Chief Anthony Emeka Ani V.the State (2001)
LawGlobal-Hub Lead Judgment Report
O. OBADINA, J.C.A.
This is an appeal against the ruling of Adesanya J, of the High Court of Lagos State Ikeja Judicial Division, delivered on June 7, 2001.
The appellant was arraigned on the 17th of May, 2001 at the Ikeja Judicial Division of the Lagos High Court on a one count charge of murder. He pleaded not guilty to the charge.
By a motion on notice dated 28th of May, 2001, and brought pursuant to sections 118 and 123 of the criminal procedure Law of Lagos State and section 35 of the 1999 Constitution, the appellant’s counsel prayed for the release of the appellant on bail pending the determination of the matter. The application was supported with affidavit and exhibits. The respondent filed a counter-affidavit against the application.
In paragraph 5 (d) and (e) of the affidavit in support of the application, it was deposed on behalf of the applicant inter- alia as follows:
5…
(d) That the accused/applicant is suffering from diabetes mellitus and Cardiomyophathy which require a constant check up which cannot be provided in the Ikoyi prisons where the accused applicant is kept.
(e) That the applicant’s life is in danger as the disease of Cardiomyopathy is terminal. Attached herewith and marked Exhibit ‘B’ is a medical report issued by the Ikeja General Hospital.”
In reply to paragraph 5(d) and (e) of the affidavit in support, the respondent stated in paragraph 8 of the counter affidavit as follows:-
“8 The respondent denies paragraphs Sea) and (e) and say that in the absence of a medical report stating the state of the health of the applicant and the fact that it cannot be treated in custody, exhibit ‘B’ of the affidavit in support cannot form the basis upon which the court would exercise its discretion.”
After hearing counsel for the parties, the learned judge refused the application for bail. It is against the refusal of the application that the appellant has appealed to this court, on three (3) grounds of appeal.
On the application of the appellant dated 21st of June, 2001 and filed on the 25th of June, 2001, brought under Order 6 Rule 2 of the Court of Appeal Rules, 1981 and Section 29 of the Court of Appeal Act, 1976, with an affidavit of urgency, this court, on the 9th of July, 2001 ordered an accelerated hearing in addition to abridging the time for filing of briefs of argument. The parties accordingly filed and exchanged the briefs.
From the three (3) grounds of appeal filed by the appellant, the appellant formulated two (2) issues for determination namely:
(i) “On whom does the burden of proof lie in application for bail?
(ii) Whether, based on the materials placed before the trial court, the appellant is not entitled to be granted bail?”
From the three (3) grounds of appeal filed by the appellant, the respondent identified one (1) issue for determination; namely:
“Whether the appellant by his motion established an exceptional circumstance which justifies the unusual discretion of granting bail in a murder trial to be exercised in his favour.”
A close look at the issue No. 2 formulated by the appellant and the lone issue distilled by the respondent, shows that the issues are identical and the same in substance. I will therefore treat issue No. 2 identified by the appellant and the only issue formulated by the respondent together. I will however start the consideration of the issues from issue No.1 in the appellant’s brief, which reads as:
(1) “on whom does the burden of proof lie in an application for bail.”
In arguing the issue, the learned counsel for the appellant in his brief referred to Eyu v. The State (1988)2 NWLR (Pt.78) 602 at 610 and Abiola vs Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155 at 162 and argued that where the accused is arraigned directly before the High Court or the application for bail is first made before a lower court and eventually gets to the High Court, the applicant must place some form of material for the consideration of the High Court in dealing with the application. When the applicant has placed some material for consideration of the court, that the onus will shift to the door steps of the prosecution to show why the bail should not be granted. He referred to the affidavit in support of the application for bail before the trial court in the record of appeal and submitted that the appellant placed sufficient material before the trial court. He referred in particular to paragraphs 5(d), (e), (f) and (h) of the affidavit and Exhibit ‘B’, the medical report issued on the appellant. He referred to Chinemelu v. C.O.P. (1995) 4 NWLR (Pt.390) 467 and Ogbhemhe v. C.O.P. (2000) 19 W.R.N. 46. He again referred to Exhibit ‘B’ attached to the affidavit in support and submitted that the appellant met each and every requirement to be entitled to bail in this case. He referred to the counter affidavit and submitted that the averments in the affidavit in support were not controverted. He further submitted that the counter-affidavit sworn to by the Assistant Director of Public Prosecution on behalf of the respondent offended the provisions of Sections 86 and 87 of the Evidence Act. He urged the court to discountenance the counter affidavit.
The learned Counsel for the respondent in his brief referred to the case of Ogueri v. The State (2000) 5 WRCN 27 at 32 showing the principles applicable to grant of bail in murder cases, and submitted that the appellant was not entitled to bail as a matter of right. He referred to Exhibit ‘B’, the medical report presented to court by the appellant and submitted that the medical unit of the prison could treat the appellant. The learned counsel referred to the information filed against the appellant and argued that there was no delay in bringing the appellant to trial. He further argued that since the appellant has been charged with murder, the appellant was caught by Section 35 (7) of the 1999 Constitution. He referred to the ruling of the learned trial Judge refusing bail to the appellant and submitted that the learned trial Judge judicially and judiciously exercised his discretion. He urged the court to dismiss the appeal.
It is an established principle of law that in an application for bail, the following considerations are paramount, namely:
(1) The likelihood of the applicant being available to stand his trial;
(2) The seriousness of the charge preferred against the applicant; and
(3) The strength of evidence against the applicant.
Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467 of 484.
However, the central issue identified by the appellant for determination is “On whom does the law place the burden; is it on the appellant to show cause before being granted bail or is it on the respondent to show cause why the bail should not be granted.”
The general rule is that a person who has not been tried and convicted by a competent court for an offence known to the law is entitled to be admitted to bail as a matter of course, unless some circumstances militate against his admission to bail. But after conviction, bail is no longer granted as a matter of course, except upon the existence of special reasons raised by the applicant.
See Osuji v. C.O.P. (1974) Vol. 4 E.C.S.L.R. 448.
In the case of Eyu v. The State (1988) 2 NWLR (Pt.78) 602 at 610. Oguntade, J.C.A. stated as follows:-
“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.”
The view held by His Lordship Oguntade, J.C.A., on this issue was further reinforced and cited with approval by the Kaduna Division of this Court in Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155 at 179 Where Abdullahi, J.C.A. (as he then was) observed as follows:
“In any case, it is my considered view that, whether an application for bail is made orally in a situation where the accused is arraigned directly before the High Court as in this case, or the application for bail was first made before a lower court and eventually got to the High Court, in which case it will be by way of a motion with a supporting affidavit, the applicant must place some form of material for the consideration of the High Court in dealing with the application. It is when the applicant has placed some material for the consideration of the court, that the onus will move to the door steps of the prosecution to show cause why the bail should be granted.
At page 187 of the report, Opene J.C.A. also stated as follows:
“The normal practice in an application for bail is for the defence counselor the accused to place some materials before the court upon which the court can exercise its discretion and it is then up to the prosecution to say whether it is opposing the application or not, if it is opposing the application, it will give the reasons why the application should not be granted. The court will then consider the application and it will either grant or refuse the application. It appears to me that it is this burden of providing sufficient materials before the court that the learned trial Judge termed the burden on the accused which is not beyond reasonable doubt but this burden is discharged as soon as the accused places sufficient materials before the court and it shifts on the prosecution who will give the reason why bail should not be granted.”
From the authorities, the position of the law is that whether an application for bail is made orally in a situation where the accused is arraigned directly before the High Court or the application for bail is first made before a lower court and eventually gets to the High Court, the applicant must place some form of materials for the consideration of the High Court in dealing with the application. It is when the applicant has placed some materials for the consideration of the court that the onus will shift to the door step of the prosecution to show cause why the bail should not be granted.
However, the onus placed on the applicant for bail is not a high one but on a balance of probabilities. See Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155 of 179.That settles the first issue identified by the appellant.
I now go to the second issue in the appellant’s brief and the lone issue raised by the respondent.
The second issue raised by the appellant reads as follows:
“Whether, based on the materials placed before the trial court, the appellant is not entitled to be granted bail.”
The only one issue by the respondent also reads:
“Whether the appellant by his motion established an exceptional circumstance which justifies the unusual discretion of granting bail in a murder trial to be exercised in his favour.”
Section 118 (1) of the Criminal Procedure Law of Lagos State, 1994 provides as follows:
“A person charged with any offence punishable with death shall not be admitted to bail except by a Judge of the High Court.”
The Court of Appeal, (Enugu Division) in considering an application brought under section 118(1) of the Anambra State Criminal Procedure Law, Cap. 35, Laws of Anambra State, 1997, which is in pari materia with section 118 (1) of the Criminal Procedure Law of Lagos State, 1994 observed as follows:
“When an accused is charged with the offence of murder, only the High Court can release him on bail.
The High Court has the discretion to release such accused person on bail, even though the discretion must be exercised judicially and judiciously and not invacuo or arbitrarily.” – See Ukatu v. C.O.P. (2001) 6 NWLR (Pt.710 )765.
The High Court has an unfettered discretion to grant an application for bail to an applicant charged with an offence of murder.
The discretion must be exercised judicially and judiciously; meaning that the discretion must be based on facts and not invacuo and not arbitrarily.
In the exercise of the discretion on whether or not to grant bail pending trial, the guiding principles are always to consider the followings:
(1) Nature of the charge;
(2) The severity of the punishment;
(3) The character of the evidence;
(4) The criminal record of the applicant and
(5) The likelihood of the repetition of the offence
See – Dantata v. Police (1958) NRNLR. 3; Eyu v. The State (1988) 2 NWLR (Pt. 78) 602; Emordi v. C.O.P. (1995) 2 NWLR (Pt.376) 244 and Ogbhemhe v. C.O.P. (2000) 19 W.R.N. 46.
The charge against the appellant in this case is murder.
Therefore, it is not in dispute that it is a very serious offence carrying along with it supreme punishment. What remains is that the court must consider the evidence for and against the accused as can be gathered from the information and proof of evidence in support of the information before a decision is made to release or not to release on bail.
In the affidavit in support of the application for bail, it was deposed on behalf of the appellant inter-alia as follows:
4c. That the accused applicant was discussing with the deceased when she suddenly slipped on the staircase, fell and sustained serious injuries.
(d) That the accused applicant and other persons in his residence quickly rushed the deceased to a nearby hospital – Heeder Hospital, Ajao Estate, Lagos on 14/12/2000.
(e) That the accused/applicant was not present or represented at the autopsy carried out on his wife’s body.
5d That the accused/applicant is suffering from diabetes mellitus and Cardio my apathy which require a constant medical check up which cannot be provided in the Ikoyi Prisons where the accused/applicant is kept.
(e) That the applicant’s life is in danger as the disease of Cardio my apathy is terminal. Attached herewith and marked Exhibit ‘B’ is a medical report issued by the Ikeja General Hospital.
(f) That the accused/applicant is prepared to stand his trial as he owes it a duty to prove to his Seven (7) children that he never killed their mother.
(g) That the accused/applicant has reliable and responsible sureties ready to take him out on bail.”
The respondent field a counter-affidavit against the application. It is worthy of note that all the respondent did in the counter affidavit was to deny generally the averments contained in paragraphs 4 and 5 of the affidavit in support. The counter-affidavit only goes further to say that Exhibit ‘B’, the medical report issued by the General Hospital Ikeja on the accused/applicant did not indicate the state of health of the applicant and that the applicant’s disease could not be treated in custody.
In his brief of argument, the learned counsel for the respondent 234 Nigerian Weekly Law Reports 7 January 2002 (Obadina, J.C.A.) referred to Exhibit ‘B’, the medical report; in particular where the Doctor who issued the report said – “I write in connection with the above named whom we had been managing for diabetes mellitus and Cardiomyapathy since 1997.”
The Learned Counsel criticised the report saying the report did not state when last the accused was seen or treated by the doctor who issued the report, even though, the report was dated 13th April, 2001.
I am unable to see any substance in the criticism of the report. The doctor made it clear that he had been treating the accused since 1997 and not that he treated the accused in 1997. The phrase “had been managing” shows that the doctor is still managing the accused for the disease named in the report, and that the accused is still his patient, as at the date of the report. The learned counsel also criticized the report for not stating that the disease could not be treated in the custody. I wonder whether it was the duty of the doctor at the General Hospital who wrote the medical report to know and say whether the doctor in the prisons could treat a particular disease or not. I would have thought it is the responsibility of the prison doctor to say whether he could treat such diseases.
The position of the law is that an accused applicant for bail must place some form of materials for consideration of the court in dealing with the application, and when he has done that, the onus is on the prosecution to show cause why bail should not be granted Abiola v. Federal Republic of Nigeria (Supra).
In view of the averments contained in paragraphs 4(c) and (d) F 5(d), (e), (f) and (g) of the affidavit in support, I do not think the respondent has sufficiently discharged the burden of showing cause why bail should not be granted to the appellant. Indeed, I am of the view that the appellant has not only placed some materials before the learned trial Judge but has shown by his affidavit in support, exceptional circumstances why he should be admitted to bail. To my mind, the medical report issued by the General Hospital, Ikeja Exhibit ‘B’ cannot and should not be ignored. As it is only the living that can praise God, so it is only the living that can be tried, convicted and punished for an offence no matter how heinous the offence may be. I think there is sufficient exceptional circumstance shown by the appellant to justify his being admitted to bail. On a calm review of the situation, including the material placed before the learned trial judge I cannot subscribe to the view of the learned trial Judge that the appellant did not place enough material before him to enable him exercise his discretion to grant bail.
Now, having reached this conclusion, what next. The learned counsel for the appellant referred to section 16 of the Court of Appeal Act, 1976 and urged the court to allow the appeal and grant bail to the appellant.
Having reached the conclusion I have reached, the next question is, can this court exercise its power under the provision of section 16 of the Court of Appeal Act, 1976 and grant the bail as requested by the learned counsel for the appellant?
Section 16 of the Court of Appeal Act, 1976 provides as follows:
“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant, and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
Section 16 of the Court of Appeal Act, 1976 was subject to consideration by Supreme Court in Ejowhomu v.Edok-Eter Mandilas Ltd. 1 (1986) 5 NWLR (Pt. 39) 1, and far reaching declarations were made on the scope of its applicability.
At page 34 of the report, ANIAGOLU, J.S.C. said:
“The Appeal Court is not an avant-garde with powers of review of cases decided at the High Court like an ombudsman, going about raking up, suo motu, decisions of that Court, and looking for mistakes, supposedly made by that court, with or without applications made to it by a complainant. Such is not among “the wide powers” given to that court by section 16 of the Court of Appeal Act, 1976″.
But earlier at page 17 of the report, Karibi-Whyte, J.S.C. stated thus:
“The word “re-hearing” within the con of section 16 of the Court of Appeal Act, 1976, has been construed by this court in Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt.16) 264 to mean a hearing on the printed record by examination of the whole evidence both oral and documentary tendered before the trial court and forwarded to it. It means an examination of the case as a whole. The purport of section 16 is to vest in the Court of Appeal all the powers of a court of first instance in the determination of the appeal before it”.
The learned Justice of the Supreme Court went on at page 19 of the report as follows:
“The principle would seem to be that in ensuring the determination on the merits of the real question in controversy between the parties, the Court of Appeal in the exercise of its powers of rehearing under section 16 of the Court of Appeal Act, 1976, and Order 1 r. 20 (5) is entitled to make any order or give any judgment as the case may require. The limiting expression in order 1.r. 20 (5) is ensuring the determination on the merits of the real question in controversy between the parties.”
On page 38 -39 of the report, Coker, J.S.C. stated the law as follows:
“The power to make any of the orders under the section G must be related to the appeal before it and necessary for determining the real question in controversy. It must be a controversy raised by a party to the appeal in accordance with the Rules and practice of the Court.”
It is beyond doubt and any further argument from the expositions of the law stated by the learned Justices of the Supreme Court that this court can validly exercise its powers under section 16 of the Court of Appeal Act, 1976 to determine the real question in controversy between the parties which in this appeal is the grant of bail.
In view of my earlier conclusion that there are sufficient materials placed before the lower court to warrant the grant of the application for bail, I accordingly grant bail to the appellant.
On the whole, there is merit in the appeal and it deserves to succeed. The appeal is accordingly allowed. The order of the trial court refusing to grant the application for bail is hereby set aside.
The application is hereby granted as follows:
I. The appellant is hereby granted bail in the sum of one million (1,000,000.00) naira with two sureties each in the sum of one million naira (N1,000,000.00).
- Each of the sureties shall be a house owner within the metropolitan Lagos and shall swear to affidavit of means.
Other Citations: (2001)LCN/1045(CA)
