CHUKWUMA NWINYIMA v. COMMISSIONER OF POLICE, ANAMBRA STATE
In The Court of Appeal of Nigeria
On Thursday, the 27th day of January, 2005
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
CHUKWUMA NWINYIMA Appellant(s)
COMMISSIONER OF POLICE, ANAMBRA STATE Respondent(s)
OGEBE, J.C.A. (Delivering the Leading Judgment): The appellant was arrested on the 17th of December, 1999, for an alleged offence of armed robbery involving a motorcycle. He was taken before the Chief Magistrate Court, Onitsha on the 25th of January, 2000.
The Chief Magistrate remanded him in custody and ordered the police to accelerate the investigation of the matter for the advice of the Director of Public Prosecutions.
The police did nothing and the appellant in a motion dated the 4th day of August, 2003, brought an application in the High Court, Onitsha for bail pending the filing of information.
The motion was argued and the respondent who did not file a counter-affidavit, opposed the application on points of law. In a short ruling, delivered on the 9th of September, 2003, the trial court struck out the motion without considering the merits of the application. It is against that ruling that the appellant has appealed to this court.
The learned Counsel for him filed a brief of argument and identified two issues for determination as follows:
“1. Whether the learned trial Judge was not wrong to have refused to admit the appellant to bail having regard to the unchallenged evidence before him to with, non filing of the information and proof of evidence.
2. Whether the learned trial Judge was not wrong to have asked the appellant to re-apply for bail after information is filed in 30 days from the date of ruling.”
The learned State Counsel for the respondent also filed a brief and raised a preliminary objection to grounds 1 and 2 of the grounds of appeal. She however, failed to give prior notice of the preliminary objection as required by Order 3 rule 15 of the Court of Appeal rules 2002. Accordingly, I discountenance the objection altogether.
There is only one relevant issue in this case and that is issue No. 1 formulated by the appellant. The learned Counsel for the appellant submitted that the continued failure of the respondent to file any information against him after several years of his detention amounted to special circumstances to justify the grant of bail in his favour. He relied on the case of Anaekwe v. The Commissioner of Police (1996) 3 NWLR (Pt.436) 320, in which the Court of Appeal granted bail for an offence of murder in which no information was preferred and no proof of evidence was shown to suggest the commission of the offence.
The respondent has no answer to this submission. In fact, the respondent’s brief is based primarily on the preliminary objection which has collapsed.
In the case of Anaekwe v. The Commissioner of Police (1996) 3 NWLR (Pt.436) 320 at page 332 and 333, the Court of Appeal held as follows:
“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 intimate the court not to grant bail is to prefer an information and proof of evidence to show that there is prima facie evidence of commission of the offence. Thus, although bail is not normally granted a person accused of murder, 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 the court can grant bail”
The facts of the present case are similar. The affidavit evidence of the appellant, paragraphs 13 to 20 gives a full picture and it is reproduced hereunder:
“13. That I was kept at the said police station from 21/12/99 to 6/1/2000, and even though I had volunteered to take the policemen to the Isiokwe Road mechanic workshop, where the said Escort works, the police refused to take me there.
14. That in the stead, I was on the 25th January, 2000, arraigned before the Magistrate’s court Onitsha.
15. That the police did not investigate the said fact of transaction between me and the said Escort, whose father’s name I do not know.
16. That I have been in custody from the 17/12/99 to date.
17. That to date the D.P.P. has not taken out/filed any information against me at the High Court as ordered by the Magistrate.
18. That the D.P.P. does not intend to file any information against me I verily believe from the foregoing facts.
19. That there is no reasonable suspicion that I had committed the alleged offence.
20. That there is no valid evidence against me pertaining to the alleged offence.”
This affidavit evidence was never controverted by the respondent. It showed that the respondent simply dumped the appellant in prison custody on a so-called allegation of armed robbery without doing anything for several years to file information and proof of evidence in respect of the alleged offence. This is totally unjust and is an unwarranted invasion of the appellant’s right to personal liberty. No responsible court of law can ignore such a breach. See section 35(4) of the 1999 Constitution which reads:-
“(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 in the case 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.”
The trial court was wrong in failing to consider the merits of the appellant’s application for bail and striking it out. Striking out the application amounted to a refusal to grant bail. There was sufficient uncontroverted evidence before the trial court to enable it to grant the bail.
Accordingly, I allow this appeal and set aside the ruling of the trial court, striking out the appellant’s application for bail. In its place, I grant the appellant bail in the sum of N1 million with two sureties in the like sum. The sureties shall be persons with landed properties in Onitsha. The High Court Onitsha is directed to process the grant of bail as ordered in this judgment pending the trial of the appellant.
GALADIMA, J.C.A.: I have been privileged to read in advance, the judgment just delivered, by my learned brother, Ogebe, J.C.A. He has satisfactorily dealt with the issue of bail of the appellant. I too, would admit appellant to bail under the conditions stipulated in the lead judgment.
UMOREN, J.C.A.: I agree.
M.U. Ikem, Esq.;
S.O. Nworie and Chuks Eze)For Appellant
Respondent not representedFor Respondent