Chief Anthony Emeka Ani V.the State (2001)

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O. OBADINA, J.C.A.

This is an appeal against the ruling of Adesanya J, of the High Court of Lagos State Ikeja Judicial Division, delivered on June 7, 2001.

The appellant was arraigned on the 17th of May, 2001 at the Ikeja Judicial Division of the Lagos High Court on a one count charge of murder. He pleaded not guilty to the charge.

By a motion on notice dated 28th of May, 2001, and brought pursuant to sections 118 and 123 of the criminal procedure Law of Lagos State and section 35 of the 1999 Constitution, the appellant’s counsel prayed for the release of the appellant on bail pending the determination of the matter. The application was supported with affidavit and exhibits. The respondent filed a counter-affidavit against the application.

In paragraph 5 (d) and (e) of the affidavit in support of the application, it was deposed on behalf of the applicant inter- alia as follows:

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(d) That the accused/applicant is suffering from diabetes mellitus and Cardiomyophathy which require a constant check up which cannot be provided in the Ikoyi prisons where the accused applicant is kept.

(e) That the applicant’s life is in danger as the disease of Cardiomyopathy is terminal. Attached herewith and marked Exhibit ‘B’ is a medical report issued by the Ikeja General Hospital.”

In reply to paragraph 5(d) and (e) of the affidavit in support, the respondent stated in paragraph 8 of the counter affidavit as follows:-

“8 The respondent denies paragraphs Sea) and (e) and say that in the absence of a medical report stating the state of the health of the applicant and the fact that it cannot be treated in custody, exhibit ‘B’ of the affidavit in support cannot form the basis upon which the court would exercise its discretion.”

After hearing counsel for the parties, the learned judge refused the application for bail. It is against the refusal of the application that the appellant has appealed to this court, on three (3) grounds of appeal.

On the application of the appellant dated 21st of June, 2001 and filed on the 25th of June, 2001, brought under Order 6 Rule 2 of the Court of Appeal Rules, 1981 and Section 29 of the Court of Appeal Act, 1976, with an affidavit of urgency, this court, on the 9th of July, 2001 ordered an accelerated hearing in addition to abridging the time for filing of briefs of argument. The parties accordingly filed and exchanged the briefs.

From the three (3) grounds of appeal filed by the appellant, the appellant formulated two (2) issues for determination namely:

(i) “On whom does the burden of proof lie in application for bail?