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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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)

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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.