Vincent Ogueri V. The State (2000)

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IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.

The cornerstone of this case is Whether the Appellant who was charged with the offence of murder and whose application for bail was rejected by Metu J (now retired) who was then seized of the matter and which case is now transferred to Ogugua J and who similarly rejected his application for bail ought on the affidavit evidence to be granted bail. This appeal arises from the refusal of the learned trial Judge, Ogugua J, to grant the application for bail.

In the application of this nature the requirement for granting of bail is very stringent and facts attendant thereto must be strong and persuasive enough to make the court accede to the application for bail. The learned trial Judge in dismissing the application said that the learned defence counsel kept on referring her to the proceedings at the earlier trial of the case before the matter was assigned to her and then said that of the 3 premises on which the application was based, she would consider only one issue and that is the one of hearth of the applicant. She said in refusing the application:

“In so many cases health has been held to constitute one of those compelling reasons. In the application before me is a letter Exhibit ‘A’ to this counsel complaining of his health. There is no medical report confirming the complaint … in the justice of the instant situation is allowing Appellant access to a medical doctor for consultation.”

The Applicant appealed and one issue was framed by the Appellant which is:

“Whether there are coercive and compelling reasons why the Appellant ought to have been admitted to bail.”

The Respondent framed 2 issues but I am of the view that strictly speaking the issues formulated by the Appellant covers all that is in this matter.

The peculiarity of this case lies in the fact that though the Appellnt was arraigned as far back as October, 1992, the appeal on the issue of bail is coming up for consideration in the year 2000 about 8 years afterwards.

This means he has been incarcerated for nearly a decade and the time for the final determination of a case is not in sight.

An accused person is not in jurisprudence a person presumed guilty but is given the benefit being innocent until the contrary is proved. This pre-supposes that he is not to be bounded or be punished or remanded in custody for an unnecessarily long time without a reasonable cause to defeat the course of justice. In other words, he has to be treated humanely and given all the constitutional rights that are allowed to a citizen.

The Applicant through his solicitor Ahamba, SAN in his application for the bail (which is refused) stated:

3. “That the Applicant has been in the custody since 2nd day of September.
4. That the Applicant was arraigned before the High Court sitting at Owerri on 28/10/92 on a one count charge of murder and plea was taken on that date wherein the applicant pleaded not guilty.
5. That on 16/4/91, prior to the applicant being arraigned as stated in paragraph- 4, an application for his bail filed on 14/11/90 was refused and the Applicant was remanded in prison custody at Owerri.
6. That the position in paragraph 5 is so despite the fact that the police have concluded their investigations and have not found any evidence whatsoever against the applicant to show that he was involved in the alleged crime and to support his continued incarceration.
7. That the prosecution opened its case on 11/11/92 with PW1 who was cross examined.
8. That none of the 5 prosecution witnesses who testified gave testimony directly or indirectly incriminating the applicant of complicity the death of the deceased.
9. That since the said 27/1/99, this matter has suffered 4 adjournments all not connected with applicant’s or his counsel’s inability to go on with the case but due to delays either from the prosecution or the Honourable court not sitting because of the other pressing businesses of the Court.
10. That the matter is now adjourned to the 7/10/99.
11. That it is now nearly 9 years since the applicant has been remanded in prison custody.
12. That this matter is to be heard de novo and that the Applicant is languishing in prison custody for an offence he did not commit.
13. That the Applicant has been ill on several occasions and has not the benefit of adequate medical attention.
14. That I was informed by the applicant and I verily believe him that he G now afflicted with serious illness which requires specialist attention.
15. That I was informed by the applicant and I verily, believe him that the illness was diagnosed on 3/6/99 by the prison doctor and further recommenced that the applicant be sent to a specialist to attend to the illness. That attached as Exhibit ‘A’ letter through which the Applicant information.”

The question is did the court below carefully consider and weigh the affidavit evidence of the Appellant before him. Exhibit B attached to the application for bail is the Record of proceedings before Metu J, and this was made use of by learned counsel for the Appellant Ahamba SAN. In the other Exhibit, i.e. Exhibit ‘A’, the Appellant said in his reference to the state of his health which the Court alluded to in its Ruling that he was in a terribly bad shape as found out by the prison Doctor who referred him to a Consultant for Medical Care, and he added thus:

“But the A.C.P. (Head of Prisons Department) bluntly refused to allow me to go to the Federal Medical Centre for Medical treatment. May be he felt I have some scores to settle with him … My health has so much deteriorated since then.”

The prosecutor which is the Respondent in this case did not file any counter-affidavit to challenge the statement contained in Exhibit A or the contents of the affidavit.

The inference or presumption is that the State accepts all the stories of the Appellant with the necessary implication.

See the case of MODUPE v THE STATE (1988) 4 NWLR (Pt. 87) 132 and NWUGUNU v THE STATE (1991) 1 NWLR (Pt.265) 41 at 48.

What is the principle governing the grant of bail. What it might be asked is the accused right of bail. It is to be stated that in virtually all civilized countries where the rule of law reigns supreme, the procedural law does not rest upon any priori sentimentality about the criminal act.

Indeed the great Jurists and law makers and the framers of the Constitution who in their different activities fashioned our laws were not and are not motivated or animated by any particular softness towards the law breakers. The bases behind all the procedures which ensure adequate reasonable safeguards is not rooted in coddling the criminal or any miscreant or indeed treat his alleged nefarious act with kid gloves.

It is not equally to ensure that there are large and enough veritable loopholes by which he can effect his escape from the consequences of. The result of his evil act. Rather it is to preserve our heritage for freedom; that a person accused is not detained for the purpose of making him suffer indignity, and that it is effectively to make certain as nearly as the complexity and perplexity of our world will permit that the truth will be discovered and that- justice will be done.

It therefore does not rest on a misguided and naive unrequited emotionalism.

From the affidavit of the Appellant in his motion for bail in the Court below, he has been in detention for upwards of nine years. His trial before Hon. Justice Metu protracted as it was, terminated after that Judge retired and he was arraigned again before Ogugua, J. It cannot be argued that from the time the Appellant was detained i.e. when his freedom was cut short he has not been suffering.

In his short ruling the learned Judge said there ought to be a Medical Report. Admittedly there was none but the Appellant in his letter which is Exhibit A showed that the A.C.P, in charge of Owerri Prisons flatly refused to make the Appellant accessible to a Consultant. It is to be noted that there was no Counter Affidavit debunking the allegation of facts contained in Exhibit A and the affidavit. It must not be easily forgotten that in a country that prides itself of democratic tenets, liberty and law are twin concepts and are therefore inseparable. It is said that bail for anyone accused of murder is impossible. We must avoid being intellectually captured by the shrine of formalism. We should not therefore follow false gods who are satisfied with primitive oblations, rites and ceremonies. It is our duty as guardians of justice to rise when occasions call for it and allow the goddess of justice to rule our heads and actions. In that, case the authority of the law would have been preserved and law will be used as instrument of abiding justice. Where an accused is charged of murder, he may be granted bail where an accused is charge of murder, he may be granted bail where:

(a) “That facts of deposition shows that at the time of the commission of the crime he is so far away from the scene of the crime unless it is proved or shown that he can be in more than one Place at the same time.

(b) Where it is shown that the accused is suffering from such a debilitating decease or infirmity that he needs very urgent medical attention without which he will be in danger or losing his life particularly where it is shown that confinement would generally aggravate his condition.

(c) where there has been inordinate delay in bringing the accused to trial – a state of affair which will either result in the accused staying longer in prison than the conviction and sentence and make reasonable people conclude that there has been a violation of the accuser’s constitutional rights by a subtle manipulation by use of courts sometimes incomprehensible Procedures.

I have in this judgment refused to look at the proceedings before the 1st trial Court but not the proofs of evidence. I have enough material to show that the accused has suffered considerably for an allegation which is lasting more than a decade to Prove. Shall this Court support his continued confinement? I think not. In the circumstances the appeal succeeds and the Ruling of the learned Judge is set aside.

I hereby order as follows; that accused is granted bail in the sure of N250, 000.00 with one Surety in same amount.

The Surety shall be a person of means and be owner of build-up property in Owerri or any urban area in Imo state and he shall swear to an affidavit of means

Other Citations: (2000)LCN/0874(CA)