ADESAKIN v. FRN
(2022)LCN/16049(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/461C/2020(R)
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
MRS. OREOLUWA ADESAKIN APPELANT(S)
And
THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AN APPLICATION FOR BAIL PENDING APPEAL
This is an application for bail pending appeal. Section 28(1) of the Court of Appeal Act, 2004 empowers the Court to admit Appellant to bail pending the determination of his appeal if it thinks fit to do so. Again, Order 17 Rule 12 of the Court of Appeal Rules, 2021 complement the power in the Act. See the cases of ABACHA V. STATE (2002) 5 NWLR (761) 638 and OJO V. FEDERAL REPUBLIC OF NIGERIA (2006) 9 NWLR (984) 103, 119. PER NIMPAR, J.C.A.
THE POSITION OF LAW ON THE TWO CATEGORIES OF BAIL
It is now settled that there are two categories of bail, one pending trial and the second one after conviction and pending appeal, see the case of MONYE V. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-14845(CA). Bail pending trial is a constitutional right because of the presumption of innocence. However, upon conviction, a person loses the presumption of innocence guaranteed him under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). He is therefore not entitled to bail pending the determination of his appeal as of right except in special or exceptional circumstances.
What is special or exceptional circumstance varies from case to case.
In the case of OJO V FEDERAL REPUBLIC OF NIGERIA (2006) LPELR-5423 (CA). PER NIMPAR, J.C.A.
THE SETS OF CONDITIONS GOVERNING THE GRANT OF BAIL TO A CONVICT PENDING HIS APPEAL
this Court Per MUHAMMAD, JCA (as he then was, now CJN) following the case of R. V. TUNWASHE (1935) 2 WACA 236 set out two different sets of conditions governing the grant of bail to a convict pending his appeal. They are:
(i) The existence of a special or exceptional circumstance.
(ii) Where the hearing of the appeal is likely to be unduly delayed.
The West African Court of Appeal in R. V. TUNWASHE (SUPRA) held as follows:
“… In the absence of special circumstances, bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard “.
See also AROWOLO V STATE (2011) NBAR (1) 500 AND ANI V STATE (2004) 7 NWLR (872) 241, 253 – 254. The other ground relied upon is that of ill health, that is the health condition of the Applicant which the learned Counsel argued that it 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 and 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 CHENEMELU 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 AND ABACHA V. THE STATE (SUPRA).
The reason for this stand of the Courts is because of 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 certain diseases are ravaging the Nigerian populace due to life style changes. 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 and 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. PER NIMPAR, J.C.A.
CONDITIONS TO BE ESTABLISHED FOR AN APPLICATION RELYING ON ILL-HEALTH AS A GROUND FOR SEEKING BAIL TO SUCCEED
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 FRN (2005) 3 NWLR (PT.913) 571. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgement): The Applicant was arraigned before the Oyo State High Court on a 14 count Charge and after full trial, she was found guilty for forgery and fraudulent, false accounting when she was a staff of First Bank and assigned the duties of Money Transfer Officer. She was sentenced to 7 years imprisonment on each of the 14 counts. Dissatisfied with the conviction, she filed an initial Notice of Appeal on the 16th September, 2020 and the second Notice of Appeal on the 21st December, 2020.
This application filed on the 7th March, 2022 and dated on the same day. The motion prays for the following:
1. AN ORDER admitting the appellant/applicant to bail pending the determination of the appeal against the judgment of Honourable Justice O. M. Olagunju of the High Court of Justice, Ibadan Judicial Division delivered on 28th September, 2020.
2. AND for such further or other orders as this Honourable Court may deem it fit to make in the circumstance.
The application is founded on the following grounds:
a. That the Appellant/Applicant has been in the correctional facility, Abolongo, Oyo town since September, 28th 2020 following a judgment of the lower Court.
b. That being dissatisfied with the lower Court judgment, appellant/applicant instructed her counsel, Samuel A. Adeniji Esq. to file an appeal challenging same in this Court, and the appellant/applicant has complied with all conditions imposed on the Appellant/applicant filing appeal.
c. That Appellant/Applicant has no prior criminal record and this is her first ever prosecution or conviction in any Court.
d. That during appellant/applicant trial and she did not jump bail.
e. That during appellant/applicant trial, she battled various internal ailments such as hemorrhoid and her health status has deteriorated to a critical state requiring urgent and constant medical attention.
f. That the correctional facility does not possess adequate medical facilities to manage well her health condition.
g. That it is in the interest of public health and safety that appellant/applicant bail application be granted.
h. That during the jail break at the Correctional facility, Abolongo, Oyo town in October, 2021 where over 392 inmates escaped, I had the opportunity to escape with other inmates, but I know it was not an option for me since I have appealed against the judgment of the lower Court.
i. Appellant/Applicant strongly believes in the powers of the honourable appellate Court to vindicate her and admit her to bail in the most liberal terms.
The application is supported by an affidavit of 19 paragraphs accompanied by 4 exhibits marked as Exhibit A to Exhibit D, and these are:
a. A copy of the charge sheet- Exhibit A;
b. A CTC of the judgment of the lower Court – Exhibit B;
c. Notice of Appeal- Exhibit- C; and
d. Medical Report- Exhibit D.
As required by the Rules of the Court, the Applicant also accompanied the application with a written address. The Applicant at the hearing relied on the affidavit in support, the exhibits attached and adopted the written address as arguments in urging the Court to grant the application.
The Appellant/Applicant’s written address settled by SAMUEL A. ADENIJI, ESQ., is dated 7th day of March, 2022. The Applicant/Appellant distilled a sole issue for determination as follows:
Whether the Appellant is entitled to the judicious discretion of this Honourable Court to grant bail pending appeal in the circumstances of this case.
The Respondent filed a counter affidavit in opposition and it was accompanied by a written address settled by M.S. USMAN, ESQ., dated 16th March, 2022 filed on the 17th March, 2022 and deemed on the same day. The Respondent formulated two issues for determination as follows:
1. Whether the Applicant has placed any exceptional circumstance before this Honourable Court which the Court can exercise his discretion in favour of the Applicant by granting bail pending the hearing of his appeal.
2. Whether the Applicant has placed any material before this Honourable Court to warrant the exercise of my Lord’s discretion in his favour.
APPLICANT/APPELLANT’S SUBMISSION
The Applicant’s Counsel argued that by the sufficient material facts placed before the Court, the Applicant is entitled to the discretion of this Court to grant bail pending appeal. Relying on OGUNDIMU MUNIR V. FEDERAL REPUBLIC OF NIGERIA (2009) ALL FWLR (PT. 500) 775, the Applicant’s Counsel submits that the Applicant has met all the conditions mentioned in the above case to allow the Court grant her bail. The Applicant’s Counsel placed further reliance on the case of ADAMU V. FRN (2008) ALL FWLR (PT. 425) 1796 to list the circumstances that would lift the hands of mercy and favour of the Court to grant this bail application and said they have been met. Firstly, the Applicant’s Counsel argued that there is a huge chance of success in the Applicant’s appeal before the Court because the Notice of Appeal before this Court discloses arguable grounds disclosing the lower Court’s error in precluding a principal witness necessary from giving expert clarifications on accounting/banking complexities involved in the trial, the witness was not able to enter the country due to the Covid-19 induced total lockdown, therefore, the conviction and sentence of the lower Court is manifestly contestable and there is a huge prospect of success on appeal. The Applicant relied on REX V. THEOPHILUS ADENUGA TUNWASHE (1934) 2 WACA 236.
Continuing, the Applicant’s Counsel submitted that the Applicant has shown in her affidavit in support of the application that she does not have any prior criminal record and the trial was her first ever in her entire lifetime. Learned counsel referred to paragraph 6 of the Applicant’s affidavit in support and submitted that the Applicant disclosed that she was on bail during her trial at the lower Court and she never jumped or attempted to jump bail and further undertook on oath not to jump bail if granted but will prosecute her appeal with all diligence and seriousness.
Secondly, the Applicant’s Counsel submits that due to the volume of appeals before the Court, there is no guarantee that the matter will be concluded in the next 2-3years because the cause list of the Court still shows that there are 2018 even 2012 appeals yet to be taken owing to the congestion of appeals before the Court, therefore refusal of this bail application will result in the Applicant spending the whole or a considerable portion of her sentence before the appeal will be heard. The Applicant’s Counsel cited JAMMAL V. THE STATE (without citation and ascribed to a justice of the Court of Appeal who was erroneously described as a Justice of the Supreme Court.) to support his submission.
The Applicant’s Counsel argued that refusing the bail application will not guarantee a proper preparation and prosecution of this appeal as it would deny the Counsel and the Applicant of regular communication. Again, the Applicant’s Counsel submits that during the course of trial, the Applicant was admitted to the hospital several times for disclosed internal ailments and even the prosecution took notice of the Applicant’s weakness and comparing the medical reports annexed to this application, reveals an enormous deterioration as a result of the poor health condition which is beyond the capacity of the prison medical facilities. Therefore, this bail application is necessary to give the Applicant an opportunity of effectual medical treatment with her personal doctor.
According to the Applicant’s Counsel, upon the satisfaction of the necessary conditions and the material facts placed before the Court, the Court has unfettered powers to grant bail pending appeal as provided in SECTION 28 of the Court of Appeal Act, 2004 (as amended), Order 6 Rule (1) of the Court of Appeal Rules, 2021 and ENGR. SUCCESS OBIOMA V. FEDERAL REPUBLIC OF NIGERIA (2005) 13 WRN 131.
Furthermore, the Applicant submits that the Applicant is ready to fulfill the conditions for bail if granted and prays the Court to grant bail on the most liberal terms.
RESPONDENT’S SUBMISSION
ISSUE ONE
Arguing issue one, the Respondent submits that in bail applications, the Applicant is expected to show special or exceptional circumstances to warrant the exercise of the discretion of the Court in her favour by granting her bail pending the appeal, however, in this case, the Applicant did not show exceptional circumstances that will justify the granting of such application pending appeal. The Respondent cited OJO V. FRN (2006) 9 NWLR (PT. 984) 103.
It is the argument of the Respondent that the Applicant alleged being critically ill but failed to tender in evidence any proof of such illness because the Applicant owes a duty to provide sufficient evidence to support her claim. The Respondent relied on OKOROJI V. STATE (1990) 6 NWLR (PT. 157) 509. Continuing, the Respondent argued that it is trite that an Applicant serving a sentence after conviction, the law requires such to remain in the prison and when sick, to receive treatment while in prison serving sentence, however, the Applicant alleged being critically ill but has nothing to show that she was at the prison medical facility. The Respondent cited R. V. GOTT 16 CAR 56 and FAWEHINMI V. STATE (1990) 1 NWLR (PT. 127) 486. Furthermore, the Respondent on the Applicant’s alleged critical health and hemorrhoid without more cannot qualify the alleged condition to be a special circumstance that will make the Court grant bail pending appeal as held in FASEHUN V. A.G. FEDERATION (2006) 6 NWLR (PT. 975) 141.
The Respondent further posits that Exhibit D attached to the Applicant’s affidavit, a medical report issued by Dr. B. J. Akinbinu is mostly hearsay because prior to the conviction of the Applicant, the sickness was not known to the Applicant, therefore, it cannot be categorized as special circumstance to warrant bail.
The Respondent submits that it is trite that by virtue of Section 3(a) (1) of the Court of Appeal Practice Direction 2013, all criminal appeals involving EFCC are to be dispensed with speedily and to further ensure the speedy disposal, Section 6(c) of the same Practice Direction 2013, the registrar of the lower Court is to summon parties to the appeal within 15 days from the filing of the Notice of Appeal for settlement of Records of Appeal, therefore, the argument that the Applicant would have served substantial part of her sentence before the appeal is heard does not arise and does not also constitute any exceptional or special circumstance in this application. The Respondent relied on DURO AJAYI V. STATE (1977) 1 F.C.A.R.I; R. V. TUNWASHE (1937) 2 W.A.C.A 236, LIGALI V. QUEEN (1959) S.C.N.L.R 14, FAWEHINMI V. THE STATE (1990) 1 NWLR (PT. 127) 486, R. V. DUKE OF LEINSTER (1924) 12 CAR 147 and OGWU ACHEM V. F.R.N. (2014) LPELR-23202.
Furthermore, the Respondent submitted that the Applicant has neglected, failed and refused to take the advantage of the above provisions in order to compile and transmit record of appeal but rather the Applicant is desirous only in pursuing this bail Application and not the appeal. The Respondent therefore, urged the Court to resolve this issue in favour of the Respondent by refusing to grant the application.
ISSUE TWO
The Respondent argued that the burden of establishing special and exceptional circumstances to assist the Court in exercising its discretion resides in the Applicant as held in FAWEHINMI V. STATE (SUPRA), ENEBELI V. CHIEF OF NAVAL STAFF(SUPRA) and BUWAI V. THE STATE (2004) 16 NWLR (PT.899)285, however, the Applicant in this case has woefully failed to discharge this burden by not putting forward materials relevant to her application before the Court because the affidavit in support of her application does not disclose any special or exceptional circumstances upon which the application sought could be granted, Exhibit D which is the root of the Applicant’s application is wide-open and mere hearsay. The Applicant’s Notice of Appeal (Exhibit C) has also been exposed to be a bait to secure bail pending the appeal while she abandons the main appeal.
The Respondent submits that assuming the Court grants this application and the Applicant abandons the appeal, what will be the fate of the valid and subsisting judgment? Finally, the Respondent submitted that the Applicant has not placed sufficient materials before the Court to move the Court to exercise her discretion to grant bail pending appeal in her favour and urged the Court to refuse this application<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
RESOLUTION
This is an application for bail pending appeal. Section 28(1) of the Court of Appeal Act, 2004 empowers the Court to admit Appellant to bail pending the determination of his appeal if it thinks fit to do so. Again, Order 17 Rule 12 of the Court of Appeal Rules, 2021 complement the power in the Act. See the cases of ABACHA V. STATE (2002) 5 NWLR (761) 638 and OJO V. FEDERAL REPUBLIC OF NIGERIA (2006) 9 NWLR (984) 103, 119.
It is now settled that there are two categories of bail, one pending trial and the second one after conviction and pending appeal, see the case of MONYE V. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-14845(CA). Bail pending trial is a constitutional right because of the presumption of innocence. However, upon conviction, a person loses the presumption of innocence guaranteed him under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). He is therefore not entitled to bail pending the determination of his appeal as of right except in special or exceptional circumstances.
What is special or exceptional circumstance varies from case to case.
In the case of OJO V FEDERAL REPUBLIC OF NIGERIA (2006) LPELR-5423 (CA)
this Court Per MUHAMMAD, JCA (as he then was, now CJN) following the case of R. V. TUNWASHE (1935) 2 WACA 236 set out two different sets of conditions governing the grant of bail to a convict pending his appeal. They are:
(i) The existence of a special or exceptional circumstance.
(ii) Where the hearing of the appeal is likely to be unduly delayed.
The West African Court of Appeal in R. V. TUNWASHE (SUPRA) held as follows:
“… In the absence of special circumstances, bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard “.
See also AROWOLO V STATE (2011) NBAR (1) 500 AND ANI V STATE (2004) 7 NWLR (872) 241, 253 – 254.
The Appellant/Applicant in this application presented a number of factors which according to her, 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. That there is a chance for success in her appeal because a vital witness was excluded due to ban on travel due to Covid restrictions.
2. There are 8 Substantial grounds of appeal;
3. That she does not have any prior criminal record;
4. That she was on bail during trial;
5. That there is congestion of appeals in the Court and it will take a long time to determine her appeal.
6. That the applicant will be of assistance for the preparation of his appeal;
7. Ill health of the applicant and unavailability of the required medical facilities in prison.
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 Exhibit C, the Notice of Appeal with 2 grounds of Appeal filed on the 15th December, 2020. In his written address, learned Counsel stated that there are 8 grounds of appeal but Exhibit C has only 2 grounds of appeal not 8.
For a better understanding of the issue of substantiality of grounds of appeal, this Court in decided cases presented different opinions. I acknowledge the different positions of this Court on the issue, in cases like MUNIR VS FRN (2008) LPELR 4693 (CA) and JAMMAL VS STATE (SUPRA) relied upon by the learned Appellant’s Counsel, the Court took the position that the substantiality of the grounds of appeal constitutes an exceptional circumstance, however, there are of other decisions following the very early decision of DURO AJAYI & ORS VS THE STATE (1977) 1 FCA which took a different position that the suggested position 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 fact, the Applicant stated in unequivocal terms that her appeal will succeed, see paragraph 10 of the affidavit in support.
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 for bail. 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 issues of law has no role to play in determining an application of this nature. The current trend, however, 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 at this stage, 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 the 2 grounds of appeal (Exhibit C). Firstly, ground 1 challenges the use to which a trial Court can put a confessional statement during the determination of guilt with particulars of how the statement was used by the trial Court. Ground 2 is on sentence and restitution order that the Applicant herein refund various sums of money to victims of the fraud. There is no issue of jurisdiction in any of the grounds. There is no ground that raises a recondite issue of law, it is not strong enough to be an exceptional circumstance to warrant granting bail pending appeal. In the case of GEORGE V FEDERAL REPUBLIC OF NIGERIA (SUPRA) 275, it was held that the grounds of appeal which will qualify as substantial and make the Court suspend a valid decision of the trial Court must exhibit features of fundamental errors ex-facie such as lack of Jurisdiction and conviction on some weird and undefined offences or clearly perverse interpretation or wrong application of an unclear provision. These are not features of this application.
This then leads me to the ground relied upon by the Appellant/Applicant, that there is very heavy congestion of appeals pending before the Court due to the effect of Covid-19 pandemic and accumulation of unavoidable holidays and vacation as stated in paragraph13 (ii) & (iii) by which fact as argued by learned Counsel, 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 Court, the delays in hearing appeals and the fear that an Applicant may serve a whole or a substantial portion of the sentence imposed on her 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 V. STATE (2004) 7 NWLR (PT 872) 249.
The Court notes that EFCC prosecuted the Applicant at the lower Court which presupposes that the offence is a financial crime offence and looking at Exhibit B – The judgment of the Court below, the offences relate to fraudulent conversion of various sums of money to her personal use, fraudulent accounting, stealing of various sums of money. These are offences listed as corruption cases and by the Court of Appeal (Fast Track) Practice Directions, 2021 they are placed on the priority list of the Court and to be 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, the Court is 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 Respondent have been abridged to 14, 10 and 5 days respectively.
Similarly, in order to attain the quick disposal of such appeals, the Court gives priority to such matters. 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, 2021, have revolutionized the procedure by eliminating or at least reducing the causes of delay in the prosecution of appeals pertaining to Money Laundering financial crimes and Other Offences captured in the Rules.
I shall refer to the decision of this Court in the case of GEORGE V FEDERAL REPUBLIC OF NIGERIA (2010) 5 NWLR (1187) 254, 271 – 272 where DONGBAN-MENSEM, JCA, (as he then was) stated as follows;
“…The new rules of the Court of Appeal… has revolutionalized the proceedings before the Court. The procedural causes of delay in the prosecution of appeal have been eliminated.
The filing and prosecution of appeal have been placed within responsibilities placed at the door step of both the appellant and respondent …Delay is therefore, in the present circumstances, not a good reason.”
Under this new regime, delay is more likely to be placed at the doorsteps 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 her 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.
The contention of the Respondent is that the Applicant has not placed any material before the Court to show that the Appeal will not be heard according to the Fast Track Practice Directions. Contending that the Applicant has failed to prove that her appeal will not be heard before a substantial part of the sentence is served. There is really nothing before the Court to the contrary, but to believe the Respondent’s deposition at paragraph 14 of the counter affidavit where he said:
“That the Applicant is not serious in pursuing her appeal but only interested in bail pending appeal to avoid serving the terms of his sentence having been properly convinced by the Court upon good and credible evidence against her.”
The Appellant’s main record of appeal was transmitted on 21st December, 2020 and additional record was transmitted on 7/3/22 and the Appellant is yet to file her Appellant’s Brief in accordance with the Fast track provisions of the Court for such category of Appeals.
The Applicant was sentenced on 28/9/2020 and has served just a little over one year out of her 7 years term of imprisonment. She has not placed any convincing materials before the Court that even with the Court Fast-Track Practice Direction, her appeal will not be heard within a reasonable time and before she serves a substantial or a considerable part of her 7 years term of imprisonment. The words “substantial” 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 or will be or is likely to be served before the appeal is heard and determined.
Obviously, with diligence on the part of the Applicant, I do not envisage any delay, if the appeal is seriously and diligently prosecuted, it will 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 pending appeal.
In the instant case, there is nothing to show that the Appellant/Applicant took the steps required of her to put the Court in a position to speedily hear her appeal.
Next to consider is the ground that if granted bail, the Applicant will be of assistance for the preparation of her appeal and that the appeal is complex and there is need for close consultation between her and her Counsel. The Applicant deposed to this fact in paragraph 14 of the supporting affidavit which was controverted by paragraphs 12 of the counter-affidavit, the Applicant did not react by detailing in what way the learned Counsel would require the assistance of the Applicant.
I fail to see what indispensable assistance the Applicant will render to her learned Counsel who have been representing her during trial 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 Abolongo, Prison, Oyo Town that the deponent deposed to the supporting affidavit and was also informed by Counsel as in Paragraph 13 of the supporting affidavit. Having briefed her Counsel of the facts deposed to personally even when serving a sentence, it is obvious she has an allowance to interact with her Counsel. It is curious that the Applicant can depose to an affidavit while in Prison custody.
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 other ground relied upon is that of ill health, that is the health condition of the Applicant which the learned Counsel argued that it 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 and 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 CHENEMELU 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 AND ABACHA V. THE STATE (SUPRA).
The reason for this stand of the Courts is because of 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 certain diseases are ravaging the Nigerian populace due to life style changes. 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 and 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 FRN (2005) 3 NWLR (PT.913) 571.
In this application, the Applicant by paragraph 7 in support of the application stated that she battled various internal ailments and her recent state of health is indicated in Exhibit D, in reaction, the Respondent in paragraphs 9 and 10 deposed to the fact that the Applicant is not ill nor in hospital facility either within and outside the prison facility treating any ailment and Exhibit D is not a medical report issued by the Medical officer attached to the Prison neither was there any referral to the Randle Hospital Surulere which issued Exhibit D.
I have viewed Exhibit D, and I note it was issued in 2014 stating that the Applicant was suffering from Peptic ulcer, Chronic Hemorrhoids and a 3-week history of cough. There is indeed no current medical report of the present health condition of the Applicant. The report relied on was issued in 2014 and since she was being treated by her personal physician who is competent, the condition should have abated. Since she has been in prison since 2020, and if she is currently ill, the Medical doctor in the facility should have issued a report on her current condition. The absence of a current medical report defeats the application.
There is also the need for the Prison authorities to state in clear terms that they do not have the facilities to treat the Applicant. It would have been a different case as in the case of OKECHUKWU CHUKWULOZIE (M) V. F.R.N (2014) LPELR 24452 (CA) where the report had indicated that the Prison Medical facility does not have the facilities to manage the Applicant and advised the treatment to be done elsewhere. This is not the case here. Exhibit D falls short of that requirement. 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. See OKUSE V. STATE (2015) LPELR-25584(CA) where the Court said:
“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….
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 is 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 “… 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 … 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.” Per OGUNWUMIJU, J.C.A (as he then was, Now JSC).
Indubitably, 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 prison authorities. There is no evidence that the Applicant sought for medical treatment in Prison, such a serious demand cannot be assumed.
The issue of medical attention is not like Applicant’s right to a Counsel of her choice. However, while an accused person or a convict is entitled to a legal practitioner of her choice the same right is not extended to her with respect to a medical practitioner or medical facility of her 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 her choice when her ailment can be treated in the prison either directly or by the referral system where she 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 she is released on bail, she cannot access medical attention while in prison for the treatment or management of her ailment. In other words, her sickness or ailment falls short of constituting an exceptional or special circumstance to entitle her to bail on that account. I therefore agree with the Respondent’s Counsel that the Applicant has not made out a case that she has to be released on bail before she can be treated of her ailments as disclosed in Exhibit D.
It is therefore my view that in the current regime of our rules and practice directions, an Appellant who has not taken the steps required of him to ensure speedy hearing of his appeal cannot plead delay in the hearing of the appeal that will result in his serving a whole or a substantial part of his prison term for the purpose of obtaining bail pending appeal. The reason is that the law does not permit anyone to profit from his delay. Equity aids the vigilant and not the indolent.
Grounds 1 and 11 on his motion paper have not been made out and I therefore reject same.
There is the ground that she is a first offender and was on bail during trial. This can be tied to the resolution above that pending trial she had a right to be admitted to bail but that right no longer exists and therefore bail must be considered in conjunction with other grounds and therefore these grounds alone cannot support bail pending appeal, I am saying bail pending appeal cannot succeed on these grounds alone and where the main grounds fail, these ones cannot also succeed.
On the whole, none of the settled grounds that can move the Court to grant bail pending appeal has been made out. The Applicant should be more serious in pursuing the main appeal instead of dwelling on an application for bail. If that had been done the appeal would have been taken by now and resolved. I do not see any basis for granting the application.
I accordingly dismiss the application and order for accelerated hearing of the substantive appeal. Parties shall be served with a hearing Notice for hearing.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.
This is an application for bail pending appeal. It is trite law that bail is not ordinarily granted to a convict or prisoner pending the determination of his appeal. A prisoner like the present applicant will only be granted bail where there are exceptional or special circumstances shown by him to justify the grant of his application. In other words, the applicant must present cogent, credible and necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour. A careful study of decided authorities of our appellate Courts, reveal that there are some guidelines or conditions that should be considered in deciding whether or not to admit a convicted person to bail pending determination of his appeal. They are:
(a) that the admission of an appellant to bail pending the determination of his appeal is solely at the discretion of the Court.
(b) that bail will not be granted pending appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(c) that in dealing with the latter class of case, the Court will have regard not only to the length of time which must elapse before the applicant’s appeal can be heard but also the length of the sentence to be appealed against and further, that these two matters will be considered in relation to one another, and
(d) that in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.
See MEREGINI VS. FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (PT. 1633) 331; OKOROJI VS. STATE (1990) 5 NWLR (PT.157) 509; IBORI VS. FEDERAL REPUBLIC OF NIGERIA (2009) 3 NWLR (PT.1127) 94; WILLIAMS VS. HOPE RISING FUND SOCIETY (1982) 1-2SC 145.
I have carefully examined the affidavit deposed to in support of the instant application as well as the Written Addresses in support. I cannot but come to the same conclusion reached in the lead Ruling to wit: that none of the grounds relied upon by the Applicant constitutes necessary material sufficient to move us to grant bail pending appeal.
For this reason and the fuller reasons given in the lead ruling, I too dismiss the application as lacking in merit and abide by the consequential order made therein.
ABBA BELLO MOHAMMED, J.C.A.: The factors to be considered in an application for bail after conviction and pending appeal are different from those for bail pending trial. In an application for bail pending appeal, the Applicant is required not only to show the existence of an appeal but to establish to the satisfaction of the Court unusual and exceptional circumstance(s): JOSEPH UGBOR v. THE STATE (2010) LPELR-5047(CA), per Yahaya, JCA at page 7 – 8. para. C: ADEBISI v FRN (2017) LPELR-41976(CA), per Nimpar, JCA at pages 3 – 4. para. E: and OLANIRAN v FRN (2016) LPELR-41300(CA). per Obaseki-Adejumo, JCA at page 6. para. B.
Upon my perusal of the affidavit evidence and submissions of the parties, I am in full agreement with the reasoning and conclusions in the lead ruling of my learned brother YARGATA BYENCHIT NIMPAR, JCA that the Appellant/Applicant has not shown any unusual or exceptional circumstance to warrant the grant of her application for bail pending appeal. Accordingly, I join in dismissing the application for lack of merit and abide by the order for accelerated hearing of the substantive appeal.
Appearances:
J. A. Adeboye, with him, Adeniyi Tope Fagbamigbe. For Appellant(s)
Festus Ojo. For Respondent(s)