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ANOCHIE DAVID OZOUGWU
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 Jiji_Land_&_Plots

ANOCHIE DAVID OZOUGWU V. THE STATE

(2006)LCN/1877(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of February, 2006

CA/E/73M/2005

RATIO

LEGAL PRACTITIONER – DUTY OF COUNSEL NOT TO USE A BRIEF AS

MEDIUM TO SUPPLY EVIDENCE WHICH HAD NOT BEEN CALKED BEFORE
THE COURT 

It should be noted however that Court of Appeal is not a court of sentiment

but a court of law and counsel cannot use brief as a platform to supply
evidence which had not been called before the trial court. See –
Majekodunmi v. Nigerian Army (2002) 16 NWLR (Pt. 794) 451 at 461 Ogolo v.
Fubura (2002) 11 NWLR (Pt. 831) 231. PER BADA, J.C.A.

CRIMINAL LAW PROCEDURE: FACTOR THAT WOULD BE TAKEN INTO

CONSIDERATION BY A JUDGE IN GRANTING AN APPLICATION FOR BAIL
PENDING TRIAL

In considering an application for bail pending trial, the Supreme Court in

Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 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 trial; (c) the nature and
gravity of the o ence; (d) likelihood of the accused committing another

o ence 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 the guilt; (i) detention for the protection of the accused; (j)
the necessity to procure medical or social report pending nal 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. PER BADA,
J.C.A.

JUSTICES

JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

Between

ANOCHIE DAVID OZOUGWU Appellant(s)

AND

THE STATE Respondent(s)

BADA, J.C.A. (Delivering the Leading Judgment): On the 3rd day, of February
2005 the appellant and six others were at di erent times charged for
murder and arson before the Chief Magistrates Court and Senior Magistrate
Court Enugu. The learned Magistrates ordered that the accused person be
remanded in Enugu prison. An application for bail was led before the High
Court of Justice, Enugu on behalf of the accused/appellant. The learned
Judge refused the application on the ground inter alia that the accused did
not show compelling or coercive circumstances.

Dissatis ed with the refusal of the application, the appellant has come to
this court. Briefs were duly led and exchanged. The appellant formulated
two issues for determination:

“(1) Whether the learned trial Judge was right in refusing bail to the
appellant arraigned in the Magistrate court for murder when information
has not been led in the High Court.

(2) Whether the learned trial Judge in refusing bail exercised her discretion
judiciously and judicially.”

The learned counsel for the respondent adopted the issues formulated for
determination by the appellant and he added four other issues as follows:

“(3) Whether the learned trial Judge was right when he held that under
section 35(7)(a) of the 1999 Constitution the accused person is not entitled
to bail.

(4) Whether the learned trial Judge acted within the law when he held that it
is pre-mature and not in the interest of the prosecution or the defence to
consider the issue of alibi raised by the applicant.

(5) Whether in the circumstances of the case, the learned trial Judge was
right when he held that non- ling of information will not operate as a
special circumstance except if there is unreasonable delay which is not the
position in this case.

(6) Whether the learned trial Judge was right in his evaluation of the
a davit evidence placed before this court, the sum of which was the
exercise of discretion in favour of the respondents.”

Learned counsel for the appellant Mr. Ozokolo contended that the learned
Chief Magistrate and Senior Magistrate grade 1 before whom the appellant
was arraigned have no jurisdiction to try the o ence of murder and arson.

He referred to Anaekwe v. C.O.P (1996) 3 NWLR (Pt. 436) page 320 at 332;
Jimoh v. C.O.P (2004) 17 NWLR (Pt. 902) page 389 at 405 – 406.

He submitted that in the consideration of the nature of the o ence for

purposes of bail that it is wrong in law to consider a charge before a court
that has no jurisdiction to try the case as the learned trial Judge did, because
according to him in this case there is no charge of murder known to law
against the appellant.

Learned counsel also contended that failure to le information has been

held to amount to special circumstance that will weigh in favour of an
applicant in an application for bail in capital o ence. He referred to the
following cases:

Ogbhemhe v. C.O.P (2001) 5 NWLR (Pt. 706) 215

Ikhazuagbe v. C.O.P. (2004) 7 NWLR (Pt. 872) 346

Eyu v. The State (1988) 2 NWLR (Pt. 78) 602

Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467


Anaekwe v. C.O.P (supra)
Learned counsel for the appellant went further in his argument when he
conceded that the issue of bail is a matter of discretion and he submitted
that the discretion is based on ascertained principles and since there is no
proof of evidence, it would be di cult to ascertain the character of evidence
against the appellant.

He also submitted that it is not the intendment of our law that detention
pending trial or denial of bail pending trial should be punishment for
accused persons who have not been convicted of any o ence as this will be
antithetical to constitutional presumption of innocence in favour of all
accused persons until the contrary is proved.

Learned counsel nally urged this court to allow the appeal and admit the
applicant to bail.

Learned counsel for the respondent Mr. Ezike relied upon the respondent’s
brief.

He contends that for a good proof of evidence for proving the case of the
prosecution beyond reasonable doubt the o ce of the Director of Public
prosecution needs su cient and reasonable time. He relied upon E om v.
The State (1995) 1 NWLR (Pt. 373) 507 at 509.

He urged this court not to rely on the authorities cited by the appellant
which decided that non- ling of information is a special circumstance.

Learned counsel for the respondent also contended that the learned trial
Judge exercised his discretion judiciously, judicially and justi ably in
refusing bail to the applicant in view of the fact that the charge was for a
case of murder. He went further that even the 1999 Constitution recognizes
in its section 35(7) that it is not in the public interest to release on bail
person charged with the commission of a capital o ence punishable with
death pending his trial.

On the issue of “alibi”, learned counsel submitted that for it to be raised

properly, it requires calling of witnesses to testify either establishing it or
attenuating its credibility. He referred to Ogoala v. The State (1991) 2 NWLR
(Pt. 175) 509; Ozaki & Ors. v. The State (1990) 1 NWLR (Pt. 124) 92.

He nally urged this court to dismiss the appeal. In reply brief, learned
counsel for the appellant, referred to the new facts in the respondent’s brief
which he said were not contained in the a davit or counter a davit or even
the ruling of the court below.


He therefore submitted that the respondent cannot introduce new facts in
the brief which were not available at the hearing to support his argument.
He referred to the following cases:

Orugbo v. Una (2002) 16 NWLR (Pt. 792) at 175

Ogolo v. Fubura (2002) 11 NWLR (Pt. 831) 231

Anaekwe v. C.O.P (supra)

On the issue of introduction of new facts, the respondent’s brief brought in

the fact that the appellant and his cohorts went on destruction spree when
they attacked one Gabriel Onyia, Omegbeji and set two vehicles ablaze etc.

It was also stated among others that the wife of the deceased has not made
statement with the police because she is yet to recover from the shock of the
sudden and sordid death of her husband.

The facts above were not borne out of the record of this appeal i.e. they are
not contained in the a davit, counter a davit or even the ruling of the
court below.

It should be noted however that Court of Appeal is not a court of sentiment

but a court of law and counsel cannot use brief as a platform to supply
evidence which had not been called before the trial court.

See – Majekodunmi v. Nigerian Army (2002) 16 NWLR (Pt. 794) 451 at 461

Ogolo v. Fubura (2002) 11 NWLR (Pt. 831) 231.

In considering an application for bail pending trial, the Supreme Court in

Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 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 trial;

(c) the nature and gravity of the o ence;

(d) likelihood of the accused committing another o ence 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 the guilt;

(i) detention for the protection of the accused;

(j) the necessity to procure medical or social report pending nal 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 case what calls for determination is whether the trial Judge
was right in refusing bail to the appellant arraigned in the Magistrate Court
for murder and arson when information or proof of evidence has not been
led in the High Court.

Learned counsel for the appellant referred to Section 20 of the Magistrate

Court Law Cap. 82 Laws of Eastern Nigeria still applicable in Enugu State.
The criminal jurisdiction of Chief Magistrate relate to o ences with
punishment not exceeding 14 years. The punishment for the o ence of
murder is prescribed in Section 274(1) of the Criminal Code Cap. 36 Laws of
Anambra State 1986 which applies to Enugu State while punishment for
arson is imprisonment for life under section 416 of the same law.

Learned counsel for the respondent contended that the learned trial Judge
exercised his discretion judiciously, judicially and justi ably in refusing bail
to the applicant in view of the fact that the charge was for a case of murder,
and the punishment for the o ence is grave.

It is obvious from the laws referred to earlier above that the Chief
Magistrate and Senior Magistrate grade 1 both in Enugu before whom the
appellant was arraigned have no jurisdiction to try the o ence of murder
and arson.

Under the 1999 Constitution section 35(7), bail pending trial is not normally
granted as a matter of course where the o ence for which the applicant is
charged is a capital o ence punishable with death. However, special
circumstances may arise in any particular case to warrant the exercise of
discretion by any High Court trying such an accused person to release him
on bail pending his trial. And the grant of bail pending trial in such
circumstances is usually mainly on account of where there is no formal
charge of murder as required by law.


In the instant case the trial Judge referred to the charge before the Chief
Magistrate and Senior Magistrate Grade 1 Enugu that have no jurisdiction in
holding that the appellant is not entitled to bail.

Apart from the fact that there is no formal charge as required by law, there
is also no proof of evidence before the trial Judge when he considered the
appellant’s application for bail. It is from the proof of evidence that a court
will be persuaded whether or not to grant bail to an accused person,
especially in a murder charge so as to ascertain whether or not there is a
prima facie evidence. Thus where the prosecution as in this case merely
parades to the court the word “murder” and the trial court accept it and
went ahead to refuse bail it cannot be said to be fair. For example in
paragraph 18 of the a davit in support of the application for bail before the
trial Judge it was stated that “the circumstances leading to the arrest and
detention of the applicant is as a result of Enugu Ngwo village crises and
mob action”.

It is the view of this court that trial courts must always examine thoroughly
the surrounding circumstances of each allegation of murder before coming
to a decision one way or the other.

The advice of Ogebe, JCA in Ogueri v. The State (2001) 2 ACLR page 96 is
apposite where he said at page 103 in his contribution to the lead judgment
that:

“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.”

A court that fails to look into the facts relied on in support of a charge
cannot be said to have exercised its discretion judiciously.

Therefore a situation where there is no material before the court to show

that an accused person is facing a charge of murder including proof of
evidence certainly quali es as a special circumstance in which the court can
grant bail.

Emmanuel Chinemelu v. C.O.P. (1995) 4 NWLR (Pt. 390) 467;

Anaekwe v. C.O.P. (1996) 3 NWLR (Pt. 436) 320.


In view of the foregoing, the ruling of the lower court dated 23rd of March
2005 is hereby set aside. Bail is hereby granted to the appellant in the sum of
three hundred thousand Naira with two sureties in the sum of one hundred
and fty thousand Naira each.

The sureties must swear to a davit of means and must be house owners in
Enugu State.

OGEBE, J.C.A.: I had a preview of the lead judgment of my learned brother

Bada, JCA and I agree with his reasoning and conclusion in allowing the
appeal and granting the appellant bail. I adopt the judgment as mine.

ADEKEYE, J.C.A.: I had the opportunity to read before now the judgment just
delivered by my learned brother I. O. Bada, JCA. I agree with him that
granting of bail particularly in a capital o ence is not as a matter of grace
but the practice rests purely on the discretion of the court. Section 36(5) of
the 1999 Constitution presumes in favour of the liberty of the subject and
his innocence until found guilty. This is irrespective of the nature or gravity
of the o ence with which he is charged. In any given case the onus is on the
prosecution to show that an accused is not one that should be released on
bail. Over the years the courts in numerous decided cases have established
criteria, or guidelines that should be taken into consideration in an
application for bail as enumerated in the lead judgment as referred to in the
cases:

Nwude v. F.G.N (2004) 17 NWLR (Pt. 902) 306; Chinemelu v. C.O.P (1995) 4
NWLR (Pt. 390) 467; Danbaba v. The State (2000) 14 NWLR (Pt. 687) 396;
Olatunji v. F.R.N (2003) 3 NWLR (Pt. 807) 406; Jimoh v. C.O.P. (2004) 17
NWLR (Pt. 902) 389.

Under section 34(1) of the Criminal Procedure Code, bail shall not be
granted to a person accused of a capital o ence. This prohibition is however
not absolute as by virtue of sub-section (3) of section 341, if it appears to the
court that there are no reasonable grounds for believing that a person
accused has committed the o ence such person may be admitted to bail. It
is therefore within the case law that a person charged with murder shall
only be released on bail on establishing special circumstances warranting
the exercise of discretion of court in his favour. A decisive factor in the case
of murder is the cogency of the evidence or the facts alleged against the
appellant. For without such facts or evidence it is di cult to see how the
court can satisfy itself as to whether or not there are or are not reasonable
grounds for believing that the accused has committed the o ence alleged.
Ikhazuagbe v. C.O.P. (2004) 7 NWLR (Pt. 872) 346; Jimoh v. C.O.P. (2004) 17
NWLR (Pt. 902) 389.

In this case absence of a formal charge and lack of a proof of evidence both
constitute special circumstance for the exercise of the discretion of the
court to grant bail in favour of the appellant. Where a trial court properly
exercised its discretion an appellate court will not interfere with that
exercise.

The facts of the case here point at a discretion not properly, judiciously or
judicially exercised. I agree with the lead judgment that the ruling of the
lower court dated 23rd of March 2005 be set aside. I abide by the
consequential orders including the conditions for bail.

Appeal allowed.

Appearances

R. C. Ozokolo, Esq.For Appellant

AND

Chuka Ezike, Esq.For Respondent

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