Hon. Wilfred Ezike V. The State (2009)

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ABUBAKAR SADIQ UMAR, J.C.A.

 This appeal is against the ruling of the Anambra State High Court, Onisha Judicial Division, delivered by I.U. Ndigwe J. on the 5th day of February, 2019. In the said ruling, the learned trial judge refused the Application for bail sought by the Appellant on the ground that the Appellant did not make out special circumstances to warrant his admission to bail, the charge being a capital offence.

BRIEF FACTS OF THE CASE
The facts that culminated into the filing of the instant appeal as could be gleaned from the records is that the Appellant as 1st Defendant in charge No. MO/937c/2018: Commissioner of Police V. Wilfred Ezike & Ors was arraigned alongside two others on a three count charge of conspiracy and murder and the unlawful possession of fire arms. The Appellant was alleged to be a participant in the alleged murder and attempted murder of one Akachukwu Ezebuilo and one Nnamdi Obumse respectively. The offence was said to have been committed on the 10th day of September, 2018 at about 3:30 hrs at No.1 Ziks Avenue Fagge Onitsha.

?The Appellant was subsequently arrested

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with others and were arraigned before a Magistrate Court sitting in Onitsha on the 3rd day of December, 2018 and for want of jurisdiction, only remand proceedings was taken. On the 7th day of December, 2012, the Appellant at the immediate Court below filed an application for bail pending trial. The said application was supported by a 15 paragraphed affidavit and had annexed to it 5 exhibits and a written address. The Applicant subsequently filed a further affidavit with Exhibits FA1-FA8 as annexures.

In opposing the granting of the said application, the Respondent at the Court below on the 17th day of December, 2018 filed a counter affidavit with a written address. The Applicant in turn on the same date filed a Further Affidavit and had attached with it eight exhibits. There was also an Affidavit of Fact and a Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail of Hon. Wilfred Ezike both deposed to by one Nnamdi Obumse and dated the 18th December, 2018 and filed on the same date.

The Application was taken on the 18th day of December, 2018 and in its ruling delivered on

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the 5th day of February, 2019 the Appellant?s application for bail was denied by the Court below.
The Appellant aggrieved with the ruling appealed against it by the Notice of Appeal dated 13th February, 2019 and filed on the same date (see pages 1-5 of the Supplementary Record). The Appellant Grounds of Appeal without their Particulars are:
?GROUND ONE?
ERROR IN LAW
The learned trial judge erred in law and came to the wrong decision when he held that the Appellant was not entitled to bail as he had not made out sufficient grounds upon which the said trial Court would grant him the bail.
?GROUND TWO?
ERROR IN LAW
The learned trial Judge erred in law when he failed to exercise his discretion judicially and judiciously and refused the Applicant?s application for bail.
?GROUND THREE?
ERROR IN LAW
The Learned Trial Judge erred in law and denied the Applicant his right to fair hearing as enshrined in Section 36 of the 1999 Constitution of Nigeria (as amended) when he had given consideration to the document tilted ?Affidavit of Fact? filed on the 18/12/2018

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by a total stranger to the proceedings together with the Exhibits attached thereto in refusing to grant bail to the Applicant.?

In line with the rules of this Honourable Court, parties filed and exchanged their respective briefs of argument. The Appellant?s brief dated 15th February, 2019 and filed on the same date was settled by C. CHUMA OGUEJIOFOR ESQ. while the Respondent?s brief dated 4th March, 2019 and filed on the same date was settled by TOONNA NNABUIFE ESQ., Senior State Counsel, Ministry of Justice, Enugu State.

Learned counsel for the Appellant distilled the following issues for determination of this appeal to wit:
1. ?Whether the learned trial Judge had rightly held as he did that the Appellant was not entitled to bail in the case leading to this appeal. (Distilled from Grounds 1 and 2).
2. ?Whether the proceedings before the trial Court in the manner it was conducted by the trial judge did not infringe on the Appellant?s right to fair hearing to wit Section 36 of the 1999 Constitution of Nigeria (as Amended) and the tenets of natural justice which then rendered the entire proceedings a

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nullity.? (Distilled from Ground 3).

Counsel to the Respondent on the other hand distilled a sole issue for the determination of this appeal:
?Whether or not His Lordship at the Court below was right and in accordance with the law to have declined bail in favour of the Appellant.”

The Appeal was taken on 26th day of March, 2019 when the counsel for the parties adopted their respective briefs of argument and made adumbrations on the issues and arguments in support of their positions in the appeal.

APPELLANT?S ARGUMENT ON ISSUE 1
On this issue, counsel to the Appellant submitted that the learned trial Judge acted wrongly when he held that the Appellant had failed to make out any special circumstances entitling him to a grant of bail by the said trial Court. Counsel submitted that the Appellant at the Court before predicated his application for bail essentially on the ground that the proof of evidence does not reveal watertight evidence incriminating him in the offence of murder with which he is charged. It is the contention of counsel that the put up the defence of Alibi which the police had investigated and found

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to inure in his favour.

Counsel referred this Honourable Court to paragraph of the Affidavit in support of the Appellant?s application for bail which can be gleaned at page 5 of the record of appeal. Counsel made further reference to page 20 lines 25-29 of the record wherein the Appellant was said to have raised an alibi and stated that on the 10/9/2018 when the offences charged where allegedly committed at Onitsha, that he was at Akwa Anambra State. Counsel went further to give a narration of where the Appellant was on the said date of the commission of the offence and referred this Honourable Court to page 23, 25, 14, 12, 13, 55 lines 11-13 of the records of appeal. Counsel relied on YANOR V THE STATE (1970) 1 ANLR PAGE 35 and argued that when an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during hearing of the defence. Counsel went further to argue that the accused person must go down to particulars and give some explanation as to where he was and who should know of his presence at the material time of the commission of the offence in question so as to enable the police

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investigate these at the earliest opportunity. It is the contention of counsel to the Appellant that the Appellant did exactly as aforestated in the present case at the earliest opportunity. Counsel contended further that in the Police investigation of the first police station to which the incident was reported i.e. Fegge Police Station Onitsha Anambra State which could be found at pages 57-58 of the record, no mention of the name of the Appellant was made as having been involved in the crime confirming his defence of Alibi.

Counsel to the Appellant submitted that the learned trial judge ought to have given serious consideration to the defence of alibi raised by the Appellant and granted him bail for surely, if that defence is real and founded, then by parity of reason, the evidence against the Appellant in the proof of evidence would only be watery and cannot incriminate in the offence with which he is charged.

Counsel made reference to the paragraphs 4, 5, 6, 8 and 9 of the Respondent?s Counter Affidavit at pages 414 ? 415 of the record and submitted that despite the depositions in the aforementioned paragraphs and the clear defence

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of alibi raised by the Appellant with several witnesses confirming same, the learned trial Judge did not even make a passing remark on all that important issues in making his decision not to grant the bail of the Applicant. On the whole, Counsel urged this Honourable Court to resolve this issue in favour of the Appellant.

APPELLANT?S ARGUMENT ON ISSUE 2
On this issue, Learned counsel to the Appellant submitted that the proceedings before the trial Court was conducted in a manner that clearly infringed on the Appellant?s right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Counsel referred this Honourable Court to pages 429-430 of the record and submitted that on the 18th day of December, 2018, learned counsel to the Appellant moved the Appellant?s Application for bail while the Respondent also adopted his written address and Counter Affidavit in opposition of the Application for bail thereafter, the Appellant Counsel made his Reply on Points of Law to the Respondent?s Argument on the same aforementioned date thereafter, the Court below adjourned

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to 19th December, 2018 for Ruling.

Counsel submitted further that in adopting their written arguments on the application for an against the bail of the Appellant, none of the parties had made any reference to the document tiled ?AFFIDAVIT OF FACT? filed at the Registry of the Court below on 18th December, 2018 and for this reason, the said Affidavit of Fact according to counsel was not part of the record of the trial Court on the said 18th December, 2018.

Learned Counsel to the Appellant made copious references to some of the paragraphs contained in the said Affidavit of Fact at pages 421-423 of the Record and submitted that the said document was not served on the Appellant nor his counsel to have enabled them to react to it one way or the other, nor was it even shown to them on the 18th day of December, 2018 when the Application for bail was argued. It is also the contention of counsel that how the Affidavit of Fact found its way into the Court?s file was still not fathomable but that the trial Court seeing its damning content relative to the Appellant ought to have called the Appellant?s attention to it at least to afford

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him an opportunity to react to the said document, this according to counsel, was left undone and glossed over by the trial Court.

Counsel submitted that the trial Court in the course of deciding on the Appellant?s Application for bail gave the said Affidavit of Fact more attention and pride of place than even the Appellant?s affidavit in support of the motion and the counter affidavit of the Respondent in the case and in the end, without doubt allowing the facts deposed in the said ?Affidavit of Fact? to weigh or bear on his decision. Counsel relying on the case of CHIME V DUBEM ONYIA (2009) 2 NWLR PART 1124 PAGE 1 @ 18 RATIO 11 submitted that the reliance on the Affidavit of Fact filed by a stranger in denying the application for bail of the Appellant without the service of same on the Appellant constituted a breach of the Appellant?s right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On the whole, learned counsel to the Appellant urged this Honourable Court to set aside the decision of the trial Court refusing to granting bail to the

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Appellant and to grant him bail in respect of Charge No. MO/937C/2018 on such terms as this Court may deem fit in the circumstance.

RESPONDENT?S ARGUMENT
Learned counsel to the Respondent?s submitted that although the Appellant who is currently in custody has a right to bail in accordance with Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), however, bail is not a right per se as the Courts are entitled to withhold same depending on the circumstances surrounding each and every case. It is the further submission of counsel that bail is a discretionary relief which a Court exercises judicially and judiciously.

Counsel submitted that in capital offences, the Court is always circumspect to grant bail save where the Applicant adduces special circumstances. He referred this Court to EMORDI V C.O.P (1995) 2 NWLR PT. 376 @ 244 RATIO 4; MUSA V C.O.P (2004) 9 NWLR (PT.879) @483 RATIO 3.

Counsel went further to state the factors which the Courts have held over the years to amount to special circumstances upon which an application for bail can be granted and he submitted that the Appellant in his

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Application did not satisfy any of the conditions. It is the contention of counsel that the Court below specifically noted the gravity of the offence as it relates to a murder trial emphasizing the dearth of a special circumstance from the Appellant to warrant the exercise of discretion to his favour. It is the submission of learned counsel to the Respondent that the Court below after evaluating the affidavits of the Appellant and the Respondent proceeded to ascribe probative value thereto and thus, its findings cannot be interfered with, without any evidence that it has acted perversely.

Counsel submitted further that the Police via several outfits which includes Fegge Police Station Onitsha, Special Task Force, Abuja, IGP Monitoring Unit Abuja, Homicide section Abuja has investigated the matter with lots of suspects being pin-pointed, arrested and interrogated. On the whole, counsel submitted that the Appellant having been brought before a Magistrate Court and remanded, it is left with the Attorney-General and Director of Public Prosecution to take a decision on the progress of his trial. He finally urged this Court to discountenance the issues as

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canvassed by the Appellant as lacking in merit.

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the briefs of argument filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the affidavit, counter affidavit, further affidavit together with the exhibits annexed to all which were relied upon by the trial Judge in reaching his decision that is being challenged now.

Thus; having considered the issues so formulated by the parties and after a holistic study of the case leading to this interlocutory appeal and the grounds of appeal duly filed by the Appellant, I think the understated issues would suffice in determination of this appeal:
1. ?Whether from the manner the proceedings before the trial Court was conducted, the Appellant?s right to fair hearing as enshrined under Section 36 of the Constitution of the Federal of Nigeria (1999) (as Amended) was not trampled upon so as to render the entire proceedings a nullity.? (Distilled from Ground 3).
2. Whether from the totality of the evidence placed before the Court below

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vis–vis the offence for which the Appellant was charged, the trial Court was right to have refused the Appellant?s Application for bail (Distilled from Grounds 1 and 2).

The right to fair hearing is an inalienable right that inures to an accused person as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Indeed, Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 enshrines the right of a party, in the determination of his civil rights and obligations, to be given a fair hearing. This right was explained by the Supreme Court in the case of MILITARY GOVERNOR LAGOS STATE V. ADEYIGA (2012) 5 NWLR PART 1293 PAGE 291 AT 379 PARA F-H, PER ADEKEYE JSC, as follows:
“A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. The right to fair hearing is a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in a case.”

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The same Court also held in the case of AKPAMGBO-OKADIGBO V CHIDI (NO. 1) (2015) 10 NWLR PART 1466 PAGE 197-198 PARA G-B PER M.D. MUHAMMAD JSC, as follows:
” it is trite that where a person’s legal rights or obligations are challenged, he must be given full opportunity of being heard before any adverse decision is taken against him with regard to such rights or obligations. This “audi alteram partem” principle as guaranteed under Section 36(1) of the 1999 Constitution as amended, remains a binding and indispensable requirement of justice applicable to and enforceable by all Courts of law. The principle affords both sides to a dispute ample opportunity of presenting their case to enable the enthronement of justice and fairness. In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitution when, inter-alia, all the parties to the disputes are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or the opportunity of being heard, the Court’s proceedings being perverse will be set aside on appeal.”

Considering whether or not the right of the Appellant to fair

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hearing was breached by the trial Court is an issue to be determined after revisiting the records compiled and transmitted to this Honourable Court.

By an Application dated and filed on the 7th day of December, 2018, the Appellant prayed the lower Court for an Order of bail pending his trial. Attached to the said application is an Affidavit deposed to by one Ifeoma Ezike with 6 exhibits annexed. Also accompanying the Application is a Written Address dated and filed on the 7th day of December, 2018 as argument in support. (See pages 4-33 of the Records).

As gleaned at pages 36-39 of the records, the Appellant on the 7th day of December, 2018 also filed a Further Affidavit dated 7th day of December, 2018. The Further Affidavit having eight exhibits attached was deposed to by the same Ifeoma Ezike on behalf of the Appellant. (See pages 36-39 of the record).

In opposition to the Application for bail, a Counter Affidavit accompanied by a Written Address both dated the 17th day of December, 2018 and filed on the same date by the Respondent at the Court below. (See pages 414-415 of the record). Also compiled and transmitted in the record before this

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Honourable Court are an Affidavit of Fact and a Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail of Hon. Wilfred Ezike both deposed to by one Nnamdi Obumse dated and filed on the 18th December, 2018. (See pages 421-428 of record).

The Application was moved on the 18th day of December, 2018 when both parties adopted their arguments in support of their postures in the Application for bail. The Court below after hearing the addresses of parties reserved its Ruling to the 19th day of December, 2018. In the lower Court?s Ruling of 28th December, 2018, the trial judge made references to the Affidavit evidence before him as he was bound to do before exercising his discretion whether or not to grant the Applicant?s Application for bail pending trial. The Court in its ruling made references to the Affidavit in support of the Application, the Further Affidavit, the Counter Affidavit and of course the Affidavit of fact. (See pages 433 of the Record).
?
It is important to state that the Affidavit of Fact and a Re sworn Affidavit of Fact Correcting Error in the

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Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail of Hon. Wilfred Ezike both deposed to by one Nnamdi Obumse were dated and filed on the 18th December, 2018, the same day the Application for bail was heard by the Court below.

However, on the 18th day of December, 2018 when the Application for bail was moved by the parties, there was no mention of an Affidavit of Fact in the course of proceedings which is evident in the record before this Honourable Court. (See 429-430 of the records).

The question I ask myself is even if the said Affidavit of fact and the Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail filed by the Respondent was in the Court?s record on the date the Application was moved, how come same was allowed to lie low without mention to the adverse party? On a second thought, even if the said Affidavit of fact was filed after the Court?s proceedings was over on the said 18th day of December, 2018, was there any proof that the Appellant was served with the said Affidavit of fact to enable him exercise his right of

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response to the allegations contained therein?

I have gone through both Affidavits together with the exhibits attached thereto and I have seen the serious allegations contained therein and I am of the opinion that the depositions would have, no matter how slight, influenced the trial judge?s exercise of discretion against the Appellant. However true these allegations maybe, the law remains that the right of the Appellant to reply to them is inalienable.
From the record before this Honourable Court, it is undoubtedly clear, in the absence of an affidavit of service, that the Affidavit of fact and the Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail filed by the Respondent were not served on the Appellant to enable him reply to the facts contained therein. The trial Court having relied on the Affidavit of fact and the Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts without ensuring the service of same on the Appellant is in gross violation of the right to fair hearing of the Appellant as enshrined in Section 36(6) of the Constitution of the Federal Republic of Nigeria, (1999) as amended.

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The trial Court?s reliance on the aforementioned documents can be gleaned at page 434 of the record. The trial Court held thus:
?In the instant case, the Court has carefully considered all the facts deposed to in the entire affidavit evidence, evidence in support of the charge and the gravity of the offence.?
Flowing from the above pronouncement of the Court below, there is no doubt that the ?entire affidavit evidence? as put by the trial Court included the Affidavit of fact and the Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts. Thus, having held that the Appellant was not allowed to respond to the facts contained in the said Affidavit of fact and the Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail filed by the Respondent, the decision reached by the Court below irrespective of its correctness or otherwise is a nullity and as such, subject to an appellate attack.

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In ASSAMS V. ARARUME (2016) 1 NWLR PART 1493 PAGE 968 AT 389-389 PARA H-A PER RHODES-VIVOUR JSC held thus;
“Audi alteram partem means “please hear the other side”. Natural justice demands that a party must be heard before the case against him is determined.” Once it is shown that the Appellant’s right to fair hearing under Section 36(6) of the 1999 Constitution (as amended) was breached, the decision of the Court will be declared a nullity, no matter how well considered, and will be set aside, See Ominiyi v. Alabi (2015) 6 NWLR part 1456 page 572 at 594 Para A-E per Kekere-Ekun JSC.”
Premised on the above, I hereby resolve the first issue in favour of the Appellant and against the Respondent.

Going to the second issue which is centered on whether the trial Court was right when he held that the Appellant was not entitled to bail, I am of the opinion that after holding that the trial Court?s decision amounts to a nullity for failure to adhere to the rules of fair hearing, making a pronouncement on the proprietary or otherwise of the decision refusing bail is an exercise in futility of trying to get water from an empty well. The law is trite that one

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cannot place something on nothing and expect it to stand.
However, the Appellant in paragraph 4.05 of his brief of argument prayed this Court to grant the Appellant bail in respect of charge No. MO/937C/2018 on such terms as this Honourable Court may deem fit to make in the circumstance. I wish to add that mere rendering the proceedings of the Court below a nullity is not an automatic ticket for granting the Appellant?s prayer for bail. This Court will in the subsequent paragraphs take a holistic study at the gamut of the valid processes together with their exhibits in deciding whether or not the Appellant is entitled to bail pending his trial.

The right to bail is one of those constitutional rights that inure an accused person under our criminal law. Bail although a constitutional right is only temporary, conditional and discretionary and can only be granted if the Applicant shows why such discretion should be exercised in his favour. 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

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or refusing bail pending trial. These include the following:
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 also trite that the consideration of the above conditions upon which an Application for bail can be granted varies depending on the circumstances of each case. In the instant case, the Appellant was said to have committed murder of one Akachukwu Ezebilo and attempted the murder of Nnamdi Obumse which makes the offence a capital offence punishable with death if tried and found guilty.
?
I wish to state that it is not unusual for an accused person charged with a

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capital offence to be admitted to bail pending his trial, however, the offence of murder being of such a grievous nature, it is not in the interest of the society that an accused person facing a trial for murder should be released on bail as a matter of course unless special circumstances are shown by the accused to the satisfaction of the Court. See ABACHA V THE STATE (2002) 5 NWLR (PT 761) 638.

The question here is from the affidavit in support of the Appellant?s Application and the Further Affidavit of the Appellant vis–vis the Counter Affidavit of the Respondent to the exclusion of any other affidavit found in the record, has the Appellant put forward any special circumstance(s) to warrant the exercise of the discretion of this Honourable court in his favour?

In paragraphs 5, 5a, and 6 of the Affidavit in support of the Applicant?s application for bail dated the 7th day of December, 2018 (see pages 4 ? 6 of the record), the following facts were deposed to:
5. ?That C.E Okafor of Counsel on 5th day of December, 2018 at No. 8 Carter Street Enugu, by 4:30 pm informs me and I verily believe him, that the 1st

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Accused/Applicant has a strong Defence of Alibi standing in his favour on the said day in which the offence was allegedly committed, i.e. 10/9/2018, the 1st Accused/Applicant could not be pinned at the scene of the crime, there are witnesses who are willing and ready to testify in Court, and he was not seen around or nearby the scene of crime.
5a. ?That the said defence of alibi stands uncontradicted by the Police investigation till date counsel informs me and I still verily believe him, attached and marked Exhibits ?C-F? are some of the Statements of witnesses who testified in favour of the Alibi.
6. ?That also a thorough perusal of the proof of evidence filed along with the Charge reveals that the evidence against the 1st Accused/Applicant is watery and that he cannot be convicted based on the same, C.E Okafor Esq., of Counsel still informs me on same place, time and date and I verily believe him, the Statements of the witnesses referred to in paragraph 5 of the above are also found in the proof of evidence.?

In paragraphs 3, 4, 5, 6, 8, 9 10 and 11 of the Further Affidavit (see pages 36-38 of the record), the

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following facts were deposed:
3. ?That C.E Okafor of Counsel on 12th day of December, 2018 at No. 8 Carter Street, Enugu, by 4:30 pm informs me and I verily believe him, that it is a notorious fact known to all and sundry that it is the homicide section of the police usually at the State Police Headquarters of the Nigerian Police Force investigates cases bearing on the allegation of murder, the Divisional Police Station cannot engage in such investigation.
4. That amazingly, while the alleged offence of murder had taken place on 10/9/2018, by 13/9/2018, the Divisional Police Office in Charge of Fegge Police Station Onitsha had hurriedly prepared and laid out before the Chief Magistrate Court Onitsha, charge NO. MO/762C/2018 against the Appellant and others for murder. The Charge is hereby attached and marked as ?Exhibit FA 1?
5. That the learned trial senior Magistrate, His Worship C.J. Amuluche had on same 13/9/2018 bound over witnesses to go to the High Court to testify if need be and ordered the police to transmit the case file to the Ministry of Justice for vetting or other action(s) by the Attorney General of Anambra

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State. The Records of proceedings before the leanred senior Magistrate, His Worship C.J. Amuluche Esq., dated 13/9/2018 and 5/11/2018 are hereby attached and marked ?Exhibits FA 2 and FA 3? respectively.
6. That even the Director of Public Prosecution Anambra State has demanded for the case file from the Police severally but to no avail, the letters of the DPP Anambra State and to the D.P.O Fegge Police Station are attached herewith and marked ?Exhibits FA 4 and FA 5? respectively.
7. That rather than obey the order of Court to remit the case file to the Attorney General of Anambra State as they had been directed by the Court, the Police on their own and without any bench warrant issued by the Court for that purpose, had continued hunting the Applicant as a common rodent and in terrible bad faith.
8. That in confirmation of the apprehensions of the Applicant about the intentions of the Police, he was arrested in the premises of Onitsha High Court on the 28th November, 2018 while attending to his matter i.e. suit No: O/357/2018.
9. That there are now multiple charges on the same offence of murder i.e. Charge No.

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MO/762C/2018 and Charge No. MO/973C/2018 which underscores the intention of the police to get at the Applicant at all cost and incriminate him in an offence he never committed.
10. That the proof of evidence in the two separate charge sheets are attached herewith and marked ?Exhibits FA 6 and FA 7 respectively, counsel informs me and I verily believe him that both are watery and contain statements of witnesses that contradict each other.
11. That one Mr. Ezeani Onyekachukwu had made several statements to the Police collaborating the Applicant?s uncontradicted defence of Alibi but up till now, the statement has not been investigated by the Police nor has it been contradicted. One of the statements of Mr. Ezeani Onyekachukwu to the Police is attached herewith and ?Marked Exhibit FA 8.”

In paragraphs 5, 6, 7, 8, 9 and 10 of the Respondent?s Counter Affidavit (see pages 414 ? 415 of the Record), the following facts were deposed:
5. ?That the Applicant is the Acting Chairman of KKAWAAPU Amalgamated Tricycle Union Anambra State and the Union is said to be power tussle with the Applicant and the

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Complainants in opposite sides of the divide.
6. That the Police has (sic) transferred the Case File to our office and we have seen all the statements, petitions, documents etc. contained therein respecting (sic) this charge and other issues between the Applicant and the Complainants.
7. That the Applicant, other Defendants and the Complainants were members and revenue collectors representing Keke Napep commercial operation and of diverse faction linings and interest.
8. That the Applicant was alleged to have committed the crime on 10/9/2018 with the other defendants but the Applicant consistently denied this allegation at the various Police units where was summoned and further raised the following alibi vis:
a. That on the said day, he kept an appointment with his Lawyer at Awka.
b. That he also went to see the Commissioner for Transport but only met his Personal Assistant.
c. That he also went to a bank at Awka and did some transaction.
9. That this Alibi claim appears not to be discreetly investigated by the Police and all of the Defendants deny commission and complicity of this crime.
10. That the Prosecution

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would definitely file information against the Applicant, other Defendants or anyone else if it founds culpability or complicity on their part and may require further investigation from both the Police and interview from the Complainants respecting this case in the quest to get justice in this case.?

Irrespective of the nature or gravity of the offence with which an accused is charged, granting of bail particularly in a capital offence is not as a matter of grace but the practice rests purely on the discretion of the Court. In any given case the onus is on the prosecution to show that an accused is not one that should be released on bail, however, before the prosecution carries this burden, the accused person has the initial burden of placing before the Court material facts amounting to special circumstances why his application for bail should be granted. It is therefore within the case law that a person charged with murder shall only be released on bail on establishing special circumstances warranting the exercise of discretion of Court in his favour. A decisive factor in the case of murder is the cogency of the evidence or the facts alleged against

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the appellant. For without such facts or evidence, it is difficult to see how the Court can satisfy itself as to whether or not there are or are not reasonable grounds for believing that the accused has committed the offence alleged. IKHAZUAGBE V. C.O.P. (2004) 7 NWLR (PT. 872) 346; JIMOH V. C.O.P. (2004) 17 NWLR (PT. 902) 389.
In this case, the reasons upon which the Appellant?s application for bail are predicated as gleaned from his affidavit and further affidavit are mainly that the Appellant was not at the scene of the crime (i.e. the defence of alibi) and that there is no strong evidence that the Appellant committed the offence of murder. I am of the opinion that whether the defence of Alibi was properly and timeously raised by the Appellant and improperly or not investigated by the Police or otherwise, are issues to be dealt with during the trial of the Appellant. This Court cannot comment on such issues at this stage of the matter. The reason for this is not farfetched. The defence of Alibi is a complete defence that if properly raised and upheld by the Court, will lead to nothing but an order of discharge and acquittal. This Court would only

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fall into a deep pit if it chooses to comment on the issues raised by the Appellant in his Affidavit and Further Affidavit considering the offence the Appellant was charged with.
Also, whether the evidence in the proof of evidence is watery or otherwise is also an issue to be determined at trial and not at this interlocutory stage. All that the prosecution need show is a prima facie case linking the Appellant with the commission of the crime.
On the strength of the foregoing, I believe that the Appellant has not placed sufficient facts showing any special circumstance (s) why this Honourable Court should exercise it unfettered discretion in his favour. By not so doing, the burden to prove that the Appellant is not entitled to bail does not shift to the prosecution.
?
On the whole, this appeal succeeds in part. The decision of the Anambra State High Court, Onitsha Judicial Division, delivered by I.U. Ndigwe J. on the 5th day of February, 2019 having been declared a nullity for a breach of the Appellant?s right to fair hearing is hereby set aside. However, based on the fact that the offence for which the Appellant is charged is a capital

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offence and the inability of the Appellant to show any special circumstance (s) to warrant the exercise of this Honourable Court?s discretion in his favour, his application for bail fails and is hereby refused.

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Other Citations: (2009)LCN/3500(CA)