MURTALA ADAMU v. FEDERAL REPUBLIC OF NIGERIA (2019)

MURTALA ADAMU v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13597(CA)

In The Court of Appeal of Nigeria

On Saturday, the 29th day of June, 2019

CA/S/171CM/2018

JUSTICES:

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

MURTALA ADAMU – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

RATIO

WHETHER OR NOT BAIL AFTER CONVICTION IS GRANTED AS A MATTER OF COURSE

Bail after conviction unlike bail pending trial is not ordinarily granted as a matter of course. It is rarely granted and only upon very stringent conditions referred to in common parlance as extra-ordinary circumstance and which has evolved to be known in legal parlance as exceptional or special circumstance. It is a well-established and known fact that it is not the practice of this Court to grant bail after conviction except on a very special, unusual or exceptional circumstance so cogent enough to warrant the grant of bail to a prisoner. An appellate Court will not grant an application for bail pending appeal unless there are exceptional circumstances why bail ought to be granted to the applicant. The duty of placing the necessary materials, facts and circumstances constituting an exceptional, unusual or special circumstance is that of the applicant without which the Court cannot activate its discretionary power to grant bail after conviction. To enable the Court exercise such a discretion which is sparingly invoked, cogent and compelling reasons must be placed before the Court why bail should be granted. See CHIEF OLABODE GEORGE & ORS v. THE FEDERAL REPUBLIC OF NIGERIA (2010) LPELR-4194 (CA), BUWAI 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. 671) 119. The settled position of law therefore is that bail after conviction is not granted except upon special, exceptional or unusual circumstances. See State v. Jammal (1996) 9 NWLR (Pt.472) 352, Mohammed Sanni Abacha v. The State (2002) 5 NWLR (Pt.761) 638 at 653; Obi v. State (1992) 8 NWLR (Pt.257) 76; Ojo v. FRN (2006) 9 NWLR (Pt.984) 103 at 116 – 117; Adamu v. FRN (2008) All FWLR (Pt.420) 787 at 795. PER WAMBAI, J.C.A.

WHETHER OR NOT ILL HEALTH IS A GROUND THAT CONSTITUTES AN EXCEPTIONAL CIRCUMSTANCE FOR THE GRANT OF BAIL PENDING APPEAL

Ill health of an applicant has been accepted by the Courts as a ground that constitutes an exceptional circumstance for the grant of bail pending appeal. SeeGani Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486; Arowolo v. State (2008) All FWLR (Pt.404) 1603 at 1606. ABACHA v. THE STATE (2002) 5 NWLR (Pt. 761) 638. However, the mere assertion by an applicant or his counsel that an applicant is sick without more will not qualify him for bail unless there are compelling grounds for doing so. See CHENEMULU v. COMMISSIONER OF POLICE (1995) 4 NWLR (Pt. 390) 467, DOLAPO Vs. FRN (2016) LPELR – 41379 (CA), Alaya v The State (2007) 16 NWLR (Pt. 1061) 483. ABACHA v. THE STATE (SUPRA).
The reason for this stand of the Courts is for the fact there are medical facilities available in the various prisons to take care of inmates as and when the need arises. If every convicted person is to be admitted to bail on ground of ill health, then as observed in the case of BODE GEORGE v. STATE (SUPRA), nobody would be in prison serving a sentence because it is common knowledge that hypertension and diabetes are ravaging the Nigerian populace. It follows that for bail pending appeal to be granted on ground of ill health, the ailment must be of a serious magnitude and dangerous to public health such that the continued stay of the applicant would pose health hazards to other inmates. See – Osadolor (alias Afro) v. The State (2013) 5 WRN 162 at 167; Abacha v. The State (2002) 5 NWLR (Pt.761) 638 at 664 – 665. PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Lead Ruling): The Appellant/Applicant herein was the Respondent in Appeal No. CA/S/134C/2017 in which the Respondent herein, the Federal Republic of Nigeria, was the Appellant.

In a judgment delivered by this Court (differently constituted) on 28th November, 2018 setting aside the decision of the trial Court (the Federal High Court, Gusau, Zamfara State) which discharged and acquitted the Appellant/Applicant herein of the ten counts charge against him, this Court convicted and sentenced him to 5 years imprisonment for each of four counts of conversion and seven (7) years imprisonment for 3 counts of retention/receiving, contrary to Sections 15 (1) (a) (i) and 15 (2) (d) respectively, of the Money Laundering (Prohibition) Act, 2011.

Against the said judgment of this Court, the Applicant has filed a Notice of Appeal to the Supreme Court predicated on 13 grounds. It is pending the hearing and determination of that appeal that the Applicant has filed this application No. CA/S/171CM/2018 pursuant to Order 17 Rule 2 of the Rules of this Court praying for:
1. An order admitting the

Appellant/Applicant to bail pending the hearing and determination of his appeal to the Supreme Court against his conviction in Appeal No. CA/S/134C/2017 by the Court of Appeal, Sokoto Division for four counts of offences of conversion contrary to Section 15(1)(a)(ii) of the Money laundering (Prohibition) Act 2011, as amended.

In support of the application is a 9 paragraph affidavit and a bundle of documents attached thereto and marked as Exhibits.

In opposing the application, the Respondent filed a 24 paragraphs counter-affidavit in response to which the Appellant filed a reply affidavit on 16/1/19 to which was annexed 3 exhibits marked AD1, AD2 and AD3. The Respondent filed a 13 paragraph further counter-affidavit on 24/1/2019.

The motion being highly contentious, parties were ordered to file written addresses in support of their respective positions. The Appellant/Applicant’s written addresses in support of the motion was filed by Ibrahim Abdullahi (FRHD) Esq., on 16/01/2019 wherein a sole issue was raised for determination, to wit: –
WHETHER THE APPLICANT IS ENTITLED TO THE RELIEFS SOUGHT.”

Similarly, M. S.

Abubakar, Esq., Deputy Chief Legal Officer (DCLO) of the EFCC who filed the Respondent’s written address on the 24/01/2019 in opposition to the motion, submitted a sole issue for determination substantiality the same with the Appellant/Applicant’s issue but differently couched, viz:
Whether the Appellant/Applicant has placed sufficient material before this Honourable Court to enable it exercise its exceptional power and discretion of granting bail pending appeal in his favour.

Arguing the application, it was conceded that the grant or refusal of bail pending appeal is at the Court’s discretion, usually exercised judiciously and judicially upon the existence of exceptional or unusual circumstance. The cases of Kotoye Vs Saraki (1992) 9 NWLR (Pt. 264) 154, Munir Vs FRN (2009) 16 NWLR (Pt. 1168) P. 481 at 495 Paras D-E R2 & 3, Udensi Vs Odusote (2003) 6 NWLR (Pt 817) 545 at 558 Paragraph B, Ogbuehi Vs Governor of Imo State (1995) 9 NWLR (Pt 1) 143 at 148 were cited in support. He listed factors for consideration in determining what constitutes an exceptional or special circumstance as:-
a. If the applicant being first offender had

previously been of good behavior.
b. If substantial grounds of law are involved in the appeal, it is useful to see if 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 law, bail should be granted;
c. Where, having regards to the very heavy congestion of appeals pending in the Courts, a refusal of bail to the applicant will have the result of the whole or a considerable portion of the sentence imposed on the applicant being served before the applicant’s appeal can be heard.
d. Where the applicant will be of assistance for the preparation of his appeal and where the appeal is so complex that there is obvious need for close consultation between the applicant and his counsel.
e. Where the application is based on ill health and the applicant cannot get necessary treatment in prison or where the machine used in treating the applicant is not movable, thus cannot be moved to prison. In such circumstance, and in order not to put the applicant’s health in serious jeopardy, bail will be granted.

To demonstrate that the Appellant/Applicant meets the stated

criteria, one after the other in the order as listed, it was submitted that (i) paragraphs 8 (g) and (h) of the supporting affidavit support the fact that prior to his conviction, the Appellant/Applicant had been a person of good behavior; (ii) that a careful examination of grounds 9, 11 and 12 of the Notice of Appeal which disclose substantial points of law shows the prospects of the success of the appeal; (iii) that the Appellant’s wrong conviction and sentence under a non-existing law for charges which were struck out by the trial Court shows that the sentence is manifestly contestable whether or not it is a sentence known to law, which entitles the Appellant/Applicant to bail, as held in the case of State Vs Jammal (Supra); (iv) that the deposition in paragraph 8 (1) shows that a refusal of the application would result in the applicant serving the whole or a substantial part of the sentence before the appeal is heard having regards to the heavy congestion of appeals at the Supreme Court; (v) that paragraph 8 (s) supports the fact that there is need for the Appellant/Applicant to be in close consultation with his counsel; (vi) that paragraphs 80), (k), (I),

(m), (n), (o), (p), and (q) as well as Exhibits D, D1, D2, D3, D4, D5, D6, D7, D8/1 D9, AD1, AD2 and AD3 show the nature of the Appellant/Applicant’s ailment and deteriorating condition and which has led to a hip and high trauma as a result of a fall in prison occasioned by blurred vision. That the medical facilities in prison and environs cannot meet the Applicant’s medical needs which fact he argued, constitutes an exceptional circumstance that warrants the grant of bail, in that the Appellant/Applicant has to be alive to be able to serve his sentence calling in aid the case of Fawehinmi Vs The State (1990) 1 NWLR (Pt 127) 486 @ 496.

According to the learned counsel, other factors to be considered in granting bail pending appeal includes, whether the applicant has in fact lodged an appeal, as the appellant has done by Exhibit B; whether applicant was granted bail during trial as deposed at page 8 (b) and whether there is merit in the appeal, as argued by paragraph 2.8 of the Appellant’s Written Addresses.

Premised on all these depositions and the annexed exhibits, it was contended that the applicant is entitled to the grant of bail pending the

determination of his appeal before the Supreme Court. We are accordingly urged to do so and resolve the issue in favour of the Appellant.

For the Respondent, it was submitted that bail pending appeal is not a constitutional right and is rarely granted as the presumption of innocence is no longer available to the convict, citing the case of Jammal Vs State (Supra) to buttress his submission. It was submitted that besides the paragraphs of the supporting affidavit which made feeble attempt placing some materials before the Court but which were countered and controverted and not enough to sustain the application, the Applicant failed woefully to show any special circumstance entitling him to the exercise of the discretion in his favour to warrant being admitted to bail after conviction. He relied on the cases of Richard William Starkie (1934) 24 CRAP R. 293 and Osuji Vs C.O.P (1974) 4 ECSLR 448.

On the issue of the applicant’s ill health about which Respondent’s counsel contends that heavy weather was raised, it was submitted that the Appellant/Applicant failed to controvert the depositions in paragraphs 13 & 14 of the Counter-affidavit that the

nature of ailment suffered cannot be taken care of in prison or that the applicant cannot move freely around in the prison and environs in order to be in a highly mobile posture.

On the claim that the applicant would be required to assist in the compilation and prosecution of the appeal, it was submitted that it is the responsibility of the team of counsel who have been representing the applicant right at the trial Court and who are abreast of the facts, to pursue and prosecute the appeal and not that of the applicant.

It was submitted that the Applicant failed to prove his assertion as required of him that if bail is refused, he may serve the whole or a considerable portion of his term because of heavy congestion of appeals at the Supreme Court, citing in support the locus classicus cases of Obi Vs State (1992) 8 NWLR (Pt 287) 76 and Madike Vs State (1992) 8 NWLR (Pt 257) 85.

Moreover, our attention was drawn to the Supreme Court Practice Direction on fast tracking the hearing of Money Laundering and Corruption Cases by which such cases no longer drag on for long but are expeditiously determined within a short time. He gave examples of such

cases expeditiously determined.

It was also submitted contrary to the Applicant’s deposition at paragraph 7 that the Applicant is not serious with the prosecution of the appeal but is only after securing the bail since the record of appeal is yet to be transmitted to the Supreme Court.

Finally, we were urged to resolve the issue in favour of the Respondent, refuse the application and order the immediate transmission of the record to the Supreme Court for the hearing of the appeal thereat, the applicant having woefully failed to place sufficient materials before the Court.

Now, Section 28 of the Court of Appeal Act empowers this Court to admit an Appellant/Applicant to bail after conviction pending the determination of his appeal. This discretionary power as with all discretion must be exercised judiciously and judicially having regards to the facts and circumstances of each case and guided by the applicable principles of law. See ONAGORUWA V IGP (1991)5 NWLR (PT 193)593, ACB V NNAMANI (1991)4 NWLR (PT186)486.

Bail after conviction unlike bail pending trial is not ordinarily granted as a matter of course. It is rarely granted and

only upon very stringent conditions referred to in common parlance as extra-ordinary circumstance and which has evolved to be known in legal parlance as exceptional or special circumstance. It is a well-established and known fact that it is not the practice of this Court to grant bail after conviction except on a very special, unusual or exceptional circumstance so cogent enough to warrant the grant of bail to a prisoner. An appellate Court will not grant an application for bail pending appeal unless there are exceptional circumstances why bail ought to be granted to the applicant. The duty of placing the necessary materials, facts and circumstances constituting an exceptional, unusual or special circumstance is that of the applicant without which the Court cannot activate its discretionary power to grant bail after conviction. To enable the Court exercise such a discretion which is sparingly invoked, cogent and compelling reasons must be placed before the Court why bail should be granted. See CHIEF OLABODE GEORGE & ORS v. THE FEDERAL REPUBLIC OF NIGERIA (2010) LPELR-4194 (CA), BUWAI 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. 671) 119. The settled position of law therefore is that bail after conviction is not granted except upon special, exceptional or unusual circumstances. See State v. Jammal (1996) 9 NWLR (Pt.472) 352, Mohammed Sanni Abacha v. The State (2002) 5 NWLR (Pt.761) 638 at 653; Obi v. State (1992) 8 NWLR (Pt.257) 76; Ojo v. FRN (2006) 9 NWLR (Pt.984) 103 at 116 – 117; Adamu v. FRN (2008) All FWLR (Pt.420) 787 at 795.
Unlike bail pending trial, bail after conviction is not a right as the presumption of innocence no longer avails the convicted applicant. On the other hand, there is in favour of the conviction, a reasonable presumption that the conviction is correct until subsequently set aside on appeal. This explains the marked difference in criteria for pre and post-conviction bail. In the case of bail after conviction, the convict/applicant must place before the Court by the depositions in the supporting affidavit and exhibits, very cogent and strong factors that would satisfy the Court of the existence of an exceptional, unusual or a special circumstance to be

entitled to the exercise of the Court’s discretion in his favour. As no one case is on all fours with the other in facts and circumstance, the compelling factors or consideration constituting an exceptional or a special circumstance lies within the peculiar facts of each case.

The appellant/Applicant in this application presented a number of factors which according to him, amounts to exceptional circumstance warranting the grant of bail to the applicant. The germane factors or reasons upon which the application is hinged are:
(1) There are Substantial grounds of appeal;
(2) There is heavy congestion of appeals pending at the Supreme Court;
(3) That the applicant will be of assistance for the preparation of his appeal;
(4) Ill health of the applicant and unavailability of the required medical facilities in prison.
Substantial Grounds of Appeal
Beginning with the issue of the substantiality of the grounds of appeal and the prospect of success of the appeal, the learned Appellant’s counsel wants us to consider the complaints in grounds 9, 10 and 11 of the grounds of appeal and the depositions in the supporting affidavit

as raising jurisdictional issues likely to succeed on appeal thereby constituting an exceptional circumstance.
Let me state and acknowledge the different positions of this Court on the issue. While cases like Munir Vs FRN (2008) LPELR 4693 (CA) and Jamal Vs State (supra) relied upon by the learned Appellant’s counsel took the position that the substantiality of the grounds of appeal constitutes an exceptional circumstance, there are tons and tons of other decisions following the very early decision of Duro Ajayi & Ors Vs The State (1977) 1 FCA which took a different position, their position being that to follow the practice of looking into the prospect of the success of the appeal as formulated by lord Chief Justice in R Vs Wise 17 CR. Appl. R 17, would make a mockery of the substantive appeal if and when it eventually comes up for hearing. In Bode George Vs FRN (2010) LPELR – 43088 (CA), this Court per Ogunbiyi JCA (as he then was) in reiterating the position in Ajayi & Ors Vs The State (supra) held that whether or not the grounds are substantial, strong, cogent and arguable, is for determination at the appeal and not at the stage of the

application. That the Court cannot speculate or deduce on the outcome of either the merit or otherwise of the appeal since the merit of the appeal is not the consideration at this stage. However, this is not to say that the substantiality of the grounds of appeal particularly on issues of jurisdiction or recondite issue of law has no role to play in determining an application of this nature. The current trend is to consider on the face value, the substantiality of the grounds of appeal along with other existing factors in the application in determining whether there is an exceptional circumstance to grant bail pending appeal. In other words, while not delving into the prospect of the success of the appeal, which powers this Court does not possess, the substantiality of the grounds of appeal on their face value may be considered together with other factors like the length of sentence and the likelihood of not having the appeal heard before the whole or a substantial portion of the sentence is served. I have looked at grounds 9 and 11 of the grounds of appeal, which, as argued by the Appellant’s counsel, apparently raise the question of jurisdiction. But that

fact on its own is not sufficient to warrant the grant of bail to the Applicant. It has to be considered in relation to the other factors in the application.
This then leads me to the second ground relied upon by the Appellant/Applicant, that of the very heavy congestion of appeals pending before the Supreme Court by which fact as argued by learned counsel and deposed in paragraph 8(1), a refusal of the application will result in the Appellant/Applicant serving the whole or a substantial portion of the sentence before the appeal can likely be heard.
On the heavy congestion of pending appeals before the Supreme Court, the fact and fear that an applicant may serve a whole or a substantial portion of the sentence imposed on him before the appeal is heard is a factor that has been adjudged to constitute an exceptional circumstance. See Jammal Vs The State (Supra) relied upon by the learned counsel for the Appellant. – However, this is considered in relation to the length of the sentence and the likely time within which the appeal will be heard, determined and pronounced upon. Therefore, the Court must consider not only the length of time which must

elapse before the appeal can be heard, but also the length of sentence appealed against. These two must be considered in relation to one another and not independent of the other. See Ani Vs State (2004) 7 NWLR (Pt 872) 249.
It is true that the docket of the Supreme Court is heavily congested. This is a fact of which judicial notice can safely be taken. But this is as far as the cognizance of that general fact stops and where the cognizance of the Supreme Court (Criminal Appeals) Practice Direction, 2013 on fast tracking of the hearing and determination of appeals from decisions of this Court on cases pertaining to Terrorism, Rape, Kidnapping, Corruption, Money Laundering and Human Trafficking, begins. It is now a matter of common knowledge that by the inbuilt case management mechanism of the Practice Direction, the hearing and determination of the specified class of matters are given a special and expeditious attention. They are placed on the 1st line charge of the docket and given prime attention. Indeed, they are placed on the front burner of the cause list. This is why as part of the case management technique employed by the Practice Direction

to fast-track the hearing and determination of such appeals, the time for filing of briefs of argument including the reply brief by the Appellant and Respondents have been abridged to 10,7 and 3 days respectively. (See Order 6 Rules 1, 2and4).
Similarly, in order to attain the quick disposal of such appeals, the Court gives priority to such matters and where possible, they are heard on a day to day basis until finally determined (See Order 7). Therefore, with the Fast-Track Practice Direction, the question of prolonged delay in hearing such appeals has now almost become a thing of the past. I should reiterate that the said Rules, as with the Court of Appeal Fast-Track Rules, 2014, have revolutionized the procedure by eliminating or at least reducing the causes of delay in the prosecution of appeals pertaining to Money Laundering and Other Offences captured in the Rules. Under this new regime, delay is more likely to be placed at the door steps of the Applicant who fails to take the necessary procedural steps as at when due as provided by the Rules rather than at the door steps of the Court. Thus, the fear that the applicant may complete or

serve a substantial portion of his sentence before the appeal is heard must be considered along with the length of sentence to be served and where the sentence is short that fact may weigh heavily in the mind of the Court. Where the sentence is short and the appeal even with the fast-track procedure may not be heard before the whole or a substantial part of the sentence is served, bail may and would readily in such circumstances be granted pending the hearing and determination of the appeal in order to avert the applicant serving the whole or a substantial part of the sentence before the hearing of the appeal which, if successful, would be rendered nugatory. This consideration however, will be different where the bail application can be heard and pronounced upon before the Applicant serves the whole or a substantial portion of the sentence. In the case of Monsour Vs FRN (2018) LPELR 45112 (CA) where the sentence imposed was two years out of which the Appellant had served four (4) months and the bail application had been heard and judgment reserved, the application which was predicated on the fear that the Court might utilize the maximum period of 90 days

prescribed by Section 294(1) of the Constitution before delivering its ruling, was refused and struck out. Similarly, where the applicant has only served a small fraction of a relatively lengthy sentence and the appeal with seriousness and diligent prosecution on the part of the applicant would likely be heard within a reasonable time; no exceptional or special circumstance will exist to warrant the grant of bail. In the case at hand the Appellant/Applicant’s seven (7) years imprisonment commenced on 30/11/18. He has served a little over 4 months of the seven (7) years term. The Respondent’s counsel has argued that with the Fast-Track Practice Direction, the Supreme Court has been able to fast track the hearing and determination of the appeals within a reasonable time, in the case of Saraki vs FRN (Supra) between October, 2015 and 5th February, 2016, in Daudu Vs FRN (Supra) between- March 2017 and 26/01/2018 and in Destra Investment Ltd. Vs FRN (Supra) between May, 2017 and 12th January, 2018, contending that the Applicant has failed to prove that his appeal will not be heard before a substantial part of the sentence is served. There is really

nothing before the Court to the contrary, to believe the respondent’s submission. The applicant who has served just a little over 4 months out of his 7 years term of imprisonment has not placed any convincing materials before the Court that even with the Supreme Court Fast-Track Practice Direction, his appeal will not be heard within a reasonable time and before he serves a substantial or a considerable part of his 7 years term of imprisonment. The words substantial as defined by the Mariam Webster Dictionary (Electronic Version) means large in amount, size or Number. Virtually the same meaning is ascribed to the phrase by Learner’s Dictionary (7th Edition) at page 1476. In context therefore, the phrase substantial portion of the sentence means a large amount of the term of imprisonment in contradistinction to a small fraction of the sentence that has been, will be or is likely to be served before the appeal is heard and determined. I do not envisage, if the appeal is seriously and diligently prosecuted, that it will not be heard and determined under one year. That being so, I will not consider a period

of one year in relation to a sentence of 7 years as constituting an exceptional circumstance or to come within the ambit of factors that constitute exceptional circumstance to warrant the grant of bail. This ground also fails. Next to consider is the ground that if granted bail, the Applicant will be of assistance for the preparation of his appeal where the appeal is complex and there is need for close consultation between him and his counsel. Applicant deposed to this fact in paragraph 8(S) of the supporting affidavit which was controverted by paragraphs 19 and 20 of the counter-affidavit which the Applicants further reacted to at paragraph 3(K) of the Reply Affidavit to the effect that the Applicant is entitled to assist his counsel in the preparation and prosecution of the appeal.
Quite frankly, I fail to see what indispensable assistance the Applicant will render to his counselor team of counsel who have been representing him right from the trial Court through to the filing of the appeal and this motion, in the preparation and prosecution of this appeal. The counsel has been in consultation with the Applicant and it was at one of such

consultations at the Medium Security Prison, Gusau, Zamfara State on the 7th January, 2019 that the deponent was briefed by the Applicant of the facts deposed to in the supporting affidavit. Having briefed his counsel of the facts deposed to by the deponent, I find some considerable strength in the Respondent’s argument that it is the responsibility of the counsel and not that of the Applicant to prepare and prosecute the appeal. That ground also, within the facts and circumstances of this appeal, fails to constitute an exceptional circumstance. The final ground relied upon is that of ill health, that is the health condition of the applicant which the learned counsel argued has been deteriorating and cannot be adequately treated in or with the available medical facilities in the prison. Ill health of an applicant has been accepted by the Courts as a ground that constitutes an exceptional circumstance for the grant of bail pending appeal. See Gani Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486; Arowolo v. State (2008) All FWLR (Pt.404) 1603 at 1606. ABACHA v. THE STATE (2002) 5 NWLR (Pt. 761) 638. However, the mere assertion by an applicant or

his counsel that an applicant is sick without more will not qualify him for bail unless there are compelling grounds for doing so. See CHENEMULU v. COMMISSIONER OF POLICE (1995) 4 NWLR (Pt. 390) 467, DOLAPO Vs. FRN (2016) LPELR – 41379 (CA), Alaya v The State (2007) 16 NWLR (Pt. 1061) 483. ABACHA v. THE STATE (SUPRA).
The reason for this stand of the Courts is for the fact there are medical facilities available in the various prisons to take care of inmates as and when the need arises. If every convicted person is to be admitted to bail on ground of ill health, then as observed in the case of BODE GEORGE v. STATE (SUPRA), nobody would be in prison serving a sentence because it is common knowledge that hypertension and diabetes are ravaging the Nigerian populace. It follows that for bail pending appeal to be granted on ground of ill health, the ailment must be of a serious magnitude and dangerous to public health such that the continued stay of the applicant would pose health hazards to other inmates. See – Osadolor (alias Afro) v. The State (2013) 5 WRN 162 at 167; Abacha v. The State (2002) 5 NWLR (Pt.761) 638 at 664 – 665. Another reason why bail

could be granted to a convict pending appeal on ground of ill health is where there is concrete evidence that medical facilities needed by the convict are not accessible to him while he is in prison custody. In such situation when the special medical need of an applicant whose proven state of health needs special medical attention which the authorities may not be able to provide, the Court may exercise its discretion to grant bail to the convict. See Abacha v. The State (supra) at 664 – 665. For an Applicant relying on ill-health as ground for seeking bail to succeed, he must establish:
1. That the ill-health is of such a 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 FGN (2005) 3 NWLR (Pt.913) 571.
In this application, the Appellant/Applicant’s ill health is predicated on

intermittent problems with his 10 years old hip implant and severe osteoarthritis of both ankle joints on one hand and on the other hand, eye problem with poor vision.
The affidavits and annexed exhibits show that for several years the Appellant/Applicant has had these health challenges and has been in constant contact with some medical facilities/personnel for regular consultation and review, the last of such communications on the hip implant before his conviction on the 28th November, 2018, being Exhibit D6 dated 20/6/2018 advising a follow up consultation in September, 2018, ten years after the implant.
Exhibit AD1 and AD2 were annexed to the Reply to the Counter- Affidavit to support the contention that the Applicant’s condition has deteriorated while in prison and that the medical facilities in prison where he is currently in custody, are not adequate or available to treat his ailment.
Exhibit AD2 reads thus:
FEDERAL MEDICAL CENTRE, GUSAU
P.M.B. 1008, SOKOTO ROAD BYE-PASS ROAD
GUSAU, ZAMFARA STATE
EMAIL: fmc.gusau@yahoo.com, fmcgusau2006@gmail.com
Head of Human Resources

LAWAL S. BUNGUDU
Medical Director
DR. KABIRU M. ANKA MBBS, FWACS
Head of Clinical Services
DR. HAMZA GARBA MBBS, FWACS
Date: 11th/01/2019
Your Ref:….
Our Ref: Fmc/patnt/952250/vl.01
The Prison Clinic,
Medium Security Prison,
Gusau,
Zamfara State.
MEDICAL REPORT
RE: MR. MURTALA ADAMU 154 YRSI HOSP. No: 952250
The above named 54 year’s old man presented yesterday to our A & E facility on account of trauma to the left hip and thigh following a fall in the prison. He has pain, difficulty in walking.
Clinical examination revealed mark tendency in the left, hip &, thigh with reduced range of motion in the affected hip.
Examination of x-ray films shows an intact prosthetic hip, no dislocation nor periprosthetic fracture. There is also severe osteoarthritis of both ankle joints. Impressions of (i) traumatic soft tissue injury of left hip and thigh with intact prosthetic left hip (ii) bilateral severe osteoarthritis of ankle joints were made.
He would therefore benefit from in hospital bed rest with light weight skin traction to enhance soft tissue healing. The x-ray

report is also attached.
Thank you very much.
Dr. Hamza Garba MBBS, FWACS
Ag. Medical Director Surgery
Dr. Sumonu O. Lamidi
Consultant Orthopedic & Trauma
Further, the radiology report, Exhibit AD1 on the pelvis and both ankles, indicates that there is normal bone mineralization and concludes as follows:
Osteoarthritis of the fight hip (mild) with well placed hip prosthesis on the left, severe osteoarthritis of both ankles with suspected super-imposed rheumatoid arthritis/infection.
It is clear from Exhibits AD1, AD2 that as a result of the fall in prison, the Appellant sustained soft tissue injury of the left hip and thigh and a severe osteoarthritis of both ankle joints. However, the hip implant is intact and properly in place. Though injured, there is no evidence of dislocation or displacement of the implant. Rather, the reports reassure that the implant is properly in place and allays any fear of displacement or dislocation of same. For the severe osteoarthritis of both ankles with suspected super-imposed rheumatoid arthritis/infection as well as the right hip osteoarthritis, an in-hospital bed rest

with light weight skin traction was advised to enhance soft tissue healing and a further medical test to exclude diabetes, was also recommended. In addition to the in-hospital bed rest recommended, it is a matter of common knowledge that osteoarthritis is treatable with medications including anti-inflammatory drugs to relieve the pain which can be done in the prison or at a referral centre.
For the blurred vision which from the information presented by the Applicant was the cause of the fall, Exhibit AD 3 issued after the fall, contains the findings on the visual examination of the Applicant by the Federal Medical Centre (FMC) Gusau. The findings are in line with the Applicant’s visual medical history and documents annexed to the supporting affidavit.
It states in part:
However, on examination we found a visual acuity in (RE) 6/12-2 in the (LE) 6/60 with pinholes RE 6/9 LE 6/9 with glasses. No improvement in the RE but improved to (LE) 6/5-3.
Anterior segment findings were normal, posterior segment findings revealed an insitu PCIOL with CDR 0.7 (RE) CDR 0.7 (LE).
Dilated SLE/fundoscopy showed a moderate cortical opacity in

the (LE). A diagnosis of (LE) moderate corticular opacity was made with a view to a future extract the lens and placed IOL as well.
As shown in the report, a diagnosis of moderate corticular opacity (cataracts) was made, and a future follow up action of extracting the lens and the placed 101 (intraocular lens) was advised. The Respondent’s counsel insists that the condition can be taken care of in the prison or by the referral hospital.
I have particularly perused Exhibit AD3 with a view to seeing any statement therein that the prison or the referral hospital lacks the medical facility to manage the Applicant’s vision ailment. The report falls short of an unequivocal statement that the referral centre cannot or does not possess the facilities to manage the applicant’s eye/vision problem or that the Applicant cannot be referred to another medical facility that can adequately manage the Applicant. It would have been a different kettle of fish if as was the case in Okechukwu Chukwulozie (M) Vs F.R.N (2014) LPELR 24452 (CA) the report had indicated that the hospital does not have the facilities to manage the Applicant or carry out the necessary

surgical intervention and advised the procedure to be done elsewhere. This is not the case here. Exhibit AD3 falls short of that conclusion and advise. As it is in this application, there is nothing unequivocally before the Court to support the contention that the Appellant/Applicant’s health condition cannot be managed/treated in the prison or the referral centre. Understandably, a person does not lose his right to access good medical care/facility because he is in detention in prison custody either for being reasonably accused of having committed an offence or even as a convict. Every person irrespective of whether he is a free citizen, an accused person or a convict is entitled to be offered access to good medical care, and when in detention, the duty of providing such care or access to such care rests squarely on the shoulders of his custodians, invariably, the authorities. However, while an accused person or a convict is entitled to a legal practitioner of his choice the same right is not extended to him with respect to a medical practitioner or medical facility of his choice while in detention. This is because it is not the law that a

convict in prison custody is entitled to a medical practitioner or facility of his choice when his ailment can be treated in the prison either directly or by the referral system where he can be referred to, be treated or managed and returned to the prison.
In Abacha Vs State (Supra) Uwaijo, JSC aptly stated the position when he observed as follows: –
It must be made quite clear that everyone is entitled to be offered access to good medical care whether he is being tried for a crime or has been convicted or simply in detention.
When in detention or custody, the responsibility of affording him access to proper medical facility rests with those 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 entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so.
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.
The Applicant has not, at least at this stage

shown that except he is released on bail, he cannot access medical attention while in prison for the treatment or management of his ailment. In other words, his sickness or ailment falls short of constituting an exceptional or special circumstance to entitle him to bail on that account. I therefore agree with the Respondent’s counsel that the Applicant has not made out a case that he has to be released on bail before he can be treated of his ailment.

In the circumstance, I resolve the issue against the Appellant/Applicant and in favour of the Respondent. I dismiss the application and direct the learned Applicant’s Counsel to pursue the expeditious compilation and transmission of the record of appeal to the Supreme Court.
Parties shall bear their cost.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother, AMINA A. WAMBAI. I agree with his reasoning and conclusion.
I dismiss the appeal.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment just delivered by my learned brother, AMINA

AUDI WAMBAI, JCA wherein he refused the grant of bail for the Appellant/Applicant. I am in agreement with the reasons and conclusions reached in doing so. I abide by all other consequential orders made thereto.

Appearances:

Ibrahim Abdullahi, Esq. For Appellant(s)

M.S. Abubakar, Esq. (DCLO, EFCC) For Respondent(s)

Appearances

Ibrahim Abdullahi, Esq. For Appellant

AND

M.S. Abubakar, Esq. (DCLO, EFCC) For Respondent