CHIEF PRIEST FELIX NOSAKHARE OSADOLOR (ALIAS AFRO) V. THE STATE
(2012)LCN/5459(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/B/368C/2010
RATIO
BAIL: BAIL PENDING APPEAL: BAIL PENDING APPEAL IS ONLY GRANTED ON VERY SPECIAL AND EXCEPTIONAL CIRCUMSATNCES
It is trite that application for bail pending appeal is granted only on very special and exceptional circumstances. After conviction, the convict, save under exceptional circumstances, has no right at all to bail. See
OJO v. F.R.N. (2006) 9 NWLR (Pt. 984) 105.
BUWAI V. STATE (2004) 16 NWLR (PT. 899).
ENEBILI V. CHIEF OF NAVAL STAFF (2000) 9 NWLR (PT. 671) page 199.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
BAIL: BAIL PENDING APPEAL: THE FACT THAT A PERSON IS ILL DOES NOT MEAN HE WILL BE ALLOWED BAIL EXCEPT HE GIVES COMPELLING REASONS
The mere fact that a person in custody is ill does not entitle him to be released from custody or allowed bail unless there are really compelling grounds for doing so. An obvious ground upon which such bail would be granted on ground of ill-health is when the continued stay of the convict in detention poses a possibility of a real health hazard to others. See
BULAMA V. F.R.N. (2004) 12 NWLR (PT 888) 498.
ABACHA V. STATE (2002) 5 NWLR (PT 761) 638.
Thus a mere allegation of ill-health is not a sufficient ground for the grant of bail. The circumstances of the ill-health must be so compelling in order to warrant the release of the applicant and thereby avert undue exposure to health hazard or calamity or death in custody. See
BULAMA V. F.R.N. Supra.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
APPEAL: APPLICATION FOR ENLARGEMENT OF TIME: WHAT MUST BE FOLLOWED WITH IT
Order 7 Rule 10 (2) of the Rules of this court provides inter alia:
“an application for enlargement of time shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
This provision is in tandem with various judicial dicta on the matter. See for example
KIYAWA V. MADAWAKI (1986) 2 NWLR (PT. 20) page 113.
HISPANIC CONSTRUCTION NIG LTD V. ODOGIYAMI (1986) 4 NWLR (PT. 34) Page 248.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
CHIEF PRIEST FELIX NOSAKHARE OSADOLOR (ALIAS AFRO) Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Ruling): This ruling deals with two applications, one is for bail pending appeal, while the other is for leave to appeal against a no case submission. I will take the application for bail pending appeal first.
In the application for bail pending appeal, the Applicant is praying this court to admit him to bail pending the determination of this appeal. The grounds are ill-health of the Appellant/Applicant and urgent need for a high risk surgery. Attached to this application are a 36 paragraph affidavit, a further and better affidavit and three exhibits among others.
The Appellant/Applicant was on the 23rd day of July 2010 with two others sentenced to death by hanging by a Benin High Court.
Counsel for the Appellant/Applicant Chief E.L. Akpofure SAN had on the 8/5/12 while arguing this application for bail, urged this court to consider the age of the Applicant which he put at 77 years and the fact that he is Asthmatic and requires highly specialized hospital to manage the ailment and surgery. When challenged about the authenticity of the documents in support of the application, Chief Akpofure SAN asked for a date to produce the originals of the exhibits to show that they were genuine and not forged.
The Application was then adjourned to 22/5/12.
On the 22/5/12, Chief E.E. Esusuakpo who concluded the bail application urged the court to discountenance paragraphs 8 & 9 of the counter affidavit as the deponent therein did not disclose his source of information. He urged the court to look at exhibit OSA 2 since there is no challenge from the Prison authority as to the authenticity of the document. He urged the court to grant the application which is at its discretion.
In opposing the application for bail Chief Otemiewo relied on the counter affidavit deposed to on the 22/12/2011. He argued that since the only ground for this application is ill-health, the Applicant must satisfy this court that where the convict is being kept has no facility and that he is in eminent danger of death, this he said they have failed to establish. He urged the court to dismiss the application for bail since the Appellant/Applicant has filed his brief in the main appeal.
I have listened to both counsel and have gone through the affidavit as well as the further and better affidavit and the exhibits attached. It is trite that application for bail pending appeal is granted only on very special and exceptional circumstances. After conviction, the convict, save under exceptional circumstances, has no right at all to bail. See
OJO v. F.R.N. (2006) 9 NWLR (Pt. 984) 105.
BUWAI V. STATE (2004) 16 NWLR (PT. 899).
ENEBILI V. CHIEF OF NAVAL STAFF (2000) 9 NWLR (PT. 671) page 199.
The mere fact that a person in custody is ill does not entitle him to be released from custody or allowed bail unless there are really compelling grounds for doing so. An obvious ground upon which such bail would be granted on ground of ill-health is when the continued stay of the convict in detention poses a possibility of a real health hazard to others. See
BULAMA V. F.R.N. (2004) 12 NWLR (PT 888) 498.
ABACHA V. STATE (2002) 5 NWLR (PT 761) 638.
Thus a mere allegation of ill-health is not a sufficient ground for the grant of bail. The circumstances of the ill-health must be so compelling in order to warrant the release of the applicant and thereby avert undue exposure to health hazard or calamity or death in custody. See
BULAMA V. F.R.N. Supra.
Similarly, where a medical report tendered in support of an application for bail is not persuasive and lacks evidential value, it would not advance the case of the applicant and the court may refuse to exercise its discretion to grant bail.
I have painstakingly gone through exhibits OSA 1 – OSA 3 attached to the further and better affidavit. None of the medical reports exhibited conveyed the impression that the Applicant was in eminent danger of death. Rather all the reports show that his organs are normal.
Considering the nature of the offence for which the Appellant/Applicant was convicted and the fact that the said Appellant/Applicant has filed his brief in the main appeal, I see no reason let alone exceptional reason or justification to warrant granting the Appellant/Applicant bail pending the hearing of his appeal. Accordingly, the application for bail pending appeal is hereby dismissed.
On the application for leave to appeal against the Ruling on the no case submission delivered on 20/2/09 in Suit No. B/57c/06, Chief Akpofure SAN for the Appellant/Applicant argued that the trial Judge held that the evidence tying all the accused persons at the trial were hear-say. He proceeded to discharge the 1st and 2nd accused and ruled that a prima facie case has been established against the 3rd – 8th accused persons to warrant their being called upon to defend. This eventually led to the conviction of the Appellant/Applicant and two others in the final Judgment. He urged the court to grant the application.
Chief Otomiewo in opposing this application argued that having decided to go into defence, that the Appellant/Applicant has waved his right and therefore should concentrate on the appeal against the final Judgment and not on the no case submission. He urged the court to dismiss this application which he described as multiplicity of action.
It is clear from the 19 paragraph affidavit in support of this application that the Ruling, the subject matter of this application was delivered since the 20th day of February 2009 in Suit No. B/57c/09 in respect of a no case submission made on the 14th day of November 2008 on behalf of the Appellant/Applicant. The most germane of which are paragraphs 3, 6 and 7. Paragraph 3, 6 and 7 of the affidavit in support of this application read:
“(3) That, I know as a fact that the Lower Court presided over by Hon. Justice C.O. Idahosa delivered a ruling on the 20th day of February, 2009 in Suit No. B/57C/09 in respect of a no case submission made on my behalf on the 14th day of November, 2008 by my said erstwhile counsel between the State V. Priest Felix Nosakhare Osadolor (alias Afro).
(6) That I later briefed the office of E.L. Akpofure (SAN) & Co; on or about the first week of September, 2010 to prosecute this appeal on my behalf.
(7) That the records of appeal got to my new counsel’s office on or about the 20th day of October, 2010.”
The reasons for the delay in bringing this application since February 2009, or at least since September 2010 when he briefed the present counsel in my view are inordinate and not enough reason to justify the delay in bringing this application for leave to appeal on the no case submission.
Order 7 Rule 10 (2) of the Rules of this court provides inter alia:
“an application for enlargement of time shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
This provision is in tandem with various judicial dicta on the matter. See for example
KIYAWA V. MADAWAKI (1986) 2 NWLR (PT. 20) page 113.
HISPANIC CONSTRUCTION NIG LTD V. ODOGIYAMI (1986) 4 NWLR (PT. 34) Page 248.
The two requirements of the foregoing Rule and decisions of court must be cumulative and not alternative. Now applying the foregoing principles to the present application betrays the inadequacy of the reasons given in paragraphs 3, 6 and 7 of the affidavit in support of this application.To me, the foregoing reasons are not only porous but also puerile for one fails to see why the Appellant/Applicant had to wait for so many years before bringing this application if he was genuinely aggrieved on the ruling of the no case submission.
In my view therefore, the condition that good and substantial reason has to be adduced in an application of this nature has not been met in order to sustain this application. Accordingly, this application is dismissed.
RAPHAEL CHIKWE AGBO, J.C.A.: In this composite ruling, Nwosu-Iheme JCA, PhD has dealt with two interlocutory applications. The first is an application for bail pending appeal after conviction while the second is an application for leave to appeal against an interlocutory decision of the trial court which found that the appellant had a case to answer. I agree with Dr. Nwosu-Iheme that the appellant has not made out any of the two applications. I, too, join her in refusing the two motions. The said applications are hereby dismissed.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read the leading rulings just delivered by my learned brother, NWOSU-IHEME JCA. I agree that the two applications lack merit, they are both hereby dismissed accordingly.
Appearances
CHIEF E.L. AKPOFURE SAN, with him are MRS. N.M. ALADUM and V.O. IDIAGHOFor Appellant
AND
V.E. OTOMIEWO, with him MRS. K.E. BRISIBEFor Respondent
