ADEYEMO ABIODUN & ORS v. FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6423(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of July, 2013
CA/L/550M/2013
RATIO
WHETHER AN APPELLANT CAN FILE MULTIPLE NOTICES OF APPEAL WITHIN THE STATUTORY TIME FOR THE FILING OF AN APPEAL
It is elementary that an appellant can file multiple notices of appeal within the statutory time prescribed for the filing of an appeal and may exercise the option of abandoning the other notices of appeal and proceed with one notice of appeal at the hearing of the appeal, or an appellant may apply to consolidate them, so I do not see the big deal in the argument of the respondent that the appellant/applicant filed more than one notice of appeal in the main appeal. See Tukur v. Gongola State Government (1988) l SCNJ 61, Akeredolu and Ors. v. Akinremi and Ors. (1987) 2 NWLR 710, Harriman v. Harriman (1987) 2 NWLR 244. PER JOSEPH SHAGBAOR IKYEGH J.C.A
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGINIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. ADEYEMO ABIODUN
2. EGBELE AUSTINE EROMOSELE
3. BAREWA PHARMECHEUTICALS LIMITED – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
JOSEPH SHAGBAOR IKYEGH (Delivering the Lead Ruling): The appellant/applicant, a Mr. Adeyemo Abiodun, is by this application praying for an order of the court for a departure from the Rules of this Court under order 20 rule 1 (2) of the Court of Appeal Rules, 2011, and for expeditious determination of the appeal and/or for accelerated hearing of the appeal. By a separate motion, the appellant/applicant also prayed for an order admitting the appellant/applicant to bail pending the hearing and determination of the appeal. The affidavit evidence in support of the application attributes it to the ill-health of the applicant who is said to be hypertensive and is also suffering from glaucoma which has caused the loss of his right eye, consequently the court should allow the appellant/applicant to rely on the main and supplementary record of appeal already compiled by the appellant/applicant’s counsel and duly certified and transmitted by the registrar of the court below to the registry of this court on 26-6-13 and 10-7-13, respectively, to be used for the determination of the appeal at the earliest opportunity.
Reliance was placed by the appellant/applicant on the medical reports in Exhibits JA1 and JA5 together with the three affidavits for the contention that the ill-health of the applicant warrants the granting of bail pending his appeal vide the cases of Munir v. Federal Republic of Nigeria (2009) 16 NWLR (pt.1168) 481 at 497 – 498, Abacha v. The State (2002) 3 S.C. 53 and Fawehinmi v. The State (1990) 1 NWLR (pt. 127) 487.
It was also contended by the appellant/applicant that the grounds of appeal, especially grounds 1, 5 and 6 thereof in the notice of appeal filed on 03-07- 2013, raise substantial and recondite issues of law that warrant the granting of the application for bail pending appeal vide Munir (supra) and Fawehinmi (supra); consequently the appellant/applicant has shown exceptional and special circumstances for a grant of the application for bail, which should be granted accordingly.
The respondent opposed the motion with a counter affidavit of eight paragraphs to argue that the prayer for accelerated hearing of the appeal is unnecessary as the Court of Appeal Practice Directions, 2013 already make statutory provision for the accelerated hearing of a criminal appeal; that the record of appeal compiled and transmitted was made in the absence of the respondent contrary to Order 8 rule 2 of the Court of Appeal Rules, 2011; that the respondent intends to file a cross appeal therefore the prayer for a departure from the Rules should not be granted; and that the appellant’s brief of argument has already been filed, therefore it is superfluous to grant the application for a departure from the Rules.
The respondent contended in respect of the motion for bail pending appeal that having regard to the counter affidavit of eight (8) paragraphs together with the entry of the appeal in the registry of this Court, as well as the fact that the order of the court below alluded to by the appellant/applicant in paragraphs 32, 33 and 34 of his affidavit to the effect that the prison authority are to ensure that the ill-health of the appellant/applicant is attended to, there is no special or exceptional circumstance for granting the motion for bail pending appeal; all the more so a similar application at the court below was abandoned by the appellant/applicant who should not be heard on the present application for bail pending appeal, as the remedy open to the appellant/applicant is to go back to the court below to move the application which, if refused by the court below, the appellant/applicant can approach this court for bail pending appeal.
The respondent also contended that the appellant/applicant cannot, without withdrawing the first notice of appeal, rely on the second notice of appeal vide paragraph 7 of the Court of Appeal Practice Directions, 2013, therefore the application for bail pending appeal should be dismissed.
Order 20 rule 2 of the Court of Appeal Rules, 2011, (the Rules of the Court) permits the Court to direct a departure from the Rules of the Court in any way this is required in the interest of justice, while rule 3 thereof allows the court in an exceptional circumstance and in the interest of justice to waive compliance by the parties with the Rules of the Court.
Criminal appeals are to be given priority by way of accelerated hearing for the purpose of fast-tracking their determination at the earliest opportunity as complemented by paragraphs 2(a) and 3(a)(i) of the Court of Appeal Practice Directions, 2013. In the present case, the main record of appeal and the supplementary record of appeal were compiled on behalf of the appellant/applicant by his learned counsel and was caused to be transmitted to the registry of this Court by the registrar of the court below on 26-06-2013 and 10-07-2013, respectively.
The quarrel of the respondent who placed reliance on Order 8 rule 2 of the Rules of the Court is that it was not invited by the court below to participate in the compilation of the record of appeal. Order 8 rule 2 of the Rules of the Court is grouped under part 2 of the said Rules dealing with Civil Appeals which starts with Order 6 thereof, so it is inapplicable to the present application which arose from a criminal trial which is categorised under part III of the Rules of the Court, starting with Order 17 thereof. And, Order 17 rules 7 and 9(1) thereof read together clearly shows that the preparation of the record of appeal in a criminal case is the sole responsibility of the registrar of the court below who does not require to summon any of the parties for the preparation of the record of appeal.
The contention of the respondent that the application for departure from the rules is unnecessary is not well taken, as the intention of the rule of court is to quicken the pace of appellate criminal justice, therefore to deny a party of it would be untenable and contrary to the letter and spirit of the Court of Appeal (Practice Directions) 2013 that has been put in place as a facility to eliminate the scandalous delay in the administration of appellate criminal justice.
I do not, with respect to learned counsel for the respondent, appreciate the argument that the intention of the respondent to file a cross appeal should forestall the progress of the appellant/applicant’s appeal.
Because a cross-appeal is an appeal in its own right like a counter-claim which may proceed on its own without necessarily being tied to the fortunes of the main appeal. So it is not right to hold the hand of the clock for the progress of a substantive appeal on account of the prospect of a respondent filing a cross-appeal, in my view. Accordingly, I agree with the learned senior counsel for the appellant/applicant that this is a veritable occasion or instance to accelerate the hearing of the appeal on the main record of appeal together with the supplementary record of appeal prepared by the appellant/applicant and duly certified by the registrar of the court below who caused them to be forwarded to the registry of this Court on 26-6-13 and 10-7-13 respectively.
The application for a departure from the Rules and for accelerated hearing of the appeal is, accordingly, granted as prayed. See Soleye v. Sonibare (2002) 10 NWLR (pt.775) 380 at 393 – 394, Attorney General of the Federation v. Abubakar (2007) 44 WRN 139 at 148. The appeal is, accordingly, fixed for mention on 23-09-2013.
In relation to the application for bail pending appeal, it is necessary to refer to section 28(1) of the Court of Appeal Act, 2004. It provides –
“The Court of Appeal may, if it thinks fit, on the application of an appellant admit the appellant to bail pending the determination of his appeal.”
Therefore, once an appeal is filed and, even if the record of appeal of the court below is yet to be transmitted to the registry of the Court of Appeal, a motion for bail pending appeal can be entertained by the Court.
The appellant/applicant having already filed an appeal against the decision of the court below, the application for bail is competent. The validity of the present application for bail pending appeal does not therefore depend on the pendency of a similar application at the court below, as the latter would be considered to be overtaken by events and consequently deemed abandoned.
It is elementary that an appellant can file multiple notices of appeal within the statutory time prescribed for the filing of an appeal and may exercise the option of abandoning the other notices of appeal and proceed with one notice of appeal at the hearing of the appeal, or an appellant may apply to consolidate them, so I do not see the big deal in the argument of the respondent that the appellant/applicant filed more than one notice of appeal in the main appeal. See Tukur v. Gongola State Government (1988) l SCNJ 61, Akeredolu and Ors. v. Akinremi and Ors. (1987) 2 NWLR 710, Harriman v. Harriman (1987) 2 NWLR 244.
Now the application for bail pending appeal. The appellant/applicant was convicted by the Federal High Court of Justice sitting in Lagos (the court below) for the offence of marketing a prohibited/dangerous drug called ‘My Pikin Baby Teething Mixture Product’. The court below sentenced the appellant/applicant to seven years in prison on 17-05-2013.
The hypertensive condition of the appellant/applicant coupled with glaucoma which occasioned the loss of one of the right eyes of the appellant/applicant and is threatening to adversely affect the remaining eye plus the necessity for regular medical attention are the grounds of ill-health that the appellant/applicant put forward as the basis for the application for bail pending appeal.
Exhibit JA1, the medical report, attached to the affidavit of the urgency of the 1st applicant reads –
“MEDICAL REPORT FOR MR. ADEYEMO ABIODUN AGE 57 YEARS
The above named patient was examined in a dock following an emergency call by the presiding Judge to evaluate a patient who apparently felt very dizzy while judgment was being read.
Examination revealed that the patient is hypertensive with a blood pressure of 160/90mmhg, he is equally discovered to be anaemic (low Haemoglobin level) during physical examination. Patient equally gave a history of hypertension in the family.
Based on the above reason, I therefore recommend further medical assessment in view of this provisional diagnosis.
This is for documentation purposes and other necessary action.” (My emphasis).
Exhibit JA5, another medical report, reads:
“MEDICAL REPORT- MR ADEYEMO ABIODUN
The above named patient was referred to our clinic from Nigerian Prisons Health service on 6 June 13. He presented with a two year history of inability to see with the left eye and a four month history of blurred vision in the right eye. On examination, unaided distant visual acuity was 6/9 in the right eye, No Light perception in the left eye and near acuity was N36. Blood pressure was 140/100mmg, fasting blood sugar was 105mg/dl, Intra ocular pressure was 19mmhg in the right eye but was not obtainable in the left eye.
2. Further investigation revealed diagnoses of Bilateral End Stage Glaucoma and Bilateral Cataract. Patient was placed on gutt latanoprost and timolol combination and eye antioxidant capsules. He had selective Laser Trabeculoplasty surgery to further reduce the Intra ocular pressure on 17 June 13 for the right eye.
3. The implication of his condition is that he is totally and irreversibly blind in the left eye. The right eye still has some little vision but to preserve it requires consistent medication and follow up management for the rest of his life. In the light of this, he has been referred to Lagos University Teaching Hospital for follow up management for low vision aids. Patient’s current visual acuity is 6/12 with tunnel vision (restricted field view).
4. This medical report is for information purpose.”
These are not contagious or communicable diseases requiring the quarantine of a convict, nor can the two ailments be categorised as terminal in nature.
For bail pending appeal or bail at all to be granted on ground of ill-health, the ailment must be grave or virulent and dangerous to public health and/or be one that is capable of transmission to other human beings. See Chief Priest Felix Nosakhare Osadolor (Alias Afro) v. The State (2013) 5 W.R.N. 162 at 167, Abacha v. The State (2002) 5 NWLR (pt.761) 638 at 664 – 665; or there must be concrete evidence that medical facilities are not accessible to the convict if he is in prison custody.
In as much as the undisputed hypertensive condition of the appellant/applicant evidenced by the medical reports in Exhibits JA1 and JA5 evoke human sympathy, it does not appear from the totality of the evidence marshaled by the appellant/applicant in this matter that the prison authority is unable and/or unwilling to take the appellant/applicant to a medical facility for him to receive medical attention.
Indeed, Exhibit JA5 establishes that the prison authority is alive to its statutory responsibility of removing the appellant/applicant to a suitable hospital under section 8(1) of the Prisons Act (CAP.p29) Laws of the Federation of Nigeria, 2004, for medical treatment of his ill-health. Since the said ailment is treatable and the prison authority is seeing to it that the appellant/applicant is given adequate medical treatment at the appropriate hospital, the appellant/applicant does not require temporary liberty from his imprisonment by way of bail pending appeal to attend to his ill-health.
In addition, unlike the case of Fawehinmi v. The State (1990) 1 NWLR (pt. 127) 486, the 1st applicant did not disclose in his affidavit evidence that his hypertensive condition has to be treated daily or “every other day” as put in Fawehinmi (supra), nor that the machine used in determining his hypertensive condition is “not normally movable” as put in Fawehinmi (supra), so the facts in Fawehinmi (supra) are not at par with the facts of this application and are, accordingly, inapplicable.
The other ground for the application is that the appellant/applicant has a strong case to argue on appeal. It appears on the balance of legal authorities that there is much in favour of granting and not granting bail pending appeal on ground of a strong case to urge on appeal. For example, Ogundimu Munir (supra), supports the former position of granting bail based on substantial grounds of appeal with the prospect of success on appeal. It is a decision of this Court. There is also an earlier decision of this Court in the case of Duro Ajayi and Ors. v. The State (1977) 1 F.C.A. page 1 to the effect that bail be not granted pending appeal on ground of substantial grounds of appeal.
In respect of Duro Ajayi (supra) (Coram: Dan Ibekwe, P., Eboh and Coker, JJ.C.A.) this Court held on pages 5 – 6 of the Law Report thus –
“Before we end this decision, we think that it is relevant to draw attention to one particular test which was applied by the Court of Criminal Appeal to an application for bail, but which at any rate is not acceptable to this Court. The test was formulated by the Lord Chief Justice in a portion of his judgment in R. v. Wise, 17 Cr. App. R. 17, which runs as follows –
“In order to adjudicate on the question of bail it is useful to see if there is any prospect of success on appeal …..”
We, ourselves, feel quite unable to embrace this particular test in respect of appeals pending before this Court in view of the special and peculiar conditions and circumstances of our own society. We are not prepared to prejudge issues before the appeal is heard. In our view, to follow this practice will tend to make mockery of the substantive appeal if and when it eventually comes up for hearing.”
Our later decision in Ogundimu Munir (supra) did not refer to Duro Ajayi (supra). On account of the fact that Duro Ajayi (supra) explained the basis for not considering the grounds of appeal in the course of treating a motion for bail pending appeal, I most respectfully follow Duro Ajayi (supra).
Above all, the paramount fact that the appeal will be heard in September this year as already fixed by the court when the appellant would have spent less than one year out of the sentence of 7 years in prison imposed on him by the court below on 17-05-2013 militates against the granting of the application. See Rex v. Theophilus and ors. (1935) 2 W.A.C.A 236 at 237 thus –
“In the present case no special circumstances and alleged are I cannot consider a delay of two months in relation to a sentence of four years to come within the principle I have enunciated above and the application must be dismissed. As Lord Trevethin L.C.J., said in Rex v. Gott C.A. Reports Vol. XVI “if we grant this application we could never consistently refuse bail.”
See also Duro Ajayi and Ors. v. The State (supra) on page 7, Ojo and Anor. V. Federal Republic of Nigeria (2006) 9 NWLR (pt.984) 103 at 123.
It is settled law that bail after conviction is not granted as a matter of course but on very special and exceptional circumstances, as it is reasonably presumed that the conviction is correct until subsequently set aside on appeal. In the present application, no exceptional or very special circumstances have been shown to entitle the appellant/applicant to bail pending appeal, as the prospect of the appeal succeeding and the issue of ill-health of the appellant/applicant are, therefore, not enough in the circumstances of this case to justify a grant of the application.
I would dismiss the application for bail pending appeal accordingly.
CHINWE EUGENIA IYIZOBA J.C.A.: I had the privilege of reading in advance the lead ruling of my learned brother IKYEGH JCA. I agree entirely with his reasoning and conclusions.
While ill health is generally accepted as a special circumstance for grant of bail pending appeal, the nature of ill health that will qualify was aptly described by Uwaifo JSC in Abacha v. The State (2002) 3 SCNJ 1 @ 18 thus:
“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 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: see Chinemelu v. Commissioner of Police (1995) 4 NWLR (pt 390) 467. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee for possibility of a real health hazard to others; there are no quarantine facilities of the authorities for the type of illness.”
The ill health of the Appellant/Applicant is clearly not such as to qualify for a grant of bail. Accelerated hearing of the appeal will meet the justice of the case. I also dismiss the application for bail pending appeal.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the Ruling just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA this morning.
The Appellant/Applicant has prayed this Court for an order for a departure from the Court of Appeal Rules, 2011 in the matter of his application for bail pending appeal.
It is well settle that bail, after conviction is not granted as a matter of course, but on very special and exceptional circumstances, as it is presumed that the conviction is correct until subsequently set aside on appeal.
I agree with my learned brothers reasoning and conclusions.
I also dismiss the application for bail pending appeal.
Appearances
Mr. A. O. Eghobamien, SAN, (with Messrs. J. Idehen-Nathaniel, A. Ogundipe and A. B. Babade) For Appellant
AND
Mr. J. Kadiri (with Mr. O. Adefila and Miss J. Agbona) For Respondent
