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EYIBIO v. FRN (2022)

EYIBIO v. FRN

(2022)LCN/16504(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/C/133C/2022(R)

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

IDONGESIT SAMUEL EYIBIO APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO:

THE COURT MUST EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY

It is to be borne in mind that bail is not ordinarily granted to a prisoner or convict pending the determination of his appeal except where there are exceptional circumstances shown why such bail ought to be granted to such applicant. Thus the applicant must present cogent, credible and necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour, which such exercise must also be done judicially and judiciously. See MEREGINI V F.R.N. (2018)12 NWLR (prt. 1633) 331 at 339-340.
On what constitute an exceptional circumstances for grant of bail pending appeal, Court over times have evolved certain guidelines and these includes where:-
(a) The ailment of the convict cannot be treated in prison or the prison authorities are unable to arrange treatment, or
(b) The hearing of the appeal is unduly delayed or there is the real likelihood of the prisoner serving a substantial part of his sentence.
To justify the grant of bail pending appeal, exceptional circumstances must be comprehensively addressed in the affidavit in support of the application with conclusive documentary evidence. See FAWEHINMI V. STATE (1990)1 NWLR (prt.127) 486. MUHAMMED LAWAL SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgement): By a motion on notice filed on 9/5/2022 and brought pursuant to Sections 6 (6) (A), 272 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 28 (1) of the Court of Appeal Act, 2004, the applicant prays for an order of this Court admitting him to bail pending appeal.

The application is supported by a 21 paragraphs affidavit deposed to by one Grace Eyibio, the applicant’s biological sister. The pertinent paragraphs 10 – 15 of the said affidavit reads thus:-
10. That the applicant had prior to his conviction had a history of persistent cough, weight loss and occasional coughing of brown, blood, which said condition he had been managing with the aid of regular treatment/checkup with his doctor in Calabar.
​11. That upon the appellant/applicant’s conviction, and without his regular checkup with his doctors, the symptoms manifested themselves stronger than ever whereupon he reported to the medical unit of the correctional custodial centre Ikot Ekpene and was admitted for treatment/observation on the3rd day of March, 2022.
12. That upon his admission at the medical unit of the Custodial Centre, the symptoms persisted and became more onerous wherein the medical unit of the Custodial Centre being unable to manage the situation on the 25th day of March, 2022 referred the appellant/applicant to the General Hospital at Ikot Ekpene for diagnosis as to his condition whereupon he was examined and diagnosed with pulmonary tuberculosis. The said medical report from the general hospital dated the 1st day of April, 2022 is hereby attached and marked Exhibit E.
13. That upon receipt of medical report from the General Hospital Ikot Ekpene dated the 1st day of April, 2022 by the medical unit of the Custodial Centre, the medical unit of the Custodial centre on the 2nd day of April 2022 wrote a medical report form in respect of the appellant/applicant. The said medical report from dated the 2nd day of April, 2022 is hereby attached and marked as Exhibit F.
14. That from the medical report form issued by the medical unit of the Nigeria Correctional Custodial Centre, Ikot Ekpene, the Nigerian Custodial Centre do not have the facilities to manage the appellant/applicant’s condition and same being highly contagious is not only detrimental to the officers of the Nigeria Correctional Custodial Centre but also to the other inmates as well, which said facts are clearly stated in the medical report form dated the 2nd day of April, 2022.
15. That the applicant at the trial Court was admitted to bail and had never jumped bail at the trial Court despite the death of his surety one late Godwin Ekpenyong who died in the course of the trial. That no bench warrant was issued against the appellant/applicant throughout his trial and conviction by the trial Court.

In response, the respondent filed a counter-affidavit denying the facts contained in the supporting affidavit and stating that the applicant never disclosed any adverse medical condition prior to his conviction and that he was hale and hearty throughout the trial. And the ailment which the applicant claims to be suffering is treatable with medicines that are available at pharmacies nationwide. In paragraphs 16, 17, 18 and 19 of the counter-affidavit, respondent avers:
16. That contrary to paragraph 19 of the appellant/applicant’s affidavit in support, the substantive appeal is a criminal appeal which is governed by the fast track practice direction of this honourable Court.
17. That in furtherance to paragraph 16 above, the appellant/applicant has 14 days from the date of transmission of record of appeal to file and serve their brief on the respondent.
18. That the record of appeal was transmitted from the lower Court to this honourable Court on 29th April 2022.
19. That since the record of appeal was transmitted, the appellant/applicant have failed, refused, and neglected to file and serve his brief.”

At the hearing of the application on 6/6/2022, learned counsel for the applicant U.D. Itat, Esq., adopted his accompanying written address wherein, he formulated a sole issue thus:-
Whether this honourable Court can exercise its discretion to grant the appellant/applicant bail in the light of his conviction pending the determination of his appeal.

Learned counsel for the respondent, Adebayo Soares, Esq., also formulated a sole issue and it reads as follows:
Whether the appellant/applicant has shown good faith to be entitled to the exercise of the discretion of this honourable Court to admit him on bail pending appeal.

In view of the oneness of the two set of issues above, the application will be determined on the basis of the applicant’s sole issue, the undoubted owner.

Arguing the sole issue, counsel to the appellant submitted that ill-health is a factor weighty enough to be considered in an application for bail pending appeal. He relied on the averments in paragraphs 9-20 of the affidavit in support of the application as well as the attached medical report, Exhibit E to contend that same constitutes special circumstances warranting the grant of the application.

In further argument, counsel referred to the grounds of appeal, Exhibit B in submitting that same raises a good and arguable grounds of appeal.

On the part of the respondent, counsel submitted that ill-health is not a sufficient ground for grant of bail except where the applicant requires some special medical equipment and not where the ailment can be cured or treated anywhere. He referred to AMADIKWA V STATE (2015) LPELR – 24569 (CA),ABDULLAHI V F.R. N & ORS (2014) LPELR – 24106 (CA)and ADAMS V AG, FEDERATION (2006) 11 NWLR (prt.991) 341 to the effect that ill-health does not automatically qualify an applicant for bail.

He submitted further that the applicant having failed to file his brief in the main appeal within 14 days of transmission of the record, the inference to be drawn is that of bad faith.

It is to be borne in mind that bail is not ordinarily granted to a prisoner or convict pending the determination of his appeal except where there are exceptional circumstances shown why such bail ought to be granted to such applicant. Thus the applicant must present cogent, credible and necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour, which such exercise must also be done judicially and judiciously. See MEREGINI V F.R.N. (2018)12 NWLR (prt. 1633) 331 at 339-340.
On what constitute an exceptional circumstances for grant of bail pending appeal, Court over times have evolved certain guidelines and these includes where:-
(a) The ailment of the convict cannot be treated in prison or the prison authorities are unable to arrange treatment, or
(b) The hearing of the appeal is unduly delayed or there is the real likelihood of the prisoner serving a substantial part of his sentence.
To justify the grant of bail pending appeal, exceptional circumstances must be comprehensively addressed in the affidavit in support of the application with conclusive documentary evidence. See FAWEHINMI V. STATE (1990)1 NWLR (prt.127) 486.

The exceptional grounds being alluded to by the applicant in this case is ill-health and the applicant who was sentenced to two years imprisonment has already spent two months in custody. Learned respondent’s counsel has posited rightly that mere assertion of ill-health by an applicant is not sufficient or an exceptional circumstances for grant of bail. Thus, the circumstances of ill-health must be so compelling in order to warrant the release of the applicant on bail and thereby avert his undue exposure to health hazard or the calamity of death in custody.
I have earlier reproduced the pertinent averments in support of the application and in paragraphs 12 and 13 thereof, applicant has averred that he was diagnosed of pulmonary tuberculosis and the medical unit of the correctional centre was unable to manage and hence, he was referred to the General Hospital who in turn referred him to the University Teaching Hospital for expert management and care. In both, the medical reports from the medical unit of the correctional centre and the General Hospital Exhibits E and F, the common ground necessitating the applicant’s referrals was that he be allowed to stay close to his health care facility due to his health challenge to avoid mortality.
In paragraph 21 of the counter-affidavit, the respondent alleges that reliance on ill-health as a basis for seeking for bail pending appeal is a gimmick and a ploy to subvert the course of justice. I do not on the strength of these medical reports, agree with that preposition. I have stated elsewhere in this ruling that ill-health is a ground upon which bail could be granted, especially where it is shown that the continuous stay of the applicant in prison could pose real health hazard to other prisoners he is staying with. In Exhibit F, it was clearly stated that the correctional centre does not have the facility to manage the applicant. Furthermore, in Exhibit E, it was also stated that when he was given a full course of treatment, he relapsed and the symptom became aggravated.

In the light of the above, it is my considered view that the applicant has shown an exceptional circumstances to be granted bail pending the determination of appeal no. CA/C/133C/2022. The sole issue is therefore resolved in favour of the applicant. The applicant is accordingly granted bail in the sum of two million naira and two reliable sureties each in the like sum. The two sureties shall be resident within Calabar Division of this Court pending the hearing and determination of his appeal in this Court.

RAPHAEL CHIKWE AGBO, J.C.A.: I was privilege to read in advance the lead ruling delivered by my learned brother, Shuaibu, JCA and I agree with him that the appellant be granted bail. I abide with the terms of bail contained in the lead ruling.

BALKISU BELLO ALIYU, J.C.A.: I was privilege to read the draft of the ruling just delivered by my learned brother, M. L. Shuaibu, JCA. I agree with him that the Applicant has shown exceptional circumstances worthy of the exercise of my discretion in his favour. I therefore grant him bail in the terms and conditions stated in the lead ruling.

Appearances:

U. D. Itiat Esq. For Appellant(s)

Adebayo Soares Esq. For Respondent(s)