Vincent Ogueri V. The State (2000)

LawGlobal-Hub Lead Judgment Report

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.

The cornerstone of this case is Whether the Appellant who was charged with the offence of murder and whose application for bail was rejected by Metu J (now retired) who was then seized of the matter and which case is now transferred to Ogugua J and who similarly rejected his application for bail ought on the affidavit evidence to be granted bail. This appeal arises from the refusal of the learned trial Judge, Ogugua J, to grant the application for bail.

In the application of this nature the requirement for granting of bail is very stringent and facts attendant thereto must be strong and persuasive enough to make the court accede to the application for bail. The learned trial Judge in dismissing the application said that the learned defence counsel kept on referring her to the proceedings at the earlier trial of the case before the matter was assigned to her and then said that of the 3 premises on which the application was based, she would consider only one issue and that is the one of hearth of the applicant. She said in refusing the application:

“In so many cases health has been held to constitute one of those compelling reasons. In the application before me is a letter Exhibit ‘A’ to this counsel complaining of his health. There is no medical report confirming the complaint … in the justice of the instant situation is allowing Appellant access to a medical doctor for consultation.”

The Applicant appealed and one issue was framed by the Appellant which is:

“Whether there are coercive and compelling reasons why the Appellant ought to have been admitted to bail.”

The Respondent framed 2 issues but I am of the view that strictly speaking the issues formulated by the Appellant covers all that is in this matter.

The peculiarity of this case lies in the fact that though the Appellnt was arraigned as far back as October, 1992, the appeal on the issue of bail is coming up for consideration in the year 2000 about 8 years afterwards.

This means he has been incarcerated for nearly a decade and the time for the final determination of a case is not in sight.

An accused person is not in jurisprudence a person presumed guilty but is given the benefit being innocent until the contrary is proved. This pre-supposes that he is not to be bounded or be punished or remanded in custody for an unnecessarily long time without a reasonable cause to defeat the course of justice. In other words, he has to be treated humanely and given all the constitutional rights that are allowed to a citizen.

The Applicant through his solicitor Ahamba, SAN in his application for the bail (which is refused) stated:

3. “That the Applicant has been in the custody since 2nd day of September.
4. That the Applicant was arraigned before the High Court sitting at Owerri on 28/10/92 on a one count charge of murder and plea was taken on that date wherein the applicant pleaded not guilty.
5. That on 16/4/91, prior to the applicant being arraigned as stated in paragraph- 4, an application for his bail filed on 14/11/90 was refused and the Applicant was remanded in prison custody at Owerri.
6. That the position in paragraph 5 is so despite the fact that the police have concluded their investigations and have not found any evidence whatsoever against the applicant to show that he was involved in the alleged crime and to support his continued incarceration.
7. That the prosecution opened its case on 11/11/92 with PW1 who was cross examined.
8. That none of the 5 prosecution witnesses who testified gave testimony directly or indirectly incriminating the applicant of complicity the death of the deceased.
9. That since the said 27/1/99, this matter has suffered 4 adjournments all not connected with applicant’s or his counsel’s inability to go on with the case but due to delays either from the prosecution or the Honourable court not sitting because of the other pressing businesses of the Court.
10. That the matter is now adjourned to the 7/10/99.
11. That it is now nearly 9 years since the applicant has been remanded in prison custody.
12. That this matter is to be heard de novo and that the Applicant is languishing in prison custody for an offence he did not commit.
13. That the Applicant has been ill on several occasions and has not the benefit of adequate medical attention.
14. That I was informed by the applicant and I verily believe him that he G now afflicted with serious illness which requires specialist attention.
15. That I was informed by the applicant and I verily, believe him that the illness was diagnosed on 3/6/99 by the prison doctor and further recommenced that the applicant be sent to a specialist to attend to the illness. That attached as Exhibit ‘A’ letter through which the Applicant information.”

The question is did the court below carefully consider and weigh the affidavit evidence of the Appellant before him. Exhibit B attached to the application for bail is the Record of proceedings before Metu J, and this was made use of by learned counsel for the Appellant Ahamba SAN. In the other Exhibit, i.e. Exhibit ‘A’, the Appellant said in his reference to the state of his health which the Court alluded to in its Ruling that he was in a terribly bad shape as found out by the prison Doctor who referred him to a Consultant for Medical Care, and he added thus:

“But the A.C.P. (Head of Prisons Department) bluntly refused to allow me to go to the Federal Medical Centre for Medical treatment. May be he felt I have some scores to settle with him … My health has so much deteriorated since then.”

The prosecutor which is the Respondent in this case did not file any counter-affidavit to challenge the statement contained in Exhibit A or the contents of the affidavit.