MOHAMMED SANI ABACHA V. THE STATE
(2002) LCN/3275(SC)
In the Supreme Court of Nigeria
Friday, March 1, 2002
Case Number:SC. 290/2001
RATIO
ACTION: DEFINITION OF PRIMA FACIE CASE
Prima facie is difficult to define precisely and some vital ingredients are clear. Facts that are clearly revealing a crime and the crime links an accused person may be prima facie evidence that the accused has something to explain at the trial. But that is not always the whole that is needed as circumstances must indicate….What is meant by prima facie (case)? It only means that there is a ground for proceeding… a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty…the evidence discloses a prima facie case when it is such that if un-contradicted and if believed it will be sufficient to prove the case against the accused. PER BELGORE J.S.C
LAW OF EVIDENCE: EVIDENCE OF CONSPIRACY
Finally, the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences…The overt act or omission which evidence conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy…They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offences of conspiracy are complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions (and or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is therefore, the duty of the court in every case of conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with that offence. PER BELGORE J.S.C
COURT PRACTICE: PROCEDURE FOR LAYING INFORMATION AT HIGH COURT
Thus it seems that no format has been devised in states of the federation governed by Criminal Procedure Law for laying information and a simple letter is enough insofar as it is accompanied by proofs of evidence and the charges containing the counts. It is a different procedure in the States applying Criminal Procedure Code Law e.g. Kaduna or Plateau State, where Rules are specifically made for application to prefer charges under S.185 Criminal Procedure Code Law (See Criminal Procedure (Application to prefer a charge in the High Court) Rules). Suffice however that wrong method, if letter writing is such, will not vitiate the application once it is clear what the intendment of the Attorney-General is PER BELGORE J.S.C
JUSTICES:
SALIHU MODIBBO ALFA BELGORE, JUSTICE, SUPREME COURT
EMMANUEL OBIOMA OGWUEGBU, JUSTICE, SUPREME COURT
SAMSON ODEMWINGIE UWAIFO, JUSTICE, SUPREME COURT
AKIOLA OLUFEMI EJIWUNMI, JUSTICE, SUPREME COURT
EMMANUEL OLAYINKA AYOOLA, JUSTICE, SUPREME COURT
APPELLANTS
MOHAMMED SANI ABACHA
RESPONDENTS
THE STATE
E. O. AYOOLA, JSC. (Delivering the Lead Judgment):
This is an application by Mohammed Sanni Abacha (“the applicant”) for an order admitting him to bail pending the determination of an appeal now pending before this court. The appeal has been made fixed for hearing made by the attorney general of Lagos State. The applicant is one of four persons standing trial in the High Court of Lagos state on an information containing four counts charging him and three others in the First and second counts, respectively, with conspiracy to commit murder and murder contrary, respectively, to sections 324 and 319 (1)of the criminal code, cap 32 Laws of Lagos state, 1994; and, charging the applicant alone in the third and fourth counts with being accessory after the fact to murder, contrary to section 322 of the said code.
By a motion on notice dated 10th December, 1999 said to be brought pursuant to sections 167, 340 (3) and 221(4) of the Criminal Procedure Law, Cap 33 Laws of Lagos State and under the inherent jurisdiction of the court, the appellant sought an order quashing the information as regards him on the grounds that the proof of evidence did not disclose prima facie case against him and that the entire information was an abuse of process. On 1st February 2000 the trial judge, Kekere-Ekun J., dismissed the application. The appeal to the Court of Appeal from that decision was itself dismissed on 11th December 2000. Now pending before us is an appeal from the decision of the Court of Appeal.
In the mean time the appellant seeks an order admitting him to bail pending the determination of that appeal on the ground of exceptional circumstances constituted by the facts, as stated in the motion paper that (i) there is an order staying proceedings in the charge; (ii) this court is “the only court currently seized of charges No. ID/43c/99 by virtue of the pending appeal” and (iii) “the applicant is seriously ill and is on admission at the National Hospital, Abuja and cannot receive the desired medical attention while in detention.” It is evident that in relation to the question whether discretion should be exercised to grant the prayer of the appellant or not, only the third of the facts stated above is capable of constituting exceptional circumstance. The first two merely attempted to explain why in the opinion of counsel for the applicant this court is the appropriate venue. Whatever comment may be made hereafter on the appropriateness of the venue, that question should not be of any importance since the respondent had not raised any such issue.
The only question that needs be addressed, therefore, is whether sufficient facts have been put before this court to justify the grant of bail. At the hearing of the application, learned counsel for the applicant emphasized that the application was based on ill health. It is thus not necessary to range all over the field to consider the multifarious circumstances in which bail may be granted to an accused person. It suffices to note that the considerations that may determine the exercise of discretion to grant bail will often depend on the stage of the criminal proceedings at which bail is sought. PAGE| 2 Different considerations may apply where bail is sought before conviction in the trial court from those which may apply where bail is sought in the appellate court after conviction. In this case bail is sought not at the trial court but in an appellate court before conviction and not by way of appellate review of a discretion exercised by the Court of Appeal. However, it does seem accepted that whatever the stage at which bail is sought by an accused person, ill-health of the accused is a consideration weighty enough to be reckoned as special circumstances. In Fawehinmi v. The State (1990) 1 NWLR (part 127) 486 one of the circumstances accepted by the Court of Appeal as jurisdiction for the grant of bail on the ground of special circumstance is ill-health. Rex v. Gott 16 Cr. App R 86 is authority for the view that mere allegation of bad health will not be sufficient as special circumstance for the grant of bail. In matters of discretion, previous decisions can only offer broad guidelines. Each exercise of discretion depends on the facts of each case. Notwithstanding that fact, it is right to note that, as a matter of judicial attitude, in the case of Oladele v. The State (1993) 1 NWLR (Part 268) 249 this court did say (per Olatawura, JSC) at p. 308. “It is very unusual for a person accused for murder to be on bail pending trial. Murder is a very serious offence.” Against the broad statement of principles as above, I turn to a consideration of the facts on which the applicant relies.
There have been filed two affidavits in support of the application and two against. In support, Mr. Simon Amobeda, a legal practitioner on 28th December, 2001 deposed to the facts that the applicant had been in detention at Kirikiri maximum security prison, Apapa on the order of Kekere-Ekun, J., since October 1999, to await trial for offences contained in charge No. ID/43C/99; that because of his detention it had become impossible for him to have access to good “Medicare” and that this had greatly affected his health, that he developed some complications sometime in May 2000; that the prison clinic lacked equipment for proper diagnosis; that his poor state of health had continued to worsen and that he was suffering from serious kidney problem. It is stated that the applicant was on admission at the National Hospital for Women and Children where he was undergoing ‘intense Medical Investigation’. There were attached to the affidavit, among others, (1) a letter addressed by the Assistant Controller of Prisons, Kuje Prison, F.C.T. to the Human Rights Violation Investigation Commission stating that the applicant was on admission for acute malaria, upper-respiratory track infection and hay fever and was consequently unable to appear before the Commission; and (2) a letter dated 7th November, 2001 written by Dr. Priye Briggs to the Controller-General, Nigerian Prisons Service intimating him of “the deteriorating medical condition” of the applicant” and indicating the need to investigate the left kidney vis-à-vis the stones.” A counter-affidavit sworn to by Mrs. Olabisi Ogungbesan, Assistant Director of Public prosecutions in the Lagos Ministry of Justice, had attached to it a letter dated 17th January, 2002 written by the Chief Medical Director of the National Hospital in response to information sought by the Director of Public Prosecutions, Lagos State Ministry of Justice concerning the Medical condition of the applicant.
The salient portion of the letter is as follows: “Alhaji Mohammed Sani Abacha was first admitted at this hospital for investigation for a minor ailment on the 10th December, 2001 and was discharged on the 21st December, 2001. He was re-admitted on 6th January, 2002 preparatory to a minor operation on 8th January, 2002. His surgeon operates only once a week on Tuesday, Owing to the Christmas holiday on Tuesday 25th December, 2001 and the New Year day, 1st January 2002 he was unable to carry out the minor surgery which was therefore done on the next available Tuesday 8th January, 2002. The operation was very successful and Alhaji Abacha was duly discharged on Friday 11th January, 2002. The condition and state of health on discharge was satisfactory, Alhaji Abacha has an appointment to be reviewed in six weeks from the date of his discharge.” (Emphasis mine) A document dated 21st January, 2002 headed “To whom it may concern” and written by Dr. Prye R. Briggs, Asst. Comptroller (Medical), of the Nigerian Prisons Service was introduced by a further affidavit sworn to by Mr. Amobeda, but it is evident that the writer of the document merely narrated therein the course of treatment that the applicant had received at the National Hospital, about which the letter of the Chief Medical Director of the hospital is a more authentic and more competent account. The use of medical terminologies in Dr. Brigg’s document does nothing to make its contents any more impressive or weightier.
The counter-affidavit sworn to in opposition to the applicant by Mrs. Olabisi Ogungbesan shows, in paragraph 22-28 thereof, in summary that the applicant has access to medical attention at the National Hospital where he was treated for a minor ailment and underwent minor surgery with his state of health satisfactory upon discharge. The document referred to as Exhibit DPP2 which is the letter of the Chief Medical Officer of the National Hospital amply bore out these facts. The facts before us, summarized, show that on 7th November, 2001 the medical condition of the applicant was brought to the attention of the Controller-General of the Nigerian Prisons Services and medical investigation was recommended (Exhibit MSA 8); on 10th December 2001 the applicant was admitted for investigation and was discharged on the 21st December, 2001; on 6th January 2002 he was readmitted preparatory to a minor operation which was carried out on 8th January; the operation was successful and the applicant was discharged on 11th January 2002 with his state of health on discharge described as satisfactory (Exh. DPP2). The applicant’s application brought on 28th December 2001 was prior to the applicant’s re-admission and treatment which produced such result as enabled his medical condition to be described as satisfactory. Nothing has been put before us to show that his medical condition has changed for the worse thereafter. PAGE| 3 There is thus nothing before this court, beyond the exaggerated and unsubstantiated claims of learned counsel for the applicant in his oral address, to show that the state of health of the applicant at the time the motion was filed on 28th December, 2001 up to the time of the hearing of the application on 7th February, 2002 was anything but satisfactory. No reasonable tribunal exercising its direction responsibly and judiciously will on the facts as stated exercise a discretion to grant bail on the ground of special circumstance.
In his oral address, counsel for the applicant argued that the appellant was entitled to be treated by a medical practitioner of his choice. He did not cite any authority for the right he claims for the applicant. Were it the law that an accused person remanded in custody to await trial is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial. There is no general principle of law affording that right to an accused person remanded in custody. The duty of the state to ensure that the medical needs of persons in custody are met does not create such extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice. In this case, Professor Osibanjo, Attorney-General of Lagos State, has shown expected and befitting sense of responsibility when in the course of his argument before us he stated that the State is prepared to undertake to ensure that whenever the occasion arises medical treatment is available to the applicant. The special medical need of an accused person whose proven state of health needs special medical attention which the authorities may not be able to provide is a factor that may be put before the court for consideration in the exercise of discretion to grant bail to the accused person. Such need is not brought before the court by the mere assertion of the accused or his counsel, but on satisfactory and convincing evidence. Such has been absent in this case.
On the whole, it is manifest that there is really no substance in this application, the application should be refused. However, before I part with this matter, it is expedient to point out that the fact that this application has been considered on its merits should not be seen as an indication that it has been held, albeit by implication, that this court is the proper and competent venue for applications such as this, brought when the charge is still before the trial court which had made an order remanding the accused in custody. The order remanding the accused in custody still subsists and has not been appealed from nor discharged. There is nothing to show that an application has been made to the trial court for bail. The appeal before this court is an interlocutory appeal. In these circumstances at the appropriate time, should the matter be raised, the true ambit of section 31(1) of the Supreme Court Act which empowers this court, if it thinks fit, on the application of an applicant to admit the appellant to bail pending the determination of his appeal will be determined in view of subsections (2) and (3) of that section which seemed to envisage the exercise of power to grant bail upon conviction.
Quite apart from the competence of the venue, it is still to be seen, should the matter be raised, whether this court will as a matter of discretion think fit to grant bail to an accused whose trial is still pending in the trial court and who has not challenged the order remanding him in custody which still subsists and who has not applied for bail in the court below or the trial court and when the appeal before this court is not after conviction of the accused or related to anything concerning bail. As I have said, these are not issues that have arisen in this application and determining it on its merit may not be regarded as precedent in future as to the propriety of the venue for such applications. Be that as it may, I feel no hesitation in coming to the conclusion that this application is utterly without merit and should be dismissed. I accordingly dismiss it.
S. M. A. BELGORE, JSC.: I read in advance the judgment of my learned brother Ayoola JSC and I agree with him that the application for bail in this matter has no substance and I also refuse it.
E. O. OGWUEGBU, JSC.: My learned brother Ayoola, JSC has given me the privilege of a preview of the Ruling which he has just read and I agree with him that the application has no merit. The applicant is standing trial with three others in the High Court of Lagos on information charging them of various offences including murder contrary to section 319(1) of the Criminal Code Cap 32, Laws of Lagos State, 1994. Without pleading to the charge, the applicant moved the trial court for the information to be quashed on the ground that the proof of evidence does not disclose a prima facie case against him, requiring him to stand trial before that court or any other court of law and that the entire information is an abuse of process.
The motion was dismissed by Kekere-Ekun, J. on 1st February, 2000 and his appeal to Court of Appeal was also dismissed. He has further appealed to this court and brought this application to be admitted to bail pending the determination of his appeal in this court. The grounds for the application are that:- 1. There is an order staying proceedings in Charge No. ID/43C/99 before the Lagos High Court of Justice. 2. This Honourable Court is the only court currently seized of charge No. ID/43C/99 by virtue of appeal No. SC. 290/2001. 3. The appellant/applicant is seriously ill and is on admission at the National Hospital, Abuja and cannot receive the desired medical attention while in detention. 4. By virtue of grounds 1, 2 and 3 above there exists an exceptional circumstance on the basis upon which this Honourable Court can entertain the application.
One would have expected the respondent to raise the issue of competence of this application in view of the fact that the application is not that of a convicted prisoner whose appeal is pending in this court and it is not a situation where an appeal is in this court against the refusal to admit the applicant to bail by a lower court. Since that issue was neither raised nor canvassed, I will not make further comments on it. It is not usual to grant bail in capital offences or where the applicant has been convicted and sentenced and his appeal is pending. This can only be done where exceptional circumstance is shown and of the four grounds upon which this application is based, ill-health appears to be the only ground worthy of consideration. It is in the interest of the defense as well as the prosecution for the applicant to be alive and stand his trial. There is an affidavit and a further and better affidavit in support of the application sworn to by one Simon Amobeda. There are exhibits annexed to them and for the purpose of this application I will confine myself to those exhibits touching on the state of health of the applicant. The respondent also filed a counter-affidavit and a further and better counter affidavit. A medical report Exhibit “DPP2” is annexed to the counter-affidavit. Paragraphs 12 and 13 of the affidavit deposed to by Simon Amodeba on 28th December 2001 read as follows: “12. That I am informed by the Applicant Alhaji Mohammed Sanni Abacha on the 16th December 2001 at the National Hospital, Abuja whom I verily believe to be true and correct as follows: (a) That since October 1999 he has been in detention at Kirikiri maximum security prison Apapa, Lagos on the order of Hon. Justice Kudirat Kekere-Ekun for alleged offences contained in charge No. ID/43C/99. (b) That because of his detention it has become impossible for him to have access to good Medicare and that this has greatly affected his health. (c) That he developed some complications sometimes in May 2000 and that on his complain (sic) he was merely referred to and treated by the prison Doctor in the Prison Clinic. (d) That the prison clinic lacks equipments for proper diagnosis and that his poor state of health has continued to worsen and that sometimes on September 21st 2001 he was unable to attend Human Rights Violation Investigation Commission hearing because of his health. A copy of such report is annexed and marked Exhibit MSA7. (e) That he is suffering from serious health problems and that recent diagnosis indicates that he is suffering from KIDNEY problem. A copy of the medical report dated 7/11/01 is herein annexed and marked Exhibit MSA8. (f) That he is currently on admission at the National Hospital For Women and Children Abuja where he is undergoing intense Medical Investigations as a result of the kidney problem. A copy of the Admission card is annexed and marked Exhibit MSA9. (g) That he is presently going through a lot of pains and agony because of his failing health. 13. That I am further informed by the Applicant Alhaji Mohammed Sanni Abacha whom I still verily believe to be true and correct as follow:- (a) That his present state of health is caused by his detention, as he has no access to medical care of his choice. (b) That he has previous medical history of kidney problem which he had effectively managed before his arrest and detention. (c) That if he is granted bail he will have the opportunity to seek medical treatment in a specialist hospital of his choice. (d) That from discussions he is having with Doctors he is presently confronted with serious medical problems which requires specialist treatment and that he is of the belief that his present detention will not make it possible for him to get the kind of specialist treatment he personally requires.”
Three medical reports call for close examination in the consideration of this application. Exhibit “MSA8” dated 7th November, 2001 is annexed to the affidavit in support of the application and Exhibit “MSA10” dated 21st January, 2002 is annexed to the further and better affidavit. Both exhibits were written and signed by Dr. Priye R. Briggs, Assistant Comptroller, (Medical), Nigeria Prisons Service, FCT Command, Kuje. The third medical report is that of Prof. F.A. Durosinmi-Etti, Chief Medical Director/Chief Executive of National Hospital, Abuja. It is dated 17th January, 2002. It was issued at the request of the respondent. It is Exhibit DPP2”. PAGE| 5 Exhibit “MSA8” is addressed to the Controller-General, Nigeria Prisons Service. It complained of the deteriorating medical condition of the applicant, frequent complaint of allergic rhinitis, hay fever, upper respiratory tract infections and renal infections. He suggested that there was need to investigate the left kidney vis-avis the stones and that the applicant be referred to National Hospital for expertise management. Exhibit “DPP2” showed that the applicant was first admitted at the National Hospital on 10th December, 2001 and discharged on 21st December, 2001, a period of about eleven days. He was re-admitted on 6th January, 2002 preparatory to a minor operation which was carried out on 8th January, 2002. (Underlining is for emphasis) Paragraphs 5 and 6 of Exhibit “DPP2” reads: “The operation was very successful and Alhaji Abacha was duly discharged on Friday 11th January, 2002. The condition and state of health on discharge was satisfactory. Alhaji Abacha has an appointment to be reviewed in six weeks from the date of his discharge.” Six weeks from the 11th January, 2002 will be on or about 22nd February, 2002. Exhibit “MSA10” 21st January, 2002 was written 10 days after the applicant was discharged from the hospital and 4 days after Exhibit “DPP2” was written. It enumerated the various tests carried out on the applicant at National Hospital.
The last three paragraph read: “A working diagnosis of Bulbomembrainous urethra stricture, ore-urethritis and moderate lumber spondilosis with sciatica of L2 and L3 nerve roots. He is currently placed on antibiotics, pain relieving drugs and regular physiotherapy regime. He is booked for follow-up examinations and treatment on mid February, 2002 at National Hospital, Garki.” This application was filed on 28th December, 2001 about the period the applicant was on admission at National Hospital and up to 6th January, 2002 when the minor operation was performed. The condition and state of his health on 8th January 2002 when he was discharged was said to be satisfactory. If the state of his health was as deposed by Simon Amodeba in his affidavit sworn to on 28-12-2001 and as narrated by the applicant’s Senior Counsel during his oral argument, Exhibit “DDP2” would have stated so. Exhibit “MSA8” and MSA 10 issued by the Dr. Briggs, Assistant Comptroller of Prisons (Medical), FCT Command, did not in any way weaken the weight I have attached to Exhibit “DPP2”, an expert and objective medical report issued by a reputable hospital. The facts deposed to in the supporting affidavit raise false alarm and their sentimental value has no place in a judicial proceeding. The applicant has failed by his affidavit to show any exceptional reason why this court should take the unusual course of exercising its direction to admit him to bail. Having regard to the nature of the charge, the evidence by which it is supported as disclosed in the further and better counter-affidavit of Olabisi Ogungbesan, Assistant Director of Public Prosecutions in the Lagos State Military of Justice, the fact that some prosecution witnesses are in protective custody for the safety of their lives and the sentence which by law may be passed in the event of conviction, it will be unsafe to grant this application. See the cases of Bamayi v. The State (2001) 8 NWLR (Pt. 715) 270, (2001) 5 SCM 20. R. v. Gott 16 Ct. App. R. 86 and In re Emmanuel Barthelemy and Philippe Eugene Morney 188 E.R.J.B.337.
There is an assurance from the Hon. Attorney-General of Lagos State. Professor Osibajo that the applicant will receive adequate medical attention if and whenever the occasion arises and he went the extra mile to file an application for accelerated hearing of the applicant’s appeal which was granted and the hearing fixed on 9th May this year. These deserve special mention and commendation. In the final result, I too, refuse the application for it lacks merit. UWAIFO, JSC.: I have had the opportunity to read in advance the ruling of my learned brother Ayoola, JSC. I agree with it for the reasons he has given. I intend to say a few words of my own in support of the dismissal of the application for bail, and also make a few remarks on the circumstances in which it was entertained at all in this court.
The appellant along with three others are charged upon an Information of 4 counts filed on December 1, 1999 at the High Court, Lagos. The counts involve conspiracy to murder one Kudirat Abiola (between 1995 and June 1996); murder of Kudirat Abiola on 4th June, 1996; accessory after the fact of the murder of Kudirat Abiola by providing money to one Mohammed Abdul with intent to facilitate his escape knowing that he took part in the murder of Kudirat Abiola; and accessory after the fact of the murder Kudirat Abiola by providing money to one Aminu Mohammed with intent to facilitate his escape knowing that he took part in the murder of Kudirat Abiola. The appellant brought an application on 10th December, 1999 in the High Court to have the Information quashed on the grounds: 1. That the proof of evidence does not disclose a prima facie case against the applicant to require him to stand trial. 2. That when the charges are compared and contrasted with the proof of evidence, the ingredients of all the offences alleged and the list of witness, the result is that the entire information is an abuse of process. 3. That all the 4 counts in the statement of offences are prejudicial to the applicant’s right to fair hearing. PAGE| 6 The application was dismissed in a considered ruling given by the learned trial judge (Kekere-Ekun, J) on 20 January, 2000. The applicant appealed against the decision and in a reserved judgment delivered on 11 December, 2000 the Court of Appeal found no merit in the appeal and dismissed it. Upon an application, that court ordered stay of proceedings in the High Court on 20 March, 2001. The applicant has now appealed to this court against the judgment of 11 of December, 2000 upon nine grounds of appeal. In the meantime he asks for bail pending the determination of the appeal by motion on notice filed on 28 December, 2001. The application for bail was argued before us by Mr. Y.U. Usman SAN at the request of leading counsel, Mr. J.B. Dauda SAN. The sole ground upon which bail is sought is that the applicant is seriously ill and was at the time of filling the application at the National Hospital, Abuja. It was argued that if not granted bail he could not receive the desired medical attention. Reliance was placed on two letters signed by one Dr. Priye R. Briggs, Ass. Comptroller (Medical), Nigeria Prisons Service, Federal Capital Territory Command, Kuje, Abuja. At the material time the applicant was in Kuje Prison. The first letter dated 7 November, 2001 addressed to the Controller-General, Nigeria Prisons Service, Garki, Abuja stated that the applicant frequently complained of “allergic rhinitis, hay fevers and upper respiratory tract infections.” It was said that blood and urine culture indicated renal infections; and that there was the need to investigate the left kidney. For that reason, the doctor suggested that the applicant be referred to the National Hospital for expertise management. A letter dated 17 January, 2002 addressed to the Director of Public Prosecutions Lagos by Professor F.A. Durosinmi-Etti, the Chief Medical Director in the National Hospital in reply to an inquiry made by the latter in regard to the health condition of the applicant and the facilities available to treat him at the National Hospital showed (1) that the applicant was first admitted on 10 December, 2001 for investigation for a minor ailment and was discharged on 21 December, 2001; (2) that he was re-admitted on 6 January, 2002 preparatory to a minor operation which was carried out on 8 January, 2002; (3) that the operation was very successful and the applicant was discharged on 11 January, 2002 in a satisfactory health condition, and (4) that an appointment for a review in six weeks had been fixed for him from the date of his discharge. PAGE| 7 However, on 21 January, 2002, Dr. Briggs of the Nigeria Prisons Service again issued another document headed “To Whom It May Concern” alleging some diagnosis “of Bulbornembrainous urethral stricture, pre-urethritis and moderate Lumbar spondilosis with sciatica of L2 and L3 nerve roots. “He ended by saying that the applicant had been booked for follow-up examinations and treatment in mid-February, 2002 at the National Hospital, Abuja. This court recently stated factors that may be taken into consideration in an application for bail pending trial in Bamiyi v. The State (2001) NWLR (pt. 715) 270. (2001) 5 SCM, 20. It is unnecessary to go over them in the present application which is limited to conditions of ill-health although the Attorney General on behalf of the respondent did make submissions in reference to some of the said factors that they were capable of dissuading this court from granting bail to the present applicant. The respondent has opposed bail and shown that the applicant has been afforded adequate opportunity to receive necessary treatment in the hospital to which the Prisons doctor referred him. That hospital has said it has coped very well with the ailment of the applicant it duly diagnosed. There is nothing to support the alarmist ailment which the applicant would appear to complain of. I am satisfied that the applicant has not presented with any health condition that ought to cause concern to the extent that a more intensive care is warranted, let alone granting him bail on health grounds. I do wish to commend the Attorney-General, Lagos State, Professor Osinbajo, for his assurance that the State would not under any circumstances look the other way if the applicant or any one else in its custody deserves special medical attention but that in the applicant’s case he would do all that was necessary to meet the occasion. It must be made quite clear that everyone is entitled to be offered access to good medical care whether he is being tried for a crime or has been convicted or simply in detention. When in detention or custody, the responsibility of affording his access to proper medical facility rests with those in whose custody he is, invariably the Authorities. But it ought to be understood that the mere fact that a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so: see Chinemelu v. Commissioner of Police (1995) 4 NWLR (Pt. 390) 467. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detaince poses a possibility of a real health hazard to others, and there are no quarantine facilities of the Authorities for the type of illness. A person being tried or who has been convicted for a serious offence will normally be kept or maintained in custody while he receives available medical treatment.
COUNSELS
J.B. Dauda, SAN, Y.U. Usman, SAN, A.B. Mahmood, SAN (with M. Bulama, K.T. Turaki, I. Adamu, S. T. Ologunorisa, U.N. Agomo, S.T. Amobeda, Mrs. Z. Y. Umar and M.K. Umar) for the Applicant. Professor Osinbanjo, Attorney-General Lagos State (with him Mrs. M. Asumah, Principal State Counsel, and Miss T. Shitta-Bey, Principal State Counsel) for the Respondent. Cases referred to in the judgment: Ani v. State (2001) 2 FNLR (Pt. 7) 2. Bamaiyi v. State (2001) 2 NWLR (Pt. 698) 435 (2001) SCM. Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 435 (2001) SCM. Bello v. AG (Oyo State) (1986) 5 NWLR (Pt. 45) 288. Chinemelu v. Commissioner of Police (1995) 4 NWLR (Pt. 390) 467. Chinemelu v. State (1998) 4 NWLR (Pt. 390) 468. Emanuel Barthelemy v. Phillipe Eugene Mooney 118 E.R. & B 337. Fewehinmi v. The State (1990) 1 NWLR (Pt. 127) 486. Mamudu Dantata v. Police (1958) N.R.N.L.R. 3. Obaseki v. Police (1959) N.R.L.R 149. Oladele v. The State (1993) 1 NWLR (Pt. 268) 249. R. v. Mansfield Justices Exp. Sharkey (1985) 1 All ER 193 at 201 – 202. Re Moles (1982) Crim. L.R. 170. Rex v. Gott 16 Cr. App R 86.
