Anochie David Ozougwu V. The State (2006)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
On the 3rd day, of February 2005 the appellant and six others were at different times charged for murder and arson before the Chief Magistrates Court and Senior Magistrate Court Enugu. The learned Magistrates ordered that the accused person be remanded in Enugu prison. An application for bail was filed before the High Court of Justice, Enugu on behalf of the accused/appellant. The learned Judge refused the application on the ground inter alia that the accused did not show compelling or coercive circumstances.
Dissatisfied with the refusal of the application, the appellant has come to this court. Briefs were duly filed and exchanged. The appellant formulated two issues for determination:
“(1) Whether the learned trial Judge was right in refusing bail to the appellant arraigned in the Magistrate court for murder when information has not been filed in the High Court.
(2) Whether the learned trial Judge in refusing bail exercised her discretion judiciously and judicially.”
The learned counsel for the respondent adopted the issues formulated for determination by the appellant and he added four other issues as follows:
“(3) Whether the learned trial Judge was right when he held that under section 35(7)(a) of the 1999 Constitution the accused person is not entitled to bail.
(4) Whether the learned trial Judge acted within the law when he held that it is pre-mature and not in the interest of the prosecution or the defence to consider the issue of alibi raised by the applicant.
(5) Whether in the circumstances of the case, the learned trial Judge was right when he held that non-filing of information will not operate as a special circumstance except if there is unreasonable delay which is not the position in this case.
(6) Whether the learned trial Judge was right in his evaluation of the affidavit evidence placed before this court, the sum of which was the exercise of discretion in favour of the respondents.”
Learned counsel for the appellant Mr. Ozokolo contended that the learned Chief Magistrate and Senior Magistrate grade 1 before whom the appellant was arraigned have no jurisdiction to try the offence of murder and arson.
He referred to Anaekwe v. C.O.P (1996) 3 NWLR (Pt. 436) page 320 at 332; Jimoh v. C.O.P (2004) 17 NWLR (Pt. 902) page 389 at 405 – 406.
He submitted that in the consideration of the nature of the offence for purposes of bail that it is wrong in law to consider a charge before a court that has no jurisdiction to try the case as the learned trial Judge did, because according to him in this case there is no charge of murder known to law against the appellant.
Learned counsel also contended that failure to file information has been held to amount to special circumstance that will weigh in favour of an applicant in an application for bail in capital offence. He referred to the following cases:
Ogbhemhe v. C.O.P (2001) 5 NWLR (Pt. 706) 215
Ikhazuagbe v. C.O.P. (2004) 7 NWLR (Pt. 872) 346
Eyu v. The State (1988) 2 NWLR (Pt. 78) 602
Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467
Anaekwe v. C.O.P (supra)
Learned counsel for the appellant went further in his argument when he conceded that the issue of bail is a matter of discretion and he submitted that the discretion is based on ascertained principles and since there is no proof of evidence, it would be difficult to ascertain the character of evidence against the appellant.
He also submitted that it is not the intendment of our law that detention pending trial or denial of bail pending trial should be punishment for accused persons who have not been convicted of any offence as this will be antithetical to constitutional presumption of innocence in favour of all accused persons until the contrary is proved.
Learned counsel finally urged this court to allow the appeal and admit the applicant to bail.
Learned counsel for the respondent Mr. Ezike relied upon the respondent’s brief.
He contends that for a good proof of evidence for proving the case of the prosecution beyond reasonable doubt the office of the Director of Public prosecution needs sufficient and reasonable time. He relied upon Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 at 509.
He urged this court not to rely on the authorities cited by the appellant which decided that non-filing of information is a special circumstance.
Learned counsel for the respondent also contended that the learned trial Judge exercised his discretion judiciously, judicially and justifiably in refusing bail to the applicant in view of the fact that the charge was for a case of murder. He went further that even the 1999 Constitution recognizes in its section 35(7) that it is not in the public interest to release on bail person charged with the commission of a capital offence punishable with death pending his trial.
On the issue of “alibi”, learned counsel submitted that for it to be raised properly, it requires calling of witnesses to testify either establishing it or attenuating its credibility. He referred to Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509; Ozaki & Ors. v. The State (1990) 1 NWLR (Pt. 124) 92.
He finally urged this court to dismiss the appeal. In reply brief, learned counsel for the appellant, referred to the new facts in the respondent’s brief which he said were not contained in the affidavit or counter affidavit or even the ruling of the court below.
He therefore submitted that the respondent cannot introduce new facts in the brief which were not available at the hearing to support his argument. He referred to the following cases:
Orugbo v. Una (2002) 16 NWLR (Pt. 792) at 175
Ogolo v. Fubura (2002) 11 NWLR (Pt. 831) 231
Anaekwe v. C.O.P (supra)
On the issue of introduction of new facts, the respondent’s brief brought in the fact that the appellant and his cohorts went on destruction spree when they attacked one Gabriel Onyia, Omegbeji and set two vehicles ablaze etc.
It was also stated among others that the wife of the deceased has not made statement with the police because she is yet to recover from the shock of the sudden and sordid death of her husband.
The facts above were not borne out of the record of this appeal i.e. they are not contained in the affidavit, counter affidavit or even the ruling of the court below.
It should be noted however that Court of Appeal is not a court of sentiment but a court of law and counsel cannot use brief as a platform to supply evidence which had not been called before the trial court.
See – Majekodunmi v. Nigerian Army (2002) 16 NWLR (Pt. 794) 451 at 461
Ogolo v. Fubura (2002) 11 NWLR (Pt. 831) 231.
In considering an application for bail pending trial, the Supreme Court in Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270 listed a number of factors that may be taken to consideration by a Judge in granting or refusing bail pending trial. These include –
(a) the evidence available against the accused;
(b) the availability of the accused to stand trial;
(c) the nature and gravity of the offence;
(d) likelihood of the accused committing another offence while on bail;
(e) the likelihood of the accused interfering with the course of justice;
(f) the criminal antecedents of the accused person;
(g) the likelihood of further charge being brought against the accused;
(h) the probability of the guilt;
(i) detention for the protection of the accused;
(j) the necessity to procure medical or social report pending final disposal of the case.
It is important to note that the factors listed above are not exhaustive in guiding any trial court in granting or refusing bail pending trial. Also it is not necessary that all or many of these factors must apply in any given case, even one factor may be applied in a particular case to guide trial court in granting or refusing bail pending trial before it.
In the instant case what calls for determination is whether the trial Judge was right in refusing bail to the appellant arraigned in the Magistrate Court for murder and arson when information or proof of evidence has not been filed in the High Court.
Learned counsel for the appellant referred to Section 20 of the Magistrate Court Law Cap. 82 Laws of Eastern Nigeria still applicable in Enugu State. The criminal jurisdiction of Chief Magistrate relate to offences with punishment not exceeding 14 years. The punishment for the offence of murder is prescribed in Section 274(1) of the Criminal Code Cap. 36 Laws of Anambra State 1986 which applies to Enugu State while punishment for arson is imprisonment for life under section 416 of the same law.
Learned counsel for the respondent contended that the learned trial Judge exercised his discretion judiciously, judicially and justifiably in refusing bail to the applicant in view of the fact that the charge was for a case of murder, and the punishment for the offence is grave.
It is obvious from the laws referred to earlier above that the Chief Magistrate and Senior Magistrate grade 1 both in Enugu before whom the appellant was arraigned have no jurisdiction to try the offence of murder and arson.
Under the 1999 Constitution section 35(7), bail pending trial is not normally granted as a matter of course where the offence for which the applicant is charged is a capital offence punishable with death. However, special circumstances may arise in any particular case to warrant the exercise of discretion by any High Court trying such an accused person to release him on bail pending his trial. And the grant of bail pending trial in such circumstances is usually mainly on account of where there is no formal charge of murder as required by law.
In the instant case the trial Judge referred to the charge before the Chief Magistrate and Senior Magistrate Grade 1 Enugu that have no jurisdiction in holding that the appellant is not entitled to bail.
Apart from the fact that there is no formal charge as required by law, there is also no proof of evidence before the trial Judge when he considered the appellant’s application for bail. It is from the proof of evidence that a court will be persuaded whether or not to grant bail to an accused person, especially in a murder charge so as to ascertain whether or not there is a prima facie evidence. Thus where the prosecution as in this case merely parades to the court the word “murder” and the trial court accept it and went ahead to refuse bail it cannot be said to be fair. For example in paragraph 18 of the affidavit in support of the application for bail before the trial Judge it was stated that “the circumstances leading to the arrest and detention of the applicant is as a result of Enugu Ngwo village crises and mob action”.
It is the view of this court that trial courts must always examine thoroughly the surrounding circumstances of each allegation of murder before coming to a decision one way or the other.
The advice of Ogebe, JCA in Ogueri v. The State (2001) 2 ACLR page 96 is apposite where he said at page 103 in his contribution to the lead judgment that:
“In a country such as ours where there is so much inter ethnic animosity and hatred, the court ought to be cautious in remanding accused persons in custody unless there is some substantial evidence in support of allegations of crime against them because it is so easy for an enemy to make a false allegation of murder or robbery against a citizen to keep him out of circulation.”
A court that fails to look into the facts relied on in support of a charge cannot be said to have exercised its discretion judiciously.
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 certainly qualifies as a special circumstance in which the court can grant bail.
Emmanuel Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467;
Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320.
In view of the foregoing, the ruling of the lower court dated 23rd of March 2005 is hereby set aside. Bail is hereby granted to the appellant in the sum of three hundred thousand Naira with two sureties in the sum of one hundred and fifty thousand Naira each.
The sureties must swear to affidavit of means and must be house owners in Enugu State.
Other Citations: (2006)LCN/1877(CA)
