WHAT IS THE EFFECT OF FAILURE TO SHOW “SPECIAL CIRCUMSTANCES” IN A BAIL APPLICATION IN CAPITAL OFFENCES?

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CASE TITLE: EZIKE v. STATE (2019) LPELR-47711(CA)

JUDGMENT DATE: 10^TH JUNE, 2019

PRACTICE AREA: CRIMINAL LAW

LEAD JUDGMENT: ABUBAKAR SADIQ UMAR, J.C.A

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Criminal Law and Procedure.

FACTS

This appeal is against the ruling of the Anambra State High Court, Onitsha Judicial Division, delivered by I.U. Ndigwe J. on the 5th day of February 2019.

The Appellant as 1st Defendant in charge No. MO/937c/2018: Commissioner of Police V. Wilfred Ezike & Ors was arraigned alongside two others on a three-count charge of conspiracy and murder and the unlawful possession of firearms. The Appellant was alleged to be a participant in the alleged murder and attempted murder of one Akachukwu Ezebuilo and one Nnamdi Obumse respectively. The offence was said to have been committed on the 10th day of September 2018 at about 3:30 hrs at No.1 Ziks Avenue Fagge Onitsha.

The Appellant was subsequently arrested with others and was arraigned before a Magistrate Court sitting in Onitsha on the 3rd day of December 2018 and for want of jurisdiction, only remand proceedings were taken. On the 7th day of December 2012, the Appellant at the High Court filed an application for bail pending trial. The said application was supported by an affidavit and exhibits and a written address. The Applicant subsequently filed a further affidavit with Exhibits.

In opposing the granting of the said application, the Respondent filed a counter affidavit with a written address. The Applicant in turn on the same date filed a Further Affidavit and had attached with it, exhibits. There was also an Affidavit of Fact and a Re sworn Affidavit of Fact Correcting Error in the Affidavit of Fact/Further Affidavit of Facts in Opposition of the Motion for Bail.

The Application was taken on the 18th day of December 2018 and in a ruling delivered on the 5th day of February 2019 the Appellant’s application for bail was denied by the High Court.

The Appellant aggrieved with the ruling appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues:

1. “Whether from the manner the proceedings before the trial Court was conducted, the Appellant’s right to fair hearing as enshrined under Section 36 of the Constitution of the Federal of Nigeria (1999) (as Amended) was not trampled upon so as to render the entire proceedings a nullity.”
2. Whether from the totality of the evidence placed before the Court below  vis-a-vis the offence for which the Appellant was charged, the trial Court was right to have refused the Appellant’s Application for bail?”

DECISION/HELD

In conclusion, the appeal succeeded in part. The decision of the High Court was set aside for a breach of the Appellant’s right to fair hearing. However, based on the fact that the appellant was charged with a capital offence, his bail application was refused for failure to show any special circumstance(s).

RATIOS:

• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: Whether the failure of a trial Court to avail an accused person an opportunity to admit or deny the facts presented by the prosecution is tantamount to a denial of fair hearing; effect thereof
• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: Principle of fair hearing as enshrined in the provisions of Section 36(1) of the Constitution
• CRIMINAL LAW AND PROCEDURE- BAIL: Conditions for grant of bail pending trial
• CRIMINAL LAW AND PROCEDURE- BAIL: Effect of failure to show special circumstances in an application for bail in capital offences