GEORGE OGBONNA v. FEDERAL REPUBLIC OF NIGERIA (2019)

GEORGE OGBONNA v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13399(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/L/365C/2018(R)

RATIO

CRIMINAL LAW AND PROCEDURE: BAIL: THE TYPES OF BAIL

BAIL: CONDITIONS THE APPELLATE COURT WILL CONSIDER IN GRANTING BAIL
A long line of decided authorities have shown that in matters of bail pending appeal, the principles to guide an appeal Court in the grant or otherwise of bail to convict include among others:-
(1) The Appellant has in fact lodged an appeal to the Court of Appeal which is pending.
(2) The Appellant has complied with the conditions of appeal imposed, and this will show the seriousness of his application.
(3) If the Appellant was granted bail during the trial, he has not attempted or tried to jump bail.
(4) That the admission of an Applicant to bail pending the determination of his appeal is at the discretion of the Court.
(5) That bail will not be granted pending an appeal saves (sic) in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(6) That in dealing with latter class of case, the Court will have regard not only to the length of time that will elapse before the appeal can be heard but also the length of the sentence to be appealed from and that these two matters will be considered in relation to one another, and
(7) In the absence of special circumstances, bail will not be allowed unless a refusal will have the result of a considerable proportion of the sentence being served before the appeal can be heard.
See the case of:- State v. Jammal (1996) 9 NWLR Part 473 Page 384 at 399 and 400.”PER TOBI EBIOWEI, J.C.A.

CRIMINAL LAW AND PROCEDURE: BAIL: BAIL IS ALWAYS GRANTED AT THE DISCRETION OF THE COURT

JUDICIAL DISCRETION DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH CASE OR MATTER
That is to say that every case would be treated based on its facts and law. See ODUSOTE V. ODUSOTE (1971) 1 ALL NLR 219 at P. 222. This Court has times without number reiterated that judicial discretion depends on fact and circumstance of each case and in matters of discretion no one case can be authority for another. See the old English case JENKINS vs. BUSHBY (1891) 1 CH 484 AT p. 494 where Kay L.J. said:
The Court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect an end to the discretion. See: UNIVERSITY OF LAGOS & ANOR. vs. M.I. AIGORO (1985) 11 SC 152.PER TOBI EBIOWEI, J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

GEORGE OGBONNA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERA Respondent(s)

TOBI EBIOWEI, J.C.A. (Delivering the Lead Ruling): Before this Court is an application filed by the law firm of Professor A.B. Kasunmu (SAN) seeking for the bail of the Appellant/Applicant pending the appeal to the Supreme Court from the judgment of this Court delivered on 25/10/2018 confirming the judgment of the lower Court wherein the Appellant/Applicant was convicted and sentenced to 8 years imprisonment. The Appellant/Applicant is presently serving his sentence in the Kirikiri prisons. The application for bail pending the appeal is supported by a 28 paragraph affidavit and a further affidavit of 16 paragraph tagged ?reply affidavit to the Respondent?s counter affidavit.? The main premise of the application is on health grounds. The Appellant wants this Court to grant bail to the Applicant basically on health grounds. The counter affidavit of the Respondent is challenging the health ground and the fact that the Appellant has failed to pursue the appeal in the Supreme Court.

Both parties filed their written addresses. The Appellant/Applicant address was signed by Temitayo Adeniyi Esq., but was adopted by Olalekan

Ojo (SAN) on 11/4/19. Counsel raised a sole issue for determination, which is, whether this Court should exercise its discretion to grant bail to the Appellant/Applicant. It is submitted that bail is granted at the discretion of the Court and in doing so the Court will look out for exceptional or special circumstances that warrant the granting of bail. He referred to Doris Obi vs. State (1992) 8 NWLR (Pt.257) 81; Munir vs. FRN (2009) 16 NWLR (Pt. 1168) 481; George vs. FRN (2010) 5 NWLR (Pt.1187) Pg.254; Ojo vs. FRN (2006) 9 NWLR 103. After stating the circumstance that will warrant the granting of bail, it is counsel?s firm submission that the Appellant in the affidavit evidence has satisfied the conditions or at least proved some of the conditions to warrant been granted bail. The Appellant heavily relied on his health condition in urging Court to grant him bail. He relied on Fawehinmi vs. State (1990) 1 NWLR (Pt. 127) 486; Abacha vs. State (2002)5 NWLR (Pt.761) 638; Umar vs State (2017) LPELR-43144 (CA).

The Respondents address was signed by Adebisi Adeniyi Esq., of the law firm of Rotimi Jacobs & Co. He also raised a sole issue

for determination not different from the Appellant. In his words the issue for determination is:
Whether the Appellant/Applicant who has been convicted and sentence by the trial High Court for 8 years imprisonment and whose conviction was affirmed by this Honourable Court has placed before this honourable Court, sufficient materials upon which this Honourable Court can exercise its discretion in his favour.?

Learned counsel answered this question in the negative. After stating the principles that govern bail pending appeal, it is counsels firm submission that the Appellant has not provided sufficient material facts in the affidavit evidence to warrant this Court exercising the discretion to grant bail in his favour. He referred to Ojo vs. FRN (2006) 9 NWLR (Pt.984) 103 @116-117; State vs. Jammal (1996) 9 NWLR (Pt. 473) 384; Fawehinmi vs. State (supra); Munir vs. FRN (supra). One ground upon which the Respondent opposed the application is that the health situation is not compelling enough as there is no evidence from an expert on the current health condition of the Appellant and that there is no evidence that the prison

authorities cannot handle that medical condition. Counsel referred to Abacha vs. State (supra) in submitting that the Lagos State University Teaching Hospital (LASUTH) has the capacity to handle the health condition of the Appellant/Applicant. The second ground of the opposition is that the Applicant has not shown any seriousness to pursue the appeal as the record of appeal has not been compiled talk less of transmitted. It is his firm submission that bail should be refused since this is a case of bail pending appeal as the presumption of innocence does not avail the Appellant/Applicant. Counsel finally referred to Jammal vs. State (1996) 9 NWLR (Pt. 472) 352 @ 366.

The above is the address of both counsel. The point must be made that it is earlier to secure bail before conviction than after conviction. This is so because the presumption of innocence in favour of the Applicant is no longer in his favour since he has been convicted already. The conviction takes away some of the grounds that could have assisted the Applicant. In Monye vs. FRN (2012) LPELR 14845 (CA), Bada, JCA at pages 15-18 drove home this point in these words:

By virtue of the provisions of Section 28(1) of the Court of Appeal Act, this Court is empowered to grant bail to an applicant pending the determination of his/her appeal.
There are mainly, two types of bails:
(i) Bail pending trial, and
(ii) Bail pending appeal.
In bail pending trial, a Court of trial pursuant to provisions made by the enabling law or other statutes which create the offence(s) charged, may admit to bail any person to be tried before it, while he is awaiting trial or during his trial. In bail pending appeal, the convict who has lodged an appeal may be admitted to bail pending determination of the appeal.
The circumstances for bail vary in both situations. This is largely due to the fact that before conviction there is a presumption of innocence. After conviction, the convict, save under exceptional circumstances, has no right at all to bail. See the case of: – Muri vs. I.G.P. (1957) NRNLR Page 5.
A long line of decided authorities have shown that in matters of bail pending appeal, the principles to guide an appeal Court in the grant or otherwise of bail to convict include among others:-
(1) The Appellant has in

fact lodged an appeal to the Court of Appeal which is pending.
(2) The Appellant has complied with the conditions of appeal imposed, and this will show the seriousness of his application.
(3) If the Appellant was granted bail during the trial, he has not attempted or tried to jump bail.
(4) That the admission of an Applicant to bail pending the determination of his appeal is at the discretion of the Court.
(5) That bail will not be granted pending an appeal saves (sic) in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(6) That in dealing with latter class of case, the Court will have regard not only to the length of time that will elapse before the appeal can be heard but also the length of the sentence to be appealed from and that these two matters will be considered in relation to one another, and
(7) In the absence of special circumstances, bail will not be allowed unless a refusal will have the result of a considerable proportion of the sentence being served before the appeal can be heard.
See the case of:- State v. Jammal (1996) 9 NWLR Part 473 Page 384 at 399 and 400.”

What however both types of bail share in common is that they are all granted based on the discretion of Court and the Applicant has the duty to provide material facts to show special or exceptional circumstance. In A. I. Associates & Anor vs. FRN (2014) LPELR 24107 (CA), this Court per Mustapha, JCA held at page 21 thus:
The Court of Appeal Act allows for the grant of bail pending appeal: .but such discretion like any other discretion must be exercised judicially and judiciously. Consequently, the applicant must place enough material before the Court to warrant the exercise of the discretion in his favour Ogundimu Munir vs. Federal Republic of Nigeria (2008) LPELR 4693 CA.”
Similarly, this Court per Oniyangi, JCA at pages 4-6 in Okofu vs. State (2017) LPELR-43347 (CA) held:
Generally, in an application of this nature, the Court is called upon to exercise its judicial discretion and admit the applicant to bail. The question that now agitates the mind is whether in the circumstance of this application the applicant can be admitted to bail. In such application, what the Court is called upon

to do is to exercise its judicial discretion in favour of the applicant. Section 28(1) of the Court of Appeal Act 2010 provides: Section 28(1) The Court of Appeal may, if it thinks fit, on the application of an appellant admit the appellant to bail pending the determination of the appeal. The key words in the foregoing provision are that – …the Court of Appeal may if it thinks fit. My understanding of the foregoing provision is that the Court may admit an appellant/applicant to bail in exercise of its judicial discretion consequent upon the facts placed before it by the applicant. One may ask, what then is a judicial discretion. Generally and by numerous judicial pronouncements, judicial discretion is a familiar and settled concept that the question of the exercise of discretion is governed by several factors at the same time. The factors which are usually not necessarily constant changes with charging (sic) circumstances and times and cannot be regarded as immutable and applicable for all times. In some instance, an exceptional circumstance may be a single factor or a combination of factors. In such circumstance of variable factors and circumstances, it is

not possible to adhere to binding judicial decisions. That is to say that every case would be treated based on its facts and law. See ODUSOTE V. ODUSOTE (1971) 1 ALL NLR 219 at P. 222. This Court has times without number reiterated that judicial discretion depends on fact and circumstance of each case and in matters of discretion no one case can be authority for another. See the old English case JENKINS vs. BUSHBY (1891) 1 CH 484 AT p. 494 where Kay L.J. said:
The Court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect an end to the discretion. See: UNIVERSITY OF LAGOS & ANOR. vs. M.I. AIGORO (1985) 11 SC 152.?
In exercising the discretion, a Court will look at the facts placed before it applying the law to those facts. That is what is meant by discretion exercised judicially and judiciously. The discretion must not be arbitrary but must be exercised within the confines of the available evidence. The Court will dispassionately look at the evidence before it and decide whether there are sufficient facts to warrant exercising the discretion in favour of the Applicant.

In this regard, the Court as an unbiased umpire cannot make a case for the Applicant. See: Mohammed vs. The State (2010) LPELR-9019 (CA). The Applicant has the duty in law to supply material facts to justify the Court granting the application for bail pending appeal. The question therefore is, has the Appellant/Applicant placed sufficient facts to warrant this Court granting the application. Out of the conditions that a Court will consider in determining to grant bail pending appeal, from the affidavit evidence, the Applicant is relying on the exceptional circumstance of ill health and that there is a pending appeal. It is natural for Applicants for bail pending appeal to use the magic whip of ill health because it seems to be the easiest way to secure bail. It is established beyond all doubt that ill health is a good ground as an exceptional circumstance for granting bail but I must hasten to add that it is not automatic. In Abiodun & Ors vs. FRN (2013) LPELR-21465 (CA) this Court per Iyizoba, JCA at 17 held:
While ill health is generally accepted as a special circumstance for grant of bail pending appeal, the nature of ill health that will

qualify was aptly described by Uwaifo J.S.C. in Abacha vs. The State (2002) 3 SCNJ 1 @ 18 thus: ?When in detention or custody, the responsibility of affording him access to proper medical facility rests with those in whose custody he is, invariably the authorities. But it ought to be understood that the mere fact (sic) a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so: see Chinemelu vs. Commissioner of Police (1995) 4 NWLR (Pt. 390) 467. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee for (sic) possibility of a real health hazard to others; there are no quarantine facilities of the authorities for the type of illness.
Similarly, in Adenigbagbe vs. Nigeria Customs Service Board (2018) LPELR-45337 (CA), this Court per Obaseki-Adejumo, JCA at pages 29-31 held:
?It must be said that mere allegation of ill-health by an Applicant for bail pending appeal, is not sufficient ground to warrant the grant of bail. It is thus not the attitude of the Court to release from custody,

a convicted Applicant, solely on the ipse dixit of an Applicant which is not backed by evidence on record. See the decision of the Apex Court in ABACHA v. THE STATE (2002) LPELR – 15 (SC) 26to 27, paras C – A, where it was held:
“It must be made quite clear that to (sic) everyone is entitled (sic) be offered access to good medical care whether he is being tried for a crime or has been convicted or simply in detention. When in detention or custody, the responsibility of affording him access to proper medical facility rests with those in whose custody he is, invariably the Authorities. But is (sic) ought to be understood that the mere fact that a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee poses a possibility of a real health hazard to others, and there are no quarantine facilities of the Authorities for the type of illness. A person being tried or who has been convicted for a serious offence will normally be kept or maintained in custody while

he receives available medical treatment. The main ground upon which the Applicants application is hinged is ill-health and from the deposition on record, the Applicant failed to prove the allegation of ill-health. It is in this regard that I have no hesitation in reaching the conclusion that the Applicant has not shown special or exceptional circumstance to warrant the grant of bail in the instant case.?
Let me end the role call on this point with a case of the Supreme Court. In Abacha vs. State (2002) LPELR-15, a case referred to by both counsel, the apex Court per Ayoola, JSC held at pages 9-12 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 affording 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 such extravagant right as claimed that a person in custody is entitled to

be treated by a doctor of his own choice. In this case, Professor Osinbajo, Attorney-General of Lagos State, has shown expected and befitting sense of responsibility when in the course of his argument before us he stated that the state is prepared to undertake to ensure that whenever the occasion arises medical treatment is available to the applicant. 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 the accused person. Such need is not brought before the Court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.?
What is therefore clear from all the cases referred to above is that the burden to prove that this Court should exercise the discretion on health ground to grant the Appellant/Applicant bail is on him and not the Respondent. Mere averment to that effect is not sufficient. No matter how serious the health situation is, if the prison authorities can handle same, bail will not be

granted. The duty is on the Applicant not to only show the seriousness of the health challenge but must go further to show that the nature of the sickness is such that the Respondent cannot handle it by any of its facilities which therefore will require special attention. It is when this is done that the burden now shifts to the Respondent to show that it has enough capacity to handle the Applicant?s health condition. Is there any such satisfactory and convincing evidence? The Applicant in this respect made averments in paragraphs 8,9,10,13,14,15,16,17,21,22 and 26 of the affidavit in support of the Application and paragraph 5 of the reply to Respondent?s counter affidavit. The summary of the averment is that his condition could not be handled in the prison medical facility and so he was referred to the Military Hospital. The medical report diagnosed the problem and said the Applicant response is fluctuating and so he has not fully recovered. This implies that beyond the military hospital he may need further attention. The military has not said it cannot handle it or they have reached their limit. The report of the Military Hospital is not finality

to the effect that the Respondent cannot handle the health challenge of the Applicant. In response to this, the Respondent in paragraphs 12, 13 and 14 of the counter affidavit has shown that the Applicant?s medical challenge can be handled in the Lagos State University Teaching Hospital (LASUTH) and Lagos University Teaching Hospital (LUTH).
I will reproduce the said paragraphs for ease of reference.
12. That at all material times, the Appellant/Applicant requested for updates about the compilation and transmission of the records of Appeal, the Appellant/Applicant was informed that the compilation and transmission of the records is being pursued diligently.
13. That I was informed by Appellant/Applicant on 15th February, 2019 at the Military Hospital, Awolowo Road, at about 12:30pm and I verily believe him as follows:
(a) That he thought and believed the Records of Appeal had been compiled and transmitted long time ago.
?(b) That it was not until the Counter affidavit in opposition to the Appellant/Applicant?s Motion on Notice dated 25th January, 2019 was shown to him, that he and his Counsel became aware that the

compilation and transmission of the records of appeal had not been completed.
14. That the compilation and transmission of the Record of Appeal is being pursued diligently. Attached is the photocopy of the summons to the parties by Registrar to settle record marked as Exhibit ABK 2.
The Appellant/Applicant filed a reply to the counter affidavit but in the said reply, he did not challenge the above averments. The law is settled in this respect. This is to say that in the absence of any paragraph challenging the above affidavit, this Court deemed them accepted by the Applicant and therefore need no further proof. Paragraphs 12, 13 and 14 of the counter affidavit is therefore treated as an unchallenged affidavit or uncontroverted paragraphs of the affidavit. The effect is that the Court will act on those paragraphs. See Adim vs. NBC NSCQR vol. 42 (2010) 851; Kaydee Venture Ltd vs. Hon. Minister FCT & Ors NSCQR Vol. 41 2010 page 83.
The Appellant/Applicant has failed to give satisfactorily and convincing evidence to the effect that the health condition complained of is enough to enable this Court grant him bail pending the appeal.

I cannot in the light of the evidence available grant bail to the Appellant/Applicant on health grounds as he has not satisfied the conditions in law. The Respondent has shown that he can be adequately treated in LUTH and LASUTH. The Appellant did not controvert that evidence. That evidence stands. I cannot in good conscience in the light of the unchallenged evidence above grant bail to the Appellant/Applicant pending his appeal to the Supreme Court.

The Respondent also has challenged the application on the ground that the Appellant has failed to compile the records of appeal which implies that the Appellant is not serious in pursuing the appeal. The Appellant did not deny the fact that the time had expired for the records of appeal to be complied. The law requires that after the expiration of the period given to the registry to compile records, the Applicant is to commence the process. It is clear that as at the time of filing this application, the time for both the registry and the Applicant to comply records has expired. There is no evidence that the record is ready. The Applicant has failed to satisfy that condition also. There is no averment that

the appeal will not be heard quickly before the Appellant/Applicant finish serving his tenure.
The Applicant in my view has been unable to provide satisfactory and convincing evidence of special and exceptional circumstance that should warrant this Court to grant bail to the Applicant pending appeal. This application therefore fails and it is hereby dismissed.

TIJJANI ABUBAKAR, J.C.A.: I read the lead Ruling prepared and rendered in this appeal by my learned brother Ebiowei Tobi JCA. I am in agreement with the reasoning and conclusion and adopt the ruling as mine. I have nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, EBIOWEI TOBI, JCA obliged me with the leading judgment just delivered.

I agree with his reasoning and conclusion that the Appellant/Applicant didn’t give substantial evidence to be granted bail on health grounds, as the mere fact that an applicant for bail is sick, and without more, will not qualify him. Reason being that there are medical facilities available in the various prison to take care of the inmates as and when the need arises,

see CHUKWULOZIE(M) v FRN (2014) LPELR – 24452; ONYEBUCHI v FRN & ORS (2007) LPELR – 4134 (CA); ADENIGBAGBE v NIGERIAN CUSTOMS SERVICE BOARD (2018) LPELR – 45337(CA), the Appellant/Applicant also showed that he was lackadaisical about the appeal/application as he did not deem it fit to compile the record of appeal. In MUAZU v MAIN STREET BANK & ORS (2015) LPELR – 25688(CA), it was held by this Court per GEORGEWILL, JCA thus;
“…l think it is true that an appellant who desires to have its appeal heard and determined timeously must place before the Court either through the Registry of the trial Court or by himself when the registry fails to transmit the record, all such documents that will assist the timeous and judicious determination of the Appeal. Where necessary documents are not in the record, such an appeal is likely or liable to be struck out.”
?In light of the above, I also hold that the application fails and is dismissed.

Appearances:

Olalekan Ojo, SAN with him,
Akinwale Kola-Taiwo, Esq., Temitope Adeniyi, Esq.,
A. Adedokun, Esq. and M. Abimbola, Esq.For Appellant(s)

Adebisi Adeniyi, Esq. with him, Oladipupo Yeye, Esq. and G.O. Balogun, Esq.For Respondent(s)

Appearances

Olalekan Ojo, SAN with him,
Akinwale Kola-Taiwo, Esq., Temitope Adeniyi, Esq.,
A. Adedokun, Esq. and M. Abimbola, Esq.For Appellant

AND

Adebisi Adeniyi, Esq. with him, Oladipupo Yeye, Esq. and G.O. Balogun, Esq.For Respondent

LawCare Nigeria

GEORGE OGBONNA v. FEDERAL REPUBLIC OF NIGERIA (2019)

general

YOU MAY HAVE MISSED

Drafting Effective Service Level Agreements (SLAs) in Nigeria

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

general

Related Story

YOU MAY HAVE MISSED