CHIEF OLABODE GEORGE & ORS. v THE FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3770(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of May, 2010
CA/L/21/2010
RATIO
COURT: JURISDICTION; IMPORTANCE OF JURISDICTION
It is trite law that issue of jurisdiction is very fundamental and hence the plethora of judicial pronouncements by the court of record allowing same to be raised at any stage of the proceeding even, if ,for the first time at the Supreme Court. Jurisdiction is therefore the life wire of a proceeding without which no court either on its own or by consent of parties to a suit could clothe itself therewith. By its very nature, it is fundamental and goes to the root of any case howsoever. PER CLARA BATA OGUNBIYI, J.C.A
JURISDICTION: ESSENCE OF JURISDICTION AND EFFECT OF ABSENCE OF JURISDICTION
The Supreme Court in Dangote v. C.S.C. Plateau State per Karibi-White, JSC observed as follows:
“It is well settled law that the question of the validity vernon of the jurisdiction of the court touches on the competence of the court to hear and determine a cause or matter before it, and is fundamental to its exercise of jurisdiction and of adjudication and determination of the cause before it. The existence or absence of jurisdiction in the court goes to the root of the matter and sustains or nullifies the decision of the court in respect of the relevant subject matter – see Obijoya v Registrar of Companies (1975) 4 SC 31 at p. 34, Ezomo v Oyakhire (1985) 1 NWLR (pt. 2) 195; Nwafia v Ububa (1966) NMLR 219. This is why it is allowed to raise the issue of jurisdiction at any time or stage in the proceedings or on appeal as a substantive issue of law – see Bronik Motors Ltd v Wema Bank (1983) 1 SCNLR296; Madukolo v Nkemdilim (1962) 2 SCNLR341; Onyema v Oputa (1987) 3 NWLR (Pt.60) 259.
It is important to point out at once that the absence of jurisdiction accentuates the want of legal capacity and competence in the court to hear and determine the subject matter before it, and does not arise at this stage, any issue as to the rights of parties in the subject matter of the action. In the absence of jurisdiction, there is no competence to exercise the judicial powers vested in the courts by section 6 (6) (b) of the Constitution. It has been frequently stated, and is now well settled that any such exercise of jurisdiction, which is an obvious futility is a nullity and the proceedings and judgment relating thereto null and void. See Timitimi v Amabebe 14 WACA, 374; Sule v Nigeria Cotton Board (1985) 2 NWLR (pt. 5) 17; Western Steel Works Ltd v Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) 617; Sken-Consuslt (Nig) Ltd v Sekondy-Ukey (1981) 1 S.C. 6. See also Adefulu v Okulaja (1998) 5 NWLR (NWLR (pt. 550) 435 … jurisdiction being a statute enabling requirement, cannot be acquired or conferred on the court by consent of the parties, or because the court was oblivious or mistaken as to the defect in its jurisdiction. See Okotie-Eboh v Okotie-Eboh (1986) 1 NWLR (pt. 16) 264.” PER HUSSEIN MUKHTAR, J.C.A
BAIL: CONDITIONS FOR GRANT OF BAIL
Also in the case of Rex v Theophilus Adenuga Tunwashe (1935) 2 WACA 236 it was held that:
“The principles upon which an applicant will be admitted to bail pending his appeal have been well settled.
…It has frequently been laid down that the court will not grant an application unless there are exceptional and unusual reasons (see Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486 at 494.”)
Further and in the same said case of Jammal v State supra, this court held at page 366 and said:
“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 applicants innocence does no longer exist, because of his conviction, he must show special circumstances to be entitled to bail pending the determination of his appeal.”
In Tunwashe’s case supra, the West African Court of Appeal (WACA) after a careful consideration concluded that bail will not be granted pending an appeal save however in exceptional circumstances.
Also the case of Buwari v State (2004) 16 NWLR (Pt.899) 285 is relevant. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
1. CHIEF OLABODE GEORGE
2. ARCHITECT AMINU DABO
3. CAPTAIN O. ABIDOYE
4. ALHAJI ABDULLAHI AMINU TAFIDA
5. ALHAJI ZANNA MAIDARIBE
6. ENGR. SULE ALIYU – Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
CLARA BATA OGUNBIYI, J.C.A: (Delivering the Leading Ruling) The motion on notice and subject of this ruling is dated and filed 12th March, 2010 and same which is on behalf of all the appellants as applicants herein, wherein they are seeking a lone relief with prayer 2 having been withdrawn by the learned senior counsel Mr. O. Ayanlaja SAN who, lead a hosts of both his senior colleagues and other counsel on behalf of all the applicants.
The said relief two was accordingly struck out. The subsisting relief one is however seeking for:
‘An order for leave to argue in the appeals herein issues of law and lack of jurisdiction as raised in the Amended Notice of Appeal, those issues not having been taken before the court below’.
In support of the application is an affidavit of fifteen paragraphs deposed to by one Adeleke Adetona, a legal practitioner in the Chambers of Ayanlaja, Adesanya & Co. of counsel to the 1st appellant/applicant herein.
Submitting on behalf of all the applicants, the learned senior counsel Mr. Ayanlaja relied on all the paragraphs of the affidavit in support of the application and particular reference was made to paragraph 5 wherein he re-iterated that the notice of appeal of the appellants are all reproduced in volume 5 of the records of the appeal.
That the said notices have been amended by virtue of the order of this court on the 18th March, 2010. The learned senior counsel submitted that the issue of jurisdiction of the Federal Attorney General as to whether he can prosecute the appellants under the Criminal Code of Lagos State has been raised, which same was not earlier raised at the court below. That although by nature, an issue of jurisdiction can be raised at any stage of the proceedings, the senior counsel conceded the necessity merely out of abundance of caution and thus the filing of this application. That grounds 17 and 26 of the grounds of appeal question the powers of the Attorney-General of the Federation in prosecuting the accused persons for alleged offences under the Criminal Code of Lagos State, where such offences do not fall under the Federal Laws.
That section 174 of the Constitution of the Federal Republic of Nigeria 1999, empowers the Federal Attorney General to prosecute offences created by an Act of the National Assembly and not those created by the State Assembly, for example the Criminal Code of Lagos State. The learned senior counsel potently re-iterated that the issue was not taken before the court below. That, the same goes for grounds 11, 12, 13, 17 and 26 of the grounds of appeal wherein they are all additional grounds which were not treated in the court below and hence forming the pivotal focus of this application. The senior counsel urged in favour of granting the application therefore.
The learned senior counsel Mr. J. B. Daudu representing the 4th appellant informed the court that the said application does not affect his client since his notice of appeal as well as the brief of argument were both filed within time. He did not as a matter of principle however oppose the application.
In response to the submission advanced on behalf of the applicants, the learned counsel Mr. Festus Keyamo representing the respondent opposed the application and in respect of which a counter affidavit containing 5 paragraphs and filed on the 20th April, 2010 was relied thereon. Particular emphasis was placed on paragraphs 3(c), (d), and (e) by the said counsel who further argued that the fresh issues will require the production of evidence which was not adduced at the court below. Furthermore that the nature of Ground 17 of the grounds of appeal seeks to question the powers of the Attorney-General, which learned counsel submitted is a matter of fact relating to whether or not the Attorney General did obtain the fiat in the exercise of the powers as he did. That the appropriate time to have raised this issue should have been at the lower court when the charge was read to the accused persons and before their pleas were taken. This, learned counsel submitted, would have afforded the Respondent the opportunity to have produced the fiat on the spot. Counsel to buttress his submission cited the case of H.R. Ltd v. F. Investment Ltd. (2007) 5 NWLR (Pt.1027) 326 at 342-343. Further reference was also made to section 167 of the criminal Procedure Act which provides that an objection of this nature ought to be raised immediately the charge is read and before the please taken. In other words, that question as to who signs a charge ought to be raised timeously. Learned counsel urged that ground 17 of the proposed additional grounds of appeal which in the case of the 5th appellant is ground 16 should be refused.
In further submission on points of law, the learned senior counsel Mr. Ayanlaja emphasized that the duty lies upon the prosecution/respondent and not defence/appellant to have attached the fiat empowering the Attorney-General. That the provision of the Criminal Code cannot override that of the Constitution. Counsel in the final analysis urged that the application be granted as prayed.
The only issue raised in this application is whether leave can be granted for an order in favour of the identical amended notices of appeal for all the appellants/applicants incorporating new and additional grounds of appeal filed by each of the appellants herein for purpose of arguing issues of law/jurisdiction which same was not argued before the lower court.
The determination of the said relief, would require the reproduction of certain paragraphs of both the affidavit in support as well as the counter affidavit of the respondent. In other words, the facts stated on paragraphs 5, 8, 9, 10, 11 and 12 as well as paragraphs 3 sub-paragraphs (c), (d) and (e) of the two affidavits under reference respectively are relevant and state as follows:…….
“5. That the said Notice of Appeal of the Appellants are reproduced in Vol.5 of the record in the following order namely the 1st Appellant pages 1737-1743, 2nd Appellant pages 1803-1809, 3rd Appellant pages 1751-1757, 4th Appellant pages 1758-1764, 5th Appellant pages 1765-1771, 6th Appellant pages 1772-1778 respectively wherein the grounds of appeal are the same in respect of the complaints of the Appellants against the judgment of the court below …….
8. That at the said conference of counsel for all the Appellants/Applicants the identical Amended Notice of Appeal incorporating new and additional grounds of appeal filed by each of the appellants were considered and O. Ayanlaja Esq., SAN of counsel for the 1st Appellant was mandated to seek leave of court to argue issues of law/jurisdiction not argued before the lower court.
9. That I am informed by O. Ayanlaja Esq., SAN that no further evidence need be adduced to enable your Lordships determine the issues of law and jurisdiction raised.
10. That I am informed by O. Ayanlaja Esq., SAN and I verily believe him that all the facts needed to determine the issues of law and jurisdiction in respect of which leave is now sought are in the Record of Appeal before this Honourable court.
11. That I am further informed that the issue raised involve substantial points of law and jurisdiction.
12. That O. Ayanlaja Esq., SAN of counsel informed me and I verily believe him that the issue of leave aforesaid was over sighted in the previous’ application filed in this case hence the order sought herein.”
Also paragraph 3 of the counter affidavit state as follows:
“3. ……..
(c) That some of the fresh issues that arise out of the additional grounds of appeal would require the production of evidence before this court.
(d) That in particular, the Appellants’ various grounds that complain about the lack of powers of the Attorney-General of the Federation to prosecute offences in Lagos State would require the production of evidence to show whether the Attorney-General of Lagos State authorized the Attorney-General of Federation to prefer and prosecute the charges and the accused persons at the court below. This cannot be done by a respondent’s brief of argument before this court.
(e) That since this issue as aforesaid is one that affects the competence of the charge itself at the lower court, there are statutory provisions stipulating when it can specifically be raised and as such leave cannot be granted to raise it at this stage.”
From the submission of both counsel, the contentious paragraph in question is paragraph 17 in respect of the 1st, 2nd and 3rd appellants while the corresponding paragraph of the 5th and 6th appellants is 16.
The 4th appellant is not, as informed by his learned counsel, directly affected by the application. The said paragraph 17 or 16 as the case may be, where appropriately applicable to the appellants/applicants questions the powers of the Attorney-General of the Federation to prosecute any person for offences under the Criminal Code Cap.32 Vol.2 Laws of Lagos State 1994, being a State law. The issue of contention by counsel is whether such powers are only limited to prosecution under section 174 of the Constitution of Federal Republic of Nigeria 1999 in respect of offences created by an Act of the National Assembly.
It is pertinent to quickly restate at this juncture that on the 18th March, 2010 various learned counsel representing all the appellants, with the exception of the 4th, moved identical and similar applications for leave of this court to amend their respective notices of appeal and also leave to file and argue additional grounds of appeal. A further order was sought that the amended notices of appeal reflecting the additional grounds of appeal should be deemed properly filed and served. The court, consequent to the application granted the reliefs in terms of the prayers sought for, on behalf of the 1st, 2nd, 3rd and 6th appellants/applicants. In respect of the 5th appellant/applicant however, while the amendment sought was granted, the deeming order was refused and instead, that the amended notice of appeal should be filed within seven days of the order and it was duly so complied and filed on the 23rd March, 2010. In the circumstance therefore, it is apparent that the respective amended notices of appeal are all encompassing and inclusive of ground 17 or 16 of the grounds of appeal as the case may be, which should no longer be an issue as if the application is seeking to raise or bring in an additional grounds of appeal. In other words and on a careful perusal of the application at hand, the relief sought for as reproduced earlier in the course of this ruling, which I would again consider relevant to restate even at the risk of being respective, is for:
“An order for leave to argue in the appeals herein issues of law and lack of jurisdiction as raised in the Amended Notice of Appeal…” It is obvious from all deductions that the said issues had been previously raised in the respective amended notices of appeal and which the order of court deeming same had been made on the 18th March, 2010. The court proceeded and ruled that the objection could be taken by the Respondent as a matter of preliminary objection at the hearing of the appeal.
It is also relevant to state that with the said issues being additional and new, the appellants cannot argue thereon without the leave of this court which should have been asked for at the time the leave for the amendment of the notice of appeal was sought, This is the purpose and intention of this application as clearly stated in paragraph 8 of the affidavit in support which was earlier reproduced supra. It is certainly reasonable at this stage or else the whole purpose of the order granting leave to amend and file additional grounds of appeal would be greatly defeated. By refusing to grant the application, it would amount to giving with one hand and again taking away with the other hand. From the analysis of the nature of the application at hand, it will show ex facie that the respondents’ counter affidavit had completely misconceived and misunderstood the purport of the application, especially in view of the caption where it states thus:
“Counter-Affidavit to Motion on Notice dated 12th March, 2010 for leave to raise and argue fresh issues:” The learned counsel Mr. Keyamo also in his submission greatly dwelt on the misconception that the application seeks to raise fresh issues of law and jurisdiction, which in effect does not, but rather seeks to argue that which is already before the court. The submission of counsel does not in my view therefore, properly address the application and hence, the reference made to the authority of the case of H. R. Ltd. v F. Investment Ltd. supra, is not relevant to the respondent’s case. In that case for instance, the application was for leave to raise and canvass a new issue on appeal. This court per Ba’aba JCA at pages 342-343 held and said:
“… that an appellate court must not allow an appellant to jettison before it the question on which the parties joined issues and fought their case before the trial court as to do otherwise will amount in effect to permitting the appellant to commence an entirely new case before the appellate court.”
The case under reference relates to the principles governing the raising a fresh point on appeal. The said case is therefore remarkably distinguishable from the one before us. In other words, while the former was seeking leave to raise and canvass new issues, the latter is only seeking leave of court to argue the fresh issue earlier raised consequent to an order of court and which issues are already before the court.
It is trite law that issue of jurisdiction is very fundamental and hence the plethora of judicial pronouncements by the court of record allowing same to be raised at any stage of the proceeding even, if ,for the first time at the Supreme Court. Jurisdiction is therefore the life wire of a proceeding without which no court either on its own or by consent of parties to a suit could clothe itself therewith. By its very nature, it is fundamental and goes to the root of any case howsoever.
This is more so especially where a ground of appeal is constitutional, as it is with ground related to in the application at hand. Suffice to say that the appeal is not the subject of determination at this stage as such the sustenance of the ground is therefore not the issue, now before the court. The present pre-occupation is whether the justice of the application demands that the appellants/applicants be allowed the leave to advance arguments on the grounds of appeal already before the court.
On the totality of the application before us, I am of the firm view that same has merit and should be granted as prayed. In the result I therefore make an order that leave is granted the 1st, 2nd, 3rd, 5th and 6th appellants/applicants to argue in the appeals herein issues of law and lack of jurisdiction as raised in the Amended Notice of Appeal, those issues not having been taken before the court below:
ADZIRA GANA MSHELIA, J.C.A: I have before now had the privilege of reading the ruling just delivered by my learned brother, Ogunbiyi J.C.A. I am in entire agreement with the reasoning and conclusion reached therein.
The Appellants/Applicants were granted leave to amend and file additional grounds of appeal on the 18th March, 2010. After amending the notice of appeal which includes grounds 16 and 17 appellants/applicants observed that leave of court was not obtained to argue in the appeals, issues of law and lack of jurisdiction as raised in the amended notice of appeal. This necessitated the present application. The application in my humble view is certainly in order, otherwise the whole purpose of the order granting leave to amend and file additional grounds of appeal would be greatly defeated. In the circumstance I hold that the application is meritorious and should be granted.
With this little contribution and the fuller reasons contained in the lead ruling, I too grant the application in terms of the orders made therein.
HUSSEIN MUKHTAR, J.C.A: I have had the privilege of reading in advance the ruling just delivered by my learned brother Ogunbiyi, J.C.A. I fully agree with him in the conclusions reached therein and for the reasons so carefully and lucidly expressed. I simply wish to add my voice to emphasis that an issue of jurisdiction is so fundamental that it may be raised at any stage of the proceedings and even on appeal for the first time in the interest of the proper determination of the appeal. In fact the issue has already been raised in the amended notice of appeal with the leave of this court. In the circumstances the clear justice of the case dictates that leave ought to be granted, almost as a matter of course, to argue the issues of jurisdiction raised in the amended notice of appeal. The Supreme Court in Dangote v. C.S.C. Plateau State per Karibi-White, JSC observed as follows:
“It is well settled law that the question of the validity vernon of the jurisdiction of the court touches on the competence of the court to hear and determine a cause or matter before it, and is fundamental to its exercise of jurisdiction and of adjudication and determination of the cause before it. The existence or absence of jurisdiction in the court goes to the root of the matter and sustains or nullifies the decision of the court in respect of the relevant subject matter – see Obijoya v Registrar of Companies (1975) 4 SC 31 at p. 34, Ezomo v Oyakhire (1985) 1 NWLR (pt. 2) 195; Nwafia v Ububa (1966) NMLR 219. This is why it is allowed to raise the issue of jurisdiction at any time or stage in the proceedings or on appeal as a substantive issue of law – see Bronik Motors Ltd v Wema Bank (1983) 1 SCNLR296; Madukolo v Nkemdilim (1962) 2 SCNLR341; Onyema v Oputa (1987) 3 NWLR (Pt.60) 259.
It is important to point out at once that the absence of jurisdiction accentuates the want of legal capacity and competence in the court to hear and determine the subject matter before it, and does not arise at this stage, any issue as to the rights of parties in the subject matter of the action. In the absence of jurisdiction, there is no competence to exercise the judicial powers vested in the courts by section 6 (6) (b) of the Constitution. It has been frequently stated, and is now well settled that any such exercise of jurisdiction, which is an obvious futility is a nullity and the proceedings and judgment relating thereto null and void. See Timitimi v Amabebe 14 WACA, 374; Sule v Nigeria Cotton Board (1985) 2 NWLR (pt. 5) 17; Western Steel Works Ltd v Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) 617; Sken-Consuslt (Nig) Ltd v Sekondy-Ukey (1981) 1 S.C. 6. See also Adefulu v Okulaja (1998) 5 NWLR (NWLR (pt. 550) 435 … jurisdiction being a statute enabling requirement, cannot be acquired or conferred on the court by consent of the parties, or because the court was oblivious or mistaken as to the defect in its jurisdiction. See Okotie-Eboh v Okotie-Eboh (1986) 1 NWLR (pt. 16) 264.”
For the forgoing and the more detailed reasons in the lead ruling, the application is meritorious and succeeds perforce. Leave is granted to the 1st, 2nd, 3rd, 4th, 5th and 6th appellants/applicants to argue the new issues of law and jurisdiction.
CLARA BATA OGUNBIYI, J.C.A: Each of the six appellants/applicants by a motion on notice filed on 15/4/10, 21/4/10, 16/4/10, 14/4/10 and 19/4/10 respectively are seeking for reliefs which are principally similar to all but with a further additional relief in respect of the 1st, 2nd, 3rd and 4th applicants, though not distantly distinguishable from that sought by the 4th and 5th applicants. The applications are brought pursuant to Order 7 rule 1, order 16 rule 13 of the Court of Appeal Rules, section 28 (1), (2) and (3) Court of Appeal Act 2004, sections 33 and 36 of the Constitution of Federal Republic of Nigeria 1999 as well as the inherent jurisdiction of this court. Without having to reproduce verbatim the reliefs on all the applications, it will serve sufficient to state the ones sought on behalf of the 1st appellant/applicant as follows:-
“(a) AN ORDER suspending the execution of the conviction and sentence passed on the Appellant/Applicant by the High Court of Lagos State on the 26th of October, 2009 pending the determination of the appeal lodged by same.
(b) AN ORDER admitting the 1st Appellant/Applicant to bail pending the determination of his appeal to the Court of Appeal against his conviction and sentence by the High Court of Lagos State (vide the judgment delivered on the 26th of October, 2009 on the ground of changed circumstances since bail was refused to the applicant by this Honourable Court on Thursday the 17th of December, 2009, on an earlier application.
(c) AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
It is relevant to mention that the relief seeking admission to bail is common to all the applicants. Various grounds predicating the applications can be summarized to those of the 2nd and 3rd applicants on their behalf and also the 4th, 5th and 6th applicants which are all encompassing and basically based on four grounds as follows:-
(1) That since the initial bail application to this court was refused on December 17, 2009, the situation and grounds have changed particularly the issue of jurisdiction of the court and the power of the Attorney-General (or lack of it) have come into the fore to make the applicants to be entitled to a reconsideration of the earlier refusal of bail.
(2) That the state of health of the applicants in particular that of the 2nd and 3rd applicants have seriously deteriorated and needing specialist attention which are not readily available in the country.
(3) That the delay in the hearing of the substantive appeal would greatly cause injustice to the applicants who would have served a substantial portion of their sentence in prison if the appeal is eventually resolved in their favour.
(4) That in the light of the changed circumstances and situations they are weighty enough for the exercise of discretion in favour of admitting them to bail thereof. The motions are all supported by affidavits and with the 2nd, 4th and 6th applicants further supported by additional affidavit of urgency.
Paragraphs 6, 7, 8, 9 and 10 of the 1st applicant’s affidavit in support are relevant and serve to bring out the deductive central feature and acumen of the applicants quest for bail. The said paragraphs will be better reproduced:……..
“6. That on the receipt of the five volumes of the record of appeal, an amended notice of appeal was filed by the applicant and by an order of this Honourable court delivered on the 18th day of March, 2010, the said amended notice of appeal filed on the nod of January, 2010 was deemed to have been filed and served on that date.
A copy of the amended notice of appeal of the applicant is now produced and shown to me marked Exhibit ‘OA2′
7. That grounds 11, 12, 13, 17 and 26 raise issues of the jurisdiction of the court below to entertain charges upon which the applicant was convicted and sentenced to a term of 2 years’ imprisonment.
8. That grounds 17 and 26 of the said notice of appeal raise in particular the lack of power of the Attorney General of the Federation in prosecuting the applicant under the Criminal Code of Lagos State when all the counts so formulated do not come within the power of the learned Attorney General of the Federation under Section 174 of the Constitution of the Federal Republic of Nigeria.
9. That the new grounds of appeal aforesaid were not before this court when it considered the application for bail in the Ruling delivered on the 11th of December, 2009.
10. That I verily believe that the said new issues raised by the grounds contained in the amended notice of appeal filed by the applicant among others are weighty and substantial and could decide the appeal in favour of the applicant.”
The Historical developmental situation that gave rise to the application at hand is relevant. In other words, the applicants herein were on the 8th day of August, 2008, along with others at large arraigned before the Ikeja Judicial Division of the High Court of Lagos State on 163 count information to which they all pleaded not guilty.
Subsequently, the said information was amended by the Attorney- General of the Federation who filed the amended information dated the 24th of October, 2008 containing 68 counts. (Pages 511-550 of volume 2 of the records of appeal is evident, wherein the applicants also again pleaded not guilty to the new counts at pages 772-788 of same record). Consequent upon the trial of the applicants, the trial court on the 26th day of October, 2009, convicted them on numerous counts on the charges of conspiracy, disobedience of lawful orders and abuse of office contrary to sections 517 and 203 of the Criminal Code of for bail in the Ruling delivered on the 1ih of December, 2009.
10. That I verily believe that the said new issues raised by the grounds contained in the amended notice of appeal filed by the applicant among others are weighty and substantial and could decide the appeal in favour of the applicant.”
The Historical developmental situation that gave rise to the application at hand is relevant. In other words, the applicants herein were on the 8th day of August, 2008, along with others at large arraigned before the Ikeja Judicial Division of the High Court of Lagos State on 163 count information to which they all pleaded not guilty.
Subsequently, the said information was amended by the Attorney-General of the Federation who filed the amended information dated the 24th of October, 2008 containing 68 counts. (Pages 511-550 of volume 2 of the records of appeal is evident, wherein the applicants also again pleaded not guilty to the new counts at pages 772-788 of same record). Consequent upon the trial of the applicants, the trial court on the 26th day of October, 2009, convicted them on numerous counts on the charges of conspiracy, disobedience of lawful orders and abuse of office contrary to sections 517 and 203 of the Criminal Code of Lagos State. They were each sentenced to serve term of six (6) months and 2 years imprisonment on the said counts and sentences are to run concurrently without option of fine. All the applicants have by the various notices of appeal each lodged an appeal against their conviction and sentence.
On the 22nd March, 2010 at the hearing of this application, all the applicants’ learned counsel each submitted patently on behalf of their clients, the summary of the totality centralling on the four grounds predicating the application which were earlier spelt out in the course of this ruling. The submission of counsel are all interrelated and I would not for purpose of repetitive monotony dwell on each of all the arguments in details. I would however take along all the submissions together in an adumbrated manner since they all aim at the same projection and conclusion.
In his pioneering the arguments, the learned senior counsel Mr. Ayanlaja leading a team of counsel on behalf of the 1st applicant relied on the 18 paragraphs affidavit in support of their application as well as the previous ruling of this court attached and marked Exhibit OA1 delivered on 17th December, 2009 and refusing bail to the applicants. A further reliance was also made on the amended notice of appeal wherein the issue of jurisdiction was raised. That the new issues are in respect of grounds 12, 13, 14, 17 and 26 wherein the grounds of jurisdiction constitute exceptional circumstance to persuade the court in granting bail to a contended applicant. That with the date for the hearing of the appeal yet to be fixed by this court, it means the 1st appellant/applicant will have to remain in prison until the appeal is heard. That with the totality of the sentence being two years, there is the fears of the applicant serving the entire sentence especially with him having served seven months already. The learned senior counsel in the circumstance urged us to admit the applicant to bail therefore:
The learned counsel Mr. Oladele Adesina SAN, also leading a number of counsel in their submission on behalf of the 2nd appellant/applicant, intimated the court of their similar motion for bail but with same dated 20th and filed 21st April, 2010. In moving the application, reliance was made on the two sets of affidavits which are an affidavit of urgency and another in support of the application containing 20 paragraphs and nine exhibits. Four of the exhibits are medical reports of the state of health of the 2nd appellant/applicant.
Specific reliance was also made to the earlier ruling of this court delivered on the 17th December, 2009 and in particular the contribution of Justice Galinje (JCA) as well as reference made to paragraphs 6, 7, 8, 9, 10 and 12 of the said affidavit in support thereof. That based on the medical report Exhibit 07, his client, the 2nd applicant should be admitted to bail on the grounds of ill health. Cited in support was the case of Jamal v State (1996) 9 NWLR (Pt.472) 352 at 368 where this court took judicial notice of inadequacy of our medical facilities and counsel therefore moved in terms of the application.
The 3rd appellant/applicant was represented by the learned counsel Akinola Oladejo, also leading a team of lawyers with him. While urging in favour of admitting the said applicant to bail, great reliance was made on their 26 paragraphs affidavit in support of the motion dated and filed 16th April, 2010 and also on the grounds upon which the application is predicated. Specific reliance was in particular however anchored on paragraphs 7, 8, 9, 12 and 20 of same. The learned counsel substantially also re-iterated the submission by the other earlier counsel relating the jurisdictional and constitutional issue raised in grounds 17 and 26 of the amended notice of appeal as clearly pronounced in their paragraph 8 of the affidavit in support. The question of serving the term of imprisonment was also a major highlight of the submission by counsel and in respect of which he greatly relied on the case of Moji Olamolu v State (2009) All FWLR (Pt.485) p.1500. The applicant’s health situation was also of great concern and the reason which learned counsel impressed upon the court to have sympathy and grant the bail sought for.
Mr. J. B. Daudu, SAN and appearing with juniors in his Company also advanced arguments on the bail application on behalf of their client the 4th applicant, which was filed on the 14th April, 2010. Same was filed sequel to a 16 paragraphs affidavit of urgency and also a supporting affidavit of 23 paragraphs to which seventeen exhibits were attached. Two grounds predicating the application have been spelt out on the face of the motion paper. That the applicant, since the ruling of this court delivered on the 11th December, 2009 and refusing the bail to his client, had within time filed a notice of appeal upon which the brief of his arguments is also based. That all the counts are null and void and therefore that good reasons exist for the granting of the bail sought for in view of the new and special circumstance. The learned counsel related copiously to a reference in the case of FRN v Bulama (2005) 10 NWLR (Pt.96) p.219 at 245-246. Counsel submitted thus, as an ideal situation to grant bail. That the refusal of bail would subject the applicant serving a substantial part of the sentence which he argued should not be the case. That delays occasioned by interlocutory matters as well as vices that afflict the appeal should not affect the granting of bail which is a distinct proceeding all of its own. This, the learned senior counsel submitted because the cumulative effect of the delays serve to impact on his client, the 4th applicant, who stands to suffer. He therefore urged that the court should exercise discretion in granting the bail.
Mr. Olalekan Ojo of counsel represented the 5th appellant/applicant and also appearing in company of a number of counsel with him. Counsel in the same vein re-iterated their application dated and filed 19th April, 2010 wherein bail was sought on behalf of the applicant. Three grounds predicating the application were clearly restated and which summarily rely on the change of circumstances of the case since the earlier bail was refused by this court on the 17th December, 2009. Furthermore, that the said applicant’s appeal should not at the end of the day be rendered an academic exercise by reason of the possible completion of the two (2) years term of imprisonment which same, counsel argued started to run since 26th day of October, 2009. Copious reliance was also made to the 20 paragraphs affidavit supporting the application. Particular reliance was sought specifically on paragraphs 7-19 of same. That with the change in the circumstance warranting the seeking for fresh bail, the application does not therefore constitute an abuse of court process especially where the aim is to do justice. The learned counsel relied upon and adopted the earlier submission of his brothers especially that of the 4th applicant’s senior counsel Mr. Daudu. The counsel also dwelt greatly on the obvious delay hindering the early hearing of the appeal.
This, he lamented especially with the notice of cross appeal by the respondent and that all appellants/respondents in the cross appeal are yet expected to file their briefs of arguments. That the putting in place of all the foregoing would cause time to run against his client and hence the necessity and justification in granting the bail sought for.
Mr. Olayinka Farounbi is a counsel representing the 6th appellant/applicant. In moving the motion dated and filed 19th April, 2010 and seeking bail on behalf of his client, reliance was made on the two sets of affidavits namely affidavit of urgency and also the one in support of the application wherein specific reliance was made on paragraphs 6-13, and 8-25 of the total 13 and 25 paragraphs respectively. That there is no counter affidavit controverting specifically their averments. That the counter affidavit of the respondent has no bearing to the paragraphs and counsel therefore urged this court to take their depositions as the truth of the facts and admit the 6th applicant to bail. The learned counsel Mr. Festus Keyamo in opposing all the applications for bail did file six sets of counter affidavits and which are titled in accordance to the positions of the applicants. In response and opposing the 1st appellant/applicant, counsel relied on the counter affidavit filed 20th April, 2010 containing five paragraphs. On the paragraphs 6-13, and 8-25 of the total 13 and 25 paragraphs support of the application wherein specific reliance was made on additional new grounds sought to rely upon by the applicants, the counsel posited that it is not enough to raise grounds of appeal that touch on constitutional and jurisdictional issues. That the interest of the generality of the people of Nigeria are greatly affected, and that laws are designed to serve as deterrent to others. That the new issue raised must be recondite. That the issue relating the power of the Attorney General to try such offences is settled by the apex court in the cases of Attorney General Ondo v Attorney General of the Federation 2002) 9 NWLR (Pt.772) p.222; also Amadi v Federal. Republic of Nigeria (2008) 18 NWLR (Pt.1119) p.259. These decisions, learned counsel argued were raised and adopted in a recent Supreme Court authority of Jolinyame v Federal Republic of Nigeria delivered on the 5th March, 2010 in Appeal No. SC 136/09. Also on the issue of substantiality, learned counsel commended this court to its earlier ruling in the same case especially the ruling of Paul Adamu Galinje (JCA). That any attempt by the applicants to stampede the grounds of appeal at this stage therefore would be pre-mature.
Submitting on grounds 11, 12, 13, and 14 and upon which questions of delay have been re-emphasized in the affidavits in support, counsel apportioned the blame on the applicants who are responsible and that they should hot therefore be allowed to benefit from their own act. This, counsel argued especially where the applicants by their earlier application reserved for ruling were asking for leave to file fresh issues which application is yet to be ruled upon.
That in view of the situations now on ground, it cannot be said that the appellants/applicants are ready to argue the appeal. More so and with the 5th appellant’s brief of argument just served on the respondent, on the 28th March, 2010, they are still within time to file their joint respondent’s brief. That the said fact had not been contraverted and consequent upon which counsel submitted that delay cannot therefore be a valid excuse as alleged. That with the pending respondent’s application before the court to regularize its brief, the absence of interest to prosecute the appeal cannot be imputed.
In response to the application by the 2nd appellant/applicant, the learned respondent’s counsel adopted and relied on the same arguments advanced supra and which was his reply to the 1st applicant.
Also and in further opposing the application, reliance was anchored on the counter affidavit filed on 22nd April, 2010. On the question of ill health of the 2nd applicant counsel referred to the respondent’s counter affidavit at paragraph 4(b) and warned that this court should be wary to believe such a deposition. That the exhibit, the medical report from LUTH does not tally with the scary condition sought to portray especially where there is no medical recommendation anywhere for surgery abroad as alleged but rather an unrestricted access to any medical facility to the applicant and hence, that his application is therefore defeated and should be refused.
In respect of the 3rd appellant/applicant, the counsel Mr. Keyamo on behalf of the respondent also adopted his earlier submission advanced in response to the 1st and 2nd applicants and relied thereon as well as the counter affidavit sworn to and filed on the 20th April, 2010. That the signatory on Exhibit ‘OAK Law 3′ is not by a specialist. Reference was made to an earlier decision of this court where such was rejected.
Submitting and also opposing the application by the 4th appellant/applicant the learned counsel argued same as grossly incompetent. Further reliance was also banked on the counter affidavit filed 20th April, 2010 especially at paragraph 4(K) which, learned counsel argued, was not contraverted by the applicant.
That the applicant’s affidavit in support was signed in prison and not sworn to before the commissioner for oath in this court. Reference was made to paragraph 4(K) of the counter affidavit as related supra and which he argued offends against section 90 of the Evidence Act.
Learned counsel also adopted his submission earlier advanced and on behalf of the 1st, 2nd and 3rd respondents. Further reliance was also made on paragraphs 4(a) and (b) of the counter affidavit which same have not been contraverted and confirming that they are not out of time.
The submission by the respondent in response to the 1st, 2nd, 3rd and 4th applicants application as well as a counter affidavit filed on the 20th April, 2010 were also, adopted by the learned respondent’s counsel to Oppose the bail on behalf of the 5th appellant/applicant.
Similar adoption of all the earlier arguments made as well as reliance on the counter affidavit filed on the 20th April, 2010 were submitted in opposition to the bail application also on behalf of the 6th appellant/applicant. Counsel Mr. Keyamo on the totality urged that the bail application by all the appellants/applicants should be refused for the reasons advanced on his arguments.
On points of law, the senior counsel Mr. Ayanlaja in further submission heralded that the argument supporting the empowerment of the Attorney General of the Federation prosecuting under the State Law is a complete heresy.
In his response also, Mr. Adesina of Senior Counsel submitted that the rationalization of an expert report cannot be done from the bar by a non medical person or expert. Counsel impressed upon the court to regard Exhibit 07 the urologists’ report as competent therefore. That documents in the circumstance can only be challenged by another expert in the same specialty which the learned senior submitted, the respondent’s counsel is not.
Reference to buttress the submission was made to the case of Honda Place Ltd. v Globe Motors (2005) 7 SC(Pt.3) p.182 at 189 also Egbuna v Egbuna (1989) 2 NWLR (Pt.106) p.773 at 777.
The counsel Mr. Oladeji also in further submission adopted the reply by the 1st appellant/applicant’s counsel Mr. Ayanlaja SAN and further reminded that the applicants were convicted under the criminal code of Lagos State.
Mr. Daudu SAN, on whether or not the 4th applicant appeared before the commissioner for oaths referred to the provision of section 150(1) of the Evidence Act which the learned senior counsel submitted is a statutory maxim of presumption. That paragraph 4(K) of the counter affidavit does not rebut that presumption. In other words, that, with the attestation being regular, it is therefore valid. In the absence of Mr. Ojo, counsel for the 5th applicant, who in the course of proceeding left the court, Mr. Adewale Akande who appeared with him stepped into his shoes and adopted the reply submission of the senior counsel for the 1st appellant/applicant and urged that bail be granted his client as prayed.
Lastly but not the least, is Mr. Farounbi who in his reply cited the authority in the case of Ojo v Ghaoro a Supreme Court decision which learned counsel promised to avail the court of the citation thereof.
Counsel also referred to the earlier ruling of this court at page 14 paragraph 4. This therefore concludes the arguments and submissions by all counsel in respect of this application.
The only issue for determination in this application is whether this court can, in the circumstance exercise its discretion in favour of the bail sought for by all the applicants. It is significant to restate that an earlier bail application was made to this court by the applicants which same was, on the 17th December, 2009 refused and dismissed as lacking in merit. From the submissions of all counsel made before us, the subsequent application now at hand is predicated on the change of the situational circumstance of the appellants/applicants’ state of appeal.
In other words, that, with the additional grounds of appeal raising fresh constitutional issues of law relating the powers of Attorney General of the Federation to prosecute under the state law, the jurisdictional competence of the lower court had been thrown into question.
I would on the onset restate that by the order of this court made on the 18th March, 2010, leave was granted all the appellants/applicants to amend their respective notices of appeal for purpose of reflecting the additional grounds of appeal and a further order was also made deeming the said amended notice of appeal as duly filed and served. It follows therefore that the arguments by the learned respondent’s counsel Mr. Keyamo that the grounds of appeal are yet to be admitted before the court cannot be correct.
In other words, the said grounds of appeal questioning the powers of the Attorney General are properly before the court, and which had been ruled upon by the earlier ruling delivered this morning and in this case on the application seeking the leave of this court to argue in the appeals herein issues of law and lack of jurisdiction as raised in the amended notice of appeal.
The question relevant is whether the bail application can be considered in favour of the applicants in view of the constitutional and jurisdictional issues raised on the powers of the Attorney General.
In the consideration of whether or not to grant bail, it is relevant to note that the applicants at hand are convicted persons and are therefore seeking for bail after conviction and pending an appeal. It is relevant to echo therefore that bail to the applicants is absolutely discretional and depending on the exceptional facts, circumstances and severity of the offence. This cannot be equated with bail pending trial wherein the applicant, no matter what offence, he had committed, would still be presumed innocent as provided for under the constitution until proved otherwise by the prosecution. In the nature of the application at hand, the applicants are no longer entitled to any constitutional right to bail with the presumption of innocence having been lost on the conviction. The cases of Jammal v State, reference supra, Okoroji v State (1990) 6 NWLR (Pt.157) 509, and Fawehinmi v State (1990) 1 NWLR (Pt.127) 486 are all relevant.
Also in the case of Rex v Theophilus Adenuga Tunwashe (1935) 2 WACA 236 it was held that:
“The principles upon which an applicant will be admitted to bail pending his appeal have been well settled.
…It has frequently been laid down that the court will not grant an application unless there are exceptional and unusual reasons (see Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486 at 494.”)
Further and in the same said case of Jammal v State supra, this court held at page 366 and said:
“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 applicants innocence does no longer exist, because of his conviction, he must show special circumstances to be entitled to bail pending the determination of his appeal.”
In Tunwashe’s case supra, the West African Court of Appeal (WACA) after a careful consideration concluded that bail will not be granted pending an appeal save however in exceptional circumstances.
Also the case of Buwari v State (2004) 16 NWLR (Pt.899) 285 is relevant. Applying the case at hand to the judicial authorities under reference supra, the learned counsel for the applicants heavily relied on the issue of jurisdiction and constitutional powers exercised in the prosecution of the applicants. In other words that the court should see such ground of appeal as an exceptional and special circumstance for the consideration of bail.
From the affidavit evidence deposed to by the applicants and also the exhibits attached therewith, great reliance has been laid upon the weighty nature of the grounds of appeal and the possible likelihood of success of the appeal thereof. It is significant to quickly point out that, the merit of the appeal is not the consideration now before the court.
Whether or not the new grounds of appeal have placed the appellants/applicants on a firmer pedestal in their appeal, is a question yet to be determined at the hearing of the substantive appeal when it eventually comes up. Suffice to say that, as it is for now, consideration ought to be given to what facts are placed before the court as against a bewildered and speculative anticipation of that which is yet to come. Whether or not the grounds are substantial, strong, cogent and arguable, is for determination at the appeal and not at this stage of bail application. It is trite law and well enunciated times without number that the court is not to speculate on matters not placed before it. We cannot therefore deduce the outcome of either the merit or otherwise of the appeal.
The further second ground predicating the application relates to the ill health of the applicants in particular the 2nd and 3rd whose applications are supported by affidavits deposing their situations which are said to deteriorating.
From the affidavit evidence of urgency and also the one supporting the application, the 2nd applicant we are told, is currently on admission at LUTH where he has been receiving treatment since the 18th March, 2010. He also seeks access to avail himself to a better medical treatment in Saudi Arabia or Germany. Exhibit 04, 05, 06, 07 and 08 are all medical reports supporting the need for better health facilities to the applicant.
In respect of the 3rd appellant/applicant the ground of his application only relates to the situational change wherein new grounds of appeal on jurisdiction and the powers of the Attorney General have been introduced. The issue relating the applicant’s ill health was not a ground but deposed to at paragraph twenty of the affidavit in support.
The medical report ‘Exhibit OAK Law 3’ is also attached and same which was issued by one Dr. E. E. Amah (DCP) (M) of the Nigerian Prison service. The deposition did not allege further that the said applicant was refused medical treatment in any hospital within Nigeria. It is obvious from the affidavit evidence placed before us that the applicants are not restricted and refused medical treatment in any hospital outside the Prison Clinic. The justification for the quest to travel outside the country for further treatment, am afraid, has not been made out. There is every indication that the applicants have free access to treatment and specialists if desired especially where they are granted admission at LUTH, on the available affidavit evidence placed before the court.
The applicants are convicts and allowing them to travel outside the shores of Nigeria will give not guarantee that they will eventually avail themselves at the hearing of the appeal when it finally comes up Great caution has to be exercised in matters of this nature and in respect of which careful consideration has been given to all materials placed before us. The health situations of the applicants are not shown to be life threatening since the evidential depositions have shown their free access to medical facilities. Relevant in point again, is the case of Jammal v State (supra) wherein this court in the consideration of bail pending appeal related to the English case of R v Gott 16 C. A. R. 56 where in an effort to convince the Court of Appeal in England to grant bail to a convicted applicant, it was submitted, that the applicant was in bad health and was willing to produce substantial sureties if bail was granted him. The Court of Appeal in England while refusing bail, maintained that:
“No special circumstance was shown saying, “if we grant this application we would never consistently refuse bail.”
This court, in the interpretation of the English case under reference had this to say therefore:
“the above interpretation could mean that if bail is granted whenever an applicant avers that he is in bad health, bail could never be refused in any such circumstance which is not special or unusual and a floodgate would be opened for frivolous applications which will let open the prison gates for convicts.”
The fear of the floodgate exploitation on account of ill health has overshadowed the judicial notice taken of the inadequacy of our medical facilities which was pronounced by this court in the same case of Jammal v State (supra) and relied upon by the learned counsel Mr. Adesina representing the 2nd appellant/applicant.
The next issue for consideration is the question of delay in the hearing of this appeal and the fears that same might not be heard before the court goes on vacation. In my view the agitations put forth are all speculative and do not necessarily amount to situational realities. On whether or not the hearing of the appeal would be affected by reason of the court proceeding on vacation as pointed out in the grounds supporting the 2nd applicant’s application, this I hold would greatly be dependent upon the parties to the appeal themselves.
In other words it is open to the parties to abridge the time for the hearing of this appeal which could very much be taken in the soonest possible time. This should be accorded the urgency it deserves especially where the appeal is criminal in nature and which should be given an accelerated hearing.
lastly and on the appellants/applicants likelihood of spending the greater part of the sentence in prison, I would further restate the authority in the case of Jammal v State (supra) wherein the principle of presumption of applicants innocence no longer exists because of the conviction.
The learned senior counsel Mr. Daudu relied heavily on the decision of this court in the case of FRN v Bulama (2005) 10 NWLR (Pt.961) p.219. Without having to belabor the case in reference, it is pertinent to emphasize that the matter in that case related to bail pending trial and which cannot be equated with the case in issue wherein the question of presumption of innocence is no longer open to the applicants.
On the totality of the application before us, I am of the considered opinion that same I hold is bereft of any special or exceptional circumstances warranting the exercise of discretion in favour thereof. I would however make an order of accelerated hearing of the appeal.
The application in the result is refused and accordingly dismissed.
ADZIRA GANA MSHELIA, J.C.A: I have had the privilege of reading in draft the ruling of my learned brother, Ogunbiyi, JCA just delivered and I entirely agree with the reasoning and conclusion therein. I only wish to add few words of mine in agreement.
The applicants were convicted by Hon. Justice Oyewole of the Lagos State High Court on the 26th day of October, 2009, on numerous counts for the offences of disobedience of lawful orders contrary to section 517, and abuse of office contrary to section 203 of the Criminal Code of Lagos State. They were each sentenced to a term of six(6) months and 2 years imprisonment each on each of the numerous counts. The sentences are to run concurrently without an option of fine. Being aggrieved by the judgment of the court below the applicants appealed against the said conviction and sentences. Pending determination of the appeal, the applicants sought for bail but same was refused by this court on 17/12/09. Each applicant has again brought a similar application seeking for bail pending the determination of the appeal lodged by each of them. I wish to note that before conviction bail is granted as of right to an accused person standing trial notwithstanding the gravity of the offence committed. This is because there is a constitutional presumption in favour of the liberty and innocence of the individual. However, after conviction bail is no longer granted as of right because the constitutional presumption of innocence is gone by virtue of the conviction so also the presumption in favour of liberty.
The court of appeal will not as a rule grant bail to a prisoner pending the determination of his appeal unless there are exceptional and unusual reasons why bail ought to be granted to the appellant. It is the duty of every applicant to present the necessary materials before the court in support of his application to enable the court exercise its discretion in his favour. The exercise of the discretion must be judicial and judicious. A number of factors have been identified as constituting very exceptional circumstances. See: Buwai v. State (2004) 16 NWLR (Pt 899) 285; Ani v. State (2004) 7 NWLR (Pt 872) 249 and Enebeli v. Chief of Naval Staff (2000) 9 NWLR (Pt 219) 119. . The compelling consideration for the exercise of this discretion lies with and within the peculiar facts of the individual circumstances made out as exceptional. Therefore, no one case is on all fours with the other.
The 1st – 6th applicants are asking this court to consider their application for bail on ground of changed circumstances.
Deducing from the submissions of counsel, the fresh facts relied upon as constituting exceptional circumstance are as follows:
1) Substantiality of the grounds of appeal. In particular the ground of appeal challenging the jurisdiction of the trial court,
2) The possibility that the appellants would have served substantial portion of the term before the determination of the appeal,
3) Deteriorating health condition of 2nd and 3rd appellants.
As regards the substantiality of all the grounds of appeal raised by the appellants, I would not hesitate to say that all the grounds are arguable. I agree with the submission of 1st applicant’s counsel that a ground of appeal challenging jurisdiction is weighty but at this stage it would be difficult to conclude that the ground constitute exceptional circumstance without delving into the merit of the substantive appeal. See: Olamolu v. The State (2009) All FWLR (Pt 485) 1808 paragraphs G – H. It is my humble view that it would be more appropriate to resolve the issues arising from the grounds of appeal while determining the substantive appeal.
Applicants expressed fear that by the time this court would hear the appeal, they would have finished serving their term. From the record, it is evident that briefs would soon be exchanged by parties. The hearing of the appeal timeously depends on the cooperation of each counsel involved in this appeal. Being a criminal matter, I am of the humble view that an order of accelerated hearing is a better solution to the problem. My learned brother in the lead ruling had already made the order. By the nature of the application there is need for this court to exercise caution. As earlier stated the constitutional presumption of innocence is gone by virtue of the conviction so also the presumption of liberty.
Therefore the need for the court to exercise its discretion judiciously and judicially cannot be over-emphasized.
On the state of health of the 2nd applicant I have carefully gone through paragraphs 6 – 12 of the affidavit in support of his application. Exhibit ’07’ i.e. the medical report issued by Lagos University Teaching Hospital only stated that applicant require further major surgical intervention. There was no recommendation for surgery abroad. The learned senior counsel Mr. Adesina stated in the course of his submission that his client is currently on admission at Lagos State university Teaching Hospital receiving treatment. The facts averred in the affidavit in support disclosed that applicant was not denied access to medical care. The averment in paragraph 9 (j) disclosed that applicant has the means to afford a better medical care abroad. But the averment in paragraph 10 of the affidavit did not state that there is no qualified consultant cardiologist as well as a consultant urologist in Nigeria that could attend to the applicant’s medical condition. For clarity paragraph 10 read thus:
10. That the state of health of the Applicant now requires a ,consultant cardiologist as well as a consultant urologist none of which is available at the prison medical clinic to attend to the Applicant’s medical condition.
The 2nd applicant’s admission at LUTH clearly showed that he is not restricted to prison medical clinic only as averred to in the affidavit in support. Similarly, 3rd applicant relied on his condition of health as exceptional circumstance that would entitle him to bail. The 3rd applicant’s counsel also relied on the facts averred to in paragraphs 20 – 23 of the affidavit in support to show that the prison medical centre does not have the expertise and facility to arrest the serious medical condition of the 3rd applicant. By this averment it cannot be said that 3rd applicant is denied free access to medical care. The 2nd applicant is on admission at LUTH, I believe the prison authority would be willing to allow the 3rd applicant to seek for specialist treatment in the same hospital. Both the 2nd and 3rd applicants have failed to show by their affidavit evidence that they were denied access to medical care. As rightly submitted by respondent’s counsel applicants have unrestricted access to health care. Also the health condition of the applicants are not shown to be life I threatening. There is no dispute as to the fact that issue of ill health has been accepted by the courts as exceptional circumstance. See: Jamal v. State (1996) 9 NWLR (Pt 472) 352. Be that as it may it has to be borne in mind that every case must be treated according to its peculiar set of facts and circumstances. On the whole I am of the firm view that the application did not disclose exceptional or unusual circumstances to warrant the exercise of court’s discretion in their favour.
For this reasons and fuller reasons given by my learned brother, Ogunbiyi, JCA in the lead ruling, I too dismiss the application as lacking m merit and abide by the consequential order made therein.
HUSSEIN MUKHTAR, J.C.A: I had the opportunity of reading in advance the ruling of my learned brother Ogunbiyi, J.C.A. just delivered.
I entirely agree with him that the justice of the case in respect of all the applicants requires that the appeal be heard and determined expeditiously. The settlement of all issues in the appeal in the present circumstances is not only more deserving in view of the various depositions in the affidavits in support and against the instant applications, but also dictated by the provision of 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 under which the applications were brought. It merely tantamount to chasing shadows by wasting valuable time seeking for bail after conviction when the same frame of time or even less could have been utilized to hear and determine the appeal. Bail after conviction is not a matter of right as it is before conviction. It is only granted under exceptional and compelling circumstances, which are nonexistent in this case.
I subscribe to all the orders made in the lead ruling.
Appearances
Mr. O. Ayanlaja SAN
Mr. Bambo Adesanya SAN, Dr. A. I. Layoun SAN,
Mr. F. A. Williams, Mr. M. O. Adebayo, Mr. J. O. Abdul-Salam, and
Miss O. Ayanlaja.
Mr. Oladele Adesina SAN, with Mr. Olabisi Ade-Ademuwagun, Mrs.
Olubunmi Lawani, and Olumide Olaiya
Mr. Akinola Oladeji with Olugbenga Ojo, Michael Lana, Olusegun
Oyenamu, and L. O. Osanemuwabe
Mr. J. B. Daudu SAN
Mr. Oluwa Rotimi Sanni, Anthony Atata; and Chioma Mgbemena.
Mr. Olalekan Ojo, Vanta Vusuf and Adewale Akande
Mr. Olayinka Farounbi For Appellant
AND
Mr. Festus Keyamo with O. Oluwole For Respondent
