I verily believe him that after the accused/applicant duped his chief of about two million naira, she put an obituary of herself in the Daily Times News Papers.
- That this is not the only case the applicant is involved in. She has about three to four different cases of fraud and issuing of dishonoured cheques to answer to in Lagos and in fact there are signals from Force C.I.D., Lagos asking that she be re-arrested and brought to Lagos to answer those other charges. The said signals are exhibited hereto and marked exhibits A and B.
- That even though the charge exhibited in the affidavit is that of issuing dishonoured cheques there is more to it since there are other charges of fraud, false pretences and stealing on the same matter.”
A legal practitioner, Ana Chude, deposed to a further affidavit in support of the application. Paragraphs 7, 8, and 9 of the further affidavit read thus:
“7. Further that it is correct that the cheques given to the accused/ applicant by Sonny Adidi were dishonoured and the policeman who is investigating this case and who has charged the matter to
Court was shown to me in the Magistrate’s Court on the 13th April, 1987 and when the issue was raised in Court, the policeman did not deny the fact. A photocopy of one of the cheques before the dishonoured, is annexed hereto and marked Exhibit E. 8. Paragraphs 7 and 8 of the counter affidavits are not true.
- That as regards paragraph 9 of the counter affidavit, the issue raised in Exhibit B was on a complaint made by the applicant of police harassment. The sum of N106,000.00 (one hundred and six thousand Naira) was drawn by cheque and not one kobo of this money was touched by the accused/applicant.”
It would seem from the affidavits and counter-affidavits that the main reason for the opposition to bail for the appellant is that she has a bad criminal record with a number of cases involving her still under investigation. The prosecution thought that appellant might jump bail. With the facts placed before the lower Court, it was open to it to refuse bail or grant it depending on what view it took the evidence placed before it. The Court however decided to grant bail.
In R v. Rose (1895 – 9) All E.R. (Reprint) 350 at 351 Lord Russel of Killowen C.J. said:
“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the magistracy of the country that bail is not to be withheld as a punishment but that the requirements as to bail are merely to secure the attendance of the prisoner at the trial.’
In his brief of argument, appellant’s counsel, Mr. C.O. Akpamgbo, S.A.N., referred to the case of Obekpa v. C.O.P. (1980) 1 N.C.L.R. which enjoins that a liberal approach should be adopted in the consideration of an accused’s entitlement to bail in non-capital offences having regard to Section 32(1) of the 1979 Constitution. I also agree with that view. It is only when there are strong and weighty reasons suggesting that a prisoner will not come back to take his trial or that there is a strong likelihood of his committing more offences if granted bail, that bail should be withheld. This is of course not laying it down that at all events, bail should be granted. There are cases in which even if a liberal approach is followed, discretion may still indicate it is better to refuse bail.
As I pointed out earlier, the lower Court did not refuse bail. It must thus have satisfied itself that the accused would come back to take her trial. But why was the appellant asked to deposit four hundred thousand naira in Court? This incidentally was the same amount the appellant was alleged to have stolen.
While a Court must in the consideration of the question of bail consider the strength of the evidence against an accused, it ought to be borne in mind, that the case is not at that stage being tried. The appellant in this case had pleaded not guilty to charge No. ME/323C/88. When an accused pleads not guilty he is deemed to have put himself upon his trial. See Section 217 of the Criminal Procedure Act. Since there is a presumption of innocence in favour of an accused, it seems to me odd and oppressive that the appellant in this case had been called upon to deposit a sum of N400,000.00 as a condition for bail. Is it not possible she may at the end of the day be found not guilty of the offence? Why ask her, then, to deposit the very sum she was alleged to have received under false pretences?
If the sole purpose of granting bail, is to enable an accused come back to take his trial, I do not see that it is necessary to introduce a test of pecumosity to attain that end. For even an accused who is able to deposit N400,000.00 may still jump bail. Section 120 of the Criminal Procedure Act has laid it down the amount of bail shall not be excessive.
I am satisfied that the amount of bail in this case is excessive. It is unusually so and the impression is created that bail is being withheld but through the subterfuge of a most onerous condition. I would allow this appeal. The conditions attached to the bail granted are set aside. Bail is granted to the appellant in the sum of N100,000.00 with two sureties each in the sum of N50,000.00. The sureties must be house owners who must depose to an affidavit as to their means.
IKWECHEGH, J.C.A.: I read in advance the Ruling of my learned Brother, Oguntade, J.C.A. and I agree with the orders he has made.
KATSINA-ALU, J.C.A.: I agree and have nothing to add.
Appeal Allowed
