IBRAHIM GARBA WALA v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13668(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of July, 2019
CA/A/392C/2019(R)
RATIO
BAIL: CONDITIONS FOR A BAIL TO BE GRANTED TO AN ACCUSED
Generally, the grant of bail to a convict sentenced to a term of imprisonment is not made as a matter of course. The principle of presumption of innocence does not exist because of his conviction. The applicant must show special circumstances to be entitled to bail pending the determination of his appeal. It is the affidavit in support of the application that must contain depositions showing the special or exceptional circumstances to enable this Court exercise the discretion judicially and judiciously and in favour of an applicant. See generally NWOKE Vs FRN (2005) All FWLR (pt. 245) 1083. JAMMAL VS. THE STATE (1996) 9 NWLR (pt. 472) 352, JOSEPH UGBOR VS. STATE (2010) LPELR – 5047(CA). PER MOHAMMED BABA IDRIS, J.C.A.
BAIL: APPLYING TO BE GRANTED BAIL ON THE GROUND OF ILL HEALTH
It is the law that where it is sought to lay claim to ill-health in circumstances such as this, credible evidence given by an expert in that branch of medicine ought to be made available. See generally ABACHA vs. STATE (2002) 15 WRN 1; ADAMS Vs. A. G. (2006) 44 WRN, 72. Illness as an exceptional condition for the grant of bail should not be flashed like an amulet. The ill-health must be such as cannot be handled by the prison authorities and the facilities available in the prisons. PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
IBRAHIM GARBA WALA – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Lead Ruling): This is an application filed pursuant to Order 17 Rule 13 (1) of the Court of Appeal Rules 2011, and under the inherent jurisdiction of the Court for an order admitting the appellant/applicant to bail pending the hearing and determination of the appeal filed.
The grounds, of the application are as follows:-
“GROUNDS UPON WHICH THE APPLICATION IS BROUGHT:
1. The Appellant/Applicant has of right appealed against the judgment delivered by Hon. Yusuf Halilu (J) of the Federal Capital Territory, Abuja on the 15th of April, 2019.
2. The Appellant/Applicant was sentenced to seven (7) years imprisonment for the offences of Management or Membership of unlawful society, Public Incitement and Criminal Defamation.
3. The Record of Appeal was transmitted to this Honourable Court on the 8th of May, 2019.
4. The Appellant filed his Brief of Argument on the 20th of June, 2019.
5. The Appellant was on bail during his trial and did not jump bail.
6. The Appellant has been in Suleja Prison since his conviction.
7. The Appellant filed a Motion at the trial Court
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seeking the same indulgence since the 26th of April, 2019.
8. The Motion could not be heard and determined because My Lord, Hon. Yusuf Halilu (J) is the Chairman of the Election Petition Tribunal sitting in Ogun State.
9. The Appellant has a history of peptic ulcer disease and his health is deteriorating.
10. The Appellant is desirous in prosecuting this Appeal to its logical end and strongly believes in the success of his appeal,”
In support of the application for bail was an affidavit of 10 paragraphs deposed to by a front desk officer in the law office of learned counsel for the appellant/applicant wherein the deponent declared as follows:-
“AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE
I, Catherine Joseph, Nigerian, Christian, Female, a front desk officer of Office 3, Blue Plaza, No. 8 Dakala Street, Parakou Street, Wuse II, Abuja, do hereby make oath and state as follows:
1. I am a front desk officer in the law firm of Madyan Legal Consult; the law office instructed by the Appellant/Applicant to prosecute this Appeal on his behalf, by virtue of which position I am conversant with facts of this matter and eminently
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competent to depose to the facts in support of this application.
2. I have the consent of both the Applicant and my employer to depose to his affidavit. The facts deposed to in this affidavit are facts within my personal knowledge except where otherwise stated.
3. I was informed by Chiemelie N. Onyia one of the Counsel prosecuting this appeal at our office at No. 8 Dakala Street of Parakou Crescent Wuse II Abuja on the 24th June, 2019 at about 11 am of the following facts which I verily believe to be true as follows;
a. The Appellant/Applicant has of right appealed against the judgment delivered by Hon. Yusuf Halilu (J) of the Federal Capital Territory, Abuja on the 15th of April, 2019.
b. The Appellant/Applicant is currently serving sentence for the offences of Management or Membership of unlawful society (the Citizen Action to Take Back Nigeria (CATBAN) a non-profit organization aimed at ensuring probity in governance in Nigeria), Public Incitement owing to publication on his Facebook page and Twitter handle against one Abdullahi Mukhtar who is the Head of National Hajj Commission and Criminal Defamation of the said Abdullahi Mukhtar.
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c. The Record of Appeal was transmitted to this Honourable Court on the 8th of May, 2019.
d. The Appellant filed his Brief of Argument on the 20th of June, 2019.
4. Throughout the trial of the Appellant/Applicant, he was on bail and jumped bail.
5. The Appellant filed a motion at the trial Court seeking the indulgence of the learned trial Court to admit him to bail pending the determination of his Appeal since the 26th of April, 2019.
A certified true copy of the said motion is shown to me as marked as “Exhibit Wala 1”.
6. The motion could not be heard and determined before the lower Court because My Lord, Hon. Yusuf Halilu (J) is on a NATIONAL ASSIGNMENT and he is the Chairman of the Governorship Election Petition Tribunal sitting in Ogun State.
7. The Appellant health is deteriorating. He was recently rushed to the Hospital owing to the fact that the Prison health facility could not handle his health challenges. The Doctor that attended to him did give a Medical Report wherein he stated as follows:
“The above named person was brought into our facility with a warder on the 13/6/19 with history of passage of bloody stool and
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nocturnal difficulty with breathing. He is a known peptic ulcer disease patient as well as an asthmatic patient.
Examination findings corroborate his history. He is therefore being diagnosed of an upper gastro-intestinal tract bleeding secondary to poorly managed ulcer in a known asthmatic patient.
He is hereby being adviced to seek a more conductive environment to reduce the attack of his asthma and allow recovery of his ulcer.”
The Medical Report of General Hospital, Suleja is shown to me and marked as “Exhibit Wala 2″.
8. The prison authorities have no access to such medical facilities as required in treating the Appellant’s ailment.
9. That it will be in the interest of justice to grant this application owing to the Respondent will not be prejudiced by grant thereof,
10. I make this Affidavit in good faith conscientiously believing its contents to be true and correct and in accordance with the Oaths Act.”
The applicant has argued that it had made out a case for the grant of the application as sought on the face of the motion and urged this Court to grant same in view of the affidavit evidence and the written submission
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contained in the application.
The Respondent filed a counter affidavit in opposition, and a written address. In the counter affidavit, the deponent declared as follows:-
“COUNTER AFFIDAVIT IN OPPOSITION TO THE MOTION ON NOTICE BROUGHT BY THE DEFENDANT
I, Laverne Odubo, adult, male Christian and Nigeria citizen of Department of Public Prosecutions of the Federal Ministry of Justice, Maitama, Abuja do solemnly make this oath and state as follows:
1. That I am a litigation officer in the office of the Director of Public Prosecution, Federal Ministry of Justice.
2. That by virtue of my position I am conversant with the facts of this case
3. That I have the authority and consent of the respondent to depose to this affidavit.
4. That S.M Labaran the lead prosecutor in this case informed me in his office in the Federal Ministry of Justice 10th day July, 2019 at about 10:00am and I verily belive him as to the following fact.
5. That the Appellant was convicted by the lower Court having been found guilty on 15th day of April, 2019 on a three count charge and sentenced to seven, three and two years imprisonment respectively on
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each of the counts to be served concurrently.
6. That the Appellant has not allowed the Court of first instance to hear the application for bail before approaching the Court of appeal.
7. That there is nothing in the Appellant’s affidavit to show that the Court of first instance refused to hear the motion for bail.
8. That my Lord honourable Justice Yusuf Halilu convicted and sentenced the appellant while his election petition duty as chairman of the Election Petition Tribunal in Ogun state was still subsisting.
9. That the election petition duty does not stop my Lord Honourable Justice Yusuf Halilu from hearing the motion for bail.
10. That “Exhibit WALA 1” which is the motion for notice for appeal filed at the lower Court does not raise any issue of ill health.
11. That “Exhibit WALA 2” dated 19th June, 2019 was procured two months after filling the motion for bail pending appeal before the lower Court
12. That the Appellant in “Exhibit WALA 2” claimed to have peptic ulcer as well as asthma with a history of passage of bloody stools and nocturnal difficulty in breathing.
13. That the prison is capable of treating the
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ailments mentioned in “Exhibit WALA 2”.
14. That contrary to “Exhibit WALA 2″, The ailments are treatable and non-contagious to other inmates in the prison.
15. That the prison facility is conducive enough to treat and take care of the ailment.
16. That the prison has standard facilities and medical expert which the applicant has unfettered access to medical check and treatment as he wishes and at no cost.
17. That the Nigerian prison authority is ever ready to attend to the medical needs of the Appellant as demonstrated by taking him to the hospital without any external influence.
18. That the Appellant admitted in Paragraph 7 of his affidavit that the prison authority took him to hospital for medical checkup.
19. That there is no report from the prison authority indicating that the ailments or environment suggested by Dr. Nuruddeen S. Umar of General Hospital Suleja cannot be managed or provided by the prison authority.
20. That exhibit WALA 2 before the Court does not disclose any exceptional circumstances that will warrant the exercise of the Court’s discretion in his favour.
21. That there is great likelihood of the
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Appellant jumping bail considering the time of sentence he is serving.
22. That it will not be in the interest of justice and the society to grant the appellant bail.
23. That I make this oath in good faith, conscientiously believing same to be true and in accordance with the oaths Act.”
The Respondent argued that the applicant had not placed any material fact or evidence to warrant the grant of the application. It was further argued that on the ill-health of the applicant, the prison has standard medical facilities and experts to take good care of the applicant and that the prison was able and willing to take him to any governmental hospital with the required facility.
The Court was urged to refuse the application.
I have carefully read the various processes filed by the parties herein, and the single issue for determination is whether bail should be granted to the appellant/applicant herein pending the determination of the appeal
?Generally, the grant of bail to a convict sentenced to a term of imprisonment is not made as a matter of course. The principle of presumption of innocence does not exist because of his conviction. The
9
applicant must show special circumstances to be entitled to bail pending the determination of his appeal. It is the affidavit in support of the application that must contain depositions showing the special or exceptional circumstances to enable this Court exercise the discretion judicially and judiciously and in favour of an applicant. See generally NWOKE Vs FRN (2005) All FWLR (pt. 245) 1083. JAMMAL VS. THE STATE (1996) 9 NWLR (pt. 472) 352, JOSEPH UGBOR VS. STATE (2010) LPELR – 5047(CA).
From the affidavit filed in support of this application it appears that the applicant wants to be released on bail on health grounds and Exhibit WALA 2 has been attached to support the application. The exhibit stated that the applicant herein is a known peptic ulcer disease patient as well as an asthmatic patient and that he is being adviced to seek a more conducive environment to reduce the attack of his asthma and allow for the recovery of his ulcer.
Having examined Exhibit WALA 2, I find that it is an uncertified copy of a public document. Exhibit WALA 2, was issued by the General Hospital Suleja and nothing therein suggests that the prison authorities do not
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have the medical facilities and/or experts to take care of the applicant herein, or that the prison authorities are unable to move the applicant herein to a more conducive environment to reduce the attack of the identified ailment.
An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detained poses a possibility of a real health hazard to others and there are no quarantine facilities of the authority for the type of illness.
It is the law that where it is sought to lay claim to ill-health in circumstances such as this, credible evidence given by an expert in that branch of medicine ought to be made available. See generally ABACHA vs. STATE (2002) 15 WRN 1; ADAMS Vs. A. G. (2006) 44 WRN, 72. Illness as an exceptional condition for the grant of bail should not be flashed like an amulet. The ill-health must be such as cannot be handled by the prison authorities and the facilities available in the prisons.
In my view, the applicant herein has not placed sufficient materials to warrant the grant of this application.
It is dismissed. No order as to cost.
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TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the Ruling just delivered my learned brother, MOHAMMED BABA IDRIS, JCA.
I am in agreement with his reasoning and conclusion reached in dismissing the application.
?EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the ruling just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.
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Appearances:
Abdul Mohammed, Esq. with him, E. N. Onyia, Esq., A.S. Aliyu, Esq. and
O. Betiku, Esq.For Appellant(s)
A. A. Abidemi (PSA) with him, Y.A. Cole (PSC), Abubakar Musa (SSC), Munirat Suleiman (SC) and Maryam HaliruFor Respondent(s)
Appearances
Abdul Mohammed, Esq. with him, E. N. Onyia, Esq., A.S. Aliyu, Esq. and
O. Betiku, Esq.For Appellant
AND
A. A. Abidemi (PSA) with him, Y.A. Cole (PSC), Abubakar Musa (SSC), Munirat Suleiman (SC) and Maryam HaliruFor Respondent
