FRANK KARKITIE v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/11844(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/L/493C/2018
RATIO
APPEAL: LEAVE OF APPEAL
“The leave of this Court was also not sought and obtained before placing same before this court. An appeal is by way of rehearing of the case and evidence not on record at the lower Court will be discountenanced without the leave of the appellate Court first sought and obtained. See the cases of IHUNWO v IHUNWO & ORS (2013) LPELR 20084 (SC); IBRAHIM v OJOMO & ORS (2004) 4 NWLR (PT 862) 89; DICKSON v OKOI (2003) 16 NWLR (PT 846) 397; AGBOM v STATE (2012) LPELR – 7910 (CA); CUSTOMARY COURT OF APPEAL BENUE STATE v ABURA TSEGBA & ORS (2010) LPELR – 4009 (CA).” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
Justices
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
FRANK KARKITIEAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Lead Judgment):
This is an appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: J. E. Oyefeso J., in Charge No: ID/2767C/2016: Federal Republic of Nigeria V. Frank Karkitie & 3 Ors, delivered on 20/3/2018, in which the Summons for bail of the Appellant as the 1st Defendant/Applicant pending his trial was refused and dismissed for lacking in merit.
The Appellant was peeved with the ruling of the Court below dismissing his application for bail pending trial and had promptly appealed to this Court vide a notice of appeal filed on 28/3/2018 on three grounds at pages 227 – 230 of the record of appeal. The record of appeal was duly transmitted to this Court on 17/4/2018. The Appellants brief was filed on 25/4/2018. The Respondens brief was filed on 17/5/2018. The Appellans reply brief was filed on 23/5/2018.
At the hearing of the Appeal on 24/5/2018, Lawal Pedro SAN, learned Senior Advocate for the Appellant, appearing with T. O. Sanni Esq., O. C. Fapohunda Esq., O. M. Omolewa Esq., M. A. Bakare Esq., and K. Alapinni Esq., adopted the Appellans brief and reply brief as their arguments and urged the Court to allow the appeal and set aside the ruling of the Court below and admit the Appellant to bail pending his trial before the Court below. On his part, V. O. Agboje Esq, Legal Officer, EFCC, for the Respondent adopted the Respondens brief as his arguments and urged the Court to dismiss the appeal and affirm the ruling of the Court below.
The Appellant, who was on 19/12/2017 charged along with some others as Defendants before the Court below on a six count 2nd Amended Information in Charge No. ID/2767/2016: Federal Republic of Nigeria V. Frank Karkitie & 3 Ors, had by a Summons for Bail filed on 26/1/2018 and supported by several affidavits deposed to by his wife, Mrs. Victoria Ololade Karkitie, annexed to which are several Exhibits, prayed the Court below for the following relief, namelyBy reason of changed circumstances of the1st Defendant/Applicant; an order admitting the 1st Defendant/Applicant to bail on the most liberal terms pending the trial of the 1st Defendant/Applicant on the information before the Court and the determination of same
The Appellant relied on the following four grounds for the Summons for his bail pending appeal, namely:
1. Change in the 1st Defendant/Applicas circumstance, which includes:
i: Newly diagnosed life threatening and fast paced deteriorating, ominous health condition of the 1st Defendant/Applicant which requires urgent and immediate Specialist attention clearly beyond the capacity of the Prisons Clinic.
ii: Reinvigorated willingness of the 1st Defendant/Applicant to religiously attend Court sitting to stand his trial in respect of the Criminal Charge before the Court.
iii: Availability of more competent persons to stand as sureties for the 1st Defendant/Applicant.
iv: More favourable business opportunities available to the 2nd Defendant post the refusal of bail of the 1st Defendas bail application; which said business opportunities the 1st and 2nd Defendants desire to utilize for the 1st and 2nd Defendan interest and interest of several employees and would be employees. See pages 105 – 106 of the record of appeal.
BRIEF STATEMENT OF FACTS
The case of the Appellant as can be gleaned from the various affidavits and documentary Exhibits filed on his behalf by his wife is that earlier on 25/10/2017 the Appellant has sought to be admitted to bail pending his trial and on 20/12/2017 when the said application was heard by the Court below it was apparent that the Appellant was visibly very sick, pale, disorientated and distraught due to his health challenges but the Court below still refused his application for bail pending his trial. However, on 20/12/2017 the Appellant while being conveyed to the Prisons collapsed in the Prison Vehicle and was revived by other detainees and Prison Warders in the Prison Vehicle and on 21/12/2017 he was taken before the Ikoyi Prison Clinic to see the Prison Doctor, who was unavailable as he only attends to patients on Mondays, Wednesdays and Fridays.
On many occasions the Appellant has collapsed in the Prison and resuscitated by fellow inmates and on 8/1/2018, the Appellant was eventually able to meet with the Prison Clinic Doctor and after his medical examination, he was referred to the Police Hospital Ikoyi for further Medical Tests and examination on 10/1/2018 but due to logistic problems was only taken to the Police Clinic on 11/1/2018, where examinations and tests revealed that the Appellant has a left ventricular hypertrophy, per hilar inflammatory shadows bilaterally with hillar fullness, prostate enlargement and dyslipidaemia and was therefore, in dire serious medical state of health which if left untreated would result into his death.
However, based on the findings at the Police Hospital the Appellant was further referred to the Military Hospital where his critical medical condition was further confirmed and the need for his frequent medical observation and treatment was stressed but which was not possible with his incarceration at the Ikoyi Prisons where the required facilities are unavailable, with the possibility of deterioration and exacerbation of these diseases, hence the need for him to be admitted to bail to receive adequate and required medical treatment to be kept alive to stand his trial to its logical legal conclusion. The Appellant also relied on Exhibits A, B, C, FA1, FA2, FA3, FA4, FA5, FA6, FA7, See pages 108 – 118; 119 – 129; 148 – 156; 157 – 158; 174 – 185 and 186 – 210 of the record of appeal.
On the other hand, the case of the Respondent in opposition to the Summons for bail by the Appellant as can be gleaned from its counter affidavit filed on 13/2/2018 was that not only was there no time that the Appellant collapsed in the Court below but there is also no record of any time the Appellant collapsed at the Ikoyi Prisons and that despite letter of inquiry written on 2/2/2018 to the Police Hospital Ikoyi to ascertain the veracity of the treatment and examinations of the Appellant no response has been received from the Police Hospital Ikoyi. However, on 5/2/2018 the Ikoyi Prisons wrote to the Respondent stating that there was no time the Appellant collapsed in the Ikoyi Prisons but admitted that the Appellant was referred to the Police Hospital for abdominal pain evaluation and treatment and was therefore, not aware of the medical reports allegedly issued to the Appellant by the Police Hospital, Ikoyi.
Above all and most importantly to the Respondent, is the fact that the Appellant has an antecedent of jumping bail when admitted to bail in that prior to his arraignment the Appellant had been on the run for a period spanning over one year after he was granted bail by the EFCC. The Appellant was served with a copy of the Information against him on 8/7/2016 but his arraignment was aborted by his constant and persistent absence from Court on 17/10/2016, 10/11/2016, 16/12/2016, 11/1/2017, 21/2/2017, 25/4/2015, 9/5/2017, 19/6/2017 and 26/9/2017 and thus occasioning the resultant amendment of the charges by the deleting of the name of the Appellant so that the trial of the other Defendants could proceed.
The Appellant who is also standing trial in a sister charge in which he was granted bail and ordered to deposit his International Passport with the Registry of the Court below still travelled abroad with his other several International Passports, whilst one of them was in the custody of the Registry of the Court below and therefore, stands the highest risk of fleeing from justice if admitted again to bail by the Court, having been re – arrested and arraigned before the Court below to answer to the charges against him. The Respondent also relied on Exhibits EFCC1, 2 and EFCC 3. See pages 159 – 166 of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellans brief, three issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether there is nothing before the lower Court to show that the ailment of the Appellant requires medical attention outside the Prison Hospital which has no access to medical facilities required to treat his ailment? (Distilled from ground 1)
2. Whether the learned trial Judge was right when she concluded that from the case file and the earlier ruling of the Court, it was difficult to secure the attendance of the Appellant to face the Charges against him? (Distilled from ground)
3. Whether having regard to the available Affidavit evidence, fundamental right to liberty and presumption of innocence of the Appellant, the learned trial Judge was right to have refused his application for bail pending trial for non-capital offence? (Distilled from ground 3)
In the Respondes brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Ruling of the lower Court dated 20/3/2018 refusing to admit the Appellant to bail for the 2nd time was validly made?
2. Whether the Appellant has placed sufficient materials in support o his present appeal warranting the exercise of the Appellate Cours discretion to set aside the decision of the lower Court refusing him bail?
I have taken time to review the affidavits and counter affidavit evidence of the parties and also scrutinized the plethora of documentary Exhibits relied upon by them. I have also considered the submissions of counsel in their respective briefs in the light of the findings of the Court below in the ruling appealed against, including the nature of the appeal which is one challenging the refusal of the Court below to admit the Appellant to bail pending his trial and I am of the view that the only pertinent issue for determination is the Respondes issue two, a consideration of which would, in my view, involve a consideration of the three issues as distilled in the Appellans brief and the two issues as distilled in the Respondens brief.
I hereby set down the Respondens issue two as the sole issue for determination in this appeal and shall proceed anon to consider and resolve the same along with the three issues as distilled by the Appellant and the two issues as distilled in the Respondes brief.
SOLE ISSUE
Whether the Appellant has placed sufficient materials in support of his present appeal warranting the exercise of the Appellate Cous discretion to set aside the decision of the lower Court refusing him bail?
APPELLANT COUNSEL SUBMISSIONS
On his issue one, learned Senior Advocate for the Appellant had submitted that there is overwhelming evidence before the Court below from where it could have reasonably found that the Appellans ailment require medical attention outside the Prison Hospital, which has no access to medical facilities required to treat the Appellans ailment and without any assurance of adequate medical treatment from the Respondent and contended that there is evidence that the Appellant was referred by the Ikoyi Prisons Hospital to the Police Hospital, Lagos for medical attention as a result of his type of ailments requiring the attention of Consultant Cardiologist, Consultant Urologist and Consultant Pulmonologist and urged the court to hold that such factors constitutes substantial special circumstance for admitting the Appellant to bai pending his trial and to allow the appeal, set aside the ruling of the Court below and to admit the Appellant to bail pending his trial and save him from any jeopardy to his life. Counsel relied on Abacha V. State (2002) 5 NWLR (Pt. 761) 638 @ pp. 676 – 677; Adams V. Attorney-General of the Federation (2007) All FWLR (Pt. 355) 429 @ pp. 444 445; Fawehinmi V. The State (1990) NWLR (Pt. 127) 474.
On his issue two, learned Senior Advocate for the Appellant had submitted that the facts as disclosed in the printed record coupled with the earlier ruling of the Court below refusing bail to the Appellant do not justify the conclusion that it was difficult to secure the attendance of the Appellant in Court to face the charges against him and contended that in all the previous proceedings when the Appellant was absent, he was represented by Counsel who on each occasion gave reason of ill health and doctos advice for the absence of the Appellant apart from the mixed up of dates of arraignment and urged the Court to hold that these facts were not controverted or countered by the Respondent which had power and resources to investigate them and thus the Court below was wrong when it held that it was difficult to secure the attendance of the Appellant in Court to face the charges against him.
It was further submitted that if the excuses given for the absence of the Appellant in Court before his arraignment were not reasonable and acceptable to the Respondent and the Court below then his Surety would have been summoned to produce him in Court or have his recognizance forfeited and a bench warrant would have been applied for and issued for the Appellans arrest and production in Court pursuant to Sections 135 and 139 of the Administration of Criminal Justice Law of Lagos State and contended that since no such step or action is seen to have been taken and the Respondent having failed to invoke the provision of the law to do so, the Respondent is deemed to have acquiesced or accepted the reasons stated for the absence of the Appellant and cannot therefore, be allowed to raise the issue of absence of the Appellant in Court before his arraignment. Counsel relied on Atunrase V. Sunmola (1985) 1 NWLR (Pt. 1) 105.
It was also submitted that the contention by the Respondent that the Appellant had used another International Passport to travel out of the country while his International Passport was in the custody of the Court below in a sister charge was misconceived and borne out of ignorance since in law a Nigerian does not require his International Passport to travel to Benin Republic as any form of identification will suffice and of which judicial notice can be taken of and contended that the Court below was thus wrong when it held that from the case file and the earlier proceedings, it was difficult to secure the attendance of the Appellant for his arraignment, when the Appellant has businesses running into billions for which he would stay within the jurisdiction to tend to his businesses while standing his trial and urged the Court to set aside such perverse finding and to find in favor of the Appellant and to allow the appeal and admit the Appellant to bail pending his trial before the Court below.
On his issue three, learned Senior Advocate for the Appellant had submitted that in law the grant of bail to a Defendant is at the discretion of the Court and where the charge against a Defendant is for a non – capital offence and he has not been convicted of the offence, bail is basic and constitutional right irrespective of his health condition and unless the Prosecutor shows good cause why a Defendant should not be granted bail, the Court would exercise its discretion in favor of the Defendant and contended that to deny bail to a Defendant in such circumstances the Prosecutor must show that the Defendant may interfere with the investigation or may interfere with the witnesses or may not attend his trial if granted bail. Counsel relied on Tanko V. C.O.P (1986) 1 QLRN 58.
It was further submitted that he Appellant has shown he has reasonable persons to stand as his surety to guarantee his presence at his trial and is thus in law entitled to his fundamental right to liberty and presumption of innocence until proven guilty and contended that in non capital offences the Courts usually exercises their discretion in granting bail without the need for a Defendant to show any special circumstances unless there is cogent reason to do otherwise, which is not the case in the instant appeal. Counsel referred to Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Nwoke V. Federal Republic of Nigeria (2005) All FWLR (Pt. 245) 1083 @ p. 1095; Dokubo Asari V. FRN (2007) All FWLR (Pt. 375) 588.
It was also submitted that even though there was no duty on the Appellant to show any special circumstances to be admitted to bail, the ground for his application for bail was his ill health and contended that there was sufficient evidence before the Court below which confirmed the ill health of the Appellant and that his ailment requires treatment outside the Prisons hospital for adequate treatment and management and urged the court to hold that the Court below was wrong to have ignored such compelling factor and refusing to admit the Appellant to bail and to set aside the refusal and allow the appeal and admit the appeal to bail pending his trial before the court below. Counsel relied on Ani V. State (2001) FWLR (Pt. 81) 1715; Eyu V. State (1988) 2 NWLR (Pt. 78) 602; Suleman V. Commissioner of Police, Plateau State (2008) 8 NWLR (Pt. 1089) 298 @ p. 323; Saidu V. State (1982) 4 SC 60 @ pp. 6 70; Obekpa V. C.O.P (1980) NCR 113,
RESPONDENT COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondent had submitted that in law the grant or refusal of bail is at the discretion of the Court which discretion the Court is enjoined to exercise judicially and judiciously based on materials placed before it and contended that that bail is not granted as a matter of course and the mere fact that bail is a constitutional right does not absolve an Applicant for bail of the need to place materials to warrant the Court exercising its discretion in his favor, failing which bail would be refused by the Court. Counsel referred to Section 41(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Jimoh V. COP (2004) 17 NWLR (Pt. 902) 389; Udeh V. FRN (2001) 5 NWLR (Pt. 706) 312 @ p. 326; Ibrahim V. FRN (2016) LPELR – 41934 (CA); Dokubo Asari V. FRN (2007) 12 NWLR (Pt. 1043) 1.
It was further submitted that the Appellant who is charged before the Court below along with three others on a six counts 2nd Amended Information dated 18th December, 2017 for offences bordering on conspiracy to obtain money by false pretence and obtaining by false promises of various sums of money between 2016 and 2017 but whose arraignment could not hold on several dates spanning over a period of one year due to Appellans deliberate absence from court despite being granted bail by the EFCC necessitating the Respondent amending the Information in a bid to see whether it could arraign the other Defendants in the absence of the Appellant and contended that it was only on 13/9/2017, when the Respondent amended the Information upon the re arrest of the Appellant after intelligence and surveillance machineries put in place for Appellans arrest yielded result and urged the Court to hold that the Appellant was a grave flight risk and the Court below was right to refuse to admit him to bail as the likelihood of his presenting himself to stand his trial of admitted to bail was nonexistent going by his antecedent. Counsel relied on Bamaiyi V. State & Ors (2001) LPELR – 731 (SC)
On his issue two, learned counsel for the Respondent had submitted that in law an applicant for bail must place before the Court sufficient materials for consideration upon which the Court can exercise its discretion and in so doing the applicant must satisfy the Court the reason for challenging his detention and asking the Court to release him on bail and contended that it is only after the applicant has discharged this onus that rests on him that the onus will shift to the Prosecution to show cause why bail should not be granted. Counsel relied on Umar V. FRN (2014) LPELR – 24051 (CA); Monye V. Federal Republic of Nigeria (2012) LPELR – 14845(CA).
It was further submitted that the Appellant did not and has not placed any positive materials before the Court sufficient to tilt the discretion of the Court in his favor and contended that on the evidence before the Court below the Appellant failed to show that he was indisposed having merely absconded from standing trial since 2016 to God knows where in order to evade his arraignment until he was re – arrested on 5/7/2017, which was a period spanning one year from the date of service of the Charges on him, when he sneaked into the country unaware that surveillance was on him and urged the Court to hold that the Appellant was not taken to Police Hospital Falomo, Ikoyi, Lagos for treatment of hypertensive Heart Disease, Benign Prostatic Hyperplasia and Respiratory tract infection v/o Kocs disease as all these medical conditions were coined by the Appellant in apparent collusion with the Medical Officer; one Dr. Okpogoro E.O. at the Police Hospital, who failed to affirm same when requested to do so by the Respondent and to dismiss the appeal since in law the mere fact that a Defendant in Prison custody awaiting trial is sick or suffering from ill health does not qualify him for automatic bail, the reason being that the Prison Service has its Hospital and Medical personnel for treatment of inmate whether convicted or awaiting trial.
It was also submitted that the fact that people are indebted to Appellant or that he has businesses running into millions of naira is not a guarantee that he would not escape from his trial if admitted to bail and contended that the fact that it was only the Appellant that was denied bail by the Court below while the other Defendants were admitted to bail was irrelevant as it was clear that the other Defendants had always made themselves available at every proceedings to stand their trial while it was the consistent and persistent deliberate absence of the Appellant that stalled the arraignment on several occasions and thus it would be unreasonable for the Respondent to oppose the bail of the other Defendants while opposing the bail of the Appellant, who had from his antecedent represented himself as nothing but a flight risk by his continued absence from Court.
APPELLANS COUNSEL REPLY SUBMISSIONS
In his reply on law, learned Senior Advocate for the Appellant recapped and reiterated his earlier submissions and contended that the grant or refusal of bail is an exercise of discretion which must be based on the material placed before the Court and urged the Court to hold that the Appellant placed before the Court below, as in the printed record, sufficient material showing his ill health and the need for him have adequate specialized treatment not available in the Ikoyi Prisons Clinic to stay alive to stand his trial and to allow the appeal and admit the Appellant to bail pending his trial. Counsel relied on U.B.A. Ltd V. Stahlbau GMBH and Co. KG (1989) 6 SC (Pt. 1) 22; Uwazurike V. AG Fed (2008) LPELR – 8395(CA); Federal Republic of Nigeria V. Bulama (2005) 16 NWLR (Pt. 951) 219; Onyebuchi V. FRN (2007) LPELR – 4134(CA); Orji V. Federal Republic of Nigeria (Supra); ANPP & Anor V. Argungu & Ors (2009) 17 NWLR (Pt 1171) 445; Ani V. The State (2001) FWLR (Pt. 81) 1715 @ p. 1727.
RESOLUTION OF SOLE ISSUE
My lords, the crux of this appeal as captured in the sole issue for determination is whether the Court below was right or wrong when in the exercise of its discretion it refused to admit the Appellant to bail pending his trial on the six counts information alleging against the Appellants the following offences, namely: 1. Conspiracy to obtain money by false pretence contrary to Sections 8(c) and 1 (3) of the Advance Fraud and Other Fraud Related Offences Act, No. 14 of 2006; 2. Obtaining money by false pretence contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, No. 14 of 2006; 3. Conspiracy to commit felony to wit: forgery contrary to Section 409 of the Criminal Law of Lagos State, No 11 of 2011; 4. Forgery contrary to Section 363(1) of the Criminal Law of Lagos State No. 11 of 2011; 5. Forgery contrary to Section 363(1) of the Criminal Law of Lagos State No. 11 of 2011 and 6. Forgery Contrary to Section 363(1) of the Criminal Law of Lagos State, No 11 of 2011. See pages 102 – 104 of the record of appeal
On 26/1/2018, the Appellant, whose earlier application for bail filed on 25/10/2017 had been dismissed by the Court below on 20/12/2017, had by a Summons for Bail supported by an affidavit of 73 paragraphs deposed to by his wife, Mrs. Victoria Ololade Karkitie, annexed to which were Exhibits A, B and C, and an affidavit of urgency of 55 paragraphs, annexed to which was Exhibit A, and praying the court below for the following relief, namelyBy reason of changed circumstances of the 1st Defendant/Applicant; an order admitting the 1st Defendant/Applicant to bail on the most liberal terms pending the trial of the 1st Defendant/Applicant on the information before the court and the determination of same
The Appellant relied on the following four grounds for the Summons for his bail pending appeal, namely: 1. Change in the 1st Defendant/Applicans circumstance, which includes; i: Newly diagnosed life threatening and fast paced deteriorating, ominous health condition of the 1st Defendant/Applicant which requires urgent and immediate Specialist attention clearly beyond th capacity of the Prisons Clinic; ii: Reinvigorated willingness of the 1st Defendant/Applicant to religiously attend court sitting to stand his trial in respect of the Criminal Charge before the Court; iii: Availability of more competent persons to stand as sureties for the 1st Defendant/Applicant; iv : More favourable business opportunities available to the 2nd Defendant post the refusal of bail of the 1st Defendans bail application; which said business opportunities the 1st and 2nd Defendants desire to utilize for the 1st and 2nd Defendant interest and interest of several employees and would be employees. See pages 1 – 9; 105 – 106; 119 – 123 and 148 – 159 of the record of appeal.
The Summons for bail for the bail of the Appellant was vehemently opposed by the Respondent, which on 13/2/2018 field a counter affidavit of 27 paragraphs deposed to by one Ibarahim Babaginda, a staff of the EFCC, annexed to which were Exhibits EFCC1, EFCC 2 and EFCC 3. In response to the counter affidavit the Appellant filed a Further and Better affidavit of 78 paragraphs, annexed to which were Exhibits FA1, FA2, FA3, FA4, FA5, FA6, FA7 and FA8. See pages 108- 118; 119 – 129; 159 – 166; 174 – 185 and 186 – 210 of the record of appeal.
The Summons for bail of the Appellant was duly heard by the Court below and in its ruling delivered on 20/3/2018 dismissing the Summons for the bail of the Appellant, it was stated and held inter alia thu…This Court had earlier refused and dismissed a bail application filed by the 1st Defendant on 20/12/2017. This is the 2nd application. The only issue, which this Court must determine here, is whether or not the 1st Defendant can be admitted to bail in the circumstance of this case, what has changed since the last two applications? The Court has a discretion in these types of matters and as always, the Court must exercise its discretion judicially and judiciously. The criteria, which the Court must consider in the exercise of its judicial discretion to grant boil are well set out in the Ruling of this Court delivered on 20/12/2017.
What are the reasons placed before this Court at this time? The main ground for seeking bail is the health situation of the 1st Defendant. A medical report issued by one E O. Okpogoro of the Police Hospital (Exhibit B) was addressed directly to me. As rightly stated by the Respondent counsel, it ought to have been addressed to the Registrar of Court. I am sure that fact is well noted by the 1st Defendant and his counsel. I have noted the contents. There is however nothing from the Nigerian Prison Service stating that the ailments are not treatable or that there is no access to medical facilities required to treat the Defendants ailment. The other defendants in this matter have been granted bail. The 1st Defendant was denied bail because it was difficult to secure his attendance in court to face the charges against him. This can be seen from the case file and the earlier Ruling of the Court. This case, which was formerly before Jose J, came up on 30th June 2016. The case started before me on 10th November 2016. It was not until June 2017 that the 1st Defendant was finally brought to Court. Arraignment finally took place in December 2017.
Trial has already started on 13/2/2018. PWI has testified, been cross-examined and has been discharged. The most important consideration is that the Defendant should be present for his trial. As stated earlier, there is nothing from the Prison authorities to show that the health challenge of the 1st Defendant cannot be treated by them. I cannot therefore grant bail in the circumstances of the case See pages 224 – 226 of the record of appeal.
My lords, it is against the above refusal of the Summons for the Bail of the Appellant that the Appellant has appealed against to this Court praying this Court to set aside the said ruling and to admit him to bail pending his trial for the offences charged against him by the Respondent before the Court below. In criminal procedure law, bail are of two types namely; bail before conviction, which is bail pending trial and bail upon conviction, which is bail pending appeal against conviction. While bail before conviction is a basic right, bail after conviction is not a basic right. Thus, while before or pending trial, where the offence alleged against an accused person is not a capital offence but one which is ordinarily bailable, then by virtue of Section 36(5) of the Constitution of Nigeria 1999 (as amended), which presumes the innocence of an accused person until proved guilty by the prosecution, the onus is on the prosecution to show why an accused person should not be admitted to bail pending his trial for an ordinarily bailable offence.
This is so because the real focus and legal aim of bail is to ensure the attendance of an accused person at his trial. It is never meant to be denied as mere punishment. Thus, once an applicant satisfies the Court that favourable circumstances exist as to why he should be granted bail, including even in capital offences charge where he is obliged to show the existence of special or exceptional circumstances, he would be admitted to bail by the Court pending his trial. See Ogbhemhe V. COP (2001) 5 NWLR (Pt. 706) 215. See also Chinemelu V. COP (1995) 4 NWLR (Pt. 390) 346; Emordi V. COP (1995) 2 NWLR (Pt. 371) 244; Jimoh V. COP (2004) 17 NWLR (Pt. 902) 389.
In the Summons for bail of the Appellant before the Court below, the Appellant had relied mainly on the ground of deteriorating and grave ill health for his seeking to be admitted to bail pending his trial. In opposition, the Respondent had questioned the genuineness of the ground of ill health relied upon by the Appellant and maintained that from the antecedent of the Appellant he was a great flight risk if admitted to bail. The Court below believed the case of the Respondent and held that neither was there any evidence before it that the Appellant cannot be treated of whatever ailments he is suffering from by the Clinic in the Ikoyi Prisons, where he is presently detained awaiting his trial nor is there any assurance that the Appellant from his antecedent if admitted to bail will make himself available to stand his trial, which had already commenced with the conclusion of the evidence of PW1.
My lords, I have taken the time to review the plethora of affidavits evidence of the Appellant in support of the Summons for bail and also reviewed the counter affidavit evidence of the Respondent in opposition to the bail of the Appellant as in the printed record of appeal and the two pertinent questions are namely this:
1. Whether the depositions of the Appellant considered along with the depositions of the Respondent amount to proof of il health of the Appellant as would constituted special or exceptional or unusual circumstances to warrant the intervention of this Court to set aside the ruling of the Court below and to admit him to bail pending his trial before the court below?
2. Whether the Respondent proved by their affidavit evidence when considered along with the affidavit evidence of the Appellant that the Appellant is a flight risk who is likely to flee to escape standing his trial before the Court below if admitted to bail pending his trial before the Court below?
In law, once an Applicant for bail pending trial satisfies the Court that by the material placed by him before the Court that favorable circumstances exist in his application for bail why he should be granted bail, he would be admitted to bail by the Court pending his trial, since bail should never be denied merely as punishment for a Defendant standing trial, particularly for non capital offences in which bail is a basic right and bail should only be refused in such non capital offences if there is cogent reason or ground to do otherwise. See Tanko V. COP (1986) 1 QLRN 58. See also Nwoke V. FRN (2005) All FWLR (Pt. 245) 1083 @ p. 1093; Numuoja V. COP (1968) NLR 84; Anaekwe V. COP (1986) 3 NWLR (Pt. 32) 156; Ozougwu V. The State (2006) 9 NWLR (Pt. 985) 240.
Truly, while there is no duty on an Applicant, such as the Appellant standing trial for non capital offences, to rely on or prove special circumstances in order to be admitted to bail, since bail pending trial for such non capital offences is a basic right, where however, the Appellant had relied on special circumstances for his application for bail pending trial, then he is obliged to show the existence of the special circumstances relied upon by him to be admitted to bail.
However, what would constitute special circumstances to warrant the intervention of the Court to admit an Applicant to bail pending his trial will depend on the peculiar facts of each case and thus would vary from case to case and therefore, the categories, despite attempts at setting down some guides by the Courts, are never closed. But, it is almost now certain in law that grave ill – health shown by credible evidence to be capable of jeopardizing the very life of the Defendant pending his trial for whatever offence alleged against him no matter how grave or heinous would invariably constitute special circumstances to warrant the intervention of the Court to admit him to bail pending his trial.
The rationale for this position of the law is not far to seek and it is that no matter the gravity of offence for which a man is charged with, it is only the living that can be tried, convicted and punished for any alleged offences no matter how heinous. Indeed, dead men and women neither stand trial nor can be convicted and punished upon conviction, only the living do. See Ani V. The State (2001) FWLR (Pt. 81) 1715 @ p. 1727. See als Ogbhemhe V. COP (2001) 5 NWLR (Pt. 706) 215; Chinemelu V. COP (1995) 4 NWLR (Pt. 390) 346.
On the ground of ill health of the Appellant issues were joined by the Appellant and the Respondent and the Respondent specifically alleged that the Appellant was not ill as claimed and questioned the medical reports allegedly emanating from the Police Hospital Ikoyi on the ground that the said Police Hospital Ikoyi had failed to confirm if the fact of the medical report relied upon by the Appellant were genuine.
The Appellant who had responded to the counter affidavit where these facts were clearly deposed to as to the failure of the Police Hospital Ikoyi to respond to the letter of request from the EFCC to confirm the medical reports being relied upon by the Appellant, had no answer to this allegation of fact throughout the gamut of the further and better affidavit filed in response to the counter affidavit, as no such confirmation letter from the Police Hospital Ikoyi was placed before the Court belowHowever, on this question as to the lack of confirmation of the medial reports and diagnosis of the Appellant from the Police Hospital Ikoyi despite the specific request to that effect by the Respondent, the learned Senior Advocate for the Appellant had submitted that there is before the Court a letter of confirmation attached as Exhibit F to the Appellans application for accelerated hearing of this appeal and that this court should take judicial notice of it, being part of its record.
Now, this is an appeal and not a fresh application for bail by the Appellant and therefore, to determine whether the Court below was right or wrong in its decision refusing bail to the Appellant, it must be determined on the materials placed before the Court below at the time the decision appealed against was reached and not on fresh or new fact extraneous and not before the court below and not forming part of the record of appeal, with which both the parties and this Court are bound by its contents, but contained in an application made before this Court for accelerated hearing of this appeal and which fresh evidence of fact not being part of the materials before the Court below could at best only form part of the materials before this Court in this appeal if leave to adduce it as fresh or additional evidence has been sought and obtained by the Appellant, and none of such leave was neither sought nor obtained by the Appellant.
In my view, therefore, it would be unfair to determine the rightness or wrongness of the decision of the Court below by reference to material not placed before it or not brought in before this Court as part of the record of appeal as fresh evidence by the Appellant and if I may ask if this material was available, looking at the allegation in the Respondens counter affidavit that there was no such confirmation from the Police Hospital Ikoyi despite specific written request for same, why didt the Appellant who had filed a copious further and better affidavit in response to the counter affidavit of the Respondent not place it before the Court below but only to wait to attach it to an application for accelerated hearing of this appeal before this Court? In the light of all the above, I find the reference to a letter of confirmation from the Police Hospital Ikoyi as inapt, irrelevant and misconceived as it has nothing whatsoever to do with this appeal and it is hereby accordingly discountenanced.
In the absence of any such confirmation from the Police Hospital Ikoyi, it seems clear to me and I so hold firmly that not only did the Appellant fail to substantiate the ground of ill health so heavily relied upon by him in his Summons for bail pending his trial before the Court below, the Court below was perfectly right and in order when it held that there was nothing before it to show that whatever ailments the Appellant alleged that he was suffering from was not capable of being treated at the Clinic of the Ikoyi Prisons, where he is presently detained awaiting and undergoing his trial before the Court below, of which the PW1 had already testified and discharged from the witness stand by the Court below as noted in the ruling appealed against by the Appellant.
I have reviewed the submissions in the Appellans reply filed on 23/5/2018, and it is pertinent to observe that a reply brief, filed pursuant to Order 19 Rule 5 (1) of the Court of Appeal Rules 2016, is solely for the purposes of answering to new points or issues raised in a Respondes brief. It is not an avenue for making additional or fresh submissions in support of the Appeal or for the purpose of rehearsing or repeating the submissions in the Appellans brief or making submissions on the facts all over again. The reply brief of the Appellant delving into and rehearsing several submissions of facts, is with due deference to the learned Senior Advocate for the Appellant, not one within the context of the provisions of Order 19 Rule 5 (1) of the Court of Appeal Rules 2016 and thus not strictly so called what a reply brief ought to and should be in law.
I will say no more on this! See Paschal Ikenna Ejiogu V. Hon Alphonsus Gerald Irona & Ors (2008) LPEL 4083 (CA). See also Popoola V. Adeyemo (1992) 8 NWLR (PTt. 257 1; Adebiyi V. Sorinmade (2004) All FWLR (Pt. 239) 933; Shuaibu V. Maithoda (1993) 3 NWLR (Pt. 284) 748.
On the question of the Appellant being a flight risk as alleged by the Respondent in its vehement opposition to his Summons for bail pending his trial, there are very grave allegations made against the Appellant in paragraphs 20(a(n) and 21 of the Counter affidavit that the trial of the Defendants in the information filed against them including the Appellant had suffered over one year stalling due to the consistent and persistent absence of the Appellant who was earlier granted bail by the EFCC and that also when the Appellant was granted bail in a sister charge and was required to deposit his International Passport, which order he duly complied with, yet the Appellant travelled abroad with his other several International Passports while his International Passport was still in the custody of the Court and that the Appellant was a grave flight risk if admitted to bail.
Specifically, it was stated that the Appellant who was served with a copy of the Information against him on 8/7/2016 frustrated his arraignment which was aborted by his constant and persistent absence from Court on 17/10/2016, 10/11/2016, 16/12/2016, 11/1/2017, 21/2/2017, 25/4/2015, 9/5/2017, 19/6/2017 and 26/9/2017 and thus occasioning the resultant amendment of the charges by the deleting of the name of the Appellant so that the trial of the other Defendants could proceed.
My lords, what did the Appellant say in response to these grave allegations made against him by the Respondent? In paragraphs 34, 35, 36, 37, 38, 39 and 40 of the Appellas further affidavit deposed to by his wife in response to the Respondens counter affidavit, it was stated that but for his re-arrest the Appellant was prepared to attend the Court proceedings on 29/9/2017 and that on some of the dates referred to by the Respondent the Court below did not sit.
At any rate, the continuous absence of the Appellant at the proceedings of the Court below was occasioned by his ill – health and receiving treatment at a Clinic in Cotonou in Benin Republic and neither was any bench warrant issued for his arrest nor were his sureties invited to produce him or required to show cause.In all these responses, one salient fact was left un-responded to, namely: did the Appellant while on bail granted to him in a sister charge on one of the condition that he deposits his International Passport, and while his said International Passport was in the custody of the Court below, travel outside the country with other International Passport and thus circumventing one of the conditions of his bail and making him a grave flight risk if admitted again to bail by the Court as alleged in paragraph 21 of the Respondens counter affidavit?
The Appellant truly had no answer to this grave allegation and in law, facts deposed to in an affidavit if not controverted or countered by facts by the adversary are deemed admitted and true and a court of law is perfectly in order to act on such facts as good evidence to make appropriate and relevant findings of fact. See Ugochukwu V. Nwoke & Anor (2010) LPELR 11616 (CA). See also Ejikeme V. Ibekwe (1997) 7 NWLR (Pt. 514) 92 @ p. 518; Kamba V. Bawa (2005) 4 NWLR (Pt. 914) 43; Reynolds Ezediaro V. Ghaddar Machinery & Co. Ltd (2011) LPELR – 9061.My lords, once the offences with which a Defendant who is seeking bail pending his trial is ordinarily bailable, not being a capital offence, the Court called upon to determine such an application must consider the following factors, though not b any means intended to be exhaustive, to decide whether to admit or refuse to admit an Applicant to bail pending his trial, namely; a: the nature of the offence charged; b: the severity of punishment upon conviction; c: the character of the evidence against the Applicant; d: the criminal record of the Applicant if any; e: the likelihood of repetition of the offences charged or similar offences thereto; f: the likelihood of the Applicant escaping justice by jumping bail; g: the likelihood of the Applicant interfering with investigation. See Abacha V. The State (2002) 5 NWLR (Pt. 761) 638 Ogbhemhe V. COP (Supra); Bamaiyi V,. The State (2001) 8 NWLR (Pt. 725) 270; Ekwenugo V. FRN (2001) 6 NWLR (Pt. 708) 171; Chinemelu V. COP (Supra); Emordi V. COP (Supra).
I am aware of the Constitutional presumption of innocence of the Appellant until the contrary is proved by the Respondent as rightly contended by the learned Senior Advocate for the Appellant. In Ekwenugo V. FRN (Supra) @ p. 12 this Court had per Olagunju JCA., succinctly observed, on this issue of presumption of innocence of an accused person, inter alia thuWith particular reference to the facts of this case, the threshold of the trial when the only issue that came up for resolution was the condition under which the appellant should be admitted to bail, picking upon a violation of the right to be presumed innocent as provided in Section 36(5) of the Constitution is particularly mindless as a pastime of an indolent fault finder who has run out of ste However, with above trite position of the law, it is still my firm view that no Court of law, which is as well as Court of justice, would close its eyes to factors glaringly showing that the Appellant, as rightly found by the Court below, is a grave flight risk from his antecedent as aptly showed by the Respondent and admit such a person to bail so that he would most probably take to flight and stall the criminal proceedings already commenced against him and his co Defendants, as he did when the arraignment was postponed severally due to his absence from the country and the Court below and leading to the amendment of the charges to delete his name to enable his co Defendants, who were always available, to proceed with their trial until he was apprehended by the EFCC and produced before the Court below to stand his trial. At common parlance, it is oonce bitten is twice shy.
The Appellant who had serially abused the bail earlier granted to him by the EFCC and the Court in the sister charge does not deserve another chance at being given the opportunity to flee again from standing his trial to its logical legal conclusion before the Court below if admitted to bail pending his trial. See Bamaiyi V. State & Ors (2001) LPELR – 731 (SC), where the Supreme Court per Uwaifo JSC., had opined inter alia thus:Our criminal justice system has its stipulations and safeguards for the prosecutor, the accused and the victim. In the proper operation of that system, it can be said that it is in the interest of the society, and within those safeguards that if in an application for bail pending trial, there is good reason to believe or strongly suspect that the accused will jump bail thereby making himself unavailable to stand his trial and/or will interfere with witnesses thereby constituting an obstacle in the way of justice, the Court will be acting within its undoubted discretion to refuse bail.
I find as amusing the contention that because the Court below had refrained from issuing bench warrant against the Appellant for his persistent absence from the Court while on administrative bail of the EFCC and had also not invited his surety to show cause amounted any positive factor or ground in the favor of the Appellant in an application for his bail pending trial after he was re-apprehended by the EFCC and taken before the Court below to stand his trial. In similar vein, I find it ludicrous the contention that the Appellant had several business opportunities now open to him and his Company, the 2nd Defendant, running into billions of Naira and would stay back in Nigeria to attend to them and is therefore, not a flight risk if admitted to bail.
These are certainly and clearly no grounds for any favorable consideration in an application for bail, more particularly by the Appellant whose antecedent had shown his persistent flight from justice for almost one year and thereby stalling his timely and due arraignment until he was re – arrested in 2017 by the EFCC.
I therefore, find that the court below was on firmer ground when considering all the circumstances of the Summons of bail pending trial by the Appellant, including the grave flight risk the Appellant had constituted himself to be, it rightly refused his application for bail pending trial and rather proceeded expeditiously with his trial in line with its earlier order for accelerated hearing made in its ruling of 20/12/2017 dismissing the earlier Summons for bail by the Appellant filed on 25/10/2017 seeking to be admitted to bail pending his trial. See pages 1 – 9 and 119 – 123, particularly @ page 122 of the record of appeal.
In Bamaiyi V. State & Ors (Supra), the option of accelerated hearing, which the court below had adopted in its earlier ruling of 20/12/2017, was highly recommended in circumstances in which a Court finds that there is the probability of flight risk by a Defendant seeking to be admitted if so admitted to bail pending his trial, when it was stated inter alia thus:
In the proper operation of that system, it can be said that it is in the interest of the society, and within those safeguards that if in an application for bail pending trial, there is good reason to believe or strongly suspect that the accused will jump bail thereby making himself unavailable to stand his trial.It may be added that in such a situation, it will be desirable, as far as reasonably practicable, to accelerate the trial.
On the whole therefore, having resolved the sole issue against the Appellant in favour of the Respondent, I hold that this appeal lacks merit and is thus liable to be dismissed. Consequently, it is hereby so dismissed.
In the result, the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: J. E. Oyefeso J., in Charge No: ID/2767C/2016: Federal Republic of Nigeria V. Frank Karkitie & 3 Ors, delivered on 20/3/2018, in which the Summons for bail of the Appellant as the 1st Defendant/Applicant pending his trial was refused and dismissed for lacking in merit, is hereby affirmed.
TIJJANI ABUBAKAR, J.C.A.: I had a preview of the lead Judgment prepared and rendered by my learned brother Biobele Abraham Georgewill JCA, I entirely agree, I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the judgment of my learned brother BIOBELE ABRAHAM GEORGEWILL, JCA and I agree with the reasoning and conclusion therein.
The Appellant’s counsel raised special circumstance as to why the Appellant should be admitted to bail pending trial. He contended that the Appellant is suffering from a life threatening sickness which requires a specialist hospital’s attention. However, the major evidence upon which the lower Court will be convinced as to the health condition of the Appellant in order to grant the bail application was not placed before it. Neither was the letter of confirmation of the diagnosis of the Appellant in evidence at the lower Court and same cannot be put into consideration by this Court as it constitutes fresh evidence.
The leave of this Court was also not sought and obtained before placing same before this court. An appeal is by way of rehearing of the case and evidence not on record at the lower Court will be discountenanced without the leave of the appellate Court first sought and obtained. See the cases of IHUNWO v IHUNWO & ORS (2013) LPELR 20084 (SC); IBRAHIM v OJOMO & ORS (2004) 4 NWLR (PT 862) 89; DICKSON v OKOI (2003) 16 NWLR (PT 846) 397; AGBOM v STATE (2012) LPELR – 7910 (CA); CUSTOMARY COURT OF APPEAL BENUE STATE v ABURA TSEGBA & ORS (2010) LPELR – 4009 (CA).
Therefore in the absence of any confirmation of the health status of the Appellant, I am of the view and in agreement with my learned brother and the lower Court that the Appellant has failed to substantiate the ground of ill health so heavily relied upon coupled with the fact that the Appellant’s counsel failed to controvert the Respondent’s counter affidavit that the Appellant is a flight risk. It is settled law that facts not controverted will be deemed as an admission of same. See the cases of HABIB NIGERIA BANK LTD v WAHAB OPOMULERO & ORS (2000) 15 NWLR (PT 690) 315; LAWSON-JACK v SPDC NIG LTD (2002) 13 NWLR (PT 783) 180; NEW NIGERIA BANK PLC v DENCLAG LTD & ANOR (2001) 1 NWLR (PT 695) 542; ADELAJA & ORS v ALADE & ANOR (1999) 6 NWLR (PT 608) 544.
I too find that this appeal lacks merit and same is hereby dismissed. The Ruling of the lower court coram OYEFESO, J., in charge NO.. ID/2767C/2016 is hereby affirmed.
Appearances:
Lawal Pedro SAN, with him, T. O. Sanni Esq., O. C. Fapohunda Esq., O. M. Omolewa Esq., M. A. Bakare Esq., and K. Alapinni EsqFor Appellant(s)
V. O. Agboje Esq, (Legal Officer, EFCC)For Respondent(s)
