ABSRACT

Murder is the unlawful and intentional killing of a human by another human.[1]The whole legal systems in the world have made it the most heinous crime. From the time immemorial, the society always attach highest importance to human life. This is because human life is sacred.

The right to life is the most sacrosanct of all Rights. This is why God lent a strong credence to the sacredness of life when He declared in Genesis 9:6, that “whosoever sheddeth man’s blood, by man shall his blood be shed”. It is for this reason that an unlawful killing of another is welcomed with serious condemnation, irrespective of the legal system and who is the culprit. The pertinent question is, since bail is rarely granted in murder cases, are there instances where a defendant charged for murder can be granted bail?

DISCUSSION

It is very unusual for a defendant accused of murder to be granted bail pending the trial. Murder being a very serious offence, it is not in the interest of the society that a defendant charged with murder should be released on bail, see Oladele v. The  State[2]. It was for this reason that His Lordship, Galadima, JCA [as he then was] held in the case of Omodara v. The State[3],

“Generally, an accused person who stands trial for the offence of murder is not ordinarily entitled to be granted bail. The reason for this is clear. Murder is regarded as the highest crime under the law which attracts the most severe punishment”

It is instructive to  state that obviously, the constitutional provision and yardstick as provided in Section 35[4][5],which provides that a person arrested upon reasonable suspicion of having committed an offence shall be charged to court within twenty four hours and forty eight hours as the case may be, may not apply to a defendant charged for murder. Such right may not be extended to such a defendant. This is because, Section 35[7][a] of the Constitution of the Federal Republic of Nigeria 1999[as altered] provides as follows-

“ Nothing in this section shall be construed:

[a] in relation to subsection [4] of this section as applying in case of a person arrested or detained upon reasonable suspicion of having committed a capital offence.”

The implication of the above provision lifted from our grundnorm is that, it shall not be unlawful if a person accused of murder is not arraigned in court or granted bail by the authorities within twenty four or forty eight hours respectively as the case may be. Thus in the case of Taiwo Ajeigbe v. The State[4], the court had this to say-

“…the time frame requirement in Section 35[4] of the Constitution does not ipso jure apply to cases where the charge is for capital offence.”

It can be gleaned from the above that bail is not ordinarily granted to a defendant arrested and detained upon reasonable suspicion of commission of a capital offence such as murder. This is however, not to say that a person arrested and detained on reasonable suspicion of commission of a capital offence must be locked up or kept in detention sine die.

THE HURDLE: WHEN CAN BE SCALED

The position of the law stated above represents the general rule of law on subject matter of  bail in murder trials which is followed strictly by the courts. However, even though this general rule is followed strictly by the courts, this is not to say that the courts follow the rule sheepishly. Thus, the general rule admits narrow exceptions. There are therefore instances where bail can be granted to a person standing trial for an alleged commission of murder.

WHERE A MURDER CHARGE IS BROUGHT WITHOUT A  PRIMA FACIE EVIDENCE OF COMMISSION OF THE OFFENCE

The first instance where bail may be granted in murder trial, is where the prosecution merely parades to the court the word “murder” without tying it with the offence, then a court of trial is bound to grant bail. And the only way to intimidate the court not to grant bail is to prefer an  information and proof of evidence to show that there is prima facie evidence of the offence.

Though, bail is normally not granted to a defendant accused of murder, a situation where there is no material before the trial court to show that the accused is facing a charge of murder, including proof of evidence, will qualify as a special circumstances in which a court of justice will grant bail. See Anaekwe v. Commissioner of Police[5]. In the above case, Niki Tobi, JCA [as he then was], in granting bail to a person arrested and detained on suspicion of commission of murder held thus:

“ the six letter word of “murder” comes with so much fear as the law prescribes the death penalty. But like every other offence in our criminal system, there is nothing magical about the word per se. Therefore, where the prosecution merely parades to the court the word “murder” without tying it with the offence, a court of law is bound to grant bail. And the only way to intimidate the court not to grant bail is to prefer an information and proof of evidence to show that there is prima facie of commission of the offence…In my view, although bail is not normally granted to a murder accused, a situation where there is no material before the court to show that the appellant is facing a charge of murder, including proof of evidence, certainly qualifies as a special circumstances in which the court can grant bail.”

In the above case, the appellant, Chief Pius Ozo Anaaekwe was arraigned at the Chief Magistrate’s Court Onitsha for conspiracy and murder, alongside other nine defendants. The Chief Magistrate Mrs. A.N. Brown refused them bail and ordered that they be remanded in prison custody. The appellant filed an application at the High Court of Onitsha praying the court to grant him bail. The learned trial judge refused the application for reason that the offence allegedly committed is murder. Still dissatisfied with the refusal of the application, the appellant approached the Court of Appeal and prayed the court to grant him bail. After a cursory examination of the facts of the case and the discovery that no charge with proof of evidence had been filed in a court of law of competent jurisdiction against the appellant, the court of Appeal in a unanimous decision, granted bail to the appellant. The decision of the court of Appeal in this case is therefore an exception to the general rule that a defendant in a charge for murder is not entitled to bail.

Similarly, in the case of Emmanuel Chinemelu v. Commissioner of Police[6], the court, per Achike, JCA[7] [as he then was] held thus-

“Though there is an insinuation or allegation of murder of certain persons, no formal charge of murder as required by law has been preferred against the appellant neither have the proof of evidence been prepared as prescribed by law. In such circumstances, the further detention of the appellant would appear unreasonable and unjustified. Indeed, the appellant not having been tried and convicted is presumed innocent and should be entitled to his liberty as of right unless the respondent on the affidavit evidence before the court is able to show that there is special circumstance warranting the continued detention of the appellant. Regrettably, this is not been forthcoming. To now allow the respondent to continue in the detention of the appellant, as it were, in perpetuity, in these circumstances, would unreasonably deprive the citizen of his right and liberty and unwittingly sow the seed of improper use, or abuse of power by the police or the executive to the chagrin of a citizen whose innocence in relation to certain sordid acts of murder is yet to be disproved. Such posture, the court must of necessity, roundly condemn.”

While concurring with the lead judgement of Achike, JCA above, Adamu, JCA at page 491, paragraphs H and F, had this to say-

“It is true that bail pending trial is not normally granted ex-debito justitie where the offence is a capital offence as in the present case. However, special circumstances may exist to warrant the grant of bail pending trial in a capital offence. The special circumstance in the present case is the prosecution’s delay or failing to prepare the proof of evidence or file an information against him for alleged murder. It is important here to re-state the presumption of innocence which is in favour of any person who is accused of a criminal offence. It is a fundamental principle both under the common law and under the constitution that an accused person is entitled to a fair trial within a reasonable time. It is fair to at this stage admit him to bail despite the seriousness or gravity of the alleged offence he is charged with”

What is more, as can be gleaned from the well-considered judgement of the Justices above, the appellant was granted bail by the Court of Appeal, even though he was standing trial for the offence of murder. In the case of Anaekwe v. Commissioner of Police[8], Honorable Justice Akintan, JCA [as he then was] made a marvelous observations on the reoccurring issue of bail in murder trials. For its aptness and for ease of reference, we take the liberty to replicate the words of the learned jurist herein below-

“a court before such an application [application for bail in a case where the applicant has been accused of murder] is made, is expected to examine the evidence placed before it and ensure that there is sufficient evidence, from the proof of evidence produced by the prosecution in opposing the application, to support the charge of murder proffered against the applicant. The mere fact of just reading from the charge sheet that the offence for which the applicant was charged was that of murder is not enough to warrant refusal of the application. The duty is on the judge entertaining such an application for bail to ensure that the applicant’s continued detention is well supported and justified by the evidence disclosed in the proof of evidence placed before him. There is nothing magical in the word “murder charge” to justify failure of the court from enquiring if the charge was not cooked up merely to ensure the detention of an innocent person. A court that fails to look into the facts relied on in support of such charge cannot be said to have exercised its discretion judiciously.”

SCALING OF THE HURDLE ON HEALTH GROUND

Every person accused of an offence must be alive to face his trial. He must also be of sound health to participate fully in the trial. The state of health of the accused person is therefore of great concern to every court of justice. Where the application is properly made and support with convincing facts and relevant materials, the court should exercise discretion in favour of a grant of bail on health ground to the defendant. This is because a well founded and properly substantiated ground of health in a bail application is a special ground weighty enough to warrant the grant of bail to an accused person. On the other hand, a flimsy, unsubstantiated and false ground of health fabricated to deceive the court into granting bail to an accused person will surely be dismissed by the court, especially where the offence for which the accused person is standing trial is ordinarily not bailable.

In any event, an application for bail on health ground is a special ground that must be given a deserving attention by the court of justice irrespective of who is involved and notwithstanding the stage at which the application is made.[9]This is what prompted the Supreme Court per Justice Ayoola, JSC to state in the case of Mohammed Sani Abacha v. The State[10], thus-

“it does seems accepted that whatever the stage at which bail is sought by an accused person, ill health of the accused person is a consideration weighty enough to be reckoned as special circumstance”

In the case of Jimoh v. Commissioner of Police[11], Honourable Justice Onnoghen, JCA [as he the was] while granting bail to a person charged for murder and Armed Robbery had this to say-

“in such a situation the sickness or ill-health of the application may constitute special circumstances for the exercise of the discreation of the court to grant bail in his favour”

We must state here that the fact that a defendant accused of murder says that he/she is sick is not ipso facto sufficient to grant him/her bail. There must be evidence of the illness before the court, which can be in form of medical examination/proofs. See  Muhammed Sani Abacha v. The State[12].

In Chinemelu v. Commissioner of Police[13],at page 487 paragraphs A-B, Achike, JCA [as he then was] stated as follows-

“ whether the illness relied on as special circumstance predated the applicant’s detention or not is of no moment. It is enough if the circumstances of the ill-health are so compelling as to warrant the release of the appellant and thereby avert his undue expose to health hazard or calamity”

CONCLUSION

From the brief discussion above on the subject matter of refusal of bail in murder cases, it can be seen that though the courts are not always eager to grant bail to a defendant charged for murder, yet there are instances, albeit very narrow, where a court of justice will grant bail to a murder defendant. These slim instances are what the writer has tried to evaluate with judicial authorities from the Nigerian courts.

Written By Vincent Emeka Nwasah, Esq

[1] The New international Webster’s Comprehensive Dictionary of the English Language [ Deluxe Encyclopaedic Edition, Typhoon Media corporation,2010]

[2] [1993] 1NWLR [PT.269] 294 at 308 S.C.

[3] [2004] 1 NWLR [PT.853] 80

[4] [2005] ALL FWLR [PT.801] 1507 at 1524 para. B-D

[5] [1996] 3 NWLR [PT.436] 320 at 332-333 C.A.

[6] [1995] 4 NWLR [PT.390] 467

[7] At page 485 of the Report

[8] Op.sit at page 334,paragraphs C-D

[9]  See the case of Fawehinmi v. The State [1990] 1 NWLR [PT.127] 486

[10]  [2002]FWLR [PT.98] 863 at paragraph G.

[11] [2004] 17 NWLR [PT.902]389 at 407 paragraph C-E

[12] [supra]

[13] [supra]

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