Joel Omodara V. The State (2003)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

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 .