Seidu And Others v. The Republic [1978] GLR 65-72

Material Facts:

The first accused person confessed to the murder of one Lobi and named the applicants as accomplices. The police could not find much evidence tying the applicants to the offence, except a stain in the van belonging to the wife of the second accused, which, despite being found to be human blood, could not be declared to be the blood of Lobi.

The applicants are applying for bail.

Issue:

Whether or not the applicants can be granted bail despite the fact that they are charged with murder, a non-bailable offence under Section 96(7) of the Criminal Procedure Code (Amendment) Decree, 1975 (N.R.C.D. 309) .

Holding:

The applicants can be granted bail.

Ratio Decidendi:

Generally, the “sole test as to whether a party ought to be bailed is whether it is probable that that party would appear to stand his trial.” In applying this test, the court noted that “regard must be had to the nature of the accusation, the nature of the evidence in support of the accusation, and the severity of the punishment which conviction will entail.”

However, Section 96(7) provides that:

96. (7) A court shall refuse to grant bail-

(a) in a case of treason, subversion, murder, robbery, hijacking, piracy or escape from lawful custody...

The question is, who determines whether a case is one of murder? The court is of the opinion that it should be done by the court and not by the prosecution. That the mere fact that a person has been charged with murder does not mean that the case is a case for murder. For this to happen, the charge must be supported by the evidence.

In the present case, the evidence against the accused is not of such nature for the case to be considered one of murder. It delivered itself as follows:

….The question then arises: Who decides whether a case is one of murder, manslaughter or infanticide? The answer is: This court. How does this court decide whether a case is one of murder or some allied crime? It does so by a consideration of the evidence in support of the accusation. Thus the prosecution decides what charge it would prefer against a party, and the court decides what the case against the party is. No case is a murder case until it has been decided by the court having jurisdiction to try it to be so. It seems to me, therefore, that the test to apply to this section is the objective one; that the legislature is ordering this court to refuse bail in all cases where there is evidence in support of the accusation of murder, even if the court is of the opinion that the accused will appear to stand his trial when released on bail.

Principles in Case:

1. In determining whether an accused should be granted bail, a primary consideration is whether he will appear to stand trial.

2. In determining the nature of the offence, the court will consider the evidence and determine whether it supports the charge.