OGWU ACHEM v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7277(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of June, 2014
CA/A/361c/2013
RATIO
WHETHER AN ACCUSED IS ENTITLED TO BAIL ON APPEAL
The appellant/applicant, as earlier stated, was convicted and sentenced to a term of 4 years imprisonment. He is applying for bail pending the determination of his appeal. Section 28(1) of the Court of Appeal Act, 2004 empowers the court to admit appellant to bail pending the determination of his appeal if it thinks fit to do so. Order 17 Rule 13 of the Court of Appeal Rules, 2011 complement this power. See the cases of ABACHA V STATE (2002) 5 NWLR (761) 638 AND OJO V FEDERAL REPUBLIC OF NIGERIA (2006) 9 NWLR (984) 103, 119. Such power implies a discretion which is to be exercised Judicially and Judiciously based on the materials before the court.
Upon conviction, a person loses the presumption of innocence guaranteed him under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). He is therefore not entitled to bail pending the determination of his appeal except in special or exceptional circumstances. What is special or exceptional circumstance varies from case to case. per JOSEPH E. EKANEM, J.C.A.
WHETHER AN APPELLANT CAN PLEAD DELAY IN PROSECUTION OF APPEAL FOR THE PURPOSE OF OBTAINING BAIL PENDING APPEAL.
In this regard, I shall refer to the decision of this court in the case of GEORGE V FEDERAL REPUBLIC OF NIGERIA (2010) 5 NWLR (1187) 254, 271 – 272 where DONGBAN-MENSEM, JCA, stated as follows;
“…The new rules of the Court of Appeal … has revolutionalized the proceedings before the court. The procedural causes of delay in the prosecution of appeal have been eliminated. The filing and prosecution of appeal have been placed within responsibilities placed at the door step of both the appellant and respondent ….Delay is therefore, in the present circumstances, not a good reason”
It is therefore my view that in the current regime of our rules and practice directions, an appellant who has not taken the steps required of him to ensure speedy hearing of his appeal cannot plead delay in the hearing of the appeal that will result in his serving a whole or a substantial part of his prison term for the purpose of obtaining bail pending appeal. The reason is that the law does not permit anyone to profit from his wrong or negligence. Equity aids the vigilant and not the indolent. per JOSEPH E. EKANEM, J.C.A.
JUSTICES:
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
OGWU ACHEM – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Lead Ruling): At the Federal High Court of Nigeria, Abuja Judicial Division, the appellant/applicant was charged with two offences, viz;
(i) Wilfully providing money with intent that it be used for an act of terrorism contrary to and punishable under Section 15(1) of the Economic and Financial Crimes Commission (Establishment) Act 2004;
(ii) Providing economic resources in order to facilitate the commission of a terrorist act contrary to and punishable under Section 15(3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
After trial and taking of addresses, the Federal High Court (hereafter referred to as the “lower court”) found the appellant/applicant guilty on the two counts and accordingly sentenced him to 4 years imprisonment with hard labour on the two counts with the sentences to run concurrently. That was on 14th day of November, 2012.
Dissatisfied with the turn of events, the appellant/applicant has appealed to this court by way of a notice of appeal which contains one ground of appeal, viz; the omnibus group of appeal. The appellant/applicant by way of motion on notice dated and filed on 27th March, 2014, applies for bail pending the determination of his appeal. The grounds for the application are set out in the motion paper which is supported by a 40 – paragraph affidavit deposed to by one Ele Achem, a younger sister of the appellant/applicant. Attached to it are;
(i) Exhibit A – a certified true copy of the charge sheet at the lower court.
(ii) Exhibit B – a certified copy of the notice of appeal.
(iii) Exhibit C – Appellant/applicant’s solicitor’s letter dated 15th November 2011 requesting for a certified copy of the record of proceedings in the charge.
(iv) Exhibit D – A certified true copy of the Judgment of the lower court.
The appellant/applicant also filed a written address in support of the motion.
The respondent, in opposing the application, filed a counter-affidavit of 20 paragraphs deposed to by Ahmed Ismail Olanrewaju, Principal State Counsel in the Department of Public Prosecutions, Federal Ministry of Justice, Abuja. The respondent also filed an address.
In his address, W. A. Aliwo, Esq; of counsel, for the appellant/applicant formulated one issue for the court’s determination, viz;
“Whether the applicant has established exceptional or unusual circumstance to warrant the exercise of the court’s discretion in his favour? (sic)”
In arguing the issue, he referred to S. 28(1) of the Court of Appeal Act and submitted that the court has the power to exercise its discretion to admit the appellant to bail pending the determination of his appeal. He further stated that post-conviction bail is not a constitutional right and as such the applicant must establish special and exceptional circumstances to be entitled to bail while his appeal is pending. Counsel set out the factors to be considered by the court in determining whether or not to grant bail pending the determination of appeal. To buttress his submission, counsel cited and relied on ADAMU V FEDERAL REPUBLIC OF NIGERIA (2011) NBAR (1) 711 AND AROWOLO V STATE (2011) NBAR (1) 500.
Referring to paragraphs 28 – 32 of the supporting affidavit counsel stated that there were the elements of undue delay in the hearing of the appeal and the likelihood of the appellant/applicant serving out a considerable term of his sentence before the appeal can be heard. He urged the court to hold that the appellant/applicant had shown special and exceptional circumstances to warrant admitting him to bail pending the determination of his appeal.
In his reply, M.S. Hassan, Esq; (Assistant Director, Department of Public Prosecutions, Federal Ministry of Justice, for the respondent, proposed one issue for the court’s determination, viz:
“Whether this is an appropriate case for this Honourable Court to exercise its discretion in favour of the Appellant/Applicant/Convict on the issue of bail”.
Counsel submitted that bail is not granted as a matter of course but that it is the duty of the applicant to place sufficient materials before the court upon which to consider the application for bail. He added that it is after the applicant has done so that the onus will shift to the respondent. He cited and relied on ABIOLA V FEDERAL REPUBLIC OF NIGERIA (1995) 1 NWLR (307) 155 to support his submission. He was of the view that the appellant/applicant had not discharged the burden.
Counsel acknowledged that the court has a discretion to grant or refuse bail pending determination of the appeal but the discretion, he stated, must be exercised judicially and judiciously. He went on to argue that though discretion is not fettered, yet the manner of its exercise must be guided by some established principles as stated by superior courts of record. To buttress his argument, he cited and relied on several cases including BAMAIYI V. THE STATE (2001) 7 NWLR (715) 411.
Taking some of the factors for grant of bail, counsel contended that the offence of terrorism, for which the appellant/applicant was convicted and sentenced, is a serious offence in view of what he described as “negative impact on our national psyche”. He was of the view that the appellant/applicant would most likely jump bail as the temptation to do so was high and that he had abandoned his appeal and placed more energy on his bail application. He stated that appellant/applicant’s notice of appeal was defective being signed by his counsel.
Continuing, he argued that the appellant/applicant’s application did not show special and exceptional circumstances to warrant grant of bail and that the offence of terrorism is very rampant. Counsel finally urged the court to refuse the application.
The appellant/applicant, as earlier stated, was convicted and sentenced to a term of 4 years imprisonment. He is applying for bail pending the determination of his appeal. Section 28(1) of the Court of Appeal Act, 2004 empowers the court to admit appellant to bail pending the determination of his appeal if it thinks fit to do so. Order 17 Rule 13 of the Court of Appeal Rules, 2011 complement this power. See the cases of ABACHA V STATE (2002) 5 NWLR (761) 638 AND OJO V FEDERAL REPUBLIC OF NIGERIA (2006) 9 NWLR (984) 103, 119. Such power implies a discretion which is to be exercised Judicially and Judiciously based on the materials before the court.
Upon conviction, a person loses the presumption of innocence guaranteed him under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). He is therefore not entitled to bail pending the determination of his appeal except in special or exceptional circumstances. What is special or exceptional circumstance varies from case to case.
In the case of OJO V FEDERAL REPUBLIC OF NIGERIA SUPRA, this court following the case of R. V. TUNWASHE (1935) 2 WACA 236 set out two different sets of conditions governing the grant of bail to a convict pending his appeal. They are:
(i) The existence of a special or exceptional circumstance.
(ii) Where the hearing of the appeal is likely to be unduly delayed.
This court quoted the West African Court of Appeal in the above respect in R. V. TUNWASHE SUPRA, as follows;
“….In the absence of special circumstances, bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard“. See also AROWOLO V STATE (2011) NBAR (1) 500 AND ANI V STATE (2004) 7 NWLR (872) 241, 253 – 254.
The instant application is rooted in three grounds, viz;
(i) That the applicant is likely to serve a considerable length of his sentence before the appeal is determined.
(ii) That the compilation and transmission of the record of proceedings were delayed by the lower court; and
(iii) That the appeal has great chances of success.
I shall first consider grounds (i) and (ii) together. The applicant was convicted and sentenced to a prison term of 4 years on 14th November, 2012. This is the year 2014. In paragraphs 24 – 26; 25 and 30 of the affidavit in support of the motion, the blame for delay in compiling and transmitting the record of proceedings is put on the Judge of the lower court who is said to have been with the file. Curiously, the motion on notice with the affidavit containing this allegation was not endorsed for service on the Registrar of the lower court or the Judge for their reaction. In this circumstance I shall consider the deposition as a private gossip that cannot influence the decision of a court. See YOUNG SHALL GROW MOTORS LTD V OKONKWO (2002) 16 NWLR (794) 536, 579.
I have taken the trouble to state the above for the reason that the position of the law that bail pending appeal may be granted where the hearing of the appeal is likely to be unduly delayed resulting in the appellant serving a substantial part of his prison term or the whole of it must be considered in the light of our current rules of Court and Practice Direction, 2013 which;
(i) Impose a duty on an appellant to compile and transmit the record of appeal within a specified time where the Register of the lower court fails to do so within the prescribed time and also to file the appellant’s brief in time (See Order 8 Rule 4, Order 18 Rule 2 of the Court of Appeal Rules, 2011 as well as Court of Appeal Practice Directions, 2013) and
(ii) Also impose a duty on the court to dispose of appeals involving cases of terrorism etc, with despatch.
In this regard, I shall refer to the decision of this court in the case of GEORGE V FEDERAL REPUBLIC OF NIGERIA (2010) 5 NWLR (1187) 254, 271 – 272 where DONGBAN-MENSEM, JCA, stated as follows;
“…The new rules of the Court of Appeal … has revolutionalized the proceedings before the court. The procedural causes of delay in the prosecution of appeal have been eliminated. The filing and prosecution of appeal have been placed within responsibilities placed at the door step of both the appellant and respondent ….Delay is therefore, in the present circumstances, not a good reason”
It is therefore my view that in the current regime of our rules and practice directions, an appellant who has not taken the steps required of him to ensure speedy hearing of his appeal cannot plead delay in the hearing of the appeal that will result in his serving a whole or a substantial part of his prison term for the purpose of obtaining bail pending appeal. The reason is that the law does not permit anyone to profit from his wrong or negligence. Equity aids the vigilant and not the indolent.
In the instant case, there is nothing to show that the appellant/applicant took the steps required of him to put the court in a position to speedily hear his appeal. Grounds 1 and 11 on his motion paper have not been made out and I therefore reject the same.
The third ground is that the appeal has great chances of success. The only ground of appeal contained in the notice of appeal is the omnibus ground of appeal. It must be mentioned that after hearing the motion on 27th May, 2014, the appellant filed amended notice of appeal bearing a total of 5 grounds of appeal and a brief of arguments. In the case of GEORGE V FEDERAL REPUBLIC OF NIGERIA SUPRA 275, it was held that the grounds of appeal which will qualify as substantial and make the court suspend a valid decision of the trial court must exhibit features of fundamental errors ex-facie such as lack of Jurisdiction, and conviction on some weird and undefined offences or clearly perverse interpretation or wrong application of an unclear provision. These are not features of this application.
It should be mentioned that the applicant was convicted and sentenced for offences relating to terrorism which in recent times have grown in intensity and magnitude, and have become a threat to our national security. Courts should therefore be very circumspect in granting bail pending appeal to a person convicted for any offence relating thereto. In the case of DOKUBO-ASARI V FEDERAL REPUBLIC OF NIGERIA (2007) 12 NWLR (1048) 320, 358 -359, the Supreme Court gave its nod of approval to the refusal to grant bail pending trial to the appellant on the ground, inter alia, of threat to national security. This consideration applies with greater force in this case that is for grant of bail after conviction for offences relating to terrorism.
On the whole, I do not see my way clear to granting the application. I accordingly dismiss the same and order for accelerated hearing of the substantive appeal.
MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA. I agree with the reasoning and conclusion of my learned brother refusing to grant post-conviction bail to the appellant.
I also dismiss this appeal for being devoid of merit and abide by the consequential order made by my learned brother.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.
Appearances
W. A. Aliwo, Esq. For Appellant
AND
M. S. Hassan, Esq; (Assistant Director, Department of Public Prosecutors, Federal Ministry of Justice) (with him, I. O. Ahmed, Esq, Principal State Counsel) For Respondent
