Emeka Onwughalu V. The State (2007)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A
This is an appeal against the ruling of an Ogidi High Court in Anambra State of Nigeria which was delivered on the 13th day of November 2006 in charge NO.HID/4C/2005 – The State V. Emeka Onwughalu & 2 others, wherein the learned trial Judge after considering the appellant’s application for bail pending trial, refused and dismissed the said application.
The appellant was dissatisfied with the ruling and has appealed to this Court.
Briefly the facts of the case showed that the appellants and two others now at large, were on the 19th day of April 2005 arraigned before the High Court NO.1 at Ogidi on an information and charged dismissed his application?
(2) Whether the learned trial judge was right when he held that he could not find any special circumstance that would warrant his exercising his discretion in favour of the appellant to admit him to bail pending trial.
The Respondent on the other hand adopted the issues for determination contained in the appellant’s brief.
At the hearing of the appeal learned counsel for the appellant adopted and relied on his brief of argument while learned counsel for the Respondent Mrs. F.E. Nwangwu Deputy Director of Public Prosecutions who was absent but wrote a letter to brief the court that she filed a Respondent’s brief on the 6th day of February 2006 and that she would be adopting the said brief.
ISSUE 1
The learned counsel for the appellant submitted that the learned trial Judge was wrong when he refused and dismissed the appellant’s bail application because if he had taken time to give consideration to the affidavit evidence in support of the appellant’s application and the submissions of counsel, he would have come to a different decision.
He referred to Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and the following cases:-
– Ayo Olugbusi V. C.O.P. l19701 All NLR Page 338.
– Michael Dada Ariyo V. C.O.P. (1989) 1 CLRN Page 287.
The learned counsel for the Respondent even though absent filed her brief of argument in this appeal on 6/2/2007.
She submitted in her brief that the appellant ought to have been granted bail at the court below having reasonably shown that he was ready to come and stand his trial whenever called upon to do so.
She referred to Bamaiyi V. The State (2002) 2 ACLR Page 467 at 485 and stated that the essence of granting bail is because of the presumption that there is a likelihood of the accused making himself available to stand his trial.
In considering an application for bail pending trial, the Supreme Court in Bamayi V. The State (2002) 16 WRN Page 1 (2001) 7 S.C. Part II Page 62 and (2001) 8 NWLR Part 715 at Page 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 bail
(c) the nature and gravity of the offence.
(d) the 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 guilt.
(i) detention for the protection of the accused.
(j) the necessity to produce 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 appeal under consideration what calls for determination is whether the learned trial Judge was right when he refused the appellant’s application despite the affidavit evidence before the court.
Under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
It was submitted by learned counsel for the appellant that there is no evidence in support of the charge against the appellant. He referred to page 33 of the record of appeal and in particular paragraphs 8, 9 and 10 of the affidavit in support of the application for bail filed in the lower court where it was deposed thus:-
“(8) That in the course of the remand of the considered by a court, and an applicant who has been of good behaviour or conduct stands a high chance of being granted bail.
Another factor which the learned Trial Judge ought to have considered is the possibility or likelihood of the trial not proceeding or being commenced for a long time because appellant i.e. the 3rd accused in the information preferred was implicated by 1st accused who had absconded and all efforts made to locate him had failed according to the learned Deputy Director of Public Prosecution who appeared for the State at the lower court on the 13th day of November 2006. (See Pages 36 to 37 of the record of appeal).
It is clear that in the absence of the 1st accused, trial could not be commenced against the appellant and the legal implication of this is that the appellant will be detained for an indefinite period without trial which will amount to sentencing the appellant before his trial and conviction to an indefinite term of imprisonment.
This will definitely be an abuse of fundamental right to personal liberty and freedom of movement of the appellant.
Considering all I have said so far on this issue it is my humble view that the learned trial Judge ought to have granted the appellant bail pending his trial. This issue is therefore resolved in favour of the appellant.
ISSUE 2.
The learned trial Judge held that he could not find any special circumstance that would warrant his exercising his discretion in favour of the appellant to admit him to bail pending trial.
Special circumstance, in my humble view is not a magic word and does not exist in the abstract or in isolation of the facts of the case. As a matter of fact, what constitutes special circumstance depends on the facts of each case and they vary from one case to another.
In the instant appeal it is my view that it is a special circumstance sufficient to warrant the granting of bail to the appellant since the appellant on two occasions had opportunity to abscond and evade trial, but he refused to abscond and chose to remain law abiding and he preferred to stand his trial and allow the rule of law to take its normal course. This view is supported by the letter of recommendation from the Nigerian Prison Service to the trial court as contained on page 41 of the record of appeal.
Again, the fact that the trial of the appellant cannot be commenced because the 1st accused person who implicated the appellant and was charged along with him cannot possibly be found because he has absconded with the 2nd accused is also a special circumstance which the lower court ought to have considered in granting bail to the appellant. I also resolve this issue in favour of the appellant.
Consequently, it is my view that there is merit in this appeal and it is allowed. Bail is hereby granted to the appellant in the sum of One Million Naira with two sureties in the sum of Five Hundred Thousand Naira each.
The sureties must swear to affidavit of means and must be house owners in Anambra State.
Other Citations: (2007)LCN/2592(CA)
