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IN THE HIGH COURT OF LAGOS STATE

ON MONDAY, THE 5TH DAY OF JANUARY 1970

M/240/69

BETWEEN

AYO OLUGBUSI AND OTHERS .................................................. APPLICANTS

AND

COMMISSIONER OF POLICE ...................................................... RESPONDENT

BEFORE: Taylor, C.J.

 

Application for bail.

This was an application for bail for the applicants charged with murder under section 319(1) of the Criminal Code and the applicants also sought an order prohibiting the "Magistrate Court from further remanding the applicants into custody", etc., "until such time as the respondent decides or is ready to proceed with such prosecution."

The applicants were arraigned before the Magistrate on the 28th November, 1969, on the aforesaid charge. Since then there had been five adjournments, and the applicants had been remanded in police custody or in prison. No evidence had been heard and no plea taken.

Counsel for the respondent raised a preliminary objection that the application was not properly before the court for it should have been by way of a summons and not by motion on notice.

 

HELD:

(1)     The Principle is that where a crime is of the highest magnitude, the evidence in support of the charge strong, and the punishment the highest known to the law, the court will not interfere to admit to bail. Where either of these ingredient is wanting, the court has a discretion which it will exercise.

In this case, the crime is of the highest magnitude, and the punishment is the highest known to the law. Short of the applicants showing convincingly by affidavit that they were not at the scene at the relevanttime and particularly in the circumstance of this case, it is difficult for a Court without the depositions before it to say that "the evidence in support of the charge is strong." Consequently, there is not good reason to make any order for bail in respect of the applicants.

(2)     Since section 118(1) of the Criminal Procedure Act makes no provision for the node and manner in which application for bail is to be brought, one must have recourse to proceedings in the High Court of Justice in England in order to determine the form in which the application is to be couched. Such application shall be made by summons before a judge in chambers to show cause why the defendant should not be admitted to bail. The summons shall be accompanied by an affidavit of service of the summons, a certified copy of the commitment and the usual affidavit in support.

(3)     In this case, the affidavit in support of the application had been filed giving the fullest information required in the matter. To strike out this application with liberty to apply afresh would be to further participate in the delay of which the applicants complain. These were the reasons for not striking out the application on the preliminary objection raised by the respondent.

 

PER CURIAM:

The liberty of the subject should not be interfered with unless there is evidence which raises a prima facie case against him. Further, it must always be kept in mind that by section 20(3) of the Constitution of the Federation, if a person charged with a criminal offence is not tried within a reasonable time, he should be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for a trial at a later date.

Application dismissed.

 

Cases referred to:

Festus Simidele v. Commissioner of Police [1966] N.M.L.R. 116

Ex Parte Barronet and others 22.L.J.N.S.M.C. 25

 

Act referred to:

Criminal Code Section 319(1)

Criminal Procedure Act Section 118(1)

 

APPLICATION FOR BAIL.

 

Doherty (Miss), for the Applicants:

Alao, for the Respondent

 

Taylor, C.J.:-This is an application for bail for the applicants charged with murder under section 319(1) of the Criminal Code and the applicants also seek an order prohibiting the "Magistrate's Court from further remanding the applicants into custody", etc, "until such time as the respondent decides or is ready to proceed with such prosecution."

The applicants, on the affidavit sworn to, were arraigned before the Magistrate sitting in Yaba Court No. 3 on the 28th November (1969) on the aforesaid charge. Since then there has been in all five adjournments, and the applications have been remanded in police custody or in prison. No evidence has been heard and no plea taken. The last adjournment day was the 23rd December, 1969.

During the hearing of this application on the 22nd December, 1969, learned Counsel for the respondent raised a preliminary objection that the application was not properly before the court, for it should have been by way of a summons and not by motion on notice.

Learned Counsel drew my attention to the provisions of section 363 of the Criminal Procedure Act, which provides for trials to be conducted according to the practice of the High Court of Justice in England where the Ordinance has not specifically provided therefore.

The application for bail comes under section 118(1) of the Criminal Procedure Act which provides that:-

"A person charged with any offence punishable with death shall not be admitted to bail, except by a Judge of the High Court."

There is not provision made for the mode and manner in which this application is to be brought and it appears that one must have recourse to proceedings in the High Court of Justice in England in order to determine the form in which the application is to be couched. It is provided in the 35th Edition of Arch bold, Section 214, that such application, "shall be made by summons before a Judge in Chambers to show cause why the defendant should not be admitted to bail." The summons shall be accompanied by (1) An affidavit of service of the summons, (2)A certified copy of the commitment, and (3) The usual affidavit in support.

Beckley, J, came to same conclusion in the case of Festus Simidele v. Commission of Police, 1966, N.M.L.R. 116, but with respect we part company where the order made was one striking out the application with liberty to apply afresh. The report does not state the particular crime alleged to have been committed by the applicant in the case, thought it is certain it is not the same offence for which the present applicants stand charged. This can be seen by the fact that the application before Beckley, J, was one made after a refusal by the Chief Magistrate to grant bail. In the particular matter before me there is jurisdiction only in the High Court to grant bail.

I do not want to be taken as differing in the order I am making merely because the applicants in both cases are charged with different offences. I have always believed that whenever possible, and without doing injustice to the other party, substantial justice can only be done by not paying too liberal a lip service to the technicalities of the law relating to procedural matters. In this particular instance the affidavit in support of the application has been filed giving the fullest information required in the matter. To strike out this application with liberty to apply afresh is to further participate in the delay of which the applicants complain. These are the reasons for my not striking out the application on the preliminary objection raised by the respondent.

On the substance of the matter, Chief Williams for the applicants, made reference to the case of Ex Parte Barronet & others 22 L.J.N.S.M.C. 25. I quote a passage from the judgment of Erle, J, at page 28 where he stated the law as follows:-

"The principle has been fully laid down already, that where a crime is of the highest magnitude, the evidence in support of the charge strong, and the punishment the highest known to the law, the court will not interfere to admit to bail. Where either of these ingredients is wanting, the court has a discretion which it will exercise."

In the matter before me, the crime is, of course, of the highest magnitude, and the punishment is the highest known to the law. Chief Williams seeks to weave his application into the remaining factor stated by Erle, J, i.e., "that the evidence in support of the charge strong." Chief Williams contends that this is not the case here. I must express my shock and condemnation of learned Counsel Mr Akesode's swearing to paragraph 11 of the affidavit in support in these words:-

"That to the best of my knowledge, and belief none of the accused persons killed the deceased and none of them did anything to cause the death of the said deceased."

Mr Alao instead of asking for this paragraph to be struck out raised an objection to it as one of the grounds for his application that the matter was not properly before the court. I see nothing in the affidavit of Mr Akesode to the effect that he was present at the scene of the crime. His belief and knowledge are derived from persons who, even if they were to plead guilty, must still be tried, for the court would be bound to enter a plea of not guilty.

It is true that the prosecution have not filed a counter-affidavit challenging the facts deposed to in the affidavit in support of the motion. Short of the applicants showing convincingly by affidavit that they were not at the scene at the relevant time and particularly in the circumstances of this case, it is difficult for a Court without the depositions before it to say, "that the evidence in support of the charge is not strong." The circumstances are that the deceased, the applicants and others are all members of a religious body referred to as the Eternal Order of Seraphim and Cherubim Limited The murder of the deceased took place on Sunday the 23rd day of November, 1969, during hours of worship. The affidavit in support of the motion makes it clear that all the five applicants, except the fourth, were in the church at the relevant time. We know as a fact that where more than one are charged with murder, conviction goes not just against he who drew and used the lethal weapon, but can go against all depending on the part taken by each individual.

As against the fourth applicant, I was informed by the learned State Counsel after the court proceedings of the 23rd December, 1969, that the charge against him and the third applicant has been withdrawn leaving only the 1st, Ayo Olugbusi, 2nd Johnson Nwanikome and the 5th, Godfrey Otubu. I see no reason to make any order for bail in respect of the remaining applicants.

As regards the second application, I would like to draw the attention of the Police to the importance of non interference with the liberty of a subject unless there is evidence which raises a prima facie case against him. Further, it must always be kept in mind that by Section 20(3) of the Constitution of the Federation, if a person charged with a criminal offence is not tried within a reasonable time, he should be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for a trial at a later date. Our places of lawful detention are overcrowded because of, (1) The delay brought about by arresting persons before proper and full investigation is made into his or their complicity in the crime, (2) Unnecessary and frequent applications for adjournment before and during trials and other justified reasons such as conviction. The applicants were arrested on the 24th November, 1969, on a capital charge and I hope that by the next time the case goes before the learned Magistrate in the court below, evidence would have been begun on the preliminary investigation against those before the court.

I must, however, for the reasons already given, dismiss the application.

Application dismissed.