Dogbe And Others v. The Republic [1976] 2 GLR 82

In 1974, the applicants were charged with murder and abetment of murder. In 1975, they applied for bail pending trial and were denied. Afterwards, counsel for the applicants wrote to the Head of State petitioning that he cause the release of four of the accused on grounds of age and ill health. The Attorney General wrote back to the applicants agreeing that bail should be granted. In said letter, the Attorney General said that it is his view that bail should be granted.

Upon receipt of this, the applicants repeated their application for bail pending trial.

Issue:

Whether or not bail pending trial should be granted.

Holding:

Bail pending trial should not be granted.

Ratio Decidendi:

The offences the applicants are charged of is murder and abetment of murder. In Section 96)7) of the Criminal Procedure Code, 1960 (Act 30) , it is provided that:

A court shall refuse to grant bail—

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

(b) where a person is being held for extradition to a foreign country.

The crime that applicants were charged with, being murder, forms part of those cases under which the court must refuse to grant bail.

An argument advanced by the applicants was that there has been unreasonable delay in their trial, for which reason they are entitled to bail. In the case of Okoe v. The Republic [1976] 1 G.L.R. 80 at pp. 84–89 ,

the court said the following on the relationship between Section 96(7) and Article 15(3)(b) and (4):

Section 96 of Act 30 as amended by N.R.C.D. 309 consolidates substantially, the common law principles governing the grant of bail when a person is brought to court and when there is no question of delay in his prosecution. Once there is an unreasonable delay in prosecuting the case then section 96 of Act 30 is in my view inapplicable and article 15(3)(b) and (4) of the Constitution, 1969, becomes applicable and in such a situation, bail in all cases must be given subject only to the conditions prescribed in the articles.

Thus, before the applicants can be entitled to bail under Article 15(3), they must show that there was unreasonable delay. What amounts to unreasonable delay? After reviewing the case law, his lordship is of the view that:

it can safely be said that reasonable time for an act is such period of time the duration of which may be fairly conceded by any reasonable person having regard to the purpose for which the time is required, the nature of the act or duty to be performed and all the attendant circumstances reasonably existing or anticipated or supervening.

In the present case, the applicants were arrested in 1974 and have not been tried at the time of the application. This was mainly due to the fact that the courts had several other cases to try but had only a few judges and limited court houses. In light of this, it may only be said that there was a delay, but it cannot be said that there was an unreasonable delay.

Finally, the court commented on the directive/advice/opinion of the Attorney General that the accused be released as follows:

Since the accused persons are in lawful custody by virtue of an order of this court, I apprehend they can be set at liberty before trial and counsel must know it either by the Republic entering a nolle prosequi, or by means of a court order or by means of a legislative fiat, namely, a Decree. If it is by means of a court order it will be on bail but if it is by Decree it will be in the nature of a statutory dispensation the ambit of which would need proper definition for in the absence of a statutory enabling power in that behalf, there is in the present state of our law no legal basis for the release by executive order of an accused person remanded in custody by a court order. In the language of our law the term “bail” has never been used to denote statutory dispensation of the nature under consideration.

Principle in Case:

1. Meaning of unreasonable delay.

2. When a person is charged with a non-bailable offence, he can be bailed if there is unreasonable delay.

Limits on the executive to release a person in lawful custody.