EMEKA ONWUGHALU V. THE STATE
(2007)LCN/2592(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of March, 2007
CA/E/373/2006
RATIO
CRIMINAL LAW AND PROCEDURE – BAIL APPLICATION : FACTORS THAT SHOULD BE CONSIDERED BY A JUDGE IN GRANTING OR REFUSING BAIL PENDING TRAIL
“In considering an application for bail pending trial, the Supreme Court in Bamayi V. The State (2002) 16 WRN Page 1 (2001) 7 S.C. Part II Page 62 and (2001) 8 NWLR Part 715 at Page 270 listed a number of factors that may be taken to consideration by a Judge in granting or refusing bail pending trial. These include:- (a) the evidence available against the accused. (b) the availability of the accused to stand bail (c) the nature and gravity of the offence. (d) the 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 guilt. (i) detention for the protection of the accused. (j) the necessity to produce medical or social report pending final disposal of the case. It is important to note that the factors listed above are not exhaustive in guiding any trial court in granting or refusing bail pending trial. Also it is not necessary that all or many of these factors must apply in any given case, even one factor may be applied in a particular case to guide trial court in granting or refusing bail pending trial before it. In the instant appeal under consideration what calls for determination is whether the learned trial Judge was right when he refused the appellant’s application despite the affidavit evidence before the court. Under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” PER JIMI OLUKAYODE BADA, J.C.A
CRIMINAL LAW AND PROCEDURE – BAIL APPLICATION : WHETHER IT WILL BE FAIR TO REFUSE AN APPLICANT BAIL WHO HAS MADE HIMSELF AVAILABLE FOR TRAIL DESPITE BEEN EMANCIPATED FROM PRISON BY HOODLUMS
“it would be against natural justice and good conscience to refuse an applicant bail who has made himself available for trial despite the fact that he was emancipated from prison by hoodlums. More-over he consistently presented himself back to prison for trial whilst others who were charged with him for the same offence are still at large.” PER TONYE DENTON-WEST J.C.A
Before Their Lordships
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
EMEKA ONWUGHALU Appellant(s)
AND
THE STATERespondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the leading Judgment): This is an appeal against the ruling of an Ogidi High Court in Anambra State of Nigeria which was delivered on the 13th day of November 2006 in charge NO.HID/4C/2005 – The State V. Emeka Onwughalu & 2 others, wherein the learned trial Judge after considering the appellant’s application for bail pending trial, refused and dismissed the said application.
The appellant was dissatisfied with the ruling and has appealed to this Court.
Briefly the facts of the case showed that the appellants and two others now at large, were on the 19th day of April 2005 arraigned before the High Court NO.1 at Ogidi on an information and charged dismissed his application?
(2) Whether the learned trial judge was right when he held that he could not find any special circumstance that would warrant his exercising his discretion in favour of the appellant to admit him to bail pending trial.
The Respondent on the other hand adopted the issues for determination contained in the appellant’s brief.
At the hearing of the appeal learned counsel for the appellant adopted and relied on his brief of argument while learned counsel for the Respondent Mrs. F.E. Nwangwu Deputy Director of Public Prosecutions who was absent but wrote a letter to brief the court that she filed a Respondent’s brief on the 6th day of February 2006 and that she would be adopting the said brief.
ISSUE 1
The learned counsel for the appellant submitted that the learned trial Judge was wrong when he refused and dismissed the appellant’s bail application because if he had taken time to give consideration to the affidavit evidence in support of the appellant’s application and the submissions of counsel, he would have come to a different decision.
He referred to Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and the following cases:-
– Ayo Olugbusi V. C.O.P. l19701 All NLR Page 338.
– Michael Dada Ariyo V. C.O.P. (1989) 1 CLRN Page 287.
The learned counsel for the Respondent even though absent filed her brief of argument in this appeal on 6/2/2007.
She submitted in her brief that the appellant ought to have been granted bail at the court below having reasonably shown that he was ready to come and stand his trial whenever called upon to do so.
She referred to Bamaiyi V. The State (2002) 2 ACLR Page 467 at 485 and stated that the essence of granting bail is because of the presumption that there is a likelihood of the accused making himself available to stand his trial.
In considering an application for bail pending trial, the Supreme Court in Bamayi V. The State (2002) 16 WRN Page 1 (2001) 7 S.C. Part II Page 62 and (2001) 8 NWLR Part 715 at Page 270 listed a number of factors that may be taken to consideration by a Judge in granting or refusing bail pending trial. These include:-
(a) the evidence available against the accused.
(b) the availability of the accused to stand bail
(c) the nature and gravity of the offence.
(d) the 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 guilt.
(i) detention for the protection of the accused.
(j) the necessity to produce medical or social report pending final disposal of the case.
It is important to note that the factors listed above are not exhaustive in guiding any trial court in granting or refusing bail pending trial. Also it is not necessary that all or many of these factors must apply in any given case, even one factor may be applied in a particular case to guide trial court in granting or refusing bail pending trial before it.
In the instant appeal under consideration what calls for determination is whether the learned trial Judge was right when he refused the appellant’s application despite the affidavit evidence before the court.
Under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
It was submitted by learned counsel for the appellant that there is no evidence in support of the charge against the appellant. He referred to page 33 of the record of appeal and in particular paragraphs 8, 9 and 10 of the affidavit in support of the application for bail filed in the lower court where it was deposed thus:-
“(8) That in the course of the remand of the considered by a court, and an applicant who has been of good behaviour or conduct stands a high chance of being granted bail.
Another factor which the learned Trial Judge ought to have considered is the possibility or likelihood of the trial not proceeding or being commenced for a long time because appellant i.e. the 3rd accused in the information preferred was implicated by 1st accused who had absconded and all efforts made to locate him had failed according to the learned Deputy Director of Public Prosecution who appeared for the State at the lower court on the 13th day of November 2006. (See Pages 36 to 37 of the record of appeal).
It is clear that in the absence of the 1st accused, trial could not be commenced against the appellant and the legal implication of this is that the appellant will be detained for an indefinite period without trial which will amount to sentencing the appellant before his trial and conviction to an indefinite term of imprisonment.
This will definitely be an abuse of fundamental right to personal liberty and freedom of movement of the appellant.
Considering all I have said so far on this issue it is my humble view that the learned trial Judge ought to have granted the appellant bail pending his trial. This issue is therefore resolved in favour of the appellant.
ISSUE 2.
The learned trial Judge held that he could not find any special circumstance that would warrant his exercising his discretion in favour of the appellant to admit him to bail pending trial.
Special circumstance, in my humble view is not a magic word and does not exist in the abstract or in isolation of the facts of the case. As a matter of fact, what constitutes special circumstance depends on the facts of each case and they vary from one case to another.
In the instant appeal it is my view that it is a special circumstance sufficient to warrant the granting of bail to the appellant since the appellant on two occasions had opportunity to abscond and evade trial, but he refused to abscond and chose to remain law abiding and he preferred to stand his trial and allow the rule of law to take its normal course. This view is supported by the letter of recommendation from the Nigerian Prison Service to the trial court as contained on page 41 of the record of appeal.
Again, the fact that the trial of the appellant cannot be commenced because the 1st accused person who implicated the appellant and was charged along with him cannot possibly be found because he has absconded with the 2nd accused is also a special circumstance which the lower court ought to have considered in granting bail to the appellant. I also resolve this issue in favour of the appellant.
Consequently, it is my view that there is merit in this appeal and it is allowed. Bail is hereby granted to the appellant in the sum of One Million Naira with two sureties in the sum of Five Hundred Thousand Naira each.
The sureties must swear to affidavit of means and must be house owners in Anambra State.
JAMES OGENYI OGEBE J.C.A: I read in advance the lead judgment of my learned brother Bada JCA just delivered and I agree with his reasoning and conclusion. Accordingly, I also grant the applicant bail on the conditions prescribed in the lead judgment.
SOTONYE DENTON-WEST, J.C.A: I agree that there is abundant merit in this appeal and in line with the lead judgment, I also grant the appellant bail in terms of the conditions as prescribed in the lead judgment.
On the facts of this appeal, which have been well narrated and treated in the lead judgment, it would be against natural justice and good conscience to refuse an applicant bail who has made himself available for trial despite the fact that he was emancipated from prison by hoodlums. More-over he consistently presented himself back to prison for trial whilst others who were charged with him for the same offence are still at large. This release from prison by hoodlums happened two times, and each occasion the appellant voluntarily resubmitted himself to the prison authorities. This is unusual and indeed should attract commendation; not only by the prison authorities but also by this Court it is unusual in our present day Nigeria for a party to insist that Justice be done accordingly to law.
I also commend Mrs. F.E Nwangwu, Deputy Director Public Prosecutions, for their Respondent’s brief and for acting really as a public prosecutor instead of persecutor, as was aptly considered by this court in the case of Vincent Ogueri v. The State, where the learned Presiding Justice in this very appeal the Hon. Justice James Ogenyi Ogebe, JCA, in his contribution whilst punctuating on justice and freedom in Ogueri v. The State, (2000) 5 WRN 27 at 33 observed inter alia:
“From the facts of this case the appellant has been standing trial for 8 years and it is not known how long his trial will continue. By this subsection of the Constitution, it is mandatory that he be released on bail while facing his trial.
In the case of Christian Diogu v. The Commissioner of Police (2000) 1 K.L.R. (Pt .94) 195 the appellant was charged for conspiracy and murder before the Chief Magistrate’s Court, Onitsha. The Chief Magistrate remanded the appellant in custody. He applied to the High Court for bail. The High Court dismissed his application on the ground that it would not be in the public interest to admit the applicant to bail.
The Applicant then appealed to the Court of Appeal, Enugu Division. The Court of Appeal in granting bail was of the view that it would be dangerous to merely arrest citizens of this country on allegation of murder without substantial facts in support and keep them in custody merely because they are being accused of murder. From the facts of that case the prosecution did not even provide the court with proof of evidence to show ‘that there was a prima facie case of murder against the appellant.
In a country such as ours where there is so much inter-ethnic Animosity and hatred, the court ought to be cautious in Remanding Accused persons in custody unless there is some substantial evidence in support of allegations of crime against them because it is so easy for an enemy to make a false allegation of murder or robbery against a citizen to keep him out of circulation.
From all I have said in my contribution, I have no hesitation in allowing the appeal and granting the appellant bail on conditions given in the lead judgment.”
In the final analysis, as I said earlier on, I do not hesitate to grant the appellant bail on the terms and conditions prescribed in the lead judgment.
Appearances
MR. H.N.C. MOGHALU with him is U.C. Anwalue EsqFor Appellant
AND
For Respondent
