Ugbede Ali V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE J.C.A (Delivering the Leading Judgment)

This is an Interlocutory Appeal against the Ruling of Hon. Justice H. A. Saleeman, of the High Court of Kwara State, Ilorin Judicial Division, whereof the learned trial Judge refused the application to grant or admit the Appellant to bail pending the determination of his case.

The Appellant was arraigned before the learned trial Judge on the 24th of March, 2010, on a two count charge of Armed Robbery and being in possession of Fire Arms, contrary to Sections 1(2) and 2(2) of Armed Robbery and Fire Arms Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004. After the charge was read and explained to the Appellant, he pleaded not guilty. On the same 24th day of March, 2010, the learned counsel for the Appellant filed an Application for Bail.

According to the learned counsel for the Appellant, the application was promptly filed and served on the State but the State neglected to file a counter-affidavit challenging the application until the 6th of April, 2010, while same was served on learned counsel to the Appellant on 7th April, 2010, when the application was to be heard. After hearing the addresses of counsel on both sides, the learned trial Judge ruled/held amongst others as follows:-

“However, going by the supporting affidavit, the contents therein are mere denials which are not substantiated. Although, bail is a guaranteed right of an Accused by virtue of Section 36(5) of the 1999 Constitution. The same Section under Section 35(7) says the liberty of the accused can be curtailed if there is a probability of the commission of the offence by the Accused.

From the available record, particularly the proof of evidence before the court, there is not only the likelihood of commission of the alleged offence, probability and potency of commission is higher than non-commission of same. The presumption of innocence on the accused is diluted in the mind of the Court. “(Page 33 lines 14 – 22 of the Records and page 34 line 1 thereof).”

The learned trial Judge continued at page 34 lines 6 – 12 that even though the accused was in prison custody for two years before his belated arraignment, and the Court may want to tilt the pendulum of justice towards that end; even at that, the gravity of the alleged offence is a capital one with high degree of punishment. He maintained further that:

“To release the accused to the society now may spell doom. More so, the accused address is not known, coupled with some incriminating facts shown in the proof of evidence.

No convincing iota of fact in the supporting affidavit which is very scanty thereby preventing the court from holding on to any fact which will sway the court’s mind to the granting of the application.”

In lines 13- 21 of page 34 to page 35 lines 1-4 of the Records; the learned trial Judge rounded up his ruling inter alia:

“For this reason and for the fact that the offence is capital one, and it carries the highest punishment, that there is no convincing facts on record and there is no way to trace the accused in case he decides to jump bail as a result of having no fixed address, no fact showing that the condition he is in prison has adversely affected his health specially. The Accused/Applicant’s application is hereby refused. More so, when the arms and the ammunitions were said to have been recovered from the Accused/Applicant who was also identified by the victim.

The Accused person having stayed for some period in prison custody, the case shall be given accelerated hearing with a rider that the prosecuting State Counsel shall expedite action in prosecuting the case particularly in the area of prosecution witnesses. The case is adjourned to 19/4/2010 for continuation of hearing on trial within trial. Accused to be remanded.”

It is against this Ruling that the Appellant has appealed to this Court on Five Grounds of Appeal as contained in pages 36 to 39 of the Records. Following the transmission of the Record of Appeal to this Honourable Court, Briefs were duly-exchanged by learned counsel to the respective parties. For the Appellant, Tunde Olomu Esq. formulated three Issues for determination couched and reproduced hereunder follows:-

“(i) Whether the trial Court exercised its discretion judicially and judiciously by refusing the bail of the Appellant having regard to the facts presented before it ? (Grounds 2, 4 and 5).