MRS. MUBO IKOTUN v. FEDERAL REPUBLIC OF NIGERIA & ANOR (2015)

MRS. MUBO IKOTUN v. FEDERAL REPUBLIC OF NIGERIA & ANOR

(2015)LCN/7862(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 13th day of May, 2015

CA/L/194C/15

RATIO

APPEAL: BAIL PENDING TRIAL; IN WHAT CIRCUMSTANCES WILL THE COURT OF APPEAL GRANT BAIL TO A PRISONER PENDING THE DETERMINATION OF HIS APPEAL

Bail pending trial generally is of a right to a person accused of committing a crime, this is informed by the presumption of innocence that the accused enjoys under the Constitution of the Federal Republic of Nigeria. Beyond that and upon conviction, bail is not of right to a convict because at that stage, the presumption of innocence has ceased and crystallized into conviction. Even at that, bail being a discretionary relief, it is sparingly granted after conviction but on the existence of exceptional factors. Bail after conviction and pending the determination of an appeal is granted only on unusual or exceptional circumstance which must be shown to exist to the satisfaction of the court, see ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638 at 674 and DURO AJAYI & ORS v. THE STATE (1977) FCA I. The materials required to be considered in determining bail are usually in the affidavit in support which must show the unusual or exceptional circumstances and the court must be satisfied that the circumstances which exist are unusual and exceptional. This court in the case of CHIEF OLABODE GEORGE & ORS v. THE FEDERAL REPUBLIC OF NIGERIA (2010) LPELR-4194 (CA) held as follows:
“The Court of Appeal will not as a rule grant bail to a prisoner pending the determination of his appeal unless there are exceptional and unusual reasons why bail ought to be granted to the appellant. It is the duty of every applicant to present the necessary materials before the court in support of his application to enable the court exercise its discretion in his favour. The exercise of the discretion must be judicial and judicious. A number of factors have been identified as constituting very exceptional circumstances. See BWORAL v. STATE (2004) 16 NWLR (Pt. 899) 285; ANI v. STATE (2004) 7 NWLR (Pt. 872) 249 and ENEBELI v. CHIEF OF NAVAL STAFF (2000) 9 NWLR (Pt. 219) 119. The compelling consideration for the exercise of this discretion lies with and within the peculiar facts of the individual circumstances made out as exceptional. Therefore, no one case is on all fours with the other.”Per MSHELIA, J.C.A. per. YARGATA BYENCHIT NIMPAR, J.C.A.

APPEAL: CONGESTED DOCKET OF THE COURT OF APPEAL OR LONG LIST OF PENDING APPEALS
The next issue is the congested docket of the Court of Appeal, Lagos Division. The court can take judicial notice of its docket to agree with the appellant that there is a congested docket or long list of pending appeals. But that is how far I will go with the applicant. It is now common knowledge that case management skills are employed in the Court of Appeal and most fundamentally, the New Court of Appeal (Fast Track) Practice Directions 2014 and Court of Appeal Practice Directions, 2013 which have created a new dispensation for EFEC, ICPC, NDIC, RAPE and certain named appeals. They are placed on the front burner of case management and expeditious determination. The excuse of long delay in determining appeals can no longer be an exceptional circumstance in this court as the new rules which were painstakingly designed to deal expeditiously with these class of appeals and related applications are effective, functional and yielding results. Any delay in determining an appeal in the class mentioned would arise from the appellant in not doing the needful to get to the Court of Appeal the records of such appeal. That is no longer within the purview of this court. The authority of JAMMAL v. STATE (SUPRA) can no longer be good law in respect of delay in determining appeal and as an exceptional circumstance. The compilation of a bundle of the cause list evidencing the heavy docket of this court is unnecessary as fast tract cases are fixed for hearing out of turn and not as the case is in ordinary appeals. See the unreported judgment of this court in appeal No: CA/L/40/15 – DR. REMI FOLORUNSHO v. FEDERAL REPUBLIC OF NIGERIA delivered on the 12th day of March, 2015. per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

MRS. MUBO IKOTUN Appellant(s)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. MESSRS SMITH NIGERIA LTD Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling): This ruling is premised on a motion on Notice brought by the appellant/applicant dated 23rd February, 2015 filed on the same day praying the court for the following orders:
1. AN ORDER of this Honourable Court admitting the Appellant to Bail either unconditionally or upon such reasonable conditions which the Honourable Court may deem necessary pending the hearing and determination of the Appeal filed by the Appellant against the judgment of the High Court of Lagos State in Charge No. LCD/17/2007 delivered by His Lordship HON. JUSTICE O.A. WILLIAMS on Thursday the 9th day of October, 2014 wherein the Appellant was convicted and sentenced on the 28th November 2014.

The grounds upon which the application is brought consist of 12 paragraphs which states as follows:
1. That the Applicant, together with four (4) others was arraigned before the Lagos State High Court Igbosere, Lagos State, whereat the Court pronounced judgment convicting and later sentenced the Applicant.
2. That the Applicant being dissatisfied with the judgment delivered at the Lagos State High Court by his Lordship, HONOURABLE JUSTICE O.A. WILLIAMS, on Thursday the 9th day of October, 2014, wherein the Applicant was convicted and sentenced on the 28th November 2014, filed a Notice of appeal on the 2nd day of December, 2014.
3. That the Notice of Appeal of the Applicant raises serious issues of law and facts which the Court need to properly consider in order to do justice in this case.
4. That the Applicant has been in prison custody at the Kirikiri Minimum Security Prison, Kirikiri, Lagos since 2014, Bail pending Appeal having been refused by the Lordship, HON. JUSTICE O.A. WILLIAMS of High Court of Lagos State on the 10th day of February, 2015.
5. That Unless the Applicant’s application for bail pending appeal is timeously heard and determined, the Applicant is likely to serve the entire or a substantial part of the sentence before this Application is heard, thus rendering this application meaningless and nugatory.
6. That should the Applicant succeed on appeal, the eventual outcome of the Appeal would have been rendered nugatory if the Applicant has already served the entire or a substantial part of the sentence before the Appeal against the judgment is heard.
7. That Applicant’s precarious health condition requires strict medical attention which she cannot have access to while in prison custody, because the prison’s medical facilities are not adequate.
8. That the Applicant is a first offender without previous criminal records and the Bail of this Court will enable her prepare for her defence properly.
9. That if bail is granted to the Applicant, he will not jump Bail of this Honourable Court but rather be in a position to defend his case.
10. That Applicant has exhibited through Affidavit evidence and facts showing special and exceptional reasons why the Honourable court should not refuse her Bail.
11. That the Honourable court has the inherent power and jurisdiction to exercise its discretion in favour of the Applicant.
12. That the Applicant is already serving part of the punishment/terms without final determination of this case.

The motion is supported by an affidavit of 30 paragraphs and Exhibits A01, A02, A03, A04, A05, A06, E, F, G, H and I and affidavit of urgency. It is also accompanied by a written address of learned counsel in support of the motion.

There is a further affidavit of 12 paragraphs with Exhibits A01, A06, A02, A03 and A04 attached. Applicant relied on the Exhibits as learned counsel adopted the written address in making the application.

The Respondent opposed the motion and filed a counter affidavit of 29 paragraphs with Exhibit ‘ICFC. I’ attached. It is also accompanied by a written address of the learned counsel for the Respondent which was adopted after relying on the counter affidavit.

The applicant formulated a sole issue for determination namely:
Whether the Honourable court can in the circumstances of this case exercise its discretion in favour of the Applicant and admit her to bail pending appeal.

The Respondent on its part formulated the following issue:
Whether or not the Appellant has met and fulfilled the criteria set in law for the exercise of the Honourable Court’s discretion in her favour admitting her to bail pending the determination of the appeal.

The two issues are basically the same, questioning whether the appellant/applicant is entitled to the court’s discretion in granting her bail pending appeal. The court shall adopt the issue formulated by the applicant.

The appellant/applicant in proffering arguments in support of the issue for determination conceded to the legal position that bail pending appeal is at the discretion of the court and that guiding principles have been settled in REX v. THEOPHILUS ADENUGA TUNWASHE (1935) 2 WACA 236; FAWEHINMI v. STATE (1990) 1 NWLR (Pt. 127) 486 at 494; OKOROJI v. STATE (1990) 6 NWLR (Pt. 157) 509; ABIOLA v. FEDERAL REPUBLIC OF NIGERIA (1993) NWLR (Pt. 370) 155; MOHAMMED v. OLAWUNMI (1993) 4 NWLR (Pt. 287) 254 at 275; SAID JAMMAL v. STATE (1992) 8 NWLR (Pt. 257) 85 all these settled the following principles:
(a) Bail to be granted in exceptional circumstances.
(b) Where hearing of appeal is likely to be unduly delayed.
(c) That in considering above the court will have regard to:
(i) Not only the length of time which must elapse before the appeal can be heard, but also;
(ii) Length of sentence to be appealed from.
(iii) That the two to be considered in relation to one another.

Appellant reiterated principles for bail pending appeal settled in ENEBELI v. CHIEF OF NAVAL STAFF (2000) 9 NWLR (Pt. 671) 119 at 125; AROWOLO v. THE STATE (2007) LPELR-8711 CA; MADAKI v. STATE (1992) 8 NWLR (Pt. 287) 85 at 93 and the facts deposed to in the affidavit in support to submit that she is a first offender and her appeal raises substantial grounds of law with a high likelihood of success.

Applicant contended that her sentence will be exhausted by the time her appeal is heard and relied on said JAMMAL v. STATE (SUPRA) to submit that length of sentence go together with delay in hearing the appeal. Applicant submitted that the Court of Appeal docket is congested and it will take a long time to determine the appeal.

On special circumstances, appellant relied on OBI v. STATE (1992) 8 NWLR (Pt. 257) 76 at 83-84 which may include the following:
(a) Facts that the appeal raises an important point.
(b) Appellant likely to serve the entire sentence before the appeal is heard.

Applicant referred to the Notice of Appeal which she argued raises substantial grounds of law and cited ANI v. STATE (2004) 7 NWLR (Pt. 871) 249. Appellant argued that all the above circumstances along with the medical condition which the prison authorities cannot handle, the court should grant the application.

The Respondent in opposition submitted that a discretion is exercised on materials presented to the court and relied on GEVER v. CHIMA (1993) 9 NWLR (Pt. 315) 96 that bail is not of right after conviction but granted only in exceptional circumstances. It contended that no exceptional circumstance has been disclosed to support the application for bail, it relied on CHIMELU v. C.O.P. (1995) 4 NWLR (Pt. 390) 467; OJO v. FEDERAL REPUBLIC OF NIGERIA (2006) 9 NWLR (Pt. 984) 103 at 115-116.

Submitting on the issue of ill health, the Respondent argued that the medical condition named at the trial court is what had existed in 2011 contrary to her recent claim of hypertension in the earlier application dated 16/11/14 which she abandoned at the lower court. That the applicant refused treatment at the Police Hospital preferring to go to Lagoon Hospital, Apapa or to be admitted to hospital to serve her sentence. On the alleged inability of the Prison Authorities to handle her illness, the Respondent referred to the appellant’s depositions in paragraph 13, 20-23 of the supporting affidavit and paragraph 4-6 of the affidavit of urgency. It further argued that the claim of ill health is a ruse and a ploy to escape serving the sentence as applicant was previously granted leave to get treatment abroad but absconded after the treatment and it took a threat to revoke her bail to make her return for trial thereby causing an undue delay in the trial.

The Respondent submitted that appellant was hale and hearty during trial only for the ill health to resurface after conviction. It relied on ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638 and JAMMAL v. STATE (SUPRA) to contend that the appellant requires more than a mere medical report to rely on ill health as an exceptional circumstance. That the doctor must give sufficient particulars including his area of specialization to show he is an authority to be relied upon which is lacking in this case. Arguing further, the Respondent contended that the burden is on the appellant to make out a good case on medical ground and relied on the counter affidavit which facts he argued have not been controverted.

Still on the medical report, the Respondent contended that Exhibit ‘I’ is a correspondence pending an appointment on 17/7/12 and hurriedly procured for use to manipulate the court towards granting a convict bail. Moreso, that the Exhibit does not say that the applicant cannot be managed in Nigeria nor was it a referral. Furthermore, that the Medical facility in the prison did not also make that a referral. It referred to paragraph 17-21 of the counter affidavit and relied on ABACHA v. STATE (2002) 5 NWLR (761) 638 where the court held that seeking bail on medical grounds required positive and convincing medical history and reports. The Respondent referred to the case of OLABODE GEORGE v. F.R.N. unreported judgment of this court in CA/L/866M/09 where the court held that mere medical challenges simpliciter does not constitute an exceptional circumstance because everyone has one challenge or the other but carries on with daily duties.

The Respondent argued that the appellant will flee from justice if allowed out on bail as shown in Exhibit A03 – the ruling refusing her bail at the lower court.

On the congested docket of the Court of Appeal, the Respondent on Exhibit ‘C’ – ‘D’ which are copies of the cause list and the case of JAMMAL v. STATE (SUPRA), it submitted that it was the situation before 2013 and 2014. That the cause list showing appeals listed for hearing by this court in November is not relevant because cases are now determined based on their peculiarities and priority is given to certain cases, including EFCC, ICPC, NDIC, RAPE, KIDNAPPING and such related appeals as required by the two Practice Directions now in place.

On delay in compiling records, Respondent submitted that Lagos State Judiciary is computerized and record of proceedings can be procured immediately after the day’s proceedings; that instead of pursuing the appeal, the appellant resorted to seeking an easy way out through this application. It urged the court to discountenance the argument on delay in hearing the appeal.

On substantiality of grounds of appeal, the Respondent argued that there is nothing in the grounds of appeal that raise recondite points of law that will make it exceptional. On sentence, the Respondent submitted that appellant was given 3 years sentence to serve and that the fine imposed which could have satisfied the option of fine given to her was not paid as required because it was not paid at the lower court’s registry. The Respondent analyzed the disparity in the alleged evidence of payment and its false representation i.e. Exhibit A06 compared to Exhibit “ICPC I”. The Respondent contended that no official Revenue Receipt is shown to prove that the fine was indeed paid.

Relying on the decision of ETB BUILDING SOCIETY LTD v. ADEBAYO (2004) FWLR (Pt. 193) 232 the respondent urged the court to refuse the application.

The issue formulated by the applicant is adopted for determination in this ruling. Bail pending trial generally is of a right to a person accused of committing a crime, this is informed by the presumption of innocence that the accused enjoys under the Constitution of the Federal Republic of Nigeria. Beyond that and upon conviction, bail is not of right to a convict because at that stage, the presumption of innocence has ceased and crystallized into conviction. Even at that, bail being a discretionary relief, it is sparingly granted after conviction but on the existence of exceptional factors. Bail after conviction and pending the determination of an appeal is granted only on unusual or exceptional circumstance which must be shown to exist to the satisfaction of the court, see ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638 at 674 and DURO AJAYI & ORS v. THE STATE (1977) FCA I. The materials required to be considered in determining bail are usually in the affidavit in support which must show the unusual or exceptional circumstances and the court must be satisfied that the circumstances which exist are unusual and exceptional. This court in the case of CHIEF OLABODE GEORGE & ORS v. THE FEDERAL REPUBLIC OF NIGERIA (2010) LPELR-4194 (CA) held as follows:
“The Court of Appeal will not as a rule grant bail to a prisoner pending the determination of his appeal unless there are exceptional and unusual reasons why bail ought to be granted to the appellant. It is the duty of every applicant to present the necessary materials before the court in support of his application to enable the court exercise its discretion in his favour. The exercise of the discretion must be judicial and judicious. A number of factors have been identified as constituting very exceptional circumstances. See BWORAL v. STATE (2004) 16 NWLR (Pt. 899) 285; ANI v. STATE (2004) 7 NWLR (Pt. 872) 249 and ENEBELI v. CHIEF OF NAVAL STAFF (2000) 9 NWLR (Pt. 219) 119. The compelling consideration for the exercise of this discretion lies with and within the peculiar facts of the individual circumstances made out as exceptional. Therefore, no one case is on all fours with the other.”
Per MSHELIA, J.C.A.

The appellant in this case presented a number of circumstances upon which the application is hinged, namely:
(i) Ill health.
(ii) Congestion of Court of Appeal docket and delay in determining the appeal.
(ii) Substantial grounds of appeal.

These grounds have depositions in the supporting affidavit. The counter affidavit controverted most of the facts and there is a further affidavit in support and an affidavit of urgency. Starting consideration from the angle of substantial grounds in the Notice of appeal, the question of whether the grounds are substantial or not are issues meant for determination in the substantial appeal and it would be inappropriate to settle that question in an application for bail pending appeal. Suffice to say that none of the grounds raise a ground of jurisdiction.

Another ground relied upon is the alleged medical condition of the applicant. By her depositions and Exhibits, the applicant contends that bail is required to allow her get medical treatment. The Respondent challenged her deposition and exhibits. The Respondent relied heavily on the ruling of the lower court refusing the applicant bail. I have read the said ruling which is attached to the application as Exhibit A03 and the trial Judge had this to say:
“Due to the length of sentence and time for hearing appeals, a trial court would be inclined to grant bail, but the conduct of the convict during the trial is a relevant consideration and where the Court has doubts as to whether the convict will abscond the path of caution is not to grant bail after a conviction.
Having carefully considered the arguments of counsel, I find it very relevant that the applicant had taken undue advantage of the bail granted to her in the course of the trial. I firmly believe that the conduct of the applicant during trial is a relevant factor. It is very relevant that the applicant is taking advantage in a condition of health that was treated in Canada. I share the fear of the prosecution that the applicant can go away ostensibly for treatment and fail to return to serve her sentence or pursue her appeal. I am also of the view that the appeal need not take three years if the applicant is up and doing. She reserves the right to fast track her appeal. There is nothing before me to lead to a conclusion that the applicant has any peculiar medical condition. It has been stated that she is on prescription drugs. There is no allusion to any need for a strict medical attention in the medical papers attached to her affidavit. The medical report dated 01/03/13 which simply stated that she will need time to attend appointments she had for the stability of her health is a very vague statement. Having carefully considered all the facts deposed and the arguments of counsel, I am persuaded that there is no special circumstances shown by the applicant to warrant granting her bail after conviction as prayed in this application. In all the circumstances, I therefore find myself unable to grant this application.”

It is therefore expected that the medical condition of the applicant existed at the time the application was made at the lower court but as the trial Judge said, the applicant failed to support the application with required medical materials. It was after that ruling that fresh medical papers were sourced and attached to this present application. It is noted that immediately preceding conviction, the applicant was healthy.

The applicant contended that adequate facilities for treatment are not available at the prison. As the respondent challenged the non availability of a current medical report from the prison authorities, the applicant quickly secured one dated 25/3/15 after the filing of this application and the condition stated therein is far removed from the initial medical condition which allegedly existed and even at that, the report did say she has been referred to a hospital for further management. As decided in the case of BODE GEORGE v. STATE (SUPRA) if every ailment is considered exceptional then nobody would be in prison serving a sentence because it is common knowledge that hypertension and diabetes are ravaging the Nigerian populace. To grant bail on medical grounds, the Supreme Court held in the case ABACHA v. THE STATE (2002) 5 NWLR (Pt. 761) 638 as follows:
“The special medical need of an accused person whose proven state of health need 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 mere assertion of the accused or his counsel, but on satisfactory and convincing evidence… It must therefore fu clear that everyone is entitled to be offered access to good medical care whether he is being tried for a crime or had been convicted or simply in detention. When in detention affording him access to proper medical facility rests 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 entitled him to be released from custody or allowed compelling grounds. See also CHENEMULU 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 detainee 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.”
(underlined is mine for emphasis)
I agree with the Respondent that the issue of medical condition requiring the applicant to be on bail before it can be treated has not been made out. Being a convict, the applicant requires more materials from an expert clearly stating how treatment cannot be effected on the applicant while in custody. The reference from the Prison Service did not say so. Medical condition can be an exceptional circumstance but the one raised here has fallen short of the required unusual or exceptional circumstance. Referrals were procured after filing this application which goes to show that the condition did not exist prior to conviction. The referral is one that applicant can attend and return to the prison. I also fail to find the issue of ill health established. A convict is entitled to medical attention but does not have the right to insist on a medical practitioner of his choice. The authorities have referred the applicant to a medical facility and she should attend the said hospital, see ABACHA v. STATE (SUPRA)
The next issue is the congested docket of the Court of Appeal, Lagos Division. The court can take judicial notice of its docket to agree with the appellant that there is a congested docket or long list of pending appeals. But that is how far I will go with the applicant. It is now common knowledge that case management skills are employed in the Court of Appeal and most fundamentally, the New Court of Appeal (Fast Track) Practice Directions 2014 and Court of Appeal Practice Directions, 2013 which have created a new dispensation for EFEC, ICPC, NDIC, RAPE and certain named appeals. They are placed on the front burner of case management and expeditious determination. The excuse of long delay in determining appeals can no longer be an exceptional circumstance in this court as the new rules which were painstakingly designed to deal expeditiously with these class of appeals and related applications are effective, functional and yielding results. Any delay in determining an appeal in the class mentioned would arise from the appellant in not doing the needful to get to the Court of Appeal the records of such appeal. That is no longer within the purview of this court. The authority of JAMMAL v. STATE (SUPRA) can no longer be good law in respect of delay in determining appeal and as an exceptional circumstance. The compilation of a bundle of the cause list evidencing the heavy docket of this court is unnecessary as fast tract cases are fixed for hearing out of turn and not as the case is in ordinary appeals. See the unreported judgment of this court in appeal No: CA/L/40/15 – DR. REMI FOLORUNSHO v. FEDERAL REPUBLIC OF NIGERIA delivered on the 12th day of March, 2015.
From the above therefore, the reasons given by the applicant are not made out. This is taken along the findings of the lower court that the applicant contributed to the protracted trial by her conduct during trial and the court doubted that the applicant will return to prison if the appeal fails because she had abused the bail granted to her by the lower court. One of the considerations that weighs on the mind of the court is when an applicant was granted bail by the trial court and appeared for trial without any hitches. That would have been a sign that the applicant would be available to serve her sentence if the appeal fails. In this case, the applicant caused the trial to run for over 5 years because she abused the discretion extended to her in the form of bail. There is nothing to convince this court that she will be available to serve her sentence if granted bail pending appeal. Length of sentence is good ground but it has been determined by the applicants likelihood to abscond. There is always a discretion to either grant or refuse bail. The court would most often take care to remove every likelihood that the applicant would not abscond.
Flowing from above the application fails and is hereby refused. The applicant should pursue her appeal diligently.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the exhaustive Ruling prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree with nothing extra to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the ruling just delivered by my lord Yargata Yenchit Nimpar, JCA.
I agree with the reasoning and conclusion that the application fails and is refused. I too refuse the application and abide by the consequential order mode in the ruling.

Appearances

H. Ogunlesi, SAN with
C. O.Taiwo
C. Jimoh
C. Oguegbu (Miss)For Appellant

AND