ADEYEMO ABIODUN & ORS v. FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6422(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of July, 2013
CA/L/550A/13
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGINIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. ADEYEMO ABIODUN
2. EGBELE AUSTINE EROMOSELE
3. BAREWA PHARMECHEUTICALS LIMITED Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
WHETHER AN APPELLANT CAN FILE MULTIPLE NOTICES OF APPEAL WITHIN THE STATUTORY TIME FOR THE FILING OF AN APPEAL
It is elementary that an appellant can file multiple notices of appeal within the statutory time prescribed for the filing of an appeal and may exercise the option of abandoning the other notices of appeal and proceed with one notice of appeal at the hearing of the appeal, or an appellant may apply to consolidate them, so I do not see the big deal in the argument of the respondent that the appellant/applicant filed more than one notice of appeal in the main appeal. See Tukur v. Gongola State Government (1988) l SCNJ 61, Akeredolu and Ors. v. Akinremi and Ors. (1987) 2 NWLR 710, Harriman v. Harriman (1987) 2 NWLR 244. PER JOSEPH SHAGBAOR IKYEGH J.C.A
JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Lead Ruling): The appellant/applicant, a Mr. Egbele Austin Eromosele, has by this application sought for an order for departure from the Rules of this Court together with accelerated hearing of his appeal as well as bail pending appeal.
In moving the application, the appellant/applicant relied on the main record of appeal and the supplementary record of appeal prepared on his behalf by his learned counsel and duly certified by the registrar of the court below who caused it to be forwarded to the registry of this court on 26.6.13 and 10.7.13 respectively to urge that the said main record of appeal and the supplementary record of appeal be used in determining the appeal in order to save time, as the appellant/applicant is serving a jail term of seven (7) years imposed on him by the Federal High Court sitting in Lagos (the court below) on 17.5.2013, which requires the appeal to be given accelerated hearing by this court by grants a departure from the Rules of this Court.
Reliance was placed on order 20 of the court of Appeal Rules, 2011 (the Rules of this court) and paragraphs 1 and 3 of the Court of Appeal (practice Directions) 2013 to buttress the prayer for a departure from the Rules of this court and for an accelerated hearing of the appeal.
It was argued on the application for bail pending appeal that the appellant/applicant has an arguable appeal and/or grounds of appeal that are recondite in law therefore the appellant/applicant should be released on bail pending appeal vide the case of Ogundimu Munir v. FRN (2009) 16 NWLR (Pt.1168) 481 at 497 – 498.
The respondent opposed the application with a counter affidavit of eight paragraphs, arguing in the main that the record of appeal was prepared in its absence contrary to order 8 rule 2 of the Rules of this court; and that the Court of Appeal (Practice Directions) 2013, having provided for accelerated hearing of an appeal the application is superfluous; and that the respondent intends to file a cross appeal, therefore the application should be dismissed.
The respondent contended on the issue of bail pending appeal that it is not granted as a matter of course and that the appellant/applicant did not show exceptional or special circumstances to warrant a grant of the application; all the more so a similar application is pending at the Federal High court sitting in Lagos therefore the present application for bail pending appeal is incompetent and should not be countenanced, especially as the appellant/applicant has more than one notice of appeal contrary to paragraph 7 of the Court of Appeal (Practice Directions) 2013, consequently, the application for bail pending appeal should be dismissed.
Order 20 rule 2 of the Court of Appeal Rules, 2011, (the Rules of the Court) permits the court to direct a departure from the Rules of the Court in any way this is required in the interest of justice, while rule 3 thereof allows the Court in an exceptional circumstance and in the interest of justice to waive compliance by the parties with the Rules of the Court.
Criminal appeals are to be given priority by way of accelerated hearing for the purpose of fast-tracking their determination at the earliest opportunity as complemented by paragraphs 2(a) and 3(a)(i) of the Court of Appeal Practice Directions, 2013. In the present case, the main record of appeal and the supplementary record of appeal were compiled on behalf of the appellant/applicant by his learned counsel and was caused to be transmitted to the registry of this Court by the registrar of the court below on 26-06-2013 and 10-07-2013, respectively.
The quarrel of the respondent who placed reliance on Order 8 rule 2 of the Rules of the Court is that it was not invited by the court below to participate in the compilation of the record of appeal. Order 8 rule 2 of the Rules of the Court is grouped under part 2 of the said Rules dealing with Civil Appeals which starts with Order 6 thereof, so it is inapplicable to the present application which arose from a criminal trial which is categorised under part III of the Rules of the Court, starting with Order 17 thereof. And, Order 17 rules 7 and 9(1) thereof read together clearly shows that the preparation of the record of appeal in a criminal case is the sole responsibility of the registrar of the court below who does not require to summon any of the parties for the preparation of the record of appeal.
The contention of the respondent that the application for departure from the rules is unnecessary is not well taken, as the intention of the rule of court is to quicken the pace of appellate criminal justice, therefore to deny a party of it would be untenable and contrary to the letter and spirit of the Court of Appeal (Practice Directions) 2013 that has been put in place as a facility to eliminate the scandalous delay in the administration of appellate criminal justice.
I do not, with respect to learned counsel for the respondent, appreciate the argument that the intention of the respondent to file a cross appeal should forestall the progress of the appellant/applicant’s appeal. Because a cross-appeal is an appeal in its own right like a counter-claim which may proceed on its own without necessarily being tied to the fortunes of the main appeal. So it is not right to hold the hand of the clock for the progress of a substantive appeal on account of the prospect of a respondent filing a cross-appeal, in my view.
Accordingly, I agree with the learned senior counsel for the appellant/applicant that this is a veritable occasion or instance to accelerate the hearing of the appeal on the main record of appeal together with the supplementary record of appeal prepared by the appellant/applicant and duly certified by the registrar of the court below who caused them to be forwarded to the registry of this Court on 26-6-13 and 10-7-13 respectively. The application for a departure from the Rules and for accelerated hearing of the appeal is, accordingly, granted as prayed. See Soleye v. Sonibare (2002) 10 NWLR (pt.775) 380 at 393 – 394, Attorney General of the Federation v. Abubakar (2007) 44 WRN 139 at 148. The appeal is, accordingly, fixed for mention on 23-09-2013.
In relation to the application for bail pending appeal, it is necessary to refer to section 28(1) of the Court of Appeal Act, 2004. It provides –
“The Court of Appeal may, if it thinks fit, on the application of an appellant admit the appellant to bail pending the determination of his appeal”.
Therefore, once an appeal is filed and, even if the record of appeal of the court below is yet to be transmitted to the registry of the Court of Appeal, a motion for bail pending appeal can be entertained by the Court.
The appellant/applicant having already filed an appeal against the decision of the court below, the application for bail is competent. The validly of the present application for bail pending appeal does not therefore depend on the pendency of a similar application at the court below, as the latter would be considered to be overtaken by events and consequently deemed abandoned.
It is elementary that an appellant can file multiple notices of appeal within the statutory time prescribed for the filing of an appeal and may exercise the option of abandoning the other notices of appeal and proceed with one notice of appeal at the hearing of the appeal, or an appellant may apply to consolidate them, so I do not see the big deal in the argument of the respondent that the appellant/applicant filed more than one notice of appeal in the main appeal. See Tukur v. Gongola State Government (1988) 1 SCNJ 61, Akeredolu and Ors. v. Akinremi and Ors. (1987) 2 NWLR 710, Harriman v. Harriman (1982) 2 NWLR 244.
Now the application for bail pending appeal. The appellant/applicant was convicted by the Federal High Court of Justice sitting in Lagos (the court below) for the offence of marketing a prohibited/dangerous drug called ‘My Pikin Baby Teething Mixture Product’. The court below sentenced the appellant/applicant to seven years in prison on 17-05-2013.
It appears on the balance of legal authorities that there is much in favour of granting and not granting bail pending appeal on ground of a strong case to urge on appeal. For example, Ogundimu Munir (supra), supports the former position of granting bail based on substantial grounds of appeal with the prospect of success on appeal. It is a decision of this Court. There is also an earlier decision of this Court in the case of Duro Ajayi and Ors. v. The State (1977) 1 F.C.A. page 1 to the effect that bail be not granted pending appeal on ground of substantial grounds of appeal.
In respect of Duro Ajayi (supra) (Coram: Dan Ibekwe, P., Eboh and Coker, JJ.C.A.) this Court held on pages 5 – 6 of the Law Report thus –
“Before we end this decision, we think that it is relevant to draw attention to one particular test which was applied by the court of Criminal Appeal to an application for bail, but which at any rate is not acceptable to this court. The test was formulated by the Lord Chief Justice in a portion of his judgment in R. v. Wise, 17 Cr. App. R. 77, which runs as follows –
“In order to adjudicate on the question of bail it is useful to see if there is any prospect of success on appeal…..”
We, ourselves, feel quite unable to embrace this particular test in respect of appeals pending before this Court in view of the special and peculiar conditions and circumstances of our own society. We are not prepared to prejudge issues before the appeal is heard. In our view, to follow this practice will tend to make mockery of the substantive appeal if and when it eventually comes up for hearing.”
Our later decision in Ogundimu Munir (supra) did not refer to Duro Ajayi (supra) on account of the fact that Duro Ajayi (supra) explained the basis for not considering the grounds of appeal in the course of treating a motion for bail pending appeal, I most respectfully follow Duro Ajayi (supra).
Above all, the paramount fact that the appeal will be heard in September this year as already fixed by the Court when the appellant would have spent less than one year out of the sentence of 7 years in prison imposed on him by the court below on 17-05-2013 militates against the granting of the application. See Rex v. Theophilus and Ors. (1935) 2 W.A.C.A 236 at 237 thus –
“In the present case no special circumstances are alleged and I cannot consider a delay of two months in relation to a sentence of four years to come within the principle I have enunciated above and the application must be dismissed. As Lord Trevethin L.C.J., said in Rex v. Gott. C.A. Reports Vol. XVI “if we grant this application we could never consistently refuse bail”.
See also Duro Ajayi and Ors. v. The State (supra) on page 7, Ojo and Anor. v. Federal Republic of Nigeria (2006) 9 NWLR (pt.984) 103 at 123.
It is settled law that bail after conviction is not granted as a matter of course but on very special and exceptional circumstances, as it is reasonably presumed that the conviction is correct until subsequently set aside on appeal. In the present application, no exceptional or very special circumstances have been shown to entitle the appellant/applicant to bail pending appeal, as the prospect of the appeal succeeding is not enough ground in the circumstances of this case to justify a grant of the application.
I would dismiss the application for bail pending appeal accordingly.
CHINWE EUGENIA IYIZOBA, J.C.A: I had the privilege of reading in advance the lead ruling of my learned brother IKYEGH JCA. I agree entirely with his reasoning and conclusions. As to whether it is advisable to grant bail where there is prospect of success in the appeal, I agree with my learned brother that the view of the Court in Duro Ajayi & Ors v. The State (1977) 1 F.C.A is preferred. There is no point in pre-judging issues before the appeal is heard. Accelerated hearing of the appeal will meet the justice of this case. I also dismiss the application for bail pending appeal.
FATIMA OMORO AKINBAMI, J.C.A: I have read in advance the Ruling just delivered by my learned, Brother Joseph Shagbaor Ikyegh JCA.
The Appellant/Applicant has approached this court to be admitted to bail pending his appeal.
The Respondent opposed this application. He contended that bail pending appeal is not granted as a matter of course and that the Appellant/Applicant did not show exceptional or special circumstances to warrant a grant of the application.
It was pointed out by Respondent that a similar application is pending at the Federal High Court sitting in Lagos; therefore this application is incompetent and should be discountenanced as the applicant has more than one notice of appeal pending contrary to paragraph 7 of the Court of Appeal (Practice Directions) 2013. He urged the Court to dismiss this bail application.
It is well settled that an Appellant can file multiple notices of appeal within the prescribed period for the filing of an appeal.
I agree with the reasoning and conclusion reached in this Ruling, and I also refuse this application for bail pending appeal.
Appearances
Mr. A. O. Eghobamien, SAN, (with Messrs. J. Idehen-Nathaniel, A. Ogundipe and A. B. Babade) For Appellant
AND
Mr. J. Kadiri (with Mr. O. Adefila and Miss J. Agbona)For Respondent
