ROLAND OKUSE v. THE STATE (2015)

ROLAND OKUSE v. THE STATE

(2015)LCN/7917(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of June, 2015

CA/B/429C/2014(R)

RATIO

PRACTICE AND PROCEDURE: APPLICATION FOR BAIL; WHEN CAN BAIL BE OBTAINED, WHEN IS THE COURT EMPOWERED TO GRANT BAIL, WHAT THE COURT CONSIDERS BEFORE GRANTING BAIL PENDING TRIAL CAN BEFORE CONVICTION
Bail can be obtained either pending trial, or pending appeal, bail is said to be pending appeal when Applicant has either been refused bail at the trial Court and then applies for bail at the Appeal Court. Also, where the Applicant has been tried and convicted but has appealed against the decision of the trial Court and then brings an application for bail pending the determination of the appeal. See Fawehinmi v State (1990) 1 NWLR (PT. 127) 486, Ukatu v C.O.P (2001) FWLR (Pt.66) 755, Ajudua v FRN (2005) All FWLR (Pt 246) 1274, Dokubo-Asari v FRN (2007) All FWLR (Pt.375) 588.

It is true that the Court is empowered to grant bail where it is obvious that the appeal may be unduly delayed, see Ojo v FRN (2006) 9 NWLR (Pt.984) 103. In this case, the alleged delay of the Respondent in defending the appeal goes to no issue since the Applicant has refused to show unusual or exceptional circumstances to enable the Court exercise discretion in his favour.

Upon careful consideration of the affidavits filed by both parties, it is obvious that the Applicant seeks bail pending appeal. To grant bail pending trial and before conviction, the Court should consider:
a. The nature of the charge
b. The severity of the punishment to be meted out on conviction
c. The nature of the evidence
d. The character or the accused person in terms of his criminal record
e. The possibility of committing the offence again
f. Possibility of interfering with witnesses and;
g. Jumping bail.
See Joseph v State (2010) LPELR -5047(CA)

It is well trite law that bail after conviction is not granted as a matter of course but on very special circumstances, as it is presumed that the conviction of the applicant is correct until subsequently (if at all) set aside on appeal. See Joseph v State (Supra). See also Abacha v The State (2002) 5 NWLR (Pt 761) 638 at 674, Duro Ajayi & Ors v The State 1977, FCA 1. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

ROLAND OKUSE Appellant(s)

AND

THE STATE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling): This is an application dated and filed on 30/05/2015 praying for the following order:
AN ORDER of Court granting bail to the Appellant/Applicant pending the determination of the Appellant/Applicant’s appeal.

The application is supported by a 19 paragraph affidavit deposed to by the wife of the Applicant. The pertinent paragraphs 10-14 in the affidavit is as set out below:
10. The Appellant/Applicant before his imprisonment is an asthmatic patient. The asthma was managed by our family trado-medical practitioner who regularly apply some traditional herbs on the Appellant/Applicant as there is no known orthodox cure for asthma.
11. The Appellant/Applicant since his incarceration has had several asthmatic attacks.
12. On 23rd March,2015 at the Federal Prison, Warri, the Appellant/Applicant informed me at about 1:30pm and I verily believed him that on 22nd March, 2015 he had severe attack and it was the divine intervention of God that rescued him from the hands of death.
13. The Federal Prison, Warri lacks the facility to manage the health challenge of the Appellant/Applicant.

The Respondent in his counter affidavit opposed the affidavit dated 22/04/2015 and filed on 22/05/2015 in paragraphs 4, (a-e)
a. That the paragraph 9 of the affidavit in support of the Appellant/Applicant’s motion for bail pending appeal is false and hereby denied and in response, the Respondent states that the Respondent’s brief of argument is ready and has been filed at the Registry of this Honourable Court.
b. That the Appellant/Applicant was, on the 8th day of May, 2014, convicted by the High Court of Justice, Ughelli, presided over by Hon. Justice Ebowei Tobi for the offence of Conspiracy to commit Felony to wit: Kidnapping and sentenced to 7 years imprisonment.
c. That in response to paragraph 10, 11, 12, 13, and 14 of the affidavit in support of the motion for bail, the Respondent states that asthma is not a contagious disease and as a consequence, the Appellant/Applicant will be taken care of adequately and his situation managed effectively and efficiently by the medical team attached to the Federal Prisons Warri.
d. That there is no medical report evidencing the ill-health of the Appellant/Applicant.
e. That the appeal filed by the Appellant/Applicant does not disclose any substantial ground of law and as a consequence there is a remote prospect of success on appeal.

Applicant’s counsel at the hearing submitted that the grant of bail is a matter for the discretion of the Court which discretion must be exercised judicially and judiciously. Counsel cited Jimoh v Commissioner of Police (2007) 5 ACLR 272 at 282, 288. Counsel further submitted that in an application of this nature, the Court will not grant bail pending appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed. Counsel cited State v Oguntona (1982) 2 NCR 374, Fawehinmi v State (1990) 1 NWLR (Pt 127) 486 at 494.

Counsel posited that based on the affidavit before this Court, Applicant deserved to be granted bail pending the determination of his appeal, counsel stated that he was certain Respondent was going to delay the appeal since Prosecution had not filed her brief of argument, even though the Applicant had filed his brief of argument since the 19th of December, 2014.

Counsel submitted that Applicant had already served a year out of the seven year term he is supposed to spend and may finish that term if bail is not granted, counsel further submitted that paragraphs 10-14 of the affidavit in support of the motion for bail showed exceptional and special circumstances for the Court to grant the Applicant bail pending the hearing and determination of his appeal. Counsel urged this Court to grant the motion as prayed.

Respondent’s counsel in his address argued that although the Court has the power to exercise discretion as provided by Section 28(1) Court of Appeal Act, such discretion must be exercised judicially and judiciously, and to do this, Applicant must place enough materials before the Court to show special and exceptional circumstances that warrant the exercise of the discretion in his favour. Counsel cited Munir v Federal Republic of Nigeria (Pt 1168) Pg.481 at 495 paras D-E.

Counsel submitted that to obtain bail pending trial is easier than after a conviction because there is a constitutional presumption in favour of the liberty and innocence of the individual. However, in the case of bail pending appeal, the burden is on the Applicant because the constitutional presumption is gone by virtue of conviction.

Counsel stated that the alleged asthmatic attacks of the Applicant did not constitute exceptional and unusual circumstance since it is a mere story of bad health and so, it will not suffice as a consideration for the grant of bail.

Counsel further stated that the affidavit does not disclose that medical doctors or traditional doctors were denied access to the Applicant in prison or that the prison where the Applicant is being kept lacked adequate medical facilities capable of sustaining the Applicant.

Counsel submitted that the Applicant has failed to provide sufficient materials. Counsel cited George v FRN (2010) 55 NWLR (Pt.1187) Pg 254, Munir v FRN (Supra).

Resolution
Bail can be obtained either pending trial, or pending appeal, bail is said to be pending appeal when Applicant has either been refused bail at the trial Court and then applies for bail at the Appeal Court. Also, where the Applicant has been tried and convicted but has appealed against the decision of the trial Court and then brings an application for bail pending the determination of the appeal. See Fawehinmi v State (1990) 1 NWLR (PT. 127) 486, Ukatu v C.O.P (2001) FWLR (Pt.66) 755, Ajudua v FRN (2005) All FWLR (Pt 246) 1274, Dokubo-Asari v FRN (2007) All FWLR (Pt.375) 588.

From the above, it is clear that for the Court to exercise its discretion in favour of an applicant seeking bail pending appeal, such an applicant has to show special circumstances on the face of his application, and show all necessary documentation where necessary to back up his claim in the affidavit. In this case, the wife of the Appellant/Applicant deposed to the Applicant’s long history of ill-health. Ill-health is a factor weighty enough to be considered in an application for bail. In fact in Abacha v State (Supra) it was held that:
“It is well acceptable that whatever the stage at which bail is sought by an accused person, ill-health of the accused is weighty enough to be reckoned with as a special circumstance.”
In the case of Ani v State (2001) FWLR (Pt.81) 1715, Obadina J.C.A held thus:
“I do not think the respondent has sufficiently discharged the burden of showing cause why bail should not be granted to the Appellant. Indeed I am of the view that the Appellant has not only placed some materials before the learned trial judge but has shown by his affidavit in support, exceptional circumstances why he should be admitted to bail. As it is only the living that can praise God, so it is only the living that can be tried, convicted and punished for an offence no matter how heinous the offence may be…”

It is easy to glean how important the health of an accused is to the Court, even upon conviction. However, although ill-health of an accused is to be of crucial consideration, mere assertion of ill-health will not entitle an Applicant to the exercise of discretion to admit the convict to bail. See Bamaiyi v State (2001) 4 SCNJ 103.
For this Court to exercise its discretion in favour of the applicant, Applicant must show concrete evidence that appropriate and effective medical facilities are not accessible to the convict in the confines of prison custody. The affidavit in support of the motion for bail must be supported by documentary evidence of the state of health of the applicant and a medical doctor ought to give oral or affidavit evidence or medical report in that regard in compliance with the provisions of Section 57 of the Evidence Act, Laws of the Federation 1990. See Fawehinmi V. State (Supra), Abacha V. The State (2003) 3 ACLR Pg 1 at Pg 8; (2002) 5 NWLR (Pt. 761) Pg 638 At 656, Onyebuchi v FRN (2007) LPELR- 4134 CA.
An Applicant relying on ill-health as ground for seeking bail must establish:
1. That the ill-health is of such nature as would affect other inmates of the facility where the applicant is being held.
2. That there is a positive, cogent and convincing medical report issued by an expert in the relevant field of medicine that the accused is suffering from.
3. That the prison or other detention authorities have no access to such medical facilities as are required in treating the Applicant’s ailment.
See Ofolue v FRN (2005) 3 NWLR (Pt.913) 571.
In Abacha v State (Supra) per Ayoola JSC held thus:
“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.”

When a person is held in detention, the responsibility of affording him access to proper medical facility rests with those in whose custody he is. In the case of Abacha V State (SUPRA), Ayoola J.S.C HELD
“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.”
It is deducible from the foregoing that the Prisons are responsible for the medical needs of inmates, convicts cannot choose medical practitioners at will. This is both for their safety and the safety of the society as a whole. If the Prison Service is of the opinion that they lack the required medical facilities to cater to the needs of an inmate, it is the duty of the prison service to issue a medical report as to this effect to aid the Court in the exercise of its discretion whether to grant bail or not. The mere fact that an Applicant is sick does not qualify him for bail. See Alaya v The State (2007) 16 NWLR (Pt.1061) 483. In A.I. Associates & Anor v FRN (2014) LPELR -24107 (CA) it was held that
“The responsibility of treating an ill or sick convict is squarely on the state, i.e the prison authority in this case; every detainee, with no exception ought to be treated by the prison authority when they present with sickness, there should be complaints, or conditions attached to such treatment, courts should not encourage the prison authorities to derelict in this very important duty, it goes to the root of the penal system. The same way the prison authorities bear the burden of feeding the prisoners they also bear the burden of making sure every medical condition of a prisoner is attended to, while such prisoner is in their custody and care.”

Since the prison authority is responsible for the welfare of the Applicant, the prison authority is the appropriate authority to give information on the medical needs of the Applicant. In this case, the depositions of the wife of the Applicant as to the ill health of the Applicant cannot be accepted wholesale to base the exercise of our discretion. In Nwoke v FRN (2005) All FWLR (Pt.245) 1083 the Court of Appeal held thus:
“With respect to applications for bail pending appeal after conviction, the Court has the power to admit such appellant to bail only under special circumstances. The instant fact situation should not be confused with the fact situation required under application for bail pending appeal after conviction. Such appellant, it must be observed, has been lawfully convicted and can only be admitted to bail upon special circumstances. This is not the case here where the onus is on the prosecution to show that an applicant, as the appellant here, is not deserving of being admitted to bail.”

Only his loving wife of 10years seems to know of his nightly asthmatic attacks in prison even though she is not incarcerated there with him. There is no confirmation of these attacks from prison medical personnel.

From the above, it is clear that for the Applicant to be granted bail before this Court, he must show, that there is indeed special circumstances. The fact that he has been convicted has rebutted his presumption of innocence and therefore, the responsibility devolves on him. The Applicant has to show and prove the special circumstance which he intends to rely upon. In this particular case, an affidavit has been deposed to of the ill health of the Applicant, but it is not enough to say that the Applicant is ill, there has to be affidavit and other evidence before the Court to prove that indeed he is ill, and the prison authorities cannot manage his illness. Thus, the Applicant has to show that he is indeed sick, and not just sick but that his illness is one that cannot be managed by the prison authority, however, in this case, no documentation whatsoever was proffered, not a medical report, from a hospital, nor any other communication, not even from the trado-medical doctors that were said to have been treating the Applicant for asthma. There is no report from the prisons as to the status of the health of the Applicant.

That said, this Honourable Court is not deceived. I strongly believe that if it is indeed true that the Applicant suffered from asthmatic attacks, regardless of whether he was being treated by trado-medical personnel or doctors from certified hospitals, it would have come to the notice of at least one prison official who would have taken him to the hospital or reported the incident to the prison hospital and the prison hospital would have kept a record of it. In the absence of any document to this effect, the position is that the Applicant has failed to show any special or exceptional circumstances to enable this Court exercise its discretion in his favour.

I hereby dismiss this application for bail pending appeal as lacking in merit.

PHILOMENA MBUA EKPE, J.C.A.: I have had the advantage of a preview of the judgment just delivered by my Learned Sister H.M. Ogunwumiju JCA. I am in agreement with the said judgment which dismissed the application for bail pending trial. The appeal is devoid of merit hence it deserves to be dismissed. Accordingly, it is dismissed by me.

HAMMA AKAWU BARKA, J.C.A.: Having been privileged to read in draft the ruling just delivered by my Lord HELEN MORONKEJI OGUNWUMIJU, JCA to which I am in full agreement with the reasons and conclusion reached therein, I too would dismiss the application as lacking in merit.

Appearances

B. E. Olowonubi holding the brief of O. IturuFor Appellant

AND

C. O. Agbagwu Chief State Counsel Delta StateFor Respondent