EMMANUEL EHIDIAMHEN OKOYOMON v. ATTORNEY GENERAL OF THE FEDERATION
(2015)LCN/8027(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of November, 2015
CA/A/260/2015
RATIO
PRACTICE AND PROCEDURE: BAIL; THE GRANT OR REFUSAL OF BAIL PENDING AN APPEAL ON ACCOUNT OF ILL HEALTH
If the prison authorities saw it proper to send the applicant to the hospital for observation or treatment, this court fails to see why they cannot continue doing so in the same spirit; after all he is the responsibility of the prison authorities, at least while he is in their custody.
The decision of this court in A. I. ASSOCIATES & ANOR v. FRN (2014) LPELR-24107-CA is clear and instructive in this regard, where it was held:
“Being ill is never an excuse for bail, the prison authorities should wake up and live up to their responsibilities; if persons are detained they will fall sick just as much as they would naturally feel hungry and be fed; the prisons are not meant for detention of persons only, they are meant to also feed the detained persons and treat their ailments when they fall seek. There is no excuse for shifting responsibilities.
The responsibility of treating an ill or sick convict is squarely on the state, i.e. the prison authority in this case; every detainee, with no exception ought to be treated by the prison authority when they present with sickness, there should be no complaints, or conditions attached to such treatment, courts should not encourage the prison authorities to derelict in this very important duty, it goes to the root of the penal system.
The same way the prison authorities bear the burden of feeding the prisoners they also bear the burden of making sure every medical condition of a prisoner is attended to, while such prisoner is in their custody and care, see ABACHA v. STATE (2002) 5 NWLR part 761 at 638.” per. MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
EMMANUEL EHIDIAMHEN OKOYOMON Appellant(s)
AND
ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling): This is an application brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules and the inherent jurisdiction of this court; it is for an order of this court admitting the appellant/applicant to bail pending the determination of his appeal against the judgment of Honourable Justice E. S. Chukwu of the Federal High Court, delivered on the 4th of May, 2015 in suit No.FHC/ABJ/CS/670/14, between the Attorney General of the Federation v. Emmanuel Ehidiamhen Okoyomon; and for an order of this court granting accelerated hearing of this appeal. The prayer for accelerated hearing was withdrawn and struck out without objection.
The grounds upon which the application is brought are that:
1. The appellant/applicant herein being dissatisfied with the judgment of this trial court has filed two Notice of Appeal on the 6th and 8th days of May, 2015,
2. That the Appellant/Applicant is having severe health challenges while in custody at Kuje Prisons, Abuja.
3. That there is no medical facility made available to the Appellant/Applicant for use despite repeated demands.
4. That it is in the
?1
interest of justice to grant the Appellant/Applicant bail pending appeal, to enable him seek proper medical attention and care outside the said Kuje Prison.
5. That the Appellant had been previously refused bail by this Honourable Court on 25th June, 2015 but new facts arising from recent medical examination authorized by the Nigerian Prison Service have made it necessary for this present motion to be brought for the Appellants bail.
The application is supported by a 25 paragraph affidavit deposed to by Lukman Fagbemi, with the judgment of the Federal High Court Abuja complained of as Exhibit A, the notice and grounds of appeal against the judgment in Attorney General of the Federation v. Emmanuel Ehidiamhen Okoyomon delivered on the 4th of May, 2015 filed on the 6th of May, 2015 as Exhibit B, another notice and ground of appeal against the same judgment filed on the 8th of May, 2015 as Exhibit C, a request for full medical report by the Deputy Controller of Prisons to the Consultant Cardiologist at Asokoro District Hospital dated 22nd of September, 2015 as Exhibit D, a medical report from the Asokoro District Hospital to the Deputy Controller of
2 Prisons, also dated 22nd of September, 2015 as Exhibit E.
In opposition to the application of the applicant, the respondent filed a 24 paragraph affidavit deposed to by Akutah Pius Ukeyima with the ruling of this court in CA/A/260/2015 Emmanuel Ehidiamhen Okoyomon v. Attorney General attached as Exhibit 1, motion on notice for bail before the Federal High Court Abuja filed on the 29th July, 2015 as Exhibit 2, and counter affidavit against that motion in the same Federal High Court filed on the 5th of August, 2015 as Exhibit 3.
In response to the counter affidavit the appellant/applicant filed a further affidavit of 22 paragraphs deposed to by Charity Adah also with written address of learned senior Counsel on points of law attached.
Dr. Alex A. Izinyon, SAN learned Counsel for the appellant/applicant formulated the following issue for determination:
Whether the appellant is entitled to the grant of bail pending appeal in the light of his deteriorating health condition.
On issue one it is submitted for the appellant/applicant that his further deposition shows that his health has further deteriorated since the ruling of the 25th of June,
?3 2015 dismissing his earlier motion for bail, as further buttressed by Exhibits D and E, a letter from the Nigerian Prisons Service and medical report of the evaluation of the appellant’s health submitted to the Nigerian Prisons Service respectively.
That the failing or deteriorating condition of a person in custody is a factor worthy of consideration in determining whether to grant him bail or not, he referred this court to ABACHA v. STATE (2002) 5 NWLR part 761 at 653.
That the refusal of the earlier motion for bail by this court does not amount this court being functus officio on the issue of bail.
M. S. Hassan Esq., learned Counsel for the respondent formulated a sole issue for determination in response as:
Whether this is an appropriate for this court to exercise its discretion in favour of the applicant on the issue of bail when this Honourable Court and indeed the High Court of the Federal Capital Territory, Abuja had refused to grant bail to the appellant/applicant on the same facts.
It is submitted for the respondent that the action of the appellant amounts to forum shopping because this court had earlier refused a similar
?4 application on the same facts; he referred to Exhibit CAU1 attached to the Counter Affidavit.
That also the action of the appellant is an abuse of court process; because this court had settled the matter by refusing bail on the same facts, just as the appellant brought the same application to the High Court of the Federal Capital Territory and now this court again, learned Counsel referred the court to ARUBO v. AIYELERU (1993) 3 NWLR part 280 at 142 and urged to dismiss the application.
That the issue of ill health raised is not sufficient in itself; he referred the court to CHINEMELU v. COP (1995) 4 NWLR PART 390 AT 486-487 and ABACHA v. STATE (2002) 5 NWLR part 761. He urged the court to dismiss the application.
Learned senior Counsel further submitted in response that the facts relied on for this application are not the same as in the earlier application made and that this application does not amount to forum shopping or abuse of court process, he referred the court to Exhibits D and E and further submitted that the prison service does not have the facilities to deal with the appellant’s health problems.
This court has carefully gone
?5 through the application and the accompanying affidavits, as well as submissions of learned Counsel on both sides of the divide; and has come to the conclusion that the sole issue left standing formulated for the appellant/applicant suffices for the determination of this application, for the simple reason that it more aptly addressed the issue at stake.
Issue:
Whether the appellant is entitled to the grant of bail pending appeal in the light of his deteriorating health condition.
It is not in doubt that the applicant applied for bail earlier at both the High Court of the Federal Capital Territory and this court, and was refused bail on each occasion.
Having gone through the affidavits, and particularly Exhibits D and E this court is satisfied that the facts relied on in the earlier applications and this application are not the same, evidently.
?Paragraphs 13, 14, 15, 16 and 17 of the affidavit in support of the application are to the effect that the applicant was referred to Asokoro District Hospital for examination through Exhibit D as a result of which Exhibit E was written indicating that the health of the applicant had
6 deteriorated.
It is on the basis of Exhibit E that this latest application was made to this court; and if this were so, then it is the considered opinion of this court that the applicant can neither be accused of forum shopping or abusing court process as it is, at least not on account of this application.
In the case of C.B.N. v. AHMED (2001) 11 NWLR (Pt.724) p.369, their Lordships of the apex court at page 408 had this to say, on what is meant by the terminology an abuse of process of court, wherein Ogundare JSC (of blessed memory) had this to say as the definition:
“It simply means that the process of the court has not been used bona fide and properly.”
In AMAEFULE v. THE STATE (1988) 2 NWLR (Pt.75) 156 at 177, Oputa JSC defined the expression ‘abuse of process of the court’ thus:
“Abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process.”
?It is clear to this court from the fore going that no case of abuse can be said to have been properly made
7 out.
Forum-shopping on the other hand is the practice of choosing the most favourable judicial division in which a claim may be heard. Instructively, it denotes the rather reprehensible practice of choosing the most favourable territorial jurisdiction or court in which a matter or cause may be entertained and adjudicated, for the sole purpose of getting a favourable hearing, and consequently result; it is not much different from Judge-shopping, a practice of filing several suits or applications in a Court or a district with multiple judges hoping that one or more of the suits or applications may be assigned to a particular judge that may be favourable to the plaintiff, See OYINLOLA v. DAYO (2013) LPELR-21565-CA.
Clearly the applicant cannot from the circumstances of this case be accused of either.
Having said that the question now arises, whether from the facts and circumstances of this application per se the applicant is entitled to bail.
?The granting of bail pending an appeal is clearly at the discretion of the court, and it depends on the special facts, and circumstances of the case, it is never a matter of course, as it is often assumed
8 in most cases. Every application for bail pending appeal is to be considered on its peculiar, special facts and circumstances. See OKOROJI v. STATE (1990) 6 NWLR (Pt.157) 509; FAWEHINMI v. STATE (1990) 1 NWLR (Pt.127) 486.
The facts and circumstances of this case are clear and need not be repeated; Exhibits D and E the foundations of this application show that the prison authorities referred the applicant to Asokoro District Hospital as per Exhibit D and a report was issued as per Exhibit E, indicating that the applicant’s health had deteriorated.
“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 WRN 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.” ABIODUN & ORS v. FRN (2013) LPELR-21465-CA.
This court has no business or intention of going into the
?9veracity or otherwise of the charges the applicant is facing; but be that as it may, the court has to be satisfied that the circumstances of the case have changed significantly from the 26th of June, 2015 when this court refused an earlier application for bail also on grounds of ill health in this same case.
Evidently the Deputy Controller of Prisons has had reason to refer the appellant to the Asokoro District Hospital two times before he did so again vide Exhibit D; and Exhibit E is a report from that hospital, simply stating that the appellant needs more attention.
If the prison authorities saw it proper to send the applicant to the hospital for observation or treatment, this court fails to see why they cannot continue doing so in the same spirit; after all he is the responsibility of the prison authorities, at least while he is in their custody.
The decision of this court in A. I. ASSOCIATES & ANOR v. FRN (2014) LPELR-24107-CA is clear and instructive in this regard, where it was held:
“Being ill is never an excuse for bail, the prison authorities should wake up and live up to their responsibilities; if persons are detained they will
?10 fall sick just as much as they would naturally feel hungry and be fed; the prisons are not meant for detention of persons only, they are meant to also feed the detained persons and treat their ailments when they fall seek. There is no excuse for shifting responsibilities.
The responsibility of treating an ill or sick convict is squarely on the state, i.e. the prison authority in this case; every detainee, with no exception ought to be treated by the prison authority when they present with sickness, there should be no complaints, or conditions attached to such treatment, courts should not encourage the prison authorities to derelict in this very important duty, it goes to the root of the penal system.
The same way the prison authorities bear the burden of feeding the prisoners they also bear the burden of making sure every medical condition of a prisoner is attended to, while such prisoner is in their custody and care, see ABACHA v. STATE (2002) 5 NWLR part 761 at 638.”
The grant or refusal of bail pending an appeal on account of ill health apart from being discretionary is dependent in each case in the existence of special circumstances;
11 Exhibits D and E attached to the affidavit supporting the application do not add up in the overall scheme of things, in spite of what case they seek to make. They are just not enough in the circumstances of this case, to warrant the exercise of this court’s discretion in favour of the applicant, notwithstanding also the forceful arguments of learned senior Counsel to the applicant. This court is of the firm belief that the prison authorities have a duty to perform and they just have to wake up to their responsibilities, there is no two ways about that.
This court is not, and cannot be distracted from the cold facts as they are; the prison authorities cannot shift blame or responsibility for their duties to anyone else. They have a sick inmate, they should see to it that he is properly treated and given the medical attention he deserves. This is the only way forward.
Accordingly this issue is resolved against the applicant, and in favour of the respondent.
The application for bail pending appeal is refused without much ado.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead Ruling of my learned brother Mustapha
12
JCA, just delivered, to which I entirely agree with. The application has no merit and I dismiss it.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read before now the ruling just delivered by my learned brother, Mohammed Mustapha, JCA. I agree with the reasoning and conclusion reached in dismissing this application.
Appearances
Dr. Alex A. lzinyon, SAN with: For Appellant
C. S. Ekeocha Esq., E. Oshojafor
Esq., and C. U. Ada (Miss.)
M. S. Hassan Esq,, (DD. Federal For Respondent
Ministry of Justice) with Juliet A. Okpe
(Miss) (P.S.C), A.P Ukeyima (P.S.C),
K.A. Yaro (Miss) (S.C.C) Abdullah
Muhammed (S.C), D.J. Esho (Mrs) and
N.A. Abuch (Miss)
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Appearances
Dr. Alex A. Izinyon, SAN with: C.S. Ekeocha Esq., E. Oshojafor Esq., and C.U. Ada (Miss.)For Appellant
AND
M.S. Hassan Esq., (DD. Federal Ministry of Justice) with: Juliet A. Okpe (Miss) (P.S.C), A.P. Ukeyima (P.S.C), K.A. Yaro (Miss) (S.C.C) Abdullah Muhammed (S.C), D.J. Esho (Mrs) and N.A. Abuch (Miss)For Respondent
