Simon Ogenyi V. Commissioner Of Police & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Ebonyi State, in the Abakaliki Judicial Division, Holden at Abakaliki coram Njoku J. and delivered on 8/6/2010 wherein the appellant’s application for bail was Refused.

The appellant, Simon Ogenyi was on the 4/3/2010 arraigned before the Chief Magistrates Court, Abakaliki on a two count charge of conspiracy to commit murder and murder in charge No. MAB/98C/2010. The learned trial Magistrate declined jurisdiction to entertain the charge and remanded the appellant in prison custody at the Federal Prisons Abakaliki pending his trial at the High Court while the case file was ordered to be transmitted to the office of the Director of Public Prosecution for further advice.

On 16/3/2010, the appellant filed a motion on notice at the High Court, Abakaliki, Ebonyi State praying for an order to admit him to Bail.

The grounds upon which the motion was brought are as follows:-

1. That the applicant is presumed innocent until his guilt is proved beyond reasonable doubt.
2. There is no proof of evidence against the applicant.
3. That charging the Applicant to a magistrate court was in violation of court order.
4. That this Honourable court has the power to admit the Applicant to bail.
5. The Applicant is entitled to be given adequate time and facility to prepare his defence.
6. The Applicant is entitled to be given opportunity to choose a counsel of his choice.

The said motion is supported by 47 paragraph affidavit sworn to by one Cecilia Ogenyi, wife of the Applicant. A number of documents were also attached as Exhibits.

The respondent reacted by filing a counter affidavit of 12 paragraphs with some documents tagged Exhibits A to D attached.

Written addresses filed by both parties in support and in opposition to the application for bail are at pages 53 to 64 and 94 to 99 of the record of Appeal.

At the hearing of the application for bail on 17/5/2010, both parties duly adopted and relied on their respective written addresses. In a considered Ruling delivered on the 8/6/2010, the court in refusing and dismissing the application for bail held inter alia as follows:-

“Having duly considered the application of the applicant and taking into consideration also the nature of the offence alleged against him as shown by Exhibit UG I and having duly considered the short period of time that had elapsed between the date of his arraignment and the date this application was filed, I am of the view that though information or proof of evidence has not been filed against the applicant this would not amount to undue delay that is capable of swaying the discretion of the court to act on same in favour of the applicant in his reliance on non filing of proof of evidence against him and thereby admitting him to bail in a capital offence of murder. The application of the applicant for his bail is therefore unmeritorious and ought to be dismissed and is hereby dismissed”.

Being dissatisfied with the said Ruling, the appellant filed a notice of Appeal on 22/6/10. The Notice of Appeal contains 5 grounds of appeal which shorn of their particulars reads as follows:-

Ground One: Omnibus.

The Ruling is against the weight of Evidence.

Ground Two: Misdirection in law.