A. I. ASSOCIATES & ANOR v. FEDERAL REPUBLIC OF NIGERIA (2014)

A. I. ASSOCIATES & ANOR v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7548(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/A/311C/2014(R)

RATIO

COURT: COURT’S DISCRETION; THE EXERCISE OF THE DISCRETION OF THE COURT IN GRANTING BAIL AND WHETHER THE MERE FACT THAT AN APPLICANT IS SICK OR SUFFERING FROM ILL HEALTH DOES NOT QUALIFY HIM FOR BAIL

The Court of Appeal Act allows for the grant of bail pending appeal; “… but such discretion like any other discretion must be exercised judicially and judiciously.
Consequently, the applicant must place enough material before the court to warrant the exercise of the discretion in his favour OGUNDIMU MUNIR V FEDERAL REPUBLIC OF NIGERIA (2008) LPELR 4693 CA.

The 2nd appellant in this case has not placed enough material before this court, either in the afore mentioned paragraphs of the affidavit accompanying the application or the medical report from Kuje
prison i.e. Exhibit L; which still fell short in an effort to justify the exercise of the court’s discretion in the applicant’s favour, see UGBEDE ALI V THE STATE (2011) LPELR-9115(CA).
Even though it is the next best thing to a serious effort in many respects the said exhibit L merely states “…recurrent waist pain and anal pain…”, “… past medical history of recurrent ano/fistula and cataract surgery…” as the compelling medical conditions afflicting the 2nd
applicant/appellant.
These medical conditions clearly are not life threatening as claimed. The 2nd appellant by virtue of being a convict already bears the burden especially of satisfying this court to exercise its discretion in his favour; “the mere fact that an applicant is sick or suffering from ill health does not qualify him for bail” see ALAYA V THE STATE (2007) 16 NWLR part 1061 483.
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 no 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, see ABACHA V STATE (2002) 5 NWLR part 761 at 638.
Having said that the 2nd appellant has not shown or established the existence of any exceptional reason or medical condition to the satisfaction of this court, to warrant the exercise of this court’s discretion in his favour; merely stating that the applicant is ill is not enough. This court has to be satisfied from what is made available to it to warrant the exercise of its discretion in favour of the applicant. See FAWEHINMI V STATE (1990) 1 NWLR Part 127 at 486.

JUSTICES:

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

1. A.I. ASSOCIATES
2. BARRISTER IBRAHIM ABDUL – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling):

FACTS IN BRIEF:

The 2nd appellant/applicant was arraigned before the lower court on charges of criminal breach of trust under Section 312 of the Penal Code; he pleaded not guilty to the charge, was convicted, has appealed, and filed an application for bail on the 31st of March, 2014 before the trial court, which was dismissed for not showing any special exceptional circumstance justifying the grant of the application.

This is an application brought pursuant to Section 28(1) of the Court of Appeal Act (2010 Amendments,), Sections 341(2) and 432 (2) of the Criminal Procedure Code Act, Laws of FCT, and under the inherent jurisdiction of this court. The application is for:

1. An order of this court admitting the 2nd appellant/applicant, now convicted, to bail, pending the determination of his appear filed at the Court of Appeal, Abuja division.
2. And for such further order or orders as this court may deem fit to make in the circumstances.

The GROUNDS for the application are:

1. The 2nd appellant/applicant is a first time offender.
2. The 2nd appellant/applicant may spend the entire sentence during the process of appeal.
3. The 2nd appellant/applicant is a senior legal practitioner and would be of real assistance in preparing the appeal.
4. That the appeal is contestable having regard to the 1st accused who is not a person in law and which sentence was transferred to the 2nd accused.
5. That there are special circumstances to grant bail to the 2nd appellant/applicant.
6. There is a valid notice of appeal filed.
7. Deteriorating health condition of the 2nd appellant/applicant.

The application is supported by a 55 paragraph affidavit deposed to by Celine Amuzie A.(Mrs.); with Exhibits A, B, B1,C,D, D1, E, F, G, H, I, J, and K attached.

The medical report of the 2nd appellant/applicant dated 14th July, 2014, was filed on the 16th of July, 2014, pursuant to the order of this court; and for the purpose of this Ruling it is referred to hereinafter as Exhibit L.

The respondent in opposition to the application for bail filed an eleven paragraph counter affidavit deposed to by Babangida Hamman.

Patrick Ocheja Okolo Esq. learned counsel to the appellant/applicant formulated the following issues for determination by this court:

1. Whether this court can exercise its discretion in granting bail to the 2nd appellant/applicant pending the hearing and determination of his appeal having regard to the circumstances of his case.
2. Whether there is any special or exceptional circumstance arising from the affidavit evidence to warrant the 2nd appellant/applicant bail pending the determination of his appeal at the Court of Appeal Abuja Division.

Hussaina Gambo learned counsel to the respondent formulated two issue of her own for determination by this court as:

1. Whether there is a valid appeal before this court in this case.
2. Whether the 2nd applicant has shown exceptional and unusual reasons why bail pending appeal should be granted.

The respondent’s issue two is an adaptation of the appellant’s issue two; that leaves three issues, on which this application will now be determined; they are for the avoidance of doubt:

1. Whether there is a pending appeal before this court.
2. Whether this court can exercise its discretion in granting bail to the 2nd applicant pending hearing and determination of this appeal, having regard to the circumstances of this case.
3. Whether there are any special or exceptional circumstances shown by the applicant/appellant’s affidavit to warrant the grant of this application.

ISSUE ONE:

Whether there is a pending appeal before this court.

It is submitted for the respondent that by virtue of order 8 Rule 10(3) of the rules of court, an appeal is said to be entered when the record is transmitted to the appellate court and received and entered in the cause list; learned counsel referred this court NIGERIAN NAVY V LABINJO (2012) 17 NWLR part 56 and OGWUGHE V MBA (1994) NWLR part 336 at 75 and urged this court to dismiss this application.

An appeal in the considered opinion of this court is said to commence, once the notice of appeal is filed, see JOSIAH GORNELIUS LTD V EZENWA (1996) 4 NWLR part 443 391; and conversely no appeal can stand without a proper notice of appeal to sustain it.

This appeal was commenced by a notice dated 23rd day of March, 2014, and filed at the lower court on the 24th of March, 2014; and filed before this court on the 19th September, 2014, along with the record of appeal.

Clearly therefore even by order 8 rule 10(3) as contended, there is a record transmitted before this court, and that is the only reason why this application for bail was listed for hearing in the first instance.

Having said that, even if it is accepted as argued that because the record before this court is not deemed, and therefore incompetent for the purpose of an appeal as contended, it ought to be conceded that it is within the appellant’s right to appeal against the ruling of the lower court refusing to grant the application for bail at the lower court.
In any event, the right of appeal is a constitutionally guaranteed right, see ADILI V STATE (1989) NWLR Part 103 at 305.

This court does not generally create or encourage impediments to appeal, especially where there is no evidence of neglect bothering on indolence on the part of an appellant; this is more so where the appeal is of a criminal nature.

Contrary to the contention by learned counsel to the appellant, it is trite, as held by this court, in ATTORNEY GENEARL OF CROSS RIVER STATE & ANOR V MATHEW OJUA, Esq., (2010) LPELR 9014 (CA), that “…the failure by the appellant in not compiling the records and transmitting them to this court… cannot impinge on the validity of the records so compiled or the appeal itself. It would have had an effect if the respondent had taken steps to have the appeal struck out or dismissed for lack of diligent prosecution”.
Clearly the respondent has not taken any such steps to lend credence to its contention that the appeal is incompetent, for the reasons stated.
Rules of this, and any other court are made for the sole purpose of attaining justice, with ease, for the court, as well as litigants; as held in DINGYADI v I.N.E.C (No.2) 2010 18 NWLR past 1224 at 154 SC, “… they must not be used in the instance of this case as a clog in the wheel of obtaining such Justice…”; and most importantly Order 8 Rule 10 (3) of the rules of this court did not say or imply in any way that an appeal is incompetent, merely because the record has not been transmitted, but even if the Rules were interpreted to be so, as pointed out earlier, the record in this case were transmitted on the 19th of September, 2014; there is therefore an appeal pending before this court; whether the substantive appeal is ready for hearing now is a question for another time; the bail application is ready and proper for hearing.
This issue is accordingly resolved in favour of the appellant.

ISSUE TWO:

Whether this court can exercise its discretion in granting bail to the 2nd applicant, pending the hearing and determination of this appeal, having regard to the circumstances of this case?

It is argued for the appellant that the grant of bail to a convict pending his appeal is a discretionary power which ought to be exercised in special circumstances like the one at hand; the court was referred to MUNIR V FRN (2009) 16 part 1168 at 481.

That the applicant has complied with conditions necessary for such grant; and it is clear that hearing of the appeal is likely to be delayed, the length of sentence appealed is long; that the delay in processing the record of appeal operates as a good ground for granting bail pending appeal.

Learned counsel also submitted that the applicant who is a legal practitioner and an erstwhile Attorney General of Niger State will be of immense assistance to the preparation and prosecution of his appeal if granted bail; learned counsel referred this court to CHIEF GANI FAWEHINMI V THE STATE (1990) 12 NWLR part 127 at 494.

That the trial and conviction of the 1st appellant, a non juristic person, whose conviction and sentence was passed to the 2nd applicant/appellant is manifestly contestable, the court was referred to GEORGE V FRN (2010) 5 NWLR part 1187 at 275.

Learned counsel urged this court to resolve this issue in favour of the appellant.

The grant of every application for bail pending appeal, by a convict who is sentenced to a term of imprisonment generally speaking is at the discretion of the court, depending to a very large extent on the facts and circumstances of each case, see OKOROJI V STATE (1990) 6 NWLR Part 157 at 509.

It is important in the opinion of this court to bear in mind that the appellants were charged together at the lower court; and the lower court found, as per page 328 of the record that “…1st accused person, A.I. Associates, through which the services of Barrister Ibrahim Audu was engaged…”; and also that the 1st accused as per the power of attorney at page 342 of the record was empowered to “… prosecute, sue, defend, enforce, answer or oppose all actions or legal proceedings and demands…” and it is in carrying out such duties and functions that the first accused along with the second committed the offense for which they were charged and convicted.

The lower court also found that the 2nd accused “… from the evidence, oral and documentary adduced, in this trial the court is satisfied that the extra judicial statement of Barrister Ibrahim Abdul…was free and voluntary… confessing the offense…” and “…sufficient proof of guilt and conviction…”

Clearly the record of proceedings show, especially the aforementioned portion, that the lower court found both the 1st and 2nd accused guilty of the offense charged, and accordingly convicted them; so even if the 1st accused is exonerated by reason of not being a juristic person, that will not entitle the second accused, who was equally found guilty and sentenced on conviction, to be set free, neither will that reason alone necessitate the grant of bail pending appeal to the 2nd appellant.

Having said that it is not also the function of this or any appellate court to make findings of fact, as contemplated by the learned counsel to the appellant, especially where this has already been done by the trial court; OLANREWAJU V GOV OYO STATE (1992) NWLR part 265 at 335;

This court will also not at this stage go into the merit or lack of it of the conviction of the first accused, as that is not the issue, yet; so whether that conviction is contestable or not is a matter for another occasion. This court however owes itself “…a duty to be circumspect and not jump into the arena of the substantive appeal…” JOSEPH UGBOR V THE STATE (2010) LPELR-5047 (CA).

The fact that the 2nd appellant is a senior legal practitioner counts for very little in the considered opinion of this court; because first, he is being ably represented by a counsel of his own choice, and second, he does not have to be on bail to contribute to his defence. This court is also not swayed by the argument that the defence needs the 2nd appellant, because we are not convinced that refusing to grant the application for bail will take away anything from the way and manner the defence is conducted on his behalf; and in any event whatever conditions apply to other people should apply to lawyers too, they cannot be treated differently, merely because they are lawyers. It will be wrong and in fact absurd to suggest that the mere fact of the 2nd appellant being a senior lawyer entitles him to bail.
Yes it is within the discretion of this court to grant bail pending appeal to the 2nd appellant; but there is nothing unusual or exceptional, in the circumstances of this case to compel this court to exercise its discretion in favour of the 2nd appellant/applicant; DURO AJAYI & ORS V THE STATE 1977, FCA 1; accordingly this issue is resolved in favour of the respondent.

ISSUE THREE:

Whether there are any special or exceptional circumstances shown by the applicant/appellant’s affidavit to warrant the grant of this application.

It is submitted for the appellant that the condition of health of the 2nd appellant is such that requires constant medical examination and control, and also the equipment needed for his check up are not available at Kuje prison where he is detained thus entitling him to bail on health grounds; learned counsel referred to ABACHA V STATE (2002) 5 NWLR part 761 at 638, BUWAI V STATE (2004) 16 NWLR part 899 at 285 and CHUKWUNYERE V COMMISSIONER OF POLICE (1975) 5 ECSLR 44.

That the prison authorities have failed to take the 2nd appellant to any hospital for proper diagnosis and treatment, leading to the deterioration of his health; and that the 2nd appellant did not make any request to be taken abroad for treatment as stated by the trial court.

That also the prison authorities directed the 2nd appellant to apply to the court for access to medical treatment, as per Exhibit D, indicating clearly that he does not receive any medical attention in prison; learned counsel referred this court to OGUNDIMU V FEDERAL REPUBLIC OF NIGERIA (2009) 16 NWLR part 1168 at 481 and urged this court to grant the application as prayed.

In response it is submitted for the respondent while referring to FASHEUN V A.G. FEDERATION (2006) 6 NWLR part 975 at 156 that the appellant has to make available to the court enough medical evidence of his health status, which was not done in this case.

That the applicant is not entitled to bail as a matter of course; especially as no special circumstances warranting the grant was shown in this case; he referred this court to OBI V STATE (1992) 8 NWLR part 257 at 83, and urged the court to dismiss the application.

The most compelling argument so far made in favour of granting the application as prayed is on health grounds, particularly contained in paragraphs 15, 16, 17, 18, 19, 20, 22, 34, 35, 36, 37, 39 40, 41, 42, 43 and 45 of the affidavit accompanying the application for bail; along with Exhibit L referred to herein before.

Exhibit L for the avoidance of doubt is a medical report from the Kuje prisons, where the 2nd appellant is detained; explaining the applicant’s ailments as “… recurrent waist pain and anal pain… Past medical history of recurrent fistula in ano/fistulectomy and cataract surgery on the left eye…” it went on to say he is not a known hypertensive or diabetic.

The Court of Appeal Act allows for the grant of bail pending appeal; “… but such discretion like any other discretion must be exercised judicially and judiciously.
Consequently, the applicant must place enough material before the court to warrant the exercise of the discretion in his favour OGUNDIMU MUNIR V FEDERAL REPUBLIC OF NIGERIA (2008) LPELR 4693 CA.

Accordingly this issue is resolved against the 2nd appellant/applicant, and in favour of the respondent.

Even though issue one is resolved in favour of the appellant, the application still fails by reason of issues two and three which were resolved in favour of the respondent. Accordingly the application is dismissed for lack of merit.

Parties to bear their respective costs.

MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the leading ruling just delivered by my learned brother. I agree with my learned brother that this post-trial and conviction application for the release of the 2nd on bail appellant/applicant lacks merit and it ought to be dismissed.

For the fuller reasons given by my learned brother, I also dismiss this application for lacking merit.

TANI YUSUF HASSAN, J.C.A.: I read in draft the Ruling of my learned brother Mohammed Mustapha, JCA and I agree with his lordship’s reasoning. Bail after conviction is normally not granted especially in this case where there is no enough evidence of deteriorating medical condition placed before the Court to warrant a grant.

I also dismiss the Appeal for lacking in merit.

Appearances

Patrick Ocheja Okolo Esq., with him: P.E Osani (Mrs.), G.E. Inabong, For Appellant

AND

Hussaina Gambo (Mrs.),For Respondent