- JOEL OMODARA v. THE STATE
In The Court of Appeal of Nigeria
On Thursday, the 27th day of March, 2003
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
- JOEL OMODARA Appellant(s)
THE STATE Respondent(s)
SULEIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Justice of Lagos State delivered on 18/10/2002 by Hon. Justice A. A. Oyebanji.
The appellant, an applicant for bail in the lower court; was a public officer in the State Security Service and the Chief Security detail to the then Deputy Governor of Lagos State Mrs. Chief Kofoworola Bucknor-Akerele. He was accused of the murder of one Odunola Alli on 5/5/2000. Before his arraignment, he was remanded in prison custody by a Lagos Chief Magistrate court. On 10/10/2000, a Lagos High Court admitted him to bail pending the conclusion of investigation.
However, on 19/9/2002, by information made under the hand of the Director of Public Prosecution of Lagos State, the appellant was formally charged with murder contrary to section 319(1) of the Criminal Code, Cap. 32, Laws of Lagos State. An application for bail was moved but the learned trial Judge dismissed it on 18/10/2002 with this conclusion:
“It is imperative to reiterate that bail pending trial is not normally granted ex-debito justitiae where the offence is a capital offence. However special circumstances may exist to warrant the grant of bail pending trial for a capital offence. See Chinemelu v. COP (supra). After a detailed consideration of this application, it is clear that the accused/applicant is not entitled to bail, as the learned Senior Advocate has not succeeded in convincing the court that there exists some special circumstances which should warrant the grant of bail to the accused/applicant. The application for bail fails and is accordingly dismissed …”
Being dissatisfied with the ruling of the court below, the appellant has appealed therefrom to this court upon a notice which carries THREE GROUNDS of appeal. One issue was distilled and embodied in the appellant’s brief of argument thus:
“Whether the learned trial Judge properly exercised her discretion in dismissing the appellant’s summons for bail.”
The respondent equally identified a single issue as calling for determination as follows:
“Whether the appellant established exceptional circumstances which entitle him to bail on a murder charge?”
At the hearing of this appeal on 23/1/2001, both counsel adopted and relied on their respective briefs of argument.
In arguing the appeal learned Senior Advocate for the appellant Chief Adegboyega Awomolo, referred to page 39 of the record and submitted that the case of the prosecution is weak and that what is contained in the proof of evidence are mere guesses, assertions, speculations, and suspicion. It was further submitted that none of the witnesses in their statement directly or indirectly named or pointed unequivocally to the appellant for having committed the offence of murder. It was further submitted that the issue formulated by the respondent was outside the three grounds of appeal and therefore irrelevant and should be discountenanced together with the argument in support of the said issue.
In his argument, J. A. Sanni, Senior State Counsel for respondent conceded that there was no evidence before the trial court that the accused if granted bail would abscond. He further conceded that the issue formulated by the respondent does not arise from any of the grounds of appeal. He however urged us that this appeal should be dismissed.
First, I must say that an issue formulated for determination may encompass or derive from one or more grounds of appeal, but issue which does not arise from the ground of appeal is no issue properly formulated. In the circumstance, the respondent’s issue, as conceded by the appellant’s counsel himself, which does not arise from any of the grounds of appeal is incompetent and I ought to strike it out; see U.B.A. Plc v. Abdullahi (2003) 3 NWLR (Pt. 807) 359 at 371; Nfor v. Ashaka Cement Co. Ltd. (1994) 1 NWLR (Pt. 319) 222. It is hereby struck out.
Generally, an accused person who stands trial for the offence of murder is not ordinarily entitled to be granted bail. The reason for this is clear. Murder is regarded as the highest crime under the law which attracts the most severe punishment. In spite of this, however, courts have strived to uphold the constitutional presumption of innocence by creating case laws which have provided some conditions which an accused standing trial for murder may be admitted to bail pending his trial.
The main objective of bail is to ensure that the accused person does present himself for trial. To grant bail or not is a discretionary matter which the trial Judge in his exercise of this discretion must act judicially and judiciously. He must therefore act only on evidence placed before him. The grounds for refusing bail must be upon facts of the record. The trial Judge must not act on his instinct on which there is no evidence to support it .
My attention has been drawn to the conclusion of the learned trial Judge in refusing the accused bail at p. 39 of the records. She concluded thus:-
“In the instant case, the accused/applicant is charged with murder the punishment for which is the highest
punishment known to law. I believe there is a likelihood that if granted bail, he might prefer to abscond and refuse to show up to face his trial.”
I agree with the learned counsel for the applicant that the conclusion of the learned trial Judge has no foundation in view of available facts on the record. Depositions in paragraphs 3, 4, 14 and 18 of the affidavit in support of summons for bail, which were not controverted by the respondent, clearly do not support the conclusion of the learned trial Judge. First, the appellant is a public officer in the State Security Service. On record he had been previously granted bail since 10/10/2000 by Alogba (J.) and he fulfilled all the conditions attached to that bail until he was re-arraigned. He faithfully kept to the terms of the bail. He never absconded.
The prosecution would always be in the best position to advise or suggest to the court on the antecedent or probability or even the tendency of the appellant to escape from being tried. In the instant case they did not so advise or suggest that the accused if granted bail would run away. This conclusion of the court was not supported by any evidence from the prosecution.
Again, it would appear that the learned trial Judge refused the appellant bail because he believed that by virtue of his office and standing in the society, as a member of the State Security Service, he has all the advantages, connection and tentacles to interfere with prosecution witness. When the learned trial Judge had to come with this conclusion, it would appear to me, he must have some evidence that if granted bail the appellant would interfere with witnesses and the process of his prosecution and trial. If there is no such evidence before the learned trial Judge, then his conclusion was highly prejudicial to the right of the appellant to be granted bail pending his trial. The prosecution did not make any allegation in their counter affidavit that the appellant will use his advantageous position or status to interfere or intervene with prosecution witnesses or his trial.
The appellant was entitled to be heard on this fundamental issue.
He was not given an opportunity to be heard on this issue which is prejudicial ground for the learned trial Judge’s refusal to grant him bail.
It is my view and it is trite law, that a court exercising judicial discretion must do so judicially and make plain what material it took into consideration in the exercise of that discretion. But this court will interfere with the exercise of judicial discretion by the trial court if it is shown that the discretion was wrongly or perversely exercised or that the trial court took into consideration irrelevant materials or failed to consider relevant materials in arriving at its decision. See Ebute v. The State (1991) 8 NWLR (Pt. 360) 66; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143.
In Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270 referred to in the appellant’s brief the prosecution specifically established through counter-affidavit, some evidence and reasons for the great risk involved in granting bail. Circumstances and evidence on record were forceful and compelling that this court and indeed Supreme Court could not grant bail to him pending his trial.
Unless the court finds any evidence from the prosecution which contradicts or controverts the claim of the applicant why he should be granted bail and that he would not interfere with any prosecution witness or jump bail, then the court would have no basis to refuse bail on extraneous consideration or upon an unsubstantial belief or assumption. I do not think the decision of the lower court based on the reasons for refusing bail of the appellant were rooted in the evidence before the court. The appellant ought to have received favourable consideration for his bail.
In refusing bail for the appellant, the learned trial Judge was of the opinion that because the proceedings before Alogba (J) which granted bail to the appellant was a pre-arraignment proceeding whereas the present proceeding is post-arraignment. It is because of this different proceedings, the appellant is presumed would interfere with the course of justice and jump bail or escape his trial.
With due respect to the learned trial Judge I am not impressed with his reasoning. The distinction he made has no substance. It is noted that the appellant was charged with the offence of murder at the Chief Magistrate Court which has no jurisdiction. He was refused bail because of the gravity of the offence. Alogba (J) thereafter assumed jurisdiction. He exercised his discretion and admitted the appellant to bail. Although the appellant was facing murder charge since October 2000, the appellant did not jump bail nor did he commit any further offence. He kept to terms and conditions for bail for many months.
Once a trial Judge grants bail to an accused person, the court ought not in law revoke such bail unless there is evidence of some changed circumstances placed before him .
Be it noted too that the learned trial Judge refused bail application because it was premature to consider the nature of the evidence available in the proof of evidence with a view to determining the strength of the case of the prosecution.
However, the contention of the appellant was that the lower court, in the circumstances of this case, he was entitled to be considered on the fact that there is no evidence that directly linked him with the alleged murder. Besides, in the appellant’s brief of argument, paragraph 2005 it was contended that the evidence of one of the witnesses listed in the proof of evidence pages 8 – 10. Inspector Yekini Ibrahim seems to have contradicted the evidence of the prosecution in that he was the leader of the Security team of the Deputy Governor on the day of the incident. He affirmed that none of the Security team fired any shot on the fateful day. With these facts, the court may be persuaded to think that the prosecution case is weak and not strong enough to pose sufficient threat to scare the appellant to jump bail. Once the evidence of the prosecution against the accused is strong and direct, his chances of being set free is remote because the temptation of jumping bail and escaping justice is high. This aspect of the case is not considered by the learned trial Judge before she concluded that the prosecution has presented a prima facie case and therefore bail must be refused.
In the result, this appeal succeeds and I allow it. The ruling made by Oyebanji (J) sitting at High Court No.5 Ikeja Criminal Division on 18/10/2002 refusing appellant bail is hereby set aside.
In its stead the appellant is admitted to bail in the sum of N500,000.00 and two sureties each in the same sum. Sureties are to provide evidence of ownership of landed property within Lagos State to the Deputy Chief Registrar for scrutiny.
JAMES OGENYI OGEBE, J.C.A.: I read before now the lead judgment of my learned brother, Galadima, JCA just delivered and I agree with his reasoning and conclusion. I set aside the ruling of the lower court refusing bail and I hereby grant the appellant bail on the same terms as in the lead judgment.
PIUS OLAYIWOLA ADEREMI, J.C.A.: I have before now had the privilege of a preview of the judgment delivered by my learned brother, Galadima, JCA. I am in full agreement with him that, on the face of the printed evidence, that the appeal has merit.
The main issue raised in the appeal is the matter of grant of refusal of an application for bail.
The fundamental principles that guide a court in granting or refusing an application for bail pending trial are:-
(1) the nature of the charge;
(2) the strength of the evidence put up in support of the charge;
(3) the severity of the punishment in the event of conviction;
(4) the record of convictions, if any, of the suspect: a suspect with a long record of convictions will generally not be admitted to bail unless the trial Judge has a real doubt as to his guilt;
(5) The likelihood of the repetition of the offence;
(6) Whether there is real danger that he will abscond and thereby not surrender himself for trial;
(7) The risk that if released, the suspect may interfere with witnesses or suppress the evidence which may be adduced to incriminate him.
See (1) Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467, (2) Danbaba v. The State (2000) 14 NWLR (Pt. 687) 396, (3) Olatunji & Anr. v. F.R.N. (2003) 3 NWLR (Pt. 807) 406 and (4) Practice Note (1974) AER 794.
In the instant case, the materials before the court reveal that the suspect, the appellant was once granted bail by the trial Judge. I have had a careful examination of the materials placed before the court below prior to the grant of the application for bail sequel to pre-arraignment proceedings and those placed before it sequel to post-arraignment proceedings, there is no difference. Without saying more, I am clear in my mind that those evidential materials are weak. To refuse an application for bail on the face of the evidential materials before the court will be a travesty of justice and undoubtedly a wrong exercise of the trial Judge’s discretion.
It is for this little contribution but most especially for the detailed reasons contained in the leading judgment that I will also allow the appeal and set aside the ruling of the trial Judge refusing the application for bail. I will also grant the application on the terms contained in the said leading judgment.
Chief A. S. Awomolo, SAN (with him, J.A. Acquah, Esq. and R. Edeme, Esq.)For Appellant
J.A. Sanni, Esq.For Respondent