ADAMU SULEMAN & ANOR V COMMISSIONER OF POLICE PLATEAU STATE
(2008) LCN/3593(SC)
In the Supreme Court of Nigeria
Friday, March 7, 2008
Case Number: SC. 19/2005
RATIO
INTERFERENCE WITH TRIAL COURTS’ DISCRETION: Whether and when an Appellate Court will interfere with decision of lower court
”Where injustice is seen to manifest itself in any decision founded on the exercise of discretion, the appellate court must readily intervene.” Per ADEREMI, J.S.C.
CRIMINAL LAW – Conditions for the grant of bail of an accused person
”The most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail. The bail ability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judicial function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously.” Per NIKI TOBI, J.S.C.
CRIMINAL LAW: Considerations by Court before grant or refusal of bail
‘‘In exercising its discretion, the court is bound to examine the evidence before it without considering any extraneous matter. The court cannot exercise its whims indiscriminately. Similarly, there is no room for the court to express its sentiments. It is a hard matter of law, facts and circumstances which the court considers without being emotional, sensitive or sentimental.” Per NIKI TOBI, J.S.C.
WHAT SHOULD BE CONSIDERED BY THE COURT BEFORE GRSNTING AN ACCUSED BAIL
The criteria to be followed in cases of bail pending trial include:
(i) The nature of the charge.
(ii) The strength of the evidence which supports the charge.
(iii) The gravity of the punishment in the event of conviction.
(iv) The previous criminal record of the accused, if any.
(v) The probability that the accused may not surrender himself for trial.
(vi) The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
(vii) The likelihood of further charge being brought against the accused.
(viii) The necessity to procure medical or social report pending final disposal of the case. Per Akintan, JSC
JUSTICES:
SUNDAY AKINOLA AKINTAN, (Lead Judgment), JUSTICE, SUPREME COURT
NIKI TOBI,, JUSTICE ,SUPREME COURT
MAHMUD MOHAMMED,, JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI,, JUSTICE, SUPREME COURT
PIUS OLAYIWOLA ADEREMI,, JUSTICE, SUPREME COURT.
BETWEEN
APPELLANTS
1. ADAMU SULEMAN
2. MOHAMMED BELLO.
AND
RESPONDENTS
COMMISSIONER OF POLICE PLATEAU STATE.
S.A. AKINTAN, JSC (Delivering The Leading Judgement) The two appellants were arrested and detained at Garga Police Station in Plateau State for armed robbery sometime in October, 2002. They were later transferred to Jos Police Headquarters and then to Jos C.I.D where they were detained for quite sometime before they were arraigned before the Chief Magistrate Court, Jos on 11th December, 2002. They then caused to be issued a summon to admit them to bail pending trial at the Jos High Court. The application was supported with a 5 paragraph affidavit. Paragraph 3 of the supporting affidavit deposed to by one Serah Ibrahim, Litigation Secretary, in the law firm of the appellants’ counsel, read as follows: “3. That I have been informed by the Applicants in Jos prison on 9/3/2003 at 12.00 noon while briefing A.A Sangei Esq. of Counsel and verily believe their information to be true: (a) That the Applicants were arrested and detained at Garga Police Station for alleged offence of Armed Robbery sometimes in October, 2002. (b) That they were later transferred to Jos Police Headquarters and finally transferred to Jos C.I.D. where they were detained for a long time. (c) That the Applicants did not commit the alleged offence on the F.I.R. A copy of the F.I.R. is hereby annexed and marked as Exhibit “A”. (d) That the Applicants were subsequently arraigned before the Chief Magistrate Court 11, Jos on the 11/12/2002 after staying at C.I.D. Jos for a long time. (e) That the Chief Magistrate Court 11 Jos ordered for the remand of the Applicants at the Jos prison. The proceedings are annexed hereto and marked as exhibit “B”. (f) That the Applicants have been in prison since 11/12/2002. PAGE| 3 (g) That the Respondent is not willing to prosecute the applicants. That the Respondent only want the applicants to be detained in prison custody without prosecution. (h) That the Applicants will not jump bail, they will also appear in court for their case. (i) That the Applicants will not interfere with proper police investigation in case any is remaining. (j) That the Applicants will provide credible and reliable surety/sureties as this Honourable Court may order.” The application was opposed and to that end, a 15 paragraph counter affidavit deposed to by one Joseph Chinda, an Assistant Superintendent of Police (ASP) attached to the Special Anti-Robbery Section, C.I.D Plateau State Police Command, Jos. The facts relied on are contained in paragraphs 1 to 11 of the counter-affidavit which read as follows: “1. That I am the sectional head of the team of Police Officers Investigating the case of criminal conspiracy, Armed Robbery and culpable Homicide Offences that the applicants and other culprits now at large are standing trial for, by virtue of the said position I am very conversant with the facts deposed to herein. 2. That I have read through the summons to admit the applicants to bail pending their trial as well as supporting affidavit and I know as a matter of fact that paragraph 3 (c,g,h,I and j) are not true. 3. That Police investigation into the case is still in progress with the view of arresting the co-cohorts of the applicants that are still at large, and that should the applicants be released on bail, they (applicants) will not only elope justice but that they may tamper with Police investigation. 4. That the applicants have made useful statements to the Police to the effect that they are members of gang of armed-robbers that have committed series of armed robberies within Dengi-Kanam and its environs and Plateau State in particular in the recent past as well as neighbouring Bauchi State. PAGE| 4 5. That working on the above information given to the Police by the applicants, the detectives have since gone into action with the view of arresting the remaining culprits from their hide outs. 6. That based on further clues discovered by the Police against the applicants and others into the case, they (Police) shall substitute the initial First Information Report (F.I.R) with new one to include the other offences that were not included in the old First Information Report (F.I.R) against the applicants. 7. That this will be done as soon as the investigating Police Officers (I.P.Os) who are in possession of the case file diary return from their special assignments in connection with this very case that the application for bail is been sought by the applicants. 6. That the delay in the arraignment of the applicants before the court all these while is not unconnected with the constant strike actions by both the Federal Civil Servants and Plateau State in particular, ministry of Justice Plateau State, Jos inclusive since 2002/2003 and of late, the recent Nigerian Labour Congress (N.L.C) as a result of the fuel prices that were increased by the Federal Government of Nigeria. 7. That the Ministry of Justice Plateau State, Jos who is to file the necessary application before the High Court for leave to prefer a charge against the applicants was not left out of the strike stated in paragraph 8 above and the current Nigerian Bar Association (N.B.A) Plateau State, Jos Branch law week. 8. That now the strike action have been suspended by both Federal and State Civil Servants, I verily believe that the Ministry of Justice Plateau State, Jos, will make the necessary application to the High Court of Justice Plateau State, Jos for leave to prefer a charge against the applicants. PAGE| 5 9. That since the arrest and detention of the applicants there had been a rapid decline of robbery incident in Shuwaka Garga village of Dengi-Kanam Local Government Area of Plateau State and Plateau State in general.” The application thereafter came up for hearing before Damulak, J. sitting at Jos High Court. After taking submissions from learned counsel for the parties, delivered his reserved ruling on 20th October, 2003 The learned Judge, after reviewing all the issues raised in the matter, came to the conclusion that there was no merit in the application. He therefore dismissed it. He said as follows in the concluding paragraph of his said ruling: “In the circumstances, I find that the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court forthwith.” The appellants were dissatisfied with the ruling and their appeal to the Court of Appeal Jos Division was dismissed. This is an appeal from the judgment of the Court of Appeal (hereinafter referred to as Court below). The parties filed their briefs of argument in this court. The following two issues are formulated in the appellants’ brief which were also adopted by the respondent in the respondent’s brief: “1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal 2. Whether or not the Court of Appeal was right when it upheld the decision of the trial court which refused to be bound by the decision of the Court of Appeal in Anaekwe v. C. O. P. (2004) 17 NWLR (Pt. 901)1; and Musa v. C.O.P. (2004) 9 NWLR (Pt. 879) 483.” It is submitted in the appellants’ Issue 1 that the learned Justices of the Court below were in error when they affirmed the decision of the trial High Court which is said not to have been exercised PAGE| 6 judicially and judiciously having regard to the circumstances of the case as depicted by the depositions of the parties. The court below is specifically accused of disregarding the appellants’ right to presumption of innocence as envisaged by Section 36(5) of the 1999 Constitution. It is further submitted that the applicants having deposed to specific facts in paragraph 3 (c) to (k) which facts are not denied, the court below is said to be in error in dismissing the appeal. It is submitted in the appellants’ Issue 2 that the court below was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of the Court of Appeal in some named cases where such applications were granted. Particular reference was made to the case of Oshinayo v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 which was a case involving armed robbery where bail was granted to the accused person. It is submitted in reply, in the respondent’s brief that the criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly in Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558; at 572; (2007) 12 (Pt. 1) SCM 68 and Bamayi v. The State (2001) FWLR (Pt. 46) 956 at 984, (2001) 5 SCM 20. It is also argued that the bailability of an accused depend largely on the weight the judge attached to one or several of the criteria open to him in any given case. The court below in this case is said to have exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal having regard to the facts tendered in the case. It is further submitted that the presumption of innocence does not make the grant of bail automatic since there is always the discretion to refuse bail if the court is satisfied that there are substantial grounds for believing that the applicant for bail pending trial would abscond or interfere with witnesses or otherwise obstruct the course of justice. The crucial factor is said to be the existence of substantial ground for the belief that he would do so. It is submitted in reply on Issue 2 that since the issue of grant or refusal of bail is a discretionary matter, previous decisions are not of much value. They are therefore said not to be binding but can only offer broad guidelines as each exercise of discretion depends on the facts of each case. PAGE| 7 The question to be resolved in this appeal is whether the Court of Appeal was right in its decision to dismiss the appeal before it and affirming the order of the trial High Court by which the appellants’ application for bail was refused. It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black Law Dictionary, 6th edition, 1990, page 466 as meaning: “A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law.” The criteria to be followed in taking a decision in cases of this nature as laid down by this court include: (i) the nature of the charge; (ii) the strength of the evidence which supports the charge; (iii) the gravity of the punishment in the event of conviction; (iv) the previous criminal record of the accused, if any; (v) the probability that the accused may not surrender himself for trial; (vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; and (x) the necessity to procure medical or social report pending final disposal of the case. See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270; (2001) 5 SCM 20 Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558; (2007) 12 (Pt. 1) SCM 68; Abacha v. The State (2002) 5 NWLR (Pt. 761) 638; (2002) 5 SCM 139; Ani v. The State (2002) 1 NWLR (Pt. 747) 217; (2002) 8 SCM 1 Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 9; and Eyu v. The State (1988) 2 NWLR (Pt. 78) 607. It follows, therefore, that a judicial officer saddled with the responsibility of exercising a discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance. PAGE| 8 Thus from the facts of this case as set out in the affidavit evidence filed by the parties, the appellants were first arrested and detained for armed-robbery sometime in October, 2002. As at the time of their arrest, there was a wave of armed-robberies in the Jos area and the police told the court of the need to detain the appellants pending their efforts to arrest the remaining members of the gang of robbers terrorizing the area. This was the situation as at the time when the appellants were arraigned before the Chief Magistrate Court, Jos who ordered their detention in prison custody. It will therefore be totally out of place to say that the trial High Court who refused their application for bail failed to properly exercise its judicial discretion judiciously and judicially having regard to the above facts presented to him. Similarly, the court below could not be blamed for upholding the decision of the trial Court by dismissing the appellants’ appeal. This is because there were no justifiable reasons placed before it to warrant querying or tampering with the trial Judge’s exercise of his judicial discretion by refusing the application before him in the case. The learned trial Judge went further when he ordered in the concluding paragraph of his ruling that: “investigation into the matter be stepped up and the applicants be charged before High Court forthwith.” The ruling of the High Court was delivered on 30th October, 2003 while the judgment of the Court of Appeal was delivered on 8th December, 2004. On 13th December, 2007 when this appeal came up for hearing in this court, the order of the learned trial Judge made on 30th October, 2003 that the police should step up their investigation into the case and charge the appellants before the High Court forthwith had not been complied with. This is because we were told that the appellants were still being remanded in prison custody on the order of the Jos Chief Magistrate. The flagrant breach of that order on the part of the police has given credence to the averment in paragraph 3 (g) of the affidavit in support of the appellants’ application where it is averred: PAGE| 9 “That the respondent is not willing to prosecute the applicants. That the respondent only wants the applicants to be detained in prison custody without prosecution.” The disclosure that the appellants are yet to be arraigned before the High Court since their arrest in October, 2002 is totally unacceptable and cannot be justified under the guise that the police are yet to complete their investigations. In the result, there is absolute justification in not allowing the continued detention in prison custody of the appellants as ordered by the Jos Magistrate Court. The appeal is therefore allowed. It is hereby ordered that the appellants be allowed on bail each in the sum of N200,000 with two sureties each in the same amount. The sureties are to be resident in Jos area and supply proof of ownership of residence property in the Jos area. NIKI TOBI, JSC: The appellants were arrested in connection with the attack on Alhaji Hassan Madugu and his family with cutlasses and sticks by inflicting injuries on the head of Alhaji Hassan Madugu. There was also an allegation that the appellants made away with N1.5 million cash. They were arraigned before a Chief Magistrate, court in Jos on 11th December, 2002. The appellants applied for bail pending trial before the High Court. The learned trial Judge dismissed the application. He said in the last two paragraphs of his Ruling at page 24 of the Record: “In the case, there is no proof of evidence exhibited or annexed to the application. Can that per se tantamount the grant of bail to an accused person facing the charge of armed robbery? I do not think so more so that the appellants did not deny the contention in the counter-affidavit of the respondent. The averments in the counter-affidavit are rather serious considering the rampant occurrence of incidents of armed robbery in this part of the country particularly in Kanan area. In view of the magnitude of the offence alleged the severity of the punishment and the rampant occurrence of the crime coupled with the fact that investigation is still in progress and the failure of the applicants to counter the averments of the respondent, my discretion is in favour of refusing rather than granting the application. PAGE| 10 In the circumstances I find the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court, forthwith.” An appeal to the Court of Appeal failed. That court dismissed the appeal. Quoting part of the above statement of the learned trial Judge, the Court of Appeal said at page 63 of the Record: “I agree with the learned trial Judge. I would in the circumstances also resolve Issue No. 2 against the Appellants and also dismiss grounds 2 and 5 of the grounds of appeal from which the issue was distilled. In the final analysis, this appeal fails and it is hereby dismissed, being without merit. The Ruling of Damulak, J. delivered on 30th October, 2002 is therefore affirmed.” Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated the following issues for determination: “1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal (distilled from Grounds 1, 3, 5 and 6). 2. Whether or not the Court of Appeal was right when it upheld the decision of the Trial Court which refused to be bound by the decisions of the Court of Appeal in Anaekwe v. COP (1996) 3 NWLR (Pt. 436) 320; Oshinaya v. COP (2004) 17 NWLR (Pt. 901) 1 and Musa v. COP (2004) 9 NWLR (Pt. 879) 483 (distilled from Grounds 2 and 4).” Respondent adopted the above issues formulated by the appellants. Learned counsel for the appellants, Mr. A. A. Sangei, submitted on Issue No. 1, that the Court of Appeal was in error by affirming the decision of the trial Court, a decision which contravened the appellants’ right to presumption of innocence in the Constitution. He vehemently attacked the allegation by the respondent that the appellants made useful statements in the matter. He argued that the useful statements alleged by the respondent, being official documents and proceedings, the originals or certified true copies ought to have been produced. PAGE| 11 He cited Ezemba v. Ibeneme (2004) 14 (Pt. 894) 617; (2004) 8 SCM 69 Fashanu v. Adekoya (1974) 6 SC 83; Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; Agagu v. Dawodu (1990) 7 NWLR (Pt. 160) 56 and sections 111(1) and 132(1) of the Evidence Act. He also cited section 149(d) of the Evidence Act on the failure of the respondent to place before the court the alleged useful statements. Taking Issue No. 2, learned counsel submitted that the Court of Appeal was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of that court in Anaekwe v. Commissioner of Police, supra; Musa v. Commissioner of Police (2004) 9 NWLR (Pt. 879) 483; Oshinaya v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 and Ogueri v. The State (2002) 2 CLRN 14. He argued that the Court of Appeal was bound by its previous decisions. He urged the court to allow the appeal. Learned counsel for the respondent, Mr. Bola Olotu, enumerated ten criteria for granting bail and contended that the bailability of an accused depends upon the weight a Judge attaches to one or several of the criteria open to him in any given case. He cited Asari v. Federal Republic of Nigeria (2007) 12 SCM 68 FWLR (Pt. 375) 558 and Bamaiyi v. The State (2001) FWLR (Pt. 46) 956. He submitted that the Court of Appeal exercised its discretion judicially and judiciously and did not disregard the appellants’ right to presumption of innocence. Reacting to the submission of learned counsel for the appellants on the issue of useful statements made by the appellants, counsel argued that a statement need not necessarily be in a document and there is nothing from the respondent suggesting that the statements were in a document to necessitate their being exhibited. On Issue No. 2, learned counsel submitted that the issue of grant or refusal of bail is a discretionary matter and in matters of discretion, previous decisions are not of much value, thus not binding but can only offer broad guidelines, as each exercise of discretion depends on the facts of each case. PAGE| 12 He cited Asari v. Federal Republic of Nigeria, supra and Abacha v. The State (2002) FWLR (Pt. 98) 863. He urged the court to dismiss the appeal. The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in section 345 of the Criminal Procedure Code. The section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212. The most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail. The bailability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judicial function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously. In exercising its discretion, the court is bound to examine the evidence before it without considering any extraneous matter. The court cannot exercise its whims indiscriminately. Similarly, there is no room for the court to express its sentiments. It is a hard matter of law, facts and circumstances which the court considers without being emotional, sensitive or sentimental. PAGE| 13 The general criteria for granting bail are; (a) the availability of the accused to stand trial, (b) The nature and gravity of the offence, (c) The likelihood of the accused committing offence while on bail, (d) The criminal antecedents of the accused, (e) The likelihood of the accused interfering with the course of justice. The above general criteria apart, the criteria for granting pre-trial bail or bail by trial court include (a) Likelihood of further charge being brought, (b) The probability of guilt, (c) Detention for the protection of the accused, (d) The necessity to procure medical or social report pending a final disposal of the case. I will not consider all the above criteria. I will only deal with the two which are relevant to this appeal. They are the availability of the accused to stand trial and the nature and gravity of the offence. First, the availability of the accused to take his trial. The main function of bail is to ensure the presence of the accused at the trial. That is the cynosure of all the criteria. It is the centre-piece. And so this criterion is regarded as not only the omnibus ground for granting or refusing bail, but the most important. The second criterion, as I have mentioned, is the nature and gravity of the offence. It is the belief of the law that the more serious the offence, the greater the incentive to jump bail, although this is not invariably or for all times true. For instance, an accused person charged with murder, as in this case, is more likely to flee from the jurisdiction of the court then one charged with affray. The distinction between capital offences and non-capital offences in one way “crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the defendant absconding.” See “Notes: Judicial Discretion in Granting Bail”, (1952) 27 St. John’s Law Review, page 64. The above is subject to the qualification that there may be less serious offence in which the court may refuse bail, because of its nature. I should now consider three cases where bail was granted in murder offences. In Enwere v. Commissioner of Police (1993) 6 NWLR (Pt. 299) 333, the Court of Appeal granted a murder accused bail on the ground that the prosecution did not bring to the notice of the court facts on the alleged murder. Onu, JCA (as he then was) said at page 341: PAGE| 14 “In the case of Dogo v. Commissioner of Police (1980) 1 NCR 14 at page 17, it was emphasized that it is the duty of the court to consider whether to grant bail once an accused person has pleaded not guilty to a charge. Such a situation clearly arises where an information or charge is laid before the trial court. Not so in the case in hand where no information or charge was laid by the prosecution. Hence, in the absence of facts which the prosecution was duty bound to supply justifying the appellant’s detention in police cell, the trial Judge was bound to let appellant go from the police cell.” In Chinemelu v. Commissioner of Police (1995) 4 NWLR (Pt. 390) 467, the Court of Appeal also granted bail pending trial to a murder accused, in the light of the special circumstances of the case. And the special circumstances were the absence or lack of facts justifying the continued detention of the accused. Ejiwunmi, JCA (as he then was) in his concurring judgment said at page 489: “The only evidence about the case before the lower court and this court remains the affidavit filed by the inspector involved with the investigation of this case. And he only made references to what he considered to be the eye witnesses of the offence for which the appellant stands charged. However, there is nothing that can be likened to a complete proof of evidence from the witnesses themselves. For the respondent to justify the continued detention of the appellant I think it is only right for the respondent to produce such evidence for the consideration of the court.” Adamu, JCA, also provided a helping hand when he said at page 491: “In the instant case, the appellant had presented sufficient averment in the affidavit evidence at the lower court to take care of the first condition by showing that he would neither prejudice the investigation (or) prosecution of the case nor would he escape justice by jumping bail. It is also clear both from the records and from the briefs of counsel in this appeal that no proof or evidence or information has up till now been filed against the appellant at the lower court… It is true that bail pending trial is not normally granted ex-debito justitie where the offence is a capital offence as in the present case. PAGE| 15 However special circumstances may exist to warrant the grant of bail pending trial in a capital offence as in Enwere v. COP (1993) 6 NWLR (Pt. 299) 333. The special circumstance in the present case is the prosecution’s delay or failure to prepare the proof of evidence or to file an information against him for the alleged murder.” In Anaekwe v. Commissioner of Police (1996) 3 NWLR (Pt. 436) 320, the Court of Appeal also granted bail pending trial to a murder accused on the same ground as in Enwere and Chinemelu. In Anaekwe, I said at pages 331 to 333: “It is common ground in this appeal that the learned trial Judge heard the application of the appellant without an information and proof of evidence. It was after the refusal of the application that the Judge ordered the filing of the proof of evidence within the next 75 days…How can a court process filed after the Notice of Appeal retrospectively affect the legal regime on which the appeal is based. Can that be a fair hearing to the appellant who in the course of preparing the grounds of appeal, did not anticipate the allegedly filed proof of evidence? That will be clear injustice and this court cannot be a party to it… The six letter-word of murder comes with it so much fear as the law prescribes the death penalty. But like every other offence in our criminal law system, there is nothing magical in the word per se. But there is so much to fear in the offence because of the death penalty. Therefore, where the prosecution merely parades to the court the word ‘murder’ without tying it with the offence, a court of law is bound to grant bail. And the only way to intimidate a court not to grant bail is to proffer an information and proof of evidence to show that there is prima facie evidence of commission of the offence… In my view, although bail is not normally granted a murder accused, a situation where there is no material before the trial court to show that the appellant is facing a charge of murder, including proof of evidence; certainly qualifies as a special circumstance in which this court can grant bail… In the light of the foregoing, I have no alternative than to set aside the 21st December, 1994 Ruling of the lower court. I admit the appellant to bail upon the following conditions…” Akintan, JCA (as he then was) put the position better in the case at page 334: PAGE| 16 “The main question raised in this appeal is whether from the facts of the case, the lS.A. AKINTAN, JSC (Delivering The Leading Judgement) The two appellants were arrested and detained at Garga Police Station in Plateau State for armed robbery sometime in October, 2002. They were later transferred to Jos Police Headquarters and then to Jos C.I.D where they were detained for quite sometime before they were arraigned before the Chief Magistrate Court, Jos on 11th December, 2002. They then caused to be issued a summon to admit them to bail pending trial at the Jos High Court. The application was supported with a 5 paragraph affidavit. Paragraph 3 of the supporting affidavit deposed to by one Serah Ibrahim, Litigation Secretary, in the law firm of the appellants’ counsel, read as follows: “3. That I have been informed by the Applicants in Jos prison on 9/3/2003 at 12.00 noon while briefing A.A Sangei Esq. of Counsel and verily believe their information to be true: (a) That the Applicants were arrested and detained at Garga Police Station for alleged offence of Armed Robbery sometimes in October, 2002. (b) That they were later transferred to Jos Police Headquarters and finally transferred to Jos C.I.D. where they were detained for a long time. (c) That the Applicants did not commit the alleged offence on the F.I.R. A copy of the F.I.R. is hereby annexed and marked as Exhibit “A”. (d) That the Applicants were subsequently arraigned before the Chief Magistrate Court 11, Jos on the 11/12/2002 after staying at C.I.D. Jos for a long time. (e) That the Chief Magistrate Court 11 Jos ordered for the remand of the Applicants at the Jos prison. The proceedings are annexed hereto and marked as exhibit “B”. (f) That the Applicants have been in prison since 11/12/2002. PAGE| 3 (g) That the Respondent is not willing to prosecute the applicants. That the Respondent only want the applicants to be detained in prison custody without prosecution. (h) That the Applicants will not jump bail, they will also appear in court for their case. (i) That the Applicants will not interfere with proper police investigation in case any is remaining. (j) That the Applicants will provide credible and reliable surety/sureties as this Honourable Court may order.” The application was opposed and to that end, a 15 paragraph counter affidavit deposed to by one Joseph Chinda, an Assistant Superintendent of Police (ASP) attached to the Special Anti-Robbery Section, C.I.D Plateau State Police Command, Jos. The facts relied on are contained in paragraphs 1 to 11 of the counter-affidavit which read as follows: “1. That I am the sectional head of the team of Police Officers Investigating the case of criminal conspiracy, Armed Robbery and culpable Homicide Offences that the applicants and other culprits now at large are standing trial for, by virtue of the said position I am very conversant with the facts deposed to herein. 2. That I have read through the summons to admit the applicants to bail pending their trial as well as supporting affidavit and I know as a matter of fact that paragraph 3 (c,g,h,I and j) are not true. 3. That Police investigation into the case is still in progress with the view of arresting the co-cohorts of the applicants that are still at large, and that should the applicants be released on bail, they (applicants) will not only elope justice but that they may tamper with Police investigation. 4. That the applicants have made useful statements to the Police to the effect that they are members of gang of armed-robbers that have committed series of armed robberies within Dengi-Kanam and its environs and Plateau State in particular in the recent past as well as neighbouring Bauchi State. PAGE| 4 5. That working on the above information given to the Police by the applicants, the detectives have since gone into action with the view of arresting the remaining culprits from their hide outs. 6. That based on further clues discovered by the Police against the applicants and others into the case, they (Police) shall substitute the initial First Information Report (F.I.R) with new one to include the other offences that were not included in the old First Information Report (F.I.R) against the applicants. 7. That this will be done as soon as the investigating Police Officers (I.P.Os) who are in possession of the case file diary return from their special assignments in connection with this very case that the application for bail is been sought by the applicants. 6. That the delay in the arraignment of the applicants before the court all these while is not unconnected with the constant strike actions by both the Federal Civil Servants and Plateau State in particular, ministry of Justice Plateau State, Jos inclusive since 2002/2003 and of late, the recent Nigerian Labour Congress (N.L.C) as a result of the fuel prices that were increased by the Federal Government of Nigeria. 7. That the Ministry of Justice Plateau State, Jos who is to file the necessary application before the High Court for leave to prefer a charge against the applicants was not left out of the strike stated in paragraph 8 above and the current Nigerian Bar Association (N.B.A) Plateau State, Jos Branch law week. 8. That now the strike action have been suspended by both Federal and State Civil Servants, I verily believe that the Ministry of Justice Plateau State, Jos, will make the necessary application to the High Court of Justice Plateau State, Jos for leave to prefer a charge against the applicants. PAGE| 5 9. That since the arrest and detention of the applicants there had been a rapid decline of robbery incident in Shuwaka Garga village of Dengi-Kanam Local Government Area of Plateau State and Plateau State in general.” The application thereafter came up for hearing before Damulak, J. sitting at Jos High Court. After taking submissions from learned counsel for the parties, delivered his reserved ruling on 20th October, 2003 The learned Judge, after reviewing all the issues raised in the matter, came to the conclusion that there was no merit in the application. He therefore dismissed it. He said as follows in the concluding paragraph of his said ruling: “In the circumstances, I find that the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court forthwith.” The appellants were dissatisfied with the ruling and their appeal to the Court of Appeal Jos Division was dismissed. This is an appeal from the judgment of the Court of Appeal (hereinafter referred to as Court below). The parties filed their briefs of argument in this court. The following two issues are formulated in the appellants’ brief which were also adopted by the respondent in the respondent’s brief: “1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal 2. Whether or not the Court of Appeal was right when it upheld the decision of the trial court which refused to be bound by the decision of the Court of Appeal in Anaekwe v. C. O. P. (2004) 17 NWLR (Pt. 901)1; and Musa v. C.O.P. (2004) 9 NWLR (Pt. 879) 483.” It is submitted in the appellants’ Issue 1 that the learned Justices of the Court below were in error when they affirmed the decision of the trial High Court which is said not to have been exercised PAGE| 6 judicially and judiciously having regard to the circumstances of the case as depicted by the depositions of the parties. The court below is specifically accused of disregarding the appellants’ right to presumption of innocence as envisaged by Section 36(5) of the 1999 Constitution. It is further submitted that the applicants having deposed to specific facts in paragraph 3 (c) to (k) which facts are not denied, the court below is said to be in error in dismissing the appeal. It is submitted in the appellants’ Issue 2 that the court below was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of the Court of Appeal in some named cases where such applications were granted. Particular reference was made to the case of Oshinayo v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 which was a case involving armed robbery where bail was granted to the accused person. It is submitted in reply, in the respondent’s brief that the criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly in Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558; at 572; (2007) 12 (Pt. 1) SCM 68 and Bamayi v. The State (2001) FWLR (Pt. 46) 956 at 984, (2001) 5 SCM 20. It is also argued that the bailability of an accused depend largely on the weight the judge attached to one or several of the criteria open to him in any given case. The court below in this case is said to have exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal having regard to the facts tendered in the case. It is further submitted that the presumption of innocence does not make the grant of bail automatic since there is always the discretion to refuse bail if the court is satisfied that there are substantial grounds for believing that the applicant for bail pending trial would abscond or interfere with witnesses or otherwise obstruct the course of justice. The crucial factor is said to be the existence of substantial ground for the belief that he would do so. It is submitted in reply on Issue 2 that since the issue of grant or refusal of bail is a discretionary matter, previous decisions are not of much value. They are therefore said not to be binding but can only offer broad guidelines as each exercise of discretion depends on the facts of each case. PAGE| 7 The question to be resolved in this appeal is whether the Court of Appeal was right in its decision to dismiss the appeal before it and affirming the order of the trial High Court by which the appellants’ application for bail was refused. It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black Law Dictionary, 6th edition, 1990, page 466 as meaning: “A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law.” The criteria to be followed in taking a decision in cases of this nature as laid down by this court include: (i) the nature of the charge; (ii) the strength of the evidence which supports the charge; (iii) the gravity of the punishment in the event of conviction; (iv) the previous criminal record of the accused, if any; (v) the probability that the accused may not surrender himself for trial; (vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; and (x) the necessity to procure medical or social report pending final disposal of the case. See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270; (2001) 5 SCM 20 Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558; (2007) 12 (Pt. 1) SCM 68; Abacha v. The State (2002) 5 NWLR (Pt. 761) 638; (2002) 5 SCM 139; Ani v. The State (2002) 1 NWLR (Pt. 747) 217; (2002) 8 SCM 1 Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 9; and Eyu v. The State (1988) 2 NWLR (Pt. 78) 607. It follows, therefore, that a judicial officer saddled with the responsibility of exercising a discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance. PAGE| 8 Thus from the facts of this case as set out in the affidavit evidence filed by the parties, the appellants were first arrested and detained for armed-robbery sometime in October, 2002. As at the time of their arrest, there was a wave of armed-robberies in the Jos area and the police told the court of the need to detain the appellants pending their efforts to arrest the remaining members of the gang of robbers terrorizing the area. This was the situation as at the time when the appellants were arraigned before the Chief Magistrate Court, Jos who ordered their detention in prison custody. It will therefore be totally out of place to say that the trial High Court who refused their application for bail failed to properly exercise its judicial discretion judiciously and judicially having regard to the above facts presented to him. Similarly, the court below could not be blamed for upholding the decision of the trial Court by dismissing the appellants’ appeal. This is because there were no justifiable reasons placed before it to warrant querying or tampering with the trial Judge’s exercise of his judicial discretion by refusing the application before him in the case. The learned trial Judge went further when he ordered in the concluding paragraph of his ruling that: “investigation into the matter be stepped up and the applicants be charged before High Court forthwith.” The ruling of the High Court was delivered on 30th October, 2003 while the judgment of the Court of Appeal was delivered on 8th December, 2004. On 13th December, 2007 when this appeal came up for hearing in this court, the order of the learned trial Judge made on 30th October, 2003 that the police should step up their investigation into the case and charge the appellants before the High Court forthwith had not been complied with. This is because we were told that the appellants were still being remanded in prison custody on the order of the Jos Chief Magistrate. The flagrant breach of that order on the part of the police has given credence to the averment in paragraph 3 (g) of the affidavit in support of the appellants’ application where it is averred: PAGE| 9 “That the respondent is not willing to prosecute the applicants. That the respondent only wants the applicants to be detained in prison custody without prosecution.” The disclosure that the appellants are yet to be arraigned before the High Court since their arrest in October, 2002 is totally unacceptable and cannot be justified under the guise that the police are yet to complete their investigations. In the result, there is absolute justification in not allowing the continued detention in prison custody of the appellants as ordered by the Jos Magistrate Court. The appeal is therefore allowed. It is hereby ordered that the appellants be allowed on bail each in the sum of N200,000 with two sureties each in the same amount. The sureties are to be resident in Jos area and supply proof of ownership of residence property in the Jos area. NIKI TOBI, JSC: The appellants were arrested in connection with the attack on Alhaji Hassan Madugu and his family with cutlasses and sticks by inflicting injuries on the head of Alhaji Hassan Madugu. There was also an allegation that the appellants made away with N1.5 million cash. They were arraigned before a Chief Magistrate, court in Jos on 11th December, 2002. The appellants applied for bail pending trial before the High Court. The learned trial Judge dismissed the application. He said in the last two paragraphs of his Ruling at page 24 of the Record: “In the case, there is no proof of evidence exhibited or annexed to the application. Can that per se tantamount the grant of bail to an accused person facing the charge of armed robbery? I do not think so more so that the appellants did not deny the contention in the counter-affidavit of the respondent. The averments in the counter-affidavit are rather serious considering the rampant occurrence of incidents of armed robbery in this part of the country particularly in Kanan area. In view of the magnitude of the offence alleged the severity of the punishment and the rampant occurrence of the crime coupled with the fact that investigation is still in progress and the failure of the applicants to counter the averments of the respondent, my discretion is in favour of refusing rather than granting the application. PAGE| 10 In the circumstances I find the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court, forthwith.” An appeal to the Court of Appeal failed. That court dismissed the appeal. Quoting part of the above statement of the learned trial Judge, the Court of Appeal said at page 63 of the Record: “I agree with the learned trial Judge. I would in the circumstances also resolve Issue No. 2 against the Appellants and also dismiss grounds 2 and 5 of the grounds of appeal from which the issue was distilled. In the final analysis, this appeal fails and it is hereby dismissed, being without merit. The Ruling of Damulak, J. delivered on 30th October, 2002 is therefore affirmed.” Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated the following issues for determination: “1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal (distilled from Grounds 1, 3, 5 and 6). 2. Whether or not the Court of Appeal was right when it upheld the decision of the Trial Court which refused to be bound by the decisions of the Court of Appeal in Anaekwe v. COP (1996) 3 NWLR (Pt. 436) 320; Oshinaya v. COP (2004) 17 NWLR (Pt. 901) 1 and Musa v. COP (2004) 9 NWLR (Pt. 879) 483 (distilled from Grounds 2 and 4).” Respondent adopted the above issues formulated by the appellants. Learned counsel for the appellants, Mr. A. A. Sangei, submitted on Issue No. 1, that the Court of Appeal was in error by affirming the decision of the trial Court, a decision which contravened the appellants’ right to presumption of innocence in the Constitution. He vehemently attacked the allegation by the respondent that the appellants made useful statements in the matter. He argued that the useful statements alleged by the respondent, being official documents and proceedings, the originals or certified true copies ought to have been produced. PAGE| 11 He cited Ezemba v. Ibeneme (2004) 14 (Pt. 894) 617; (2004) 8 SCM 69 Fashanu v. Adekoya (1974) 6 SC 83; Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; Agagu v. Dawodu (1990) 7 NWLR (Pt. 160) 56 and sections 111(1) and 132(1) of the Evidence Act. He also cited section 149(d) of the Evidence Act on the failure of the respondent to place before the court the alleged useful statements. Taking Issue No. 2, learned counsel submitted that the Court of Appeal was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of that court in Anaekwe v. Commissioner of Police, supra; Musa v. Commissioner of Police (2004) 9 NWLR (Pt. 879) 483; Oshinaya v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 and Ogueri v. The State (2002) 2 CLRN 14. He argued that the Court of Appeal was bound by its previous decisions. He urged the court to allow the appeal. Learned counsel for the respondent, Mr. Bola Olotu, enumerated ten criteria for granting bail and contended that the bailability of an accused depends upon the weight a Judge attaches to one or several of the criteria open to him in any given case. He cited Asari v. Federal Republic of Nigeria (2007) 12 SCM 68 FWLR (Pt. 375) 558 and Bamaiyi v. The State (2001) FWLR (Pt. 46) 956. He submitted that the Court of Appeal exercised its discretion judicially and judiciously and did not disregard the appellants’ right to presumption of innocence. Reacting to the submission of learned counsel for the appellants on the issue of useful statements made by the appellants, counsel argued that a statement need not necessarily be in a document and there is nothing from the respondent suggesting that the statements were in a document to necessitate their being exhibited. On Issue No. 2, learned counsel submitted that the issue of grant or refusal of bail is a discretionary matter and in matters of discretion, previous decisions are not of much value, thus not binding but can only offer broad guidelines, as each exercise of discretion depends on the facts of each case. PAGE| 12 He cited Asari v. Federal Republic of Nigeria, supra and Abacha v. The State (2002) FWLR (Pt. 98) 863. He urged the court to dismiss the appeal. The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in section 345 of the Criminal Procedure Code. The section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212. The most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail. The bailability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judicial function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously. In exercising its discretion, the court is bound to examine the evidence before it without considering any extraneous matter. The court cannot exercise its whims indiscriminately. Similarly, there is no room for the court to express its sentiments. It is a hard matter of law, facts and circumstances which the court considers without being emotional, sensitive or sentimental. PAGE| 13 The general criteria for granting bail are; (a) the availability of the accused to stand trial, (b) The nature and gravity of the offence, (c) The likelihood of the accused committing offence while on bail, (d) The criminal antecedents of the accused, (e) The likelihood of the accused interfering with the course of justice. The above general criteria apart, the criteria for granting pre-trial bail or bail by trial court include (a) Likelihood of further charge being brought, (b) The probability of guilt, (c) Detention for the protection of the accused, (d) The necessity to procure medical or social report pending a final disposal of the case. I will not consider all the above criteria. I will only deal with the two which are relevant to this appeal. They are the availability of the accused to stand trial and the nature and gravity of the offence. First, the availability of the accused to take his trial. The main function of bail is to ensure the presence of the accused at the trial. That is the cynosure of all the criteria. It is the centre-piece. And so this criterion is regarded as not only the omnibus ground for granting or refusing bail, but the most important. The second criterion, as I have mentioned, is the nature and gravity of the offence. It is the belief of the law that the more serious the offence, the greater the incentive to jump bail, although this is not invariably or for all times true. For instance, an accused person charged with murder, as in this case, is more likely to flee from the jurisdiction of the court then one charged with affray. The distinction between capital offences and non-capital offences in one way “crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the defendant absconding.” See “Notes: Judicial Discretion in Granting Bail”, (1952) 27 St. John’s Law Review, page 64. The above is subject to the qualification that there may be less serious offence in which the court may refuse bail, because of its nature. I should now consider three cases where bail was granted in murder offences. In Enwere v. Commissioner of Police (1993) 6 NWLR (Pt. 299) 333, the Court of Appeal granted a murder accused bail on the ground that the prosecution did not bring to the notice of the court facts on the alleged murder. Onu, JCA (as he then was) said at page 341: PAGE| 14 “In the case of Dogo v. Commissioner of Police (1980) 1 NCR 14 at page 17, it was emphasized that it is the duty of the court to consider whether to grant bail once an accused person has pleaded not guilty to a charge. Such a situation clearly arises where an information or charge is laid before the trial court. Not so in the case in hand where no information or charge was laid by the prosecution. Hence, in the absence of facts which the prosecution was duty bound to supply justifying the appellant’s detention in police cell, the trial Judge was bound to let appellant go from the police cell.” In Chinemelu v. Commissioner of Police (1995) 4 NWLR (Pt. 390) 467, the Court of Appeal also granted bail pending trial to a murder accused, in the light of the special circumstances of the case. And the special circumstances were the absence or lack of facts justifying the continued detention of the accused. Ejiwunmi, JCA (as he then was) in his concurring judgment said at page 489: “The only evidence about the case before the lower court and this court remains the affidavit filed by the inspector involved with the investigation of this case. And he only made references to what he considered to be the eye witnesses of the offence for which the appellant stands charged. However, there is nothing that can be likened to a complete proof of evidence from the witnesses themselves. For the respondent to justify the continued detention of the appellant I think it is only right for the respondent to produce such evidence for the consideration of the court.” Adamu, JCA, also provided a helping hand when he said at page 491: “In the instant case, the appellant had presented sufficient averment in the affidavit evidence at the lower court to take care of the first condition by showing that he would neither prejudice the investigation (or) prosecution of the case nor would he escape justice by jumping bail. It is also clear both from the records and from the briefs of counsel in this appeal that no proof or evidence or information has up till now been filed against the appellant at the lower court… It is true that bail pending trial is not normally granted ex-debito justitie where the offence is a capital offence as in the present case. PAGE| 15 However special circumstances may exist to warrant the grant of bail pending trial in a capital offence as in Enwere v. COP (1993) 6 NWLR (Pt. 299) 333. The special circumstance in the present case is the prosecution’s delay or failure to prepare the proof of evidence or to file an information against him for the alleged murder.” In Anaekwe v. Commissioner of Police (1996) 3 NWLR (Pt. 436) 320, the Court of Appeal also granted bail pending trial to a murder accused on the same ground as in Enwere and Chinemelu. In Anaekwe, I said at pages 331 to 333: “It is common ground in this appeal that the learned trial Judge heard the application of the appellant without an information and proof of evidence. It was after the refusal of the application that the Judge ordered the filing of the proof of evidence within the next 75 days…How can a court process filed after the Notice of Appeal retrospectively affect the legal regime on which the appeal is based. Can that be a fair hearing to the appellant who in the course of preparing the grounds of appeal, did not anticipate the allegedly filed proof of evidence? That will be clear injustice and this court cannot be a party to it… The six letter-word of murder comes with it so much fear as the law prescribes the death penalty. But like every other offence in our criminal law system, there is nothing magical in the word per se. But there is so much to fear in the offence because of the death penalty. Therefore, where the prosecution merely parades to the court the word ‘murder’ without tying it with the offence, a court of law is bound to grant bail. And the only way to intimidate a court not to grant bail is to proffer an information and proof of evidence to show that there is prima facie evidence of commission of the offence… In my view, although bail is not normally granted a murder accused, a situation where there is no material before the trial court to show that the appellant is facing a charge of murder, including proof of evidence; certainly qualifies as a special circumstance in which this court can grant bail… In the light of the foregoing, I have no alternative than to set aside the 21st December, 1994 Ruling of the lower court. I admit the appellant to bail upon the following conditions…” Akintan, JCA (as he then was) put the position better in the case at page 334: PAGE| 16 “The main question raised in this appeal is whether from the facts of the case, the l
