SIMON OGENYI V. COMMISSIONER OF POLICE & ANOR (2011)

SIMON OGENYI V. COMMISSIONER OF POLICE & ANOR

(2011)LCN/5003(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of December, 2011

CA/E/184/2010

RATIO

BAIL APPLICATION: WHETHER DECISION WHETHER OR NOT TO GRANT BAIL TO AN APPLICANT IS ENTIRELY AT THE DISCRETION OF THE COURT HEARING THE BAIL APPLICATION

It is well established that the decision whether or not to grant bail to an applicant is entirely at the discretion of the court hearing the application for bail having regard to the materials placed before it by way of affidavit in support of the application. The discretion is expected to be exercised judicially and judiciously. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

INTERFERENCE WITH THE EXERCISE OF DISCRETION OF A TRIAL COURT: WHETHER AN APPELLATE COURT CAN UNDULY INTERFERE WITH EXERCISE OF DISCRETION MADE BY A TRIAL COURT

It is also trite that an appellate court will not unduly interfere with the exercise of discretion by a trial court. But where a trial court fails to exercise its discretion judicially or judiciously by basing its decision on wrong principles or extraneous considerations, an appellate court will intervene to set aside such decision in the interest of justice. See C.G.C. (NIG) LTD. V. BABA (2005) ALL FWLR (PT 242) 515; USANI V. DUKE (2005) ALL FWLR (PT 244) 960; SCOA (NIG) PLC V. OMATSHOLA (2009) 11 NWLR (PT 1151) 106; OYEKANMI V. NEPA (2000) 4 NSCQR 175; IDEOZU V. OCHOMA (2006) ALL FWLR (PT 308) 1183; OGBUAWA V. F.R.N. (2011) 12 NWLR (PT 1260)100. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

DISCRETION OF COURT: FACTORS OR PRINCIPLES THAT WILL BE TAKEN INTO CONSIDERATION BY A TRIAL JUDGE IN THE EXERCISE OF HIS DISCRETION ON WHETHER OR NOT TO ADMIT AN APPLICANT TO BAIL PENDING TRIAL

In the exercise of his discretion whether or not to admit an applicant to bail pending trial the following factors or principles may be taken into consideration by a trial judge. 1. The nature and gravity of the offence charged. 2. The evidence available against the accused. 3. The availability of the accused to stand his trial. 4. The criminal antecedents of the accused person. 5. The likelihood of the accused committing another offence while on bail. 6. The likelihood of further charge being brought against the accused. 7. The probability of guilt. 8. The severity of punishment upon conviction. 9. The health condition of the accused person. 10. The detention of the accused for his own protection. The above factors are not exhaustive and may also not be relevant in all cases having regard to the peculiarity of the ground for each application. See BAMAIYI V. THE STATE (2001) 8 NWLR (PT 715) 270. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

DISCRETION OF COURT: THE MOST IMPORTANT INGREDIENTS THAT WILL GUIDE THE COURT IN EXERCISING ITS DISCRETION

RIGHT TO BAIL IN MURDER CASES: WHETHER AN ACCUSED PERSON WHO STANDS TRIAL FOR THE OFFENCE OF MURDER IS ORDINARILY ENTITLED TO BAIL

In GANI ADAMS V. A.G. OF THE FEDERATION supra at page 669. It was held per Mary Peter Odili JCA (as he then was) that:- “An accused who stands trial for the offence of murder is not ordinarily entitled to bail. The reason for this is clear. Murder is regarded as the highest crime under the law which attracts the most severe punishment. Inspite of this however, the courts have strived to uphold the constitutional presumption of innocence by creating case laws which have provided some conditions under which an accused standing trial for murder may be admitted to bail pending his trial” In CHINEMELU V. C.O.P. supra at page … this court per Achike JCA (as he then was) held that:- “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. However special circumstances may exist to warrant the grant of bail pending trial in a capital offence. The special circumstance in the present case is the prosecution’s delay or failure to prepare the proof of evidence or to file information against him for the alleged murder”. The question then is whether special circumstance existed that would have spurred the trial judge to admit the appellant to bail. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR (PRESIDING JUSTICE) Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

SIMON OGENYI Appellant(s)

AND

1. COMMISSIONER OF POLICE
2. ATTORNEY-GENERAL, EBONYI STATE Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Ebonyi State, in the Abakaliki Judicial Division, Holden at Abakaliki coram Njoku J. and delivered on 8/6/2010 wherein the appellant’s application for bail was Refused.
The appellant, Simon Ogenyi was on the 4/3/2010 arraigned before the Chief Magistrates Court, Abakaliki on a two count charge of conspiracy to commit murder and murder in charge No. MAB/98C/2010. The learned trial Magistrate declined jurisdiction to entertain the charge and remanded the appellant in prison custody at the Federal Prisons Abakaliki pending his trial at the High Court while the case file was ordered to be transmitted to the office of the Director of Public Prosecution for further advice.
On 16/3/2010, the appellant filed a motion on notice at the High Court, Abakaliki, Ebonyi State praying for an order to admit him to Bail.
The grounds upon which the motion was brought are as follows:-
1. That the applicant is presumed innocent until his guilt is proved beyond reasonable doubt.
2. There is no proof of evidence against the applicant.
3. That charging the Applicant to a magistrate court was in violation of court order.
4. That this Honourable court has the power to admit the Applicant to bail.
5. The Applicant is entitled to be given adequate time and facility to prepare his defence.
6. The Applicant is entitled to be given opportunity to choose a counsel of his choice.
The said motion is supported by 47 paragraph affidavit sworn to by one Cecilia Ogenyi, wife of the Applicant. A number of documents were also attached as Exhibits.
The respondent reacted by filing a counter affidavit of 12 paragraphs with some documents tagged Exhibits A to D attached.
Written addresses filed by both parties in support and in opposition to the application for bail are at pages 53 to 64 and 94 to 99 of the record of Appeal.
At the hearing of the application for bail on 17/5/2010, both parties duly adopted and relied on their respective written addresses. In a considered Ruling delivered on the 8/6/2010, the court in refusing and dismissing the application for bail held inter alia as follows:-
“Having duly considered the application of the applicant and taking into consideration also the nature of the offence alleged against him as shown by Exhibit UG I and having duly considered the short period of time that had elapsed between the date of his arraignment and the date this application was filed, I am of the view that though information or proof of evidence has not been filed against the applicant this would not amount to undue delay that is capable of swaying the discretion of the court to act on same in favour of the applicant in his reliance on non filing of proof of evidence against him and thereby admitting him to bail in a capital offence of murder. The application of the applicant for his bail is therefore unmeritorious and ought to be dismissed and is hereby dismissed”.
Being dissatisfied with the said Ruling, the appellant filed a notice of Appeal on 22/6/10. The Notice of Appeal contains 5 grounds of appeal which shorn of their particulars reads as follows:-
Ground One: Omnibus.
The Ruling is against the weight of Evidence.
Ground Two: Misdirection in law.
The trial judge misdirected himself in law when after he stated the true position of law in the matter
he still refused to exercise his discretion judiciously according to law.
Ground Three: Error in law.
The trial judge erred in law when he relied on section 84 of the Evidence Act and refused to strike out paragraphs of the counter affidavit defective in substance and admitted the inadmissible documents annexed to the counter affidavit in those paragraphs.
Ground Four: Error in law,
The trial judge erred in law when he held that the only exceptional circumstance is paragraph 32 of the affidavit in support of motion, and treated the violation of court orders (Exhibits UG5 and UG8) on the same subject matter as non exceptional circumstances.
Ground Five: Error in law.
The trial judge erred in law when he ignored the position of the law in BOLAKALE V. STATE (2006) 1 NWLR (PT 962) 507 at 519-520 paras E-A, and relied on time gap between arrest, arraignment and application for bail, and dismissed the application of the applicant”.
The parties subsequently filed and exchanged briefs of argument in compliance with relevant Rules of court. The appellant’s amended brief of argument is dated 13th June 2011 and filed on the 15th June, 2011. It was settled by George T. Ogara Esq. The Respondent’s brief of argument dated and filed on 28 July 2011 was settled by P.M. Awada Esq. (Chief State counsel, Ministry of Justice, Ebonyi State. At the hearing of the appeal on the 17th day of October 2011 the parties duly adopted and relied on their respective briefs of argument.
In the appellant’s brief of argument one sole issue was formulated for determination. To wit:
“Whether the court below was right in holding that the appellant was not entitled to bail”.
For the Respondent, a sole issue was also distilled for determination as follows:-
“Whether the learned trial judge was wrong to have refused the application of the appellant to be admitted to bail pending his trial”.
Both issues as raised by the parties are no doubt identical in substance and I am minded to consider the appeal on the basis of the issue as couched by the appellant.
On the said issue, G.T. Ogara of counsel for the appellant submitted inter alia that the presumption of the innocence of an accused person as enshrined in the 1999 constitution also applies to an accused person standing trial for capital offences such as murder. He cited in support the case of BONIFACE UKATU V. C.O.P. (2001) FWLR (PT 66) 755 at 763.
Further relying on the said authority at page 764 learned counsel submitted that in determining the application for bail the court must consider the evidence for and against the appellant from the information filed and the proof of evidence in support of the information. But in this case, no proof of evidence or information was filed in the lower court. He added that the absence of proof of evidence is a special circumstance in which the court can grant bail. He further cited in support the following authorities:-
JIMOH V. C.O.P (2004) 17 NWLR (PT 962) 369 at 408; SULEMAN V. C.O.P. (2008) ALL FWLR (PT 425) 1627 at 1654; MUSA V. C.O.P (2005) ALL FWLR (PT 243) 766 and BOLAKALE V. STATE (2006) 1 NWLR (PT 507) 528.
Learned counsel further submitted that no valid reason was given by the Respondent for opposing the application for bail at the lower court and the trial judge relied on the desposition in paragraph 10 (b) of the counter affidavit which is speculative to dismiss the application. He then urged that the appeal be allowed.
Responding on behalf of the respondent in his brief of argument, P.M. Awada, Chief State Counsel, referred to Section 11(1) of the Criminal Procedure law applicable in Ebonyi State which provides that a person charged with an offence Punishable with death shall not be admitted to bail except by a Judge of the High Court. He then submitted that by the provision, the discretionary powers to admit to bail pending trial in a charge of murder vests in a judge of the High Court which discretion is expected to be exercised judicially and judiciously. Relying on the authority of CHIEDU V. A.G. FEDERATION (2006) 13 NWLR (PT 996) 306 at 212 he listed the factors to be considered in an application for bail as follows:-
1. the evidence available against the accused.
2. the availability of the accused to stand trial.
3. the nature and gravity of the offence.
4. The likelihood of the accused committing another offence while on bail.
5. the likelihood of the accused interfering with the course of justice.
6. the criminal antecedents of the accused person.
7. the likelihood of further charge being brought against the accused person.
8. the severity of punishment.
9. detention of the accused and
10. the necessity of procuring medical Report.
Also relying on the above authority, learned counsel submitted that all the aforementioned factors shall be mutually exclusive in that in the absence of any or some of them, the accused shall not be entitled to be admitted to bail.
Also citing the case of ABDUL GAFARALAYA V. THE STATE (2007) 16 NWLR (PT 1001) 483 he argued that the appellant having been charged with the offence of murder which carries the sentence of death upon conviction, the learned trial judge was right to have applied the principles of the twin pillars of seriousness of the offence and the likelihood of the appellant absconding from Justice in refusing his application for bail. He then urged this court to dismiss the appeal.
It is well established that the decision whether or not to grant bail to an applicant is entirely at the discretion of the court hearing the application for bail having regard to the materials placed before it by way of affidavit in support of the application. The discretion is expected to be exercised judicially and judiciously.

In the exercise of his discretion whether or not to admit an applicant to bail pending trial the following factors or principles may be taken into consideration by a trial judge.
1. The nature and gravity of the offence charged.
2. The evidence available against the accused.
3. The availability of the accused to stand his trial.
4. The criminal antecedents of the accused person.
5. The likelihood of the accused committing another offence while on bail.
6. The likelihood of further charge being brought against the accused.
7. The probability of guilt.
8. The severity of punishment upon conviction.
9. The health condition of the accused person.
10. The detention of the accused for his own protection.
The above factors are not exhaustive and may also not be relevant in all cases having regard to the peculiarity of the ground for each application. See BAMAIYI V. THE STATE (2001) 8 NWLR (PT 715) 270.

In GANI ADAMS V. A.G. OF THE FEDERATION (2011)
NBAR VOL. I 667 at 678, this court held as follows:-
“In the exercise of the discretion, the following are the most important ingredients which will guide the court, that is:-
(a) the nature of the charge;
(b) the evidence by which it is supported
(c) the sentence which by law may be passed in the event of a conviction; and
(d) the probability that the accused will appear to take his trial. See Bamaiyi V. State supra”.
I entirely agree with it as a good proposition, generally in the consideration of an application for bail. See also CHINEMELU V. C.O.P. (1995) 4 NWLR (PT 390) 467.
In the instant case, the charge against appellant is for murder which is a capital offence under the Criminal code. It attracts without any option, a sentence to death upon conviction. Hence it is not usual for a person accused of murder to be admitted to bail pending his trial. The offence of murder being of such a grevious nature, it is not in the interest of the society that a accused person facing a trial for murder should be released on bail as a matter of course unless special circumstances are shown by the accused to the satisfaction of the court.
See ABACHA V. STATE (2002) 5 NWLR (PT 761) 638; ANAEKWE V. C.O.P (2009) 7 ACLR 101, OLADELE V. STATE (1993) 1 NWLR (PT 269) 291. In GANI ADAMS V. A.G. OF THE FEDERATION supra at page 669. It was held per Mary Peter Odili JCA (as he then was) that:-
“An accused who stands trial for the offence of murder is not ordinarily entitled to bail. The reason for this is clear. Murder is regarded as the highest crime under the law which attracts the most severe punishment. Inspite of this however, the courts have strived to uphold the constitutional presumption of innocence by creating case laws which have provided some conditions under which an accused standing trial for murder may be admitted to bail pending his trial”
In CHINEMELU V. C.O.P. supra at page … this court per Achike JCA (as he then was) held that:-
“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. However special circumstances may exist to warrant the grant of bail pending trial in a capital offence. The special circumstance in the present case is the prosecution’s delay or failure to prepare the proof of evidence or to file information against him for the alleged murder”.
The question then is whether special circumstance existed that would have spurred the trial judge to admit the appellant to bail?
For purposes of clarity, I deem it expedient to reproduce below paragraphs 25 to 44 of the affidavit in support of the application for bail in the lower court. See pages 5 to 6 of the Record). It reads:-
1. That the Applicant was arrested on the 11th day of January, 2010 in disobedience to the Order of the Ebonyi State High Court above and immediately whisked to Abuja where he was further detained and held incommunicado.
2. That I consulted his Solicitors, Festus Keyamo Chambers on his behalf, which said Chambers, wrote a letter to the Inspector General of Police demanding for the release of the Applicant. The letter is annexed and marked “Exhibit UG6”
3. That the Accused/Applicant approached an Abuja High Court for the enforcement of his fundamental Human Right to personal liberty against the Inspector General of Police who is the immediate Boss of the 1st Respondent.
4. That the Abuja High Court presided over by His Lordship, Justice Chizoba Oji ordered for the production of the Applicant either dead or alive. The Certified True Copy of the Order of Court is annexed and marked Exhibit “UG7”
5. That the Applicant was not produced as ordered by the Court but immediately taken to Markurdi, Benue State.
6. That the Abuja High Court after hearing the application of the Accused/Applicant ordered the immediate release of the Accused/Applicant pending when he will be arraigned before a Court of competent jurisdiction. The Certified True Copy of the Order of Court is annexed and marked “EXHIBIT UG8”
7. That in an attempt frustrates the execution of the Order of the Abuja High Court and further keep the Applicant in perpetual detention, the 1st Respondent caused the Accused/Applicant to be arraigned before a Magistrate Court Abakaliki on a trumped up charge of conspiracy and Murder knowing fully that the Magistrate Court has no jurisdiction to try the Applicant nor to admit him to bail.
8. That there is no proof of evidence against the Accused/Applicant person and the Respondents have no intention whatsoever to charge him to a competent Court of jurisdiction.
9. That unless this Honourable Court intervenes in the Applicant’s favour the Applicant will continue to suffer in perpetuity in the hands of the Respondent.
10. That the Accused/Applicant is presumed innocent until his guilt is proved beyond reasonable doubt.
11. That the Accused/Applicant has not been charged or convicted of this type of offence before.
12. That the Accused/Applicant if granted bail will be available for his trial.
13. That the Accused/Applicant will not and does not have the power to interfere with the proper prosecution of this matter if granted bail.
14. That the Accused/Applicant will provide a reasonable surety or meet up with any other liberal terms as this Honourable Court may determine.
15. That the Accused/Applicant has not and will not commit an offence while on bail.
16. That this Honourable Court has the power to grant the Accused/Applicant bail.
17. That this Honourable Court is the last hope of the common man.
18. That the Accused/Applicant being a legal practitioner will be instrumental to gathering documents and materials for his defence.
19. That during trial, the Accused/Applicant being a Legal practitioner will be personally conducting his defence as he does not have the financial capacity to engage the services of another legal practitioner for his eventual trial and defence.
20. That it is necessary to grant the Applicant bail for him to gather enough documents and materials for his defence.
On the other hand, the respondents in their counter affidavit sworn to by one Otozi Patience Nene, a senior litigation officer deposed in paragraphs 5 to 10 therein as follows:-
1. That in the course of the armed robbery, the deceased was murdered and the matter reported to the police.
2. That police commenced investigation in both the armed robbery and the murder of the deceased which resulted in the arrest of five persons. Namely:-
a. Jessy Chukwuezugorom Onyeukwu
b. Josnula Abuim Chukwu Onyeukwu
c. Chukwuemeka Nwanchukwu
d. Chinedu Obi
e. Chinedu Okenye and Obinna Israel Godlove.
3. That the above named suspects were arraigned in charge No: MAB/462C/2005 and one of them is facing trial in charge No. HAB/4C/2005 for the murder of the deceased.
4. That during the investigation of the armed robbery and murder of the deceased, it was revealed that the Applicant was one of the suspects.
5. That I was informed by C. Ogodo, Esq. and I verily believe him that:
a. the Applicant was not apprehended because he was in hiding and was not arraigned along with other suspects;
b. non apprehension or arrest of the Applicant gave concern to Institute, Name, Olkonomos foundation;
c. The Olkonomos foundation treated the non arrest of the Applicant for the armed robbery and murder of the deceased as a security risk;
d. this resulted in the withdrawal of all foreign workers of the foundation in the Institute, exhibited as ‘A’ is a letter dated 7th October, 2008;
e. Olkonomos Foundation on the 27th day of October, 2008 petitioned the then Inspector-General of Police, Sir Mike Mbama Okiro on the non arrest of the applicant as a suspect in the armed robbery and murder of the deceased, exhibited as “B” is a letter dated 27th October, 2008;
f. On the 3rd of November, 2008, the foundation also petitioned to His Excellency the governor of Ebonyi State on the death of the deceased and revealed that Applicant masterminded the murder of the deceased, exhibited “C” is a letter dated 3rd November, 2008;
g. as the investigation was going on, the Applicant was in hiding at Benue State;
h. on the 12th day of October, 2008, one Otoka Ogboso was murdered in his room at Obakota Village Ishieke in Ado Local Government Area of Benue State;
i. this was reported to the police who upon investigation arrested Applicant as a suspect in the murder charge along with others;
j. on the arrest of the Applicant at Ado Local Government Area of Benue State, he was transferred to Ebonyi State Police Command for arraignment for the murder of Johnnis Pieter Ban for which he had earlier been under investigation on the order of the Federal High Court Markurdi; exhibited as “D” is the enrooted order of the Federal High Court Markurdi;
k. arising from the investigation of the murder of Otoka Ogboso by the special investigation Unit, Force Headquarters, Abuja, a report of police investigation was issued which is hereby exhibited as exhibit “E”.
6. That I was informed by S.U. Ewa, Esq. and I verily believe him that:
a. the applicant was arraigned on the 4th March, 2010 from offence of murder of the deceased;
b. the original police case file on the investigation conduct by the police was received on the 26th day of April, 2010 and action is being taken for the filing of an information against the Applicant;
c. there has been no delay in the filing of information against the Applicant.
The trial judge in his ruling on the application for bail held as follows at page 116 of the Record of appeal.
“Having duly considered the application of the applicant and taking into consideration also the nature of the offence alleged against him as shown by Exhibit U.G.I. and having duly considered the short period of time that had elapsed between the date of arraignment and the date this application was filed, I am of the view that though information or proof of evidence has not been filed against the applicant this would not amount to undue delay that is capable of swaying the discretion of the court to act on same in favour of the applicant in his reliance on non-filing of proof of evidence against him and thereby admitting him to bail in a capital offence of murder”.
The contention of the appellants counsel in this appeal is that the absence of proof of evidence in support of the counter affidavit of the Respondents is a special circumstance in which the court can grant bail because having not filed any proof of evidence before the lower court; it is fatal to the prosecution’s case against bail.
It seems to me however that there is the need to take into consideration the time lag between the arrest and arraignment of the appellant and the filing of the application for bail in determining whether there is delay in the preparation of proof of evidence or even filing of information for the trial of the appellant.
This issue was exhaustively and adequately addressed by the trial judge in his ruling and I again reproduce below the relevant portion as follows:-
“Although there is no proof of evidence placed before this court to enable the hands of the court to be tied in the exercise of this discretion in favour of the applicant, the peculiar circumstance in this application is whether the applicant has been unduly detained in this charge for murder as to warrant the relying (sic) on non filing of proof of evidence as an exceptional circumstance that is capable of swaying the discretion of this court in his favour.
As I said earlier the applicant was arraigned before the learned Chief Magistrate Sam Okoro Ogo on 4th day of March 2010. His worship on that day made an order remanding the applicant to the Federal Prisons and also ordered that the case file be transmitted to the office of the DPP for further advice.
On the 16th day, of March 2010 the applicant filed this application which he has now relied on the non filing of proof of evidence as his exceptional circumstance”.
The 2nd Respondents in paragraph 10(b) of their counter affidavit averred that they received the case file which the learned Magistrate ordered to be transmitted to them on 4th day of March 2010, just on 26th day of April 2010. The motion was listed for hearing on 29th March 2010.
I am quite apprehensive of the status and position of the applicant as averred in paragraph 3 of the affidavit in support of the application. But then from the arraignment of the applicant on the 4th day of March 2010 and his subsequent remand at the Federal Prisons and the date of this application which is 16th March 2010 is less than two weeks or even today the 8th day of June that this ruling is delivered just a little over three months.
I do not think that a period of three months in capital offence of Murder as alleged against the applicant which said period elapsed between the date of arraignment before the lower court, and the date this ruling is delivered is sufficient to amount to an unnecessary delay to warrant his reliance on non filing of proof of evidence as an exceptional circumstance in his favour.
(Underlining is for emphasis).
I am in total agreement with the above finding and reasoning of the lower court and accordingly endorse it as succinct and unimpeachable. The appellant was arraigned before the Chief Magistrates Court in Ebonyi State on 4/3/2010 wherein he was ordered to be remanded in prison custody and the case file to be transmitted to the office of the D.P.P. for further advice. Though no deadline was given for the issuance of the legal advice but the appellant on the 16/3/2010 which is just 12 days after incarceration filed an application for bail before the High Court, Ebonyi State and the special circumstance relied upon in the application is non filing of proof of Evidence.
Meanwhile, the office of the D.P.P. did not receive the case file until the 26th day of April 2010 that is more than one month after the order of the Chief Magistrate Court. But granted that time started to run from the 4/3/2010 when the appellant was remanded in prison and an order made for the case file to be sent to the D.P.P. for further advice, it seems to me that a period of 12 days between the said order and the filing of the application for bail is too short a time within which to expect a legal advice and proof of evidence in a serious offence such as murder. In such a situation I do not think it will be out of place to allow for a reasonable length of time before seeking eliciting a favourable exercise of discretion on grounds of delay or non filing of proof of evidence as an exceptional or special circumstance. I am not oblivious of the constitutionally guaranteed presumption of innocence until proved guilty which enures in favour of any person who is accused of a criminal offence.
It is also a fundamental principle both at common law and under the constitution that an accused person is entitled to fair trial within a reasonable time.
I do not however think that the respondents were guilty of any undue delay in filing the proof of evidence within the time frame under consideration. The trial judge addressed this issue properly in his ruling and as earlier stated I agree entirely with his findings and decision reached there from. The sole issue for determination is therefore resolved against the appellant.
In the circumstance I hold that this appeal lacks merit and it is accordingly dismissed.