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Atiku v. State

SHAFIU ATIKU

BELLO BELLO

SAIDU NAJUME

ALI ADAMU

SADA MAMMAN

V

THE STATE

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

MAHMUD MOHAMMED, JCA ( Read the Lead Judgment )

JOSEPH JEREMIAH UMOREN, JCA

CA/K/104/C/2001

TUESDAY, 27TH NOVEMBER, 2001

COURT - Appellate court - When will interfere with exercise of discretion by trial court

COURT - Exercise of discretion by trial court  - Whether appellate court may interfere therewith merely because it would have otherwise exercised it.

CRIMINAL LAW AND PROCEDURE - Bail - Accused standing trial for a capital offence - Whether may be released on bail in special circumstances

CRIMINAL LAW AND PROCEDURE - Bail - Accused standing trial for a capital offence - Whether granted bail as a matter of course

CRIMINAL LAW AND PROCEDURE - Bail - Bail pending trial -

Consideration for refusal or grant of

CRIMINAL LAW AND PROCEDURE - Bail - Decision of trial court on

                                                  Atiku  vs. State                                                       1467 bail issue - Whether appellate court could interfere therewith

Issue:

Whether the learned trial Judge could be said to have properly and rightly exercised his discretion when he dismissed the applicants’ application for bail.

Facts:

The applicants herein were charged before the High Court with an offence of culpable homicide punishable with death under section 221 of the Penal Code of Katsina State. Almost one year after the commission of the offence for which the applicants were charged, the applicants applied for bail pending their trial. The application for bail was supported by five separate affidavits deposed to by each of the applicants. The motion came up for hearing, while no counter-affidavit was filed by the Ministry of Justice, the respondent. After hearing the application, the trial court refused the application. Aggrieved by the ruling refusing the application for bail, the applicants appealed to the Court of Appeal.

The Court of Appeal considered section 35(4) and (7) 1979 Constitution which provides.

“25(4) Any person who is arrested or detained in accordance with sub-section (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of:-

(a)           two months from the date of his arrest or detention in the case of  a person who is in custody or is not entitled to bail, or

(b)          three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are necessary to ensure that he appears for trial at a later date

(7)          Nothing in this section shall be construed

(a) in relation to sub-section (4) of this section as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence.”