Anochie David Ozougwu V. The State (2006)

LawGlobal-Hub Lead Judgment Report

BADA, J.C.A.

On the 3rd day, of February 2005 the appellant and six others were at different 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 filed 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.

Dissatisfied with the refusal of the application, the appellant has come to this court. Briefs were duly filed 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 filed 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-filing 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 affidavit 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 offence 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 offence 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 file information has been held to amount to special circumstance that will weigh in favour of an applicant in an application for bail in capital offence. He referred to the following cases: