Refusal Of Bail In Murder Cases—The Hurdle: When Can Be Scaled By Vincent Emeka Nwasah,

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]

Subscribe ToNairalaw News!