BARILE JACK v. COMMISSIONER OF POLICE
(2011)LCN/4518(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of May, 2011
CA/PH/428/2010
RATIO
APPLICATION FOR BAIL: WHETHER THE DELAY OR FAILURE OF THE PROSECUTION IN PREPARING THE PROOF OF EVIDENCE OR THE INFORMATION AGAINST THE ACCUSED CONSTITUTE A SPECIAL CIRCUMSTANCE WARRANTING THE COURT GRANTING HIM BAIL
In UZOUGWU’S case (supra) at page 252 this court held that where there is no proof that the person charged for capital offence is not, after some delay, facing trial for the alleged offence at the competent court a special circumstance exists for his bail. In CHINEMELU v. COMMISSIONER OF POLICE (1995) 4 NWLR [pt.390] 407 this court again held that “the prosecution’s delay or failure to prepare the proof of evidence or the information against him” is a special circumstance warranting the court granting him bail.” PER EJEMBI EKO, JCA
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 35 (4) OF THE 1999 CONSTITUTION AS TO A SPECIAL CIRCUMSTANCE IN WHICH AN ACCUSED MUST BE RELEASED ON BAIL
The learned trial Judge has clearly ignored the letters and spirit of section 35 (a) of the 1999 Constitution expressed in the following provisions – 35. (4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of – (a) two months from the date of his arrest or detention of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without Prejudice to any further Proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. When a Judge is called upon to exercise his discretion under the law he has been called upon to decide or determine the rights of the parties not according to his personal sentiments but within the province and provisions of the law. PER EJEMBI EKO, JCA
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
BARILE JACK Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
EJEMBI EKO, JCA (Delivering the Leading Judgment): On 7th September, 2010 the Appellant’s application for bail at the lower court was refused. He filed this appeal, on 16th September, 2010 against that decision. In his notice of appeal he raised one ground of appeal complaining that “the learned trial Judge erred in law when he refused to admit (him) to bail in spite of the existence of special and exceptional circumstance” to warrant the exercise of the court’s discretion in his favour. The lone issue in this appeal is –
Whether special circumstances exist in this case to entitle the appellant to be admitted to bail.
Appellant filed Brief of argument in which the lone issue was argued.
The Respondent did not file any brief. Though served on 25th February, 2011 the Respondent was not in court on 22nd March, 2011 when the appeal was argued. By order of this court made on 17th February, 2011, the appeal was heard on Appellant’s Brief alone.
The appellant was arrested on 13th March, 2009 and was arraigned in the Senior Magistrate’s court on 30th March, 2009 on a two count charge alleging conspiracy to commit murder, and the murder of one Kalilo Biira on 29th January, 2006. The offences are respectively punishable under sections 324 and 319 (1) of the criminal code Law cap 37 of the Laws of Rivers state, 1999. They are both capital offences since the alleged murder had allegedly been committed.
D.I. Iboroma, of counsel for the appellant concedes on authority of OZOUGWU v. STATE (2006) 9 NWLR [pt.985] 240 at page 153 that a person charged for murder shall only be released on bail upon his showing special circumstances warranting the exercise of the discretion in his favour.
What the appellant relies on as constituting special circumstances warranting the court below granting him the bail sought “pending the filing of information” against him is the fact that no information has yet been filed against him at the High Court for his trial for the alleged offences. The Senior Magistrate’s court, where he had been arraigned on the two allegations does not have the jurisdiction to try him for the offences.
In UZOUGWU’S case (supra) at page 252 this court held that where there is no proof that the person charged for capital offence is not, after some delay, facing trial for the alleged offence at the competent court a special circumstance exists for his bail. In CHINEMELU v. COMMISSIONER OF POLICE (1995) 4 NWLR [pt.390] 407 this court again held that “the prosecution’s delay or failure to prepare the proof of evidence or the information against him” is a special circumstance warranting the court granting him bail. Mr. Iboroma of counsel further submits that the instant case and CHINEMELU’s case (supra) are on all fours and that the learned trial Judge was in error to have refused the appellant bail contending that the statements of three persons, described as “supposed witnesses”, “constitute proof of evidence which will likely be at the trial.” I agree with the learned counsel. The learned trial Judge misconceived the appellant’s case. His complaint is that the State or the prosecution has failed within the reasonable time to commence his trial at the appropriate court, The prosecution can only do that by filing the information containing the charge and the proofs of evidence at the court with the jurisdiction. That is the only way the trial of the appellant for the alleged offences at the High Court can be initiated. The substance of the appellant’s complaint is that the State or the prosecutor has not initiated his trial at the High court. The learned trial Judge seems to agree or confirm this at page 18 when he added thus –
The Ministry of Justice should vigorously endeavour to file an information because the statements I read are horrendous.
It is apparent from the foregoing that the learned trial Judge refused the application for bail on very extraneous and irrelevant considerations. Doing so, as he did, is no doubt perverse.
The undisputed facts of this case are that the appellant was arrested for the alleged offences on 13th March, 2009. He was arraigned at the Senior Magistrate’s Court on holding charge on 30th March, 2009. He has since then being in custody. The application for “bail pending the filing of the information against” him was filed on 19th August, 2010. The application was refused on 7th September, 2010. Thus, between 13th March, 2009 and 7th September, 2010 the appellant had spent not less 510 days without any real hope that the State would file information for his trial at the appropriate and competent court. The learned trial Judge has clearly ignored the letters and spirit of section 35 (a) of the 1999 Constitution expressed in the following provisions –
35. (4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been re leased on bail, he shall (without Prejudice to any further Proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
When a Judge is called upon to exercise his discretion under the law he has been called upon to decide or determine the rights of the parties not according to his personal sentiments but within the province and provisions of the law. The learned trial Judge had allowed his sentiments to govern his consideration of the application for bail. In so doing he decided perversely.
There is substance in this appeal. The failure and/or refusal of the State to file information together with the proofs of evidence within a reasonable time is a special circumstance both in accordance with the CHINEMELU case (supra) and under section 35 (4) of the 1999 Constitution entitling the appellant to bail pending when the State would decide when to start prosecuting him. The State can not use the holding charge as a pre to curtail the appellant’s personal liberty ad infinitum. That will offend the letters and spirit of section 35 (1) of the same constitution. Sub-section (4) of section 35 of the Constitution provides a ready tool to enhance the powers of the court either to enforce the personal liberty of the accused or to insist on his speedy trial within a reasonable time under sections 35 (1) and 36 of the Constitution.
I allow the appeal on this lone issue argued.
The decision of the court below, dated 7th September, 2010, refusing to admit the appellant to “bail pending the filing of Information against” the appellant is hereby set aside. In its stead bail is hereby granted to the appellant in the sum of N500,000.00 and two sureties in the like sum who shall each produce evidence of landed property worth more than the said sum of N500,000.00. In addition each surety shall produce two recent passport, colour, photographs of himself. The bail bond and the relevant processes shall be processed at the court below. For avoidance of doubt the bail granted is only “pending the filing of the Information” against the appellant at the appropriate and competent High Court.
M. DATTIJO MUHAMMAD, J.C.A.: I had a preview of the lead judgment of my learned brother EKO JCA and agree with him that the Appellants right to personal liberty cannot, given S. 35 (4) of the 1999 constitution, be unreasonably curtailed. He cannot be detained indefinitely after his arrest without being properly charged to court. The state’s failure to prosecute the appellant and further controvert assertion that he, on being released on bail, will turn up for his trial, constitutes the exceptional circumstances for admitting him to bail, The lower court has erred in deciding otherwise. See Chinemelu v. commissioner of Police (1995) 4 NWLR (Pt. 390) 407.
For the foregoing and more so the fuller reasons contained in the lead judgment, I also allow this appeal. I abide by all the consequential orders reflected in the lead judgment.
T.O. AWOTOYE, J.C.A.: I have had the opportunity to read the draft of the judgment just delivered by my learned brother EJEMBI EKO JCA, I am in total agreement with it. I have nothing to add.
This appeal has merit. I abide by the order of bail made in the lead judgment.
Appearances
D.I. Iboroma, EsqFor Appellant
AND
For Respondent
