FELIX OBAKPONOVWE v. THE STATE
(2019)LCN/13036(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2019
CA/B/318C/2018(R)
RATIO
SECTION 28 OF THE COURT OF APPEAL ACT, 2004 AS REGARDS THE POWER TO GRANT BAIL
The provisions of Section 28 of the Court of Appeal Act, 2004 clothed this Court with powers to grant bail to a convict pending the hearing and determination of his appeal. However, bail pending appeal is not as a matter of course because upon conviction, a person forfeits the constitutional presumption of innocence of an accused person under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), unlike the situation obtainable in a bail pending trial. The condition for granting bail pending trial or before conviction is quite different from the condition for granting bail pending appeal and this is largely predicated on the fact that there is a presumption of innocence before conviction, but after conviction, the convict does not have any right to bail again. See Monye v. Federal Republic of Nigeria (2012) LPELR-14845 (CA); Muri v. I.G.P (1957) NRNLR Page 5; Achem v. F.R.N (2014) LPELR-23202 (CA); Joseph Ugbor v. The State (2010) LPELR-5047(CA). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CONVICTION BY A LOWER COURT IS CORRECT UNTIL SET ASIDE ON APPEAL
Also, it is settled law that conviction by a lower Court is correct until subsequently set aside on appeal. This position of law also obliterates the presumption of innocence of a convict. See Chief Olabode George & Ors. v. Federal Republic of Nigeria (2010) LPELR-4194 (CA); Enebeli v. Chief of Naval Staff (2000) 9 NWLR Pt. 219 Pg. 119; Gasali v. F.R.N (2016) LPELR-41295 (CA).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
BAIL PENDING APPEAL: NECESSITIES FOR THE SUCCESS OF SUCH AN APPLICATION
For an application of this nature to succeed, the law is that the Applicant must copiously show to the satisfaction of the Court, special or exceptional circumstances, otherwise, the application will be refused. What is special and exceptional however differs from case to case, depending on the peculiar facts of each case. See Duro Ajayi & Ors. v. The State (1977) FCA 1; Abacha v. The State (2002) 5 NWLR Pt. 761 Pg. 638 at 674; Okoroji v. State (1990) 6 NWLR Pt. 157 Pg. 509. The affidavit in support of such application must contain depositions showing exceptional circumstances to enable this Court exercise its discretion judicially and judiciously. See Ikotun v. FRN & Anor (2015) LPELR-24689 (CA).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
BAIL PENDING APPEAL: PRINCIPLES THAT GUIDE THE COURT OF APPEAL IN GRANTING A BAIL APPLICATION
In exercising the discretion whether or not to grant bail, a long line of decided authorities have shown that the principles to guide an appeal Court in the grant or otherwise of bail to convict include among others:-
(1) The Appellant has in fact lodged an appeal to the Court of Appeal which is pending.
(2) The Appellant has complied with the conditions of appeal imposed, and this will show the seriousness of his application.
(3) If the Appellant was granted bail during the trial, he has not attempted or tried to jump bail.
(4) That the admission of an Applicant to bail pending the determination of his appeal is at the discretion of the Court.
(5) That bail will not be granted pending an appeal except in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(6) That in dealing with latter class of case, the Court will have regard not only to the length of time that will elapse before the appeal can be heard but also the length of the sentence to be appealed from and that these two matters will be considered in relation to one another, and
(7) In the absence of special circumstances, bail will not be allowed unless a refusal will have the result of a considerable proportion of the sentence being served before the appeal can be heard.
See Jammal v. State (1996) 9 NWLR Pt. 472 Pg. 352 at 360 CA; Munir v. F.R.N (2008) LPELR-4693 (CA); Fawehinmi v The State (supra).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
NOTICE OF APPEAL: HOW TO DETRMINE WHETHER THE GROUNDS IN THE NOTICE OF APPEAL ARE SUBSTANTIAL AND ARGUABLE
Let me start with the issue relating to whether the grounds in the Notice of Appeal are substantial and arguable. Although, there are legal authorities both in favour of granting and not granting bail pending appeal on this ground. For example, Obi v. The State (1992)8 NWLR Pt. 257 Pg. 76 CA; Buwai v. The State (2004) 16 NWLR Pt. 899 Pg. 285 CA, Fawehinmi v The State (1990) 1 NWLR Pt. 127 Pg. 486 at 498-499 all supports the principle that bail should be granted where there is any prospect of success on appeal or where a sentence is manifestly contestable as to whether or not it is a sentence known to the law. On the other hand, there are myriads of Supreme Court decisions and that of this Court on the point that issues in the substantive appeal are not issues meant for determination at the interlocutory stage. See Akilu v. Fawehinmi (No 2) (1989) LPELR-339 (SC); (No 2) (1989) 2 NWLR Pt. 102 Pg. 122; A.G. Anambra State v. Okafor (1992) 2 NWLR Pt. 224 Pg. 396; Egbe v. Onogun (1972) 1 All NLR 95; Ikumoluyi & Anor v. F.R.N. (2008) LPELR-3683 (CA); Abiodun & ORS v. FRN. (2013) LPELR-21466(CA) at Pg 13 Para. A-F; Ikotun v. F.R.N. (2015) LPELR-24684 (CA).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
BAIL PENDING APPEAL: IN PRIVING THE NEED, APPELLANT MUST SHOW THE COURT BY ADDUCING EVIDENCE AND NOT SPECULATING
For the Appellant/Applicant to sway this Court to grant him bail pending appeal, he needs to satisfy this Court by adducing actual evidence and not speculating on what he thinks. Courts of law are Courts of facts and laws. See Adegbite v. State (2017) LPELR-42585 (SC); Oguonzee v. State (1998) 5 NWLR Pt. 551 Pg. 521; Raji v. State (2014) LPELR-24254 (CA).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
BAIL PENDING APPEAL ARE ONLY GRANTED IN SPECIAL AND EXCEPTIONAL CIRCUMSTANCES
As I said earlier, it is special and exceptional circumstances that informs and guides the exercise of the discretion of the Court in this type of application not speculative conjectures, and unless the applicant has satisfied the Court that there are special and exceptional circumstances why it should be granted, the Courts do not grant it as a matter of course. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
FELIX OBAKPONOVWE Appellant(s)
AND
THE STATE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling): The Applicant brought an application by Motion on Notice filed on 5/7/18 pursuant to Section 28(1) of the Court of Appeal Act, 2004 and Order 6 Rule 1 of the Court of Appeal Rules, 2016, seeking for an order of this Court admitting the Appellant/Applicant to bail, pending the hearing and determination of the appeal against the judgment of Hon. Justice Ebiowei Tobi, delivered on 31/1/2018 in Charge No. S/57C/2015.
The grounds on which this application is brought are set down below:
a) The Appellant/Applicant was on 31/1/2018 convicted and sentenced to 7 years for conspiracy and 10 years for Arson by the Hon. Justice Ebiowei Tobi of the Delta State High Court of Justice, Effurun Judicial Division; both terms to run concurrently.
b) The Appellant/Applicant thereafter briefed and instructed S.C. Okehielem, Esq who lodged an appeal against the said judgment by virtue of Notice and Grounds of Appeal filed on the 2/3/2018.
c) The Notice of Appeal contains arguable, sustainable and substantial Grounds which makes success of the Appeal bright for the following reasons:
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i. The lower Court relied on inadmissible evidence of PW2 who ought to have been treated as a tainted witness to convict the Appellant/Applicant.
ii. The trial judge refused to consider the alibi set up by the Appellant/Applicant which was not properly investigated to convict him.
iii. The burden of proving the defence of alibi was improperly shifted to the Appellant/Applicant by the trial judge, which resulted to his conviction.
d) On the said 2/3/2018 S.C. Okehielem, Esq., filed an application for bail which the lower Court heard and refused on the 8th day of May, 2018.
e) We were briefed on the 14/5/2018 to handle the appeal and apply for bail of the Appellant/Applicant. We applied for the certified true copy of the Ruling refusing his bail; and same was released to us on 22/5/2018.
f) We applied for and were issued Certificate of Compliance of Conditions of Appeal in Charge No. S/57C/2015 on the 14/5/2018 indicating that the Appellant/Applicant has fulfilled the conditions of Appeal.
g) The Appellant/Applicant?s Record of Appeal has been compiled. It was transmitted on the 28th day of June, 2018 and the appeal entered accordingly.
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h) It is in the interest of justice that the Appellant/Applicant be granted bail pending the hearing and determination of his appeal.
i) The Respondent/Respondent will not be prejudiced if this application succeeds
j) This Honourable Court has powers to grant this application.
The application is supported by an 18 paragraph affidavit and a written address attached therewith. The Respondent by way of reply also filed a 5 paragraph counter affidavit on 3/8/18 and a written address in support.
In the written address filed by S.C. Odoh Esq., learned counsel to the Applicant identified a sole issue for the determination in this application as follows:-
Whether the Appellant/Applicant has placed sufficient material constituting exceptional circumstances before this Honourable Court warranting him being granted bail pending the hearing and determination of his appeal.
Learned counsel for the Respondent in the written address filed by O.F. Enenmo Esq., Director of Appeals; P.A. Okoh Esq., Chief State Counsel and Sylvia Dumudje Esq., Senior State Counsel also submitted a sole issue for the determination of this application to wit:
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Whether the Appellant/Applicant is entitled to be admitted to bail in view of the facts contained in his supporting affidavit.
The issue identified by both counsel is one and the same thing. I humble adopt the issue as couched by the Applicant?s counsel to wit:
Whether the Appellant/Applicant has placed sufficient material constituting exceptional circumstances before this Honourable Court warranting him being granted bail pending the hearing and determination of his appeal.
Learned Appellant/Applicant?s counsel argued that grant of bail to an Appellant pending the hearing and determination of his appeal is at the discretion of the Court and in exercising the discretion, the Courts are enjoined to do so judicially and judiciously. Counsel cited Ogundimu Munir v. FRN (2009) All FWLR Pt. 500 Pg. 775; Jammal v. State (1998) 1 ACLR 530 at 535; F.
Counsel further argued that although the grant of bail cannot be made as a matter of course because the applicant?s presumption of innocence has been obliterated by his conviction and sentence, he is nevertheless entitled to bail when he shows special
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or exceptional circumstance. Counsel cited Gana v. Federal Republic of Nigeria (2016) All FWLR Pt. 617 Pg.793 at 789 Para A-H; Ogundimu Munir v. F.R.N (2009) All FWLR Pt. 500 Pg. 775 at 785 Para B-E; Obi v. State (1992) 8 NWLR Pt. 257 Pg. 76; Buwai v. State (2004) All FWLR Pt. 227 Pg. 540; (2004) 16 NLWR Pt. 899 Pg. 285; Fawehinmi v. State (2009) 1 NWLR Pt. 127 Pg. 486 at 499; R v. Philip Wise (1924) 17 CAR 17; R v. Tunwashe (1935) 2 WACA 236; Okoroji v. State (1990) 6 NWLR Pt. 137; Jammal v. State (supra); R v. Isaac Waxman (1931) 22 CAR 81; R v. GOH 16 CAR 56; Jammal v. State (1996) 9 NWLR Pt. 472.
Counsel opined that the requirement of exceptional or special circumstances is met where an Applicant is able to show that his Notice of Appeal contains Grounds that are arguable, substantial and has a prospect of succeeding on Appeal.
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