FRED CHIJINDU AJUDUA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12266(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2018
CA/L/909C/2018
RATIO
BAIL: WHETHER ILL-HEALTH IS A CONDITION FOR THE APPLICATION OF BAIL
“The law has been well settled to the effect that an applicant’s ill-health constitutes a special circumstance to be considered in an application for bail as in the instant case. Chinemelu v. Commissioner of Police (1995) 4 NWLR (pt. 390) 467 @ 487; Chief Gani Fawehinmi v. The State (1990) 1 NWLR (pt. 127) 283. In Mohammed Sani Abacha v. The State (2002) 5 NWLR (pt. 761) 638, (2002) LPELR – 15 (SC) where the appellant was standing trial for a capital offence, which is not ordinarily, a bailable offence, the Supreme Court in refusing the appellant’s application for bail, which was anchored on the appellant’s unproven ill-health, held thus: “Were it the law that an accused person remanded in custody to await trial is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial. There is no general principle of law awarding that right to an accused person remanded in custody. The duty of the State to ensure that the medical needs of persons in custody are met does not create extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice…The special medical need of an accused person whose proven state of health needs special medical attention which the authorities may not be able to provide is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to an accused person. Such need is not brought by mere assertion of the accused person or his counsel, but on satisfactory and convincing evidence.” — Per AYOOLA, JSC., @ pp. 12-13.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
FRED CHIJINDU AJUDUA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling of the Lagos State High Court, Ikeja Division, delivered on 5th July, 2018, dismissing the appellant’s application for bail pending trial. The appellant, piqued by the decision against him, filed the appeal which is anchored on seven grounds on 9th July, 2018.
In order to activate the prosecution of the appeal, the appellant’s brief of argument, dated 30th July, was filed on 2nd August, 2018. It was settled by Norrison Quakers, SAN., Olalekan Ojo, Esq., and Allens Agbaka, Esq. The Respondent’s brief of argument, dated 21st September, 2018 was filed on 24th September, 2018, but deemed filed on 18th October, 2018. The same was prepared by S.K. Atteh, Esq., K.M.A. Olusesi, Esq., J.T. Banjo, Esq., and S.O. Daji, Esq. Thereafter, the appellant?s reply brief, dated 26th September, 2018, was filed on 2nd October, 2018.
The appellant, formulated five issues for the determination of the appeal, thus:
(1) Whether having regards to the combined effects of Section 115(2) of the Administration of criminal Justice Law of Lagos State 2015, Section 35(4) (b) and Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 (As Amended) and the evidence of ill health, the materials placed before the Trial Court, and also the Appellant’s self-submission to the Trial Court. The Trial Court was wrong in dismissing the Appellant’s Pre-trial Bail application. (Distilled from and relates to ground one)
(2) Whether the Trial Court was not wrong in inferring and or assuming that the Appellant had sufficient time to have taken care of his ailment notwithstanding the evidence that the Appellant who is living with, a solitary kidney is scheduled for a medical surgery in a medical facility in India between May-June, 2018, and also the fact that the Court of Appeal Judgment did not specify the duration of time for the Appellant’s treatment. (Distilled from and relates to ground two)
(3) Whether having regards to the depositions in the Appellant’s Affidavits with respect to the reasons of the non-availability of the Appellant at the Trial Court whist he was still in India on medical evacuation, the trial Court was wrong in attributing the delay in the Prosecution of the case to the Appellant by considering and relying on the depositions in the Respondent’s Affidavit without considering the depositions in the Appellant’s Reply Affidavit. (Distilled from and relates to ground three)
(4) Whether the Trial Court was not wrong when it held, that if the Appellant who is ill, if admitted to Pre-Trial Bail, would truncate or stall mid-way the trial of the suit and consequently ordered that the Appellant be remanded in Kirikiri Maximum Security Prison Custody, pending the final determination of the Charge, relying on suspicion and irrelevant Judicial authorities is prejudicial, pervasive and consequently led to miscarriage of Justice.
(Distilled from and relates to grounds four and five.)
(5) Whether the trial Court was not wrong and consequently acted injudiciously by taking irrelevant, extraneous matters, and wrong principles of Law into consideration and also failed to consider the relevant materials placed before it, in resolving the issue of the non-availability of the Appellant to stand his trial, and thereby came to a decision that is perverse and consequently occasioned miscarriage of justice. (Distilled from and relates to grounds six and seven).
In the respondent’s brief of argument, four issues were nominated for the resolution of the appeal, namely:
ISSUE ONE
Whether the trial Court considered the materials placed before it in arriving at the decision refusing the Appellant’s application for bail. (This issue is based on grounds one and six of the appellant’s Notice of Appeal)
ISSUE TWO
Whether the Appellant who was granted bail by this Honourable Court in Appeal No. CA/L/693/2014 on the 14 day of November has no sufficient time to take care of his ailment. (This issue is based on ground two of the Notice of Appeal)
ISSUE THREE
Whether the Appellant has not deliberately delayed the trial of this case which was filed on the 9th of February, 2005 on the purported ground of his ill-health, and if granted bail, whether the Appellant will further delay the trial of the case. (This issue is based on grounds three and four of the Notice of Appeal)
ISSUE FOUR
Whether the authorities cited by the lower Court are irrelevant to issue of whether the Court should admit the Appellant to bail and also the need for speedy trial of this case. (This issue is based on ground seven of the Notice of Appeal)
The respondent had filed two Notices of Preliminary Objection, on 18th and 21st September, 2018, against the appellant’s brief of argument, pursuant to Rule 8(a) of the Court of Appeal (Fast Track) Practice Directions, 2014 and under the inherent jurisdiction of the Honourable Court, to the effect that the said brief is incompetent. Arguments on the preliminary objection were proffered at paragraphs 3.1 – 3.4 at page 3 of the respondent’s brief of argument, on the ground that the appellant’s brief of argument contained 32 pages instead of 15 pages as stipulated in Rule 8(a) of the Court of Appeal Fast Track Practice Directions, 2014 and Under the Inherent Jurisdiction of the Honourable Court, to the effect that the said brief is incompetent. The first contention of the respondent is that the appellant’s brief of argument, contained 32 pages instead of 15 pages as stipulated in Rule 8(a) of the Court of Appeal (Fast Track) Practice Directions, 2014.
The second objection is to the effect that since the appellant’s appeal was entered on the 11th July, 2018, the appellant’s brief ought to have been filed within 14 days in compliance with Rule 8(3) of the Court of Appeal Fast Track Practice Directions 2014 and that the said brief which was filed on 30th July, 2018 without the leave of this Court having been sought and obtained, is incompetent. He urged that the said brief of argument, be struck out.
The appellant responded to the preliminary objections, at paragraphs 1.06- 1.28 at pages 2-5 of the appellant’s reply brief. It is the submission of the appellant’s counsel that by virtue of Order 19 Rule 5(6) (a) of the Court of Appeal Rules, 2016 which provides that: “Except where the Court directs otherwise, every brief of argument to be filed in the Court shall not exceed 35 (thirty five) pages”; the appellant’s brief of argument of 32 pages, is not incompetent. He also submitted that by virtue of Order 1 Rule 3 of the Court of Appeal Rules, 2016, the practice and procedure of the Court shall be guided by its 2016 Rules, “NOTWITHSTANDING any written law or Rules of Practice ? He furthermore, submitted to the effect that the Court of Appeal Fast Track Practice Directions, 2014 which predated the Court of Appeal Rules, 2016 cannot override and have a superior effect over the latter. With respect, to the respondent’s contention that the appellant’s brief of argument was filed out of time, it is the submission of appellant’s counsel that by virtue of Order 19 Rule 2 of the Court of Appeal, Rules, 2016 which provides that “the Appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, —-“, the appellant’s brief of argument, in question is not incompetent.
Resolution of Preliminary Objection:
The fundamental objective of the Court of Appeal (Fast Track) Practice Directions, 2014, made under the hand of the Hon. President of the Court of Appeal, ZAINAB A . BULKACHUWA, CFR., pursuant to Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 8(2) of the Court of Appeal Act, 2004; is stated in Paragraph 3.-(a) of the said Practice Directions, thus:
“3.- (a) This Practice Direction is a set of directions with the fundamental objective of enabling the Court to deal with fast-track appeals quickly and efficiently.”
The above direction admits of no ambiguity, so it needs no further interpretation. But there is need to decipher and know what a fast- track appeal means. The said term is defined in paragraph 1 of the aforementioned Practice Directions, inter alia:
“fast- track appeal” means any of the following:
– Debt appeals
– Appeals pertaining to or connected with:
– Corruption;
– Human Trafficking
– Kidnapping
– Money Laundering
– Rape
– Terrorism
– Appeals by or against such national human rights, intelligence, law enforcement, prosecutorial or security agencies such as the Economic and Financial Crimes Commission, Independent Corrupt Practices Commission, National Human Rights Commission, the State Security Service.”?
The instant appeal has nothing to do with the above listed offences. However, it involves the Economic and Financial Crimes Commission, who is prosecuting the appellant for offences bordering on obtaining money by false pretences. The appeal is an interlocutory criminal appeal against the refusal to grant the appellant bail pending his trial, by the Court below. By virtue of Paragraph 8(2) (a) & (3) of the 2014 Practice Directions, the appellant’s brief of argument ought not to have exceeded 15 pages and it ought also to have been filed within 14 days from the time of the transmission of the record of appeal, from the Court below. It is clear to me, as crystal that the appellant’s brief of argument dated 30th July, 2018 and filed on 2nd August, 2018 contains 32 pages instead of 15 pages and it was not filed within 14 days from the transmission of the record of appeal, from the Court below.
I gave due consideration to the submissions of learned appellant’s counsel to the effect that the 2014 Practice Directions, cannot override Orders 1 Rule 3 and 19 Rule 2 of the Court of Appeal, Rules 2016, which is latter in time, than the Practice Directions, 2014 and the simple answer to the submission, is that it is the same President of the Court of Appeal, who made the 2014 Practice Directions, that also made the 2016 Court of Appeal Rules. Hence, if he wanted to make the 2014 Practice Directions subservient to the 2016 Court of Appeal Rules, it would have been so declared. In any event, it is instructive that the 2014 Practice Directions was not repealed by the 2016 Court of Appeal Rules. Therefore both of them are extant rules of practice and procedure of this Court and one is neither superior nor subservient to the other.
It was expected of appellant’s learned counsel to have been acquainted with and gained knowledge and mastery of the 2014 Practice Directions which was made to aid him in the quick determination of this interlocutory appeal. The vexed appellant’s brief of argument, having been filed in contravention of paragraph 8 (2) (a) & (3) of the Court of Appeal (Fast Track) Practice Directions 2014, without the leave of this Court having been sought and obtained, is deemed invalid.Adefemi v. Abegunde (2004) 15 NWLR (pt. 895) 1 @ 23; Okechukwu v. Independent National Electoral Commission (2014) 17 NWLR (pt. 1436) 255 @ 285-286. In the end, I am satisfied that in the circumstances analyzed above, the appellant’s brief of argument is incompetent. Consequently, it is liable to be struck down and out and it is accordingly hereby struck out.
I have also considered the appellant’s submission at paragraphs 1.27, 1.28 and 1.31 of the appellant’s reply brief to the effect that the respondent’s brief of argument was not filed in respect of the Appeal NO: CA/L/909C/2018 – Fred Ajudua v. FRN but was filed with respect to Appeal NO: CA/L/693/14 – Fred Ajudua v. FRN, hence he urged that there is no competent respondent’s brief of argument, in this appeal. It is clear that the appellant’s onslaught launched against the respondent’s brief at the twelfth hour, in the appellant’s reply brief, whereby the respondent could not have responded to it, is certainly not good practice. I therefore, without further ado, have no hesitation in discountenancing that submission. I, shall notwithstanding, the success of the respondent’s preliminary objection against the appellant’s brief of argument, proceed with the consideration and determination of the appeal on its merits. And I adopt the five issues nominated by the appellant for the determination of the appeal. They shall be considered and determined together.
Appellant’s Arguments:
A resum of the appellant’s contentions are that his application for pre- trial bail at the Court below was premised on serious medical grounds whereby he attached his medical reports, photographs, international travel documents and his voluntary submission to the Court for trial, without a bench warrant executed upon him; That the Appellant had by the materials placed before the Trial Court established special and exceptional circumstances to warrant the grant of Pre-Trial Bail, but the Trial Court wrongly presumed the Appellant guilty even without conclusion of Trial when it held that the suit is the oldest suit in the Lagos State High Court Docket and that the Appellant will truncate or stall the trial of the suit if admitted to Pre-Trial Bail.
The prison conditions where the Appellant is remanded have been shown to have contributed to the deteriorating and serious ill health of the Appellant, in that the Appellant developed an entirely new ailment whilst in Prison Custody, when the Prison Medical Personnels were attempting to treat him without success, hence he was referred and/or evacuated to LUTH, before he was eventually admitted to bail by Court of Appeal.
The Court of Appeal admitted the Appellant to Pre-Trial Bail based solely on medical grounds and Hon. Justice Oyefeso of the Lagos State High Court also granted the Appellant Pre-Trial Bail in the terms and conditions contained in the Court of Appeal decision in Appeal No. CA/L/693/2014-Fred Ajudua Vs. Federal Republic of Nigeria, the Appellant did not breach the terms of the Bail.
The Trial Court did not exercise its discretionary powers Judicially and Judiciously when it failed to consider the weighty materials placed before it by the Appellant and the fact that Appellant was in touch with the Respondent whilst in India, by furnishing the Respondent with his medical updates through his Solicitors.
The Trial Court relied seriously on suspicion, extraneous and irrelevant matters in coming to the conclusion that the Appellant will jump bail and cause the delay of the trial of the suit without considering the fact that the Medical facility and personnel at the Kirikiri Maximum Prison Detention Facility cannot adequately meet up with the Medical requirement of the Appellant as it has been shown previously that the Appellant developed entirely new ailment whilst in Prison Custody.
The Trial Court failed to consider the Appellant’s Affidavits but preferred to rely solely on the Respondent?s Counter Affidavit without considering the depositions in the Appellant’s Reply Affidavit which specifically denied the depositions in the Counter Affidavit and also showed that the Appellant who is living with a solitary malfunctioning kidney is scheduled for a medical surgery in India between May-June 2018.
The Trial Court treated as uncontradicted and admitted fact’s which the Appellant had vehemently denied in his Reply Affidavit, because the Appellant proffered cogent and compelling reasons of his non-availability in Court at the last adjourned dates.
The decision of the Trial Court has no basis in Law because the Trial Court wrongly applied the principle of laws enunciated in the cases relied upon by the Trial Court in dismissing the Appellant’s Pre-Trial Bail application.
Respondent’s Arguments:
The respondent’s learned counsel, submitted to the effect that from the time that the appellant was granted bail by this Court in November, 2014 to November, 2017, the appellant had enough time within which he ought to have treated himself instead of bringing an application for bail for him to be released to travel to India for treatment, just when his case had been set down for trial at the Court below. And that the appellant is exaggerating the nature of his ailment for the purpose of evading trial because if his sickness is really life threatening, he could not have waited for three years without seeking medical attention which was the sole purpose for which he was granted bail by this Court. He insisted that the appellant is deliberately delaying his trial since the case against him was filed in 2005 by using the same ploy of his ailment to stall the trial.
It is also the learned counsel to the respondent’s submission that the interest of the society and damage done to the reputation of the country because of the specie of the crime alleged against the appellant, must be taken into account in our consideration of this appeal. He also submitted that the learned trial Judge rightly on decided authorities and the principles guiding the grant of an application for bail on medical grounds and the delay in the instant case by the appellant, was justified in refusing the application for bail pending trial.
Resolution:
The appellant’s application as shown at pages 96-97 and the supporting affidavit at pages 99-102 respectively, of the record of appeal are germane. They are hereunder reproduced, for ease of reference and appreciation, it prays for:
1. AN ORDER granting Leave to the Defendant/Applicant to observe and/or conclude his medical treatment in India. before appearing for the trial of this suit, in consonance with the subsisting Judgment of the Court of Appeal in Appeal No:-CA/L/693/2014:- Ajudua vs. F.R.N and the Medical Reports attached to the Defendant/Applicant application (3 months)
2. AN ORDER adjourning this suit to include the duration of time within which the Defendant/Applicant treatment will last in India in consonance with the subsisting Judgment of the Court of Appeal in Appeal No:-CA/L/693/2014- Ajudua vs. F.R.N and the Medical Reports attached to the Defendant/Applicant’s application (3-6months).
3. AND FOR SUCH FURTHER or other Orders this Honourable Court may deem fit to make in circumstance of this case.
TAKE FURTHER NOTICE that the Grounds upon which the application is predicated upon are as follows:
i. The Defendant/Applicant has been very ill, in that he developed serious kidney related ailment whilst in the Prison Custody and the resultant effect is that the Defendant/Applicant is now living with a solitary Kidney having removed one of kidneys previously at a Medical Facility in India in other to preserve the Defendant/Applicant?s life.
ii. The Defendant/Applicant was granted Pre-Trial bail on serious medical grounds by the Court of Appeal, (Lagos Division) on 14th November, 2014. IN RE: Appeal No: -CA/L/693 – Ajudua v. FR.N and he has since perfected the terms and conditions of the Bail granted to him and has been adhering to the terms slavishly until recently when his ailment worsen and he was suddenly evacuated to India for urgent medical treatment.
iii. The Defendant/Applicant’s sole malfunctioning kidney started deteriorating and because Ruby Hall Medical Facility in India where the initial surgeries were performed and because the said Hospital is conversant with the Defendant/Applicant’s medical history.
iv. On the 8th day of February, 2018, the Defendant/Applicant was suddenly evacuated to Ruby Hall Medical Facility in India where he is currently observing his medical treatment with the terms and conditions contained in the subsisting Judgment of the Court of Appeal which arose from Suit No: ID/354c/2013:- The Federal Republic of v. Fred Ajudua.
v. The Defendant/Applicant who did not obtain the leave of this Honourable Court before being medically evacuated, requires adequate time and facility to attend to his medical needs in other to preserve his life to enable him be properly fit and prepared to face his trial.
vi. Presently the Defendant/Applicant is not medically fit to immediately travel back from India to Nigeria to face his trial having regards to his ailments.
vii. The Defendant/Applicant will require reasonable time (3 – 6 months) after the surgery for post surgery recovery and monitoring, because of the special nature of the recommended surgery.
viii. The Defendant/Applicant will be ready to enter an undertaken for the expeditious prosecution of this case once he is medically fit to face his trial.
Then the affidavit in support of the application says:
I, Funmilayo Adewale, Female, Christian, Nigerian Citizen, and a Litigation Officer in the Law firm of Allens Agbaka Chambers of Suites 210 & 211, Uche Ayoola Plaza, No. 11 Olorunlogbon Street, Anthony Village, Lagos, do hereby make oath and state as follows:
1. I am a Litigation Officer in the Law Firm of Allens Aghaka Chambers, one of the Counsel to the Defendant/Applicant by virtue of which I am conversant with the facts deposed herein-under.
2. I have the consent and authority of the Defendant/Applicant who is indisposed on serious medical grounds, Allens Agbaka, Esq., Marcellinus Nwangbo, Esq.. and Samuel Uzamah, Esq., to depose to this affidavit on their behalf.
3. By virtue of the schedule of my duties, the facts I depose to in this Affidavit are facts within my personal knowledge having carefully and painstakingly read the Chambers Court’s case file and/or facts derived from information given to me by the Defendant/Applicant, the Defendant/Applicant Counsel Aliens Agbaka, Esq., Marcellinus Nwangbo, Esq. and Samuel Uzamah, Esq. which information I verily believe to be true.
4. At the conference held amongst I, (Funmilayo Adewale), the Defendant/Applicant, and the Applicant’s Counsel Allens Agbaka, Esq., Marcetlinus Nwangbo, Esq., and Samuel Uzumah Esq., under a Cell Phone conference call at No. 11, Olorunlogbon Street, Anthony Village, Lagos. On Monday, 5th day March, 2017 at about 12:30pm wherein they jointly and severally informed me and I verily believe them as follows:
a. The Defendant/Applicant upon arraignment in criminal charge No: 16c/2005:- Federal Republic of Nigeria vs. Ajudua pleaded not guilty and was consequently remanded in Kirikiri Maximum Prison Security Prison awaiting trial, but whilst in the detention facility the Defendant/Applicant developed a kidney related ailment and was later admitted to bail after the raptured and only surviving kidney has been affected adversely.
b. The Defendant/Applicant being admitted to bail was taken to India though very late and consequently he lost one kidney and now left with one malfunctioning solitary kidney, which could not be managed whilst he was at Kirikiri Maximum Prison Custody, Apapa, Lagos.
c. The Defendant/Applicant is very ill and at several occasions was evacuated to Medical and Lagos University Teaching Hospital which led the to file an application for Pre-Trial bail in Charge No. ID/354c/2015; Federal Republic of Nigeria V. Fred Ajudua which as at that material time was presided over by Honourable Justice O.A. Ipaye (Mrs.) on serious Medical grounds, in that the Defendant/Applicant living on a sole malfunctioning solitary kidney.
d. The Defendant/Applicant’s application for Pre-Trial was refused by his Lordship Justice O.A. Ipaye (Mrs.) in charge 16C/2005:- Federal Republic of Nigeria v. Fred Chijindu Ajudua which prompted the Defendant/Applicant to appeal against the refusal of the Pre-Trial Bail to the Court of Appeal, (Lagos Division) and in a well considered Judgment of the Court of Appeal, (Lagos Division) dated 14th November, 2014, Honourable Justice O. A. Ipaye was set aside vide Appeal No:-CA/L/693/2014 – Ajudua vs. F.R.N. Now shown to me and marked EXHIBIT ‘AAC1’ is a copy of the Court of Appeal Judgment to that effect.
e. The Judgment of the Court of Appeal aforesaid, is still subsisting, it has not been set aside and the terms and conditions of the Bail contained in the said Court of Appeal Judgment has been perfected by the Defendant/Applicant who has been adhering to the order slavishly until the fact that gave rise to this present application.
f. The Defendant/Applicant has consistently been ill and requires an urgent surgery to sustain the sole malfunctioning kidney having previously removed the other infected kidney at Grant Medical Foundation, Ruby Hall Clinic in India.
g. The Defendant/Applicant has a very strong history of kidney failure, pursuant to which he was previously evacuated to India upon referral from LUTH wherein the Defendant/Applicant was diagnosed, operated and one of his kidneys removed at the said India Specialist Hospital in other to preserve and secure the only surviving kidney.
h. Because the peculiar nature of the Defendant’s/Applicant’s ailment which has subtly defiled most readily available Medial Solutions within Nigeria, the Defendant/Applicant at various occasion was evacuated from Nigeria to India for medical treatment in view of the fact that he is now living with only one malfunctioning kidney and there is urgent need to carry out yet another surgery to salvage the only malfunctioning kidney which is on the verge of being collapse.
i. Notwithstanding the fact that the Defendant/Applicant is on Pre-Trial Bail, granted to him by Court of Appeal (Lagos Division) which arose from Suit No: ID/354c/2Ol, the Defendant/Applicant still remains on the death roll if urgent steps had not taken been taken to attend to his serious medical needs by experts who are specialized in the area of his ailment, which has technically defiled all readily available medical solutions within Nigeria.
j. Since the Defendant/Applicant was granted Bail by the Court of Appeal (Lagos Division), the Defendant/Applicant has been a patient and occasionally treated at Lagos University Teaching Hospital (LUTH) and some Private Hospitals.
k. The Court of Appeal, Lagos Division in its well considered Judgment 14th, November, 2014 in Appeal No:-CA/L/693/2014 – Ajudua vs. F.R.N, at page 34, observed the need for the Defendant/Applicant to have easy and readily access to Medical Experts abroad in the medical field, where the Defendant/Applicant is facing medical challenges hence the need for easy accessibility to his international travelling documents.
l. At one occasion when the Defendant/Applicant was medically evacuated to Lagos University Teaching Hospital (LUTH he was diagnosed and it was recommended amongst other things that there is need to carry out yet another surgery on the Defendant/Applicant in other to save his life which is seriously being threatening and consequently a medical Report or Referral was issued to the Defendant/Applicant to that effect. Now shown to me EXHIBIT AA C is a copy of the Referral from LUTH.
m. Because of the peculiar nature of the surgery, the Defendant/Applicant will require sufficient time for post surgery recovery to enable him to be properly fit to face the fatigue and stress incidental to criminal trial at a later date.
n. The Defendant/Applicant was recently on the 8th of February, 2018 evacuated to India wherein the medical personnel specialized in the particular area of the Defendant/Applicant?s ailment shall carry out the surgery and monitoring of post surgery recovery which will require time and ease of access to the medical personnel and equipment.
o. The sole remaining malfunctioning kidney of the Defendant/Applicant contains stones which will require a well-coordinated surgery by a specialist for its removal particularly from the India Hospital where the previous Surgery was performed, because they have the Defendant’s/Applicant’s medical history.
p. Because of the Defendant/Applicant?s huge size and also the fact that he is being fragile, coupled with the ugly experience the Defendant/Applicant encountered whilst he was being medically attended to previously whilst still at Kirikiri Maximum Detention Facility, Apapa, Lagos before he was taken to LUTH and thereafter admitted to bail, the Defendant/Applicant prefers to have the major surgery abroad as already recommended by the Medical Personnel at LUTH.
q. Because of the pendency of this suit and another criminal case in RE Suit No: ID/354c/2013: Federal Republic of Nigeria v. Ajudua, the Defendant/Applicant could not immediately travel for his medical treatment abroad because of the adjournments until he became very ill and was suddenly evacuated abroad.
r. The Defendant/Applicant who is now seriously ill was suddenly evacuated in India without informing and/or seeking and/or obtaining the leave of this Honourable Court, because of the urgency and the medical precarious plight of the Defendant/Applicant as at the material time he was taken to India.
s. Pursuant to the subsisting Judgment of the Court of Appeal dated 14th November, 2014 which admitted the Defendant/Applicant to Pre-Trial Bail and the medical referral from LUTH signed by Consultant Nephrologist, Dr. Monica Mabayoye, the Defendant/Applicant previously took the advantage of the long adjournment and also the 2017 annual Court’s vacation and consequently travelled to Maharashtra, India to keep up with his Medical Appointment with his Physicians at RUBY HALL CLINIC, of 40 Sasson Road, Pune, Maharashtra, India based on a referral from Lagos University Teaching Hospital (LUTH), wherein he was treated and issued a Medical Report to that effect. The Defendant/Applicant?s International Travelling Documents and the Medical Report issued to him are attached as a bundle and marked EXHIBIT AACS.
t. Whilst the Defendant/Applicant was at the India Hospital aforesaid, he was attended to by specialist in the area of his peculiar ailment, who diagnosed him and issued him a Medical Report which effect would have necessitated his further stay in India, but not for the pendency of one of his criminal suits (Suit No: ID/354c/2013:- Federal-Republic of Nigeria v. Fred Ajudua) which was then slated for Monday 16th October 2017 and 10th January, 2018 and also based on the serious importance attached to the pendency of the Two (2) Criminal suits pending in Nigeria, the Defendant/Applicant insisted on coming back to Nigeria to face his criminal trial in defiance of all medical advice as can be distilled from the Medical report dated 29th September, 2017 and 16th February, 2018 issued to the Defendant/Applicant by RUBY HALL CLINIC, and also evidenced through his International Travelling Documents.
In consonance with the contents of the Medical issued by RUBY HALL CLINIC INDIA to the Defendant/Applicant which contents speaks for itself, the Defendant/Applicant was suddenly evacuated to India far the surgeries which is urgently necessary to preserve the Defendant’s life which is almost at the point of being snuffed off by emerging unanticipated ailments that has possible defiled all the medical solutions within the shores of Nigeria.
u. Pursuant to the foregoing depositions, the Defendant/Applicant was evacuated to India on 8th February, 2018 for urgent medical attention with the attendant recommended surgeries as to gleaned from the ?Medical Update on Mr. Fred Chijindu Ajudua dated 29th September from RUBY HALL CLINIC and Further Medical Updates? dated 16th February, 2018 also from RUBY HALL CLINIC
v. THE Defendant/Applicant is now seriously indisposed on strong medical grounds; Now shown to me as bundle and marked EXHIBIT AAC are copies of the Defendant/Applicants national Travelling Documents and the Medical Report issued to the Defendant/Applicant whilst still in India on a Medical Trip.
w. Whilst the Defendant/Applicant was being attended to medically at RUBY HALL CLINIC Medical facility at India, the Defendant/Applicant’s Medical Aid who accompanied him from Nigeria to India used his cell phone to take photograph shots of the Defendant/Applicant. Now shown to me as bundle and marked EXHIBIT AAC3 are copies of some of the photograph shots to that effect.
x. The Defendant/Applicant verily believes that this application has become necessary because Defendant/Applicant requires the leave of this Honourable Court to regularize his absence in Court and also to give proper effect to the subsisting Judgment of the Court of Appeal (Lagos Division) which allowed the Defendant/Applicant’s appeal on serious medical grounds.
y. The Defendant/Applicant verily believe that the evidence of the precarious health challenges of the Defendant/Applicant must have informed the Court of Appeal Lagos Division when it held in its well considered Judgment dated Friday 14th November 2014 in appeal No: CA/L/693/2014 Ajudua vs. F.R.N as follows;
z. At page 50 of the Judgment the Court of Appeal held; The saying goes that ‘health is wealth’. Yes. . I agree that there are many factors a Court must consider in considering an application for bail pending trial, but I am of the view that it is a living being that would abide by the other factors but together. A dead man cannot stand his trial here on this planet earth.
A painstaking perusal of the affidavit in support of the application for bail at the Lower Court, and indeed the Counter Affidavit, the parties agreed that FRED AJUDUA is a man who is very ill. This is paramount.
At page 51 the Appeal Court held; A man who is very ill, and with only one kidney, which kidney is at the verge of giving up, is a walking carcass, and such person should incarcerated, but allowed to get good medical treatment at all material times without let or hindrance.
The present situation demands that the Appellant be granted, bail to enable him receive the necessary treatment, to further enable him stand his trial.
At page 54 of the Court of Appeal Judgment, the Court in setting down the condition for Bail held thus:
(4) The Appellant shall undertake to remain resident in Nigeria, for as long as his trial shall be.
(5) He is to retain his international passport, in the event that he shall need foreign medical treatment at short notice, because of the serious state of his health.
The Defendant/Applicant verily believe that the Court of Appeal had the whole facts within its disposal and consequently considered all the Medical Reports relevant to the Applicant’s case in granting the Defendant/Applicant Bail Pending Trial which arose from suit No. ID/354c/2013; Federal Republic Nigeria V. Fred Ajudua.
The Defendant/Applicant shall undertake to be furnishing the Prosecution/Respondent and this Honourable Court with his Medical Updates if this application is granted.
The Defendant/Applicant though has not been arraigned before this Honourable Court still pending application before this Honourable Court.
From the foregoing depositions, I verily believe that the Prosecution/Respondent will not be prejudiced if this application is granted.
From the foregoing depositions, I verily believe that it is in the utmost interest of? Justice to grant this application.
I swear to this Affidavit in good faith and in accordance with the Oath Laws of Lagos State.
(See pages 96-102 of the record of appeal).
Now, it is glaring that from the showings of the appellant in his application and the affidavit in support thereof, that he was granted bail by this Court on 14th November, 2014, in order for him to seek “foreign medical treatment at short notice because of the serious state of his health”. The respondent did not controvert this fact in its counter affidavit.
The only grouse of the respondent is that the appellant ought to have sought foreign medical treatment between November, 2014 and November, 2017, which he did not. However, the depositions at paragraphs 12, 13 & 14 of the respondent’s counter affidavit at pages 389- 390 of the record of appeal indicate that the appellant was admitted at the Grant Medical Foundation, Ruby Hall Clinic, 40 Sassoon Road, Pune, India, particularly from 5th to 22nd March, 2006 and “that after the Applicant was given the estimated cost of treatment, he did not turn up afterwards for further treatment”. Therefore, it is not correct to say that the appellant never sought foreign medical treatment before November, 2014.
In fact, by the depositions of the respondent at paragraphs 46, 47,48, 49 & 50 of the counter affidavit at pages 394 & 395 of the record of appeal, it is clear that the appellant’s medical update up to 27th September, 2017 was furnished to the Court below by the appellant’s counsel. The said appellant’s medical update was issued from Grant Medical Foundation, Ruby Hall Clinic, aforementioned, where he goes for his medical treatment, since 2006. The contents of the said medical update are apt. It is at pages 330-331 of the record of appeal. It reads, inter alia:
“Grant Medical Foundation
Ruby Hall Clinic
29th September, 2017
TO WHOM IT MAY CONCERN
MEDICAL UPDATES ON MR. FRED CHIJINDU AJUDUA
(MALE 57 YEARS)
The above named patient is a 57 year old lawyer and was first referred to us by Dr. Mabayoje, consultant Nephrologist with Lagos University teaching hospital (LUTH) Nigeria, in the year 2006. She has referred him to us in 2017. We met with Mr. Ajudua Fred and ran series of tests and evaluation, at his request we make the following Medical updates on his health status and regime of treatment, we make this update without much medical terminologies to enable easy understanding.
When first referred, patient presented the ailment of Nephrosis and left artery stenosis and reflux of the left kidney. Nephroctomy removal of left kidney, was recommend and performed in December, 2006.
Patient had complications and had a second surgery on the 14th January, 2007. He has remained with solitary kidney. Like all those on solitary Kidney he is prone to urinary tract Infections, formation of Calculi (Kidney stones and Gall Bladder Stone).
The current test reveals that patient is overweight at 140 kg that explains the impact on the Solitary Kldney Swelling on the legs and inability to walk without pain.
Further tests reveals the presence of Gall Bladder Stones Calculi with Cholecystitis), enough to impair the healthiness of the solitary kidney and urgent surgical intervention is recommended. Further test reveals enlarged Prostrate which naturally reduces urination, causes urine retention and reflux, which will damage the solitary Kidney, (further surgical interventions is also recommended urgently as patient has been on drug Tamsolusin 400 mg daily for 2 years. For his GI symptoms we evaluated him and found to have Grade Ill Hemorrhoids which require surgical intervention.
Since patient insist on returning back to Nigeria it’s recommended that surgery should not be delayed beyond the next 60 days. Based on patient’s history and physical size, the surgery, post recovery period and monitoring should be between a periods of 3 ? 6 months before patient can resume normal strenuous activities. Patient will continue with his anti-hypertensive drugs of Valsartan 160mg and Amlodipine Besylate 10 mg daily. Patient is also referred back to Dr. Mabayoje for continuous monitoring.
Please feel free to contact us for further information.
Signed
Dr. Abhay N. Sadre
Consultant Nephrologist.”
There was a follow up letter from the same Dr. Abhay N. Sadre, Consultant Nephrologist at the Grant Foundation, Ruby Clinic, India, dated 16th February, 2018 shown at page 332 of the record of appeal, in respect of the appellant, to the effect that he would undergo a surgery in the month of February, 2018, whereof his medical visa was extended to end of June, 2018 for him to recover and be monitored. The said update speaks for itself, thus:
Grant Medical Foundation
Ruby Hall Clinic
6th February, 2018
TO WHOM IT MAY CONCERN
FURTHER MEDICAL UPDATES ON MR. FRED CHIJINDU AJUDUA (MALE 57 YEARS)
This is a further update on the above patient. Medical report dated 29th September 2017 was issued at patient’s request. Patient is now undergoing evaluation and preparation for the three recommended surgeries, please refer to our earlier detailed report dated 29th September, 2017.
Patient will undergo surgery in the month of February 2018 and have a recovery period and out patient monitoring till end of 2018.
The hospital will graciously extend his medical visa till June to monitor recovery.
This further medical update and report is at the request of patient. Please feel free to contact the undersigned for any further information.
Signed
Dr. Abhay N. Sadre
Consultant Nephrologist.”
Yet again on 28th February, 2018, the same appellant’s Consultant Nephrologist – Dr. Abhay N. Sadre, wrote another letter in respect of the appellant’s medical bill as shown at page 361 of the record of appeal, thus:
“Grant Medical Foundation
Ruby Hall Clinic
28th Feb., 2018
TO WHOM IT MAY CONCERN
Mr. Fred. C. Ajudua has been our patient since 2006 when he performed Nepheroctomy of left kidney (Total Removal).
He is referred to us again and being diagnosed this time and recommended for three surgeries, please refer to our detailed medical report dated 29th September, 2017
The details cost of surgeries are as follows:
1) Gastroscopy – 1 lakh rupees
2) Colonoscopy – 1 lakh rupees
3) Robotic/Prostetectomy – 4.5 lakh rupees.
Please extend all visas to him and accompanying medical aides/attendants. Please feel free to contact the undersigned for any information.
Signed
Dr. Abhay. N. Sadre.
Consultant Nephrologist.”
The three letters reproduced above were attached as exhibits to the affidavit in support of the appellant’s application for bail pending his trial at the Court below. They represent the appellant’s health status as at 28th February, 2018. They have not been controverted by the respondent. Hence, they are each deemed as duly proved and established. In Re- Amolegbe (2014) 8 NWLR (pt. 1408) 76 @ 96 (SC); Federal Airport Authority v. Wammal Express Services Nig. Ltd (2011) 1 S.C.N.J .133; Ajomale v. Yaduat (1991) 5 S.C.N.J. 178 @ 184.
The law has been well settled to the effect that an applicant’s ill-health constitutes a special circumstance to be considered in an application for bail as in the instant case. Chinemelu v. Commissioner of Police (1995) 4 NWLR (pt. 390) 467 @ 487; Chief Gani Fawehinmi v. The State (1990) 1 NWLR (pt. 127) 283. In Mohammed Sani Abacha v. The State (2002) 5 NWLR (pt. 761) 638, (2002) LPELR – 15 (SC) where the appellant was standing trial for a capital offence, which is not ordinarily, a bailable offence, the Supreme Court in refusing the appellant’s application for bail, which was anchored on the appellant’s unproven ill-health, held thus:
“Were it the law that an accused person remanded in custody to await trial is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial. There is no general principle of law awarding that right to an accused person remanded in custody. The duty of the State to ensure that the medical needs of persons in custody are met does not create extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice. —- The special medical need of an accused person whose proven state of health needs special medical attention which the authorities may not be able to provide is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to an accused person. Such need is not brought by mere assertion of the accused person or his counsel, but on satisfactory and convincing evidence.” — Per AYOOLA, JSC., @ pp. 12-13.
My Lords, the facts and circumstances of Abacha v. The State supra, are clearly not the same with those of the instant case where the charges against the appellant are felonies which are bailable offences. Furthermore, I have demonstrated earlier in this judgment that the documentary medical evidence as shown at pages 330-331, 332 and 361 of the record of appeal which were reproduced copiously above as placed before the Court below were not controverted by the respondent, hence they are deemed as having been established. Therefore, ipso facto, they are satisfactory and convincing. The Supreme Court more recently in Patience Okoro Eye v. The Federal Republic of Nigeria (2018) 1 S.C.N.J. (pt.11) 364 where the appellant was standing trial along with five other persons for bailable offences, but was refused bail by the trial Court and also this Court, it was held thus:
“In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments.
I must say that, it is a hard matter of law, facts and circumstances which the Court considers without being emotional sensitive or sentimental. See Adamu Suleiman & Anor VS C.O.P. Plateau State, 33 NSCQR (pt. 2) 735 at pp.758-759.” – Per Bage, JSC., at p. 390.
In the instant case, the learned trial judge, was clearly more mindful and concerned about the delay in the trial of this matter, which had lasted for so long and came to the conclusion that the resort by the appellant to his poor medical state, was a ploy to further delay his trial. He did not think more of the precarious situation of the appellant’s failing health and the fact that it is only the living and not the dead that can stand trial in our Courts. I am of the firm opinion that his Lordship, failed and/or neglected to give a deep thoughtful consideration of the opinion rendered by this Court on 14th November, 2014 when the appellant was granted bail, to the effect that:
“I am of the view, that in view of the numerous materials before it, the lower Court failed to exercise its discretion judiciously, by turning a blind eye to the bad state of health of the Appellant, which in my view is overwhelming.
A man who is hypertensive, and with only one kidney, which kidney is at verge of giving up, is a walking carcass, and such person should not be incarcerated, but allowed to get good medical treatment at all material times without let or hindrance.”
Per, Rita Pemu, JCA., at page 321 of the record of appeal.
I am afraid, it appears to me, that the appellant’s health status, as at 28th February, 2018 when the last update on his health was given by his doctor in India as shown on page 361 of the record of appeal, was not as good as it was in November, 2014. Yes, the appellant must stand trial for the offences alleged against him. He has been alleged to be in the eye of the storm in the criminal web of obtaining money by false pretences which has compounded Nigeria’s notoriety in shady business scams, culminating in a humongous National bad reputation. Nevertheless, I think that the respondent should muster all financial resources for his medical treatment, not necessarily by going on foreign medical tourism to India or elsewhere, but by upgrading our medical infrastructures for them to handle the sort of ailment that is haunting the appellant, such that he remains in the country to take his medical treatment and also his trial in Court.
However, it must be remembered that the appellant is still an accused person and not yet a convict. And commendably, his trial as can be gleaned from pages 365- 386 of the record of appeal, whereof the two star witnesses for the respondent have testified, had started in full gear. Let the trial continue, but let the appellant also be healthy at the trial.
For all I have been saying, it is manifestly clear that the issues discussed in this appeal, be and they are resolved in favour of the appellant. Therefore, the appeal succeeds. It is allowed. The ruling rendered by M.A. Dada J., of the Ikeja Judicial Division of the Lagos State High Court, in re – Charge NO: ID/16C/2005, on 5th July, 2018, is hereby set aside.
CONSEQUENTLY, IT IS ORDERED THAT:
The appellant is granted bail, pending his trial, on the same terms decreed by this Court on 4th November, 2014, that is:
(1) The Appellant – Fred Ajudua, is granted bail in the sum of N10, 000,000:00 (Ten Million Naira) and two sureties in like sum, who shall be respectable and responsible members of society.
(2) The sureties shall each swear to an affidavit of means, that they each have property worth N50, 000,000.00 in the Lagos metropolis.
(3) The sureties must each produce two recent passport photographs of themselves.
(4) The Appellant shall undertake to remain resident in Nigeria, for as long as his trial shall be.
(5) He is to retain his international passport, with the variation that if there is an urgent need for him to travel out of the country for medical treatment, there must be a certification to that effect, by a Consultant Nephrologist at the Lagos University Teaching Hospital, (LUTH), Lagos indicating that the appellant’s ailments, cannot be treated in the said hospital. And such a certification shall be communicated to the Court below before the appellant can leave the shores of Nigeria for further medical treatment.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgement written by my learned brother, Tom Shaibu Yakubu, J.C.A., in this appeal, I agree with the views and conclusion therein, which I adopt.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in draft the lead judgment of my learned brother, TOM SHAIBU YAKUBU, JCA. He has dealt with the relevant issues in this appeal comprehensively and I adopt his Lordship’s reasoning and conclusion as mine. I have nothing more useful to add.
Appearances:
N. I. Quakers, SAN and O. Ojo, SAN with them, A. Agbaka, Esq., C. Nwabara, Esq., O. Onofowokan, Esq., O.F. Awe, Esq. and S. Fashanu, Esq.For Appellant(s)
Temitope James Banjo, Esq.For Respondent(s)
