H.R. EZE BONIFACE IHUEZE v. THE STATE
(2019)LCN/12618(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/OW/470C/2018
RATIO
BAIL: THAT BAIL IS GRANTED AT THE DISCRETION OF THE COURT
“As rightly argued by the parties, bail application is determined, usually, at the discretion of the Court hearing the application, but as is usual with the exercise of discretion, the same must be done judicially and judiciously. See Ezenwafor Vs C.O.P. (2009) LPELR – 4004 CA: ‘It is beyond all known and unknown legal argument that the grant of bail to an accused person pending the trial of the case, particularly in a capital offence, is not as a matter of course, but that of grace, as such grant is ordinarily, unmerited. The grant rests purely on the discretion of the trial or appellate Court. The exercise of the discretion must be judicial, judicious and always hinged on nothing but the justice of the particular case. See University of Lagos and Anor. Vs Aigoro (1985) 1 NWLR (Pt.1) 143; Likita and Ors Vs C.O.P. (2002) 11 NWLR (Pt. 777) 145 and Adegbite Vs C.O.P. (2006) 13 NWLR (Pt.995) 252, per Owoleye JCA. That means where the discretion is not properly exercised, it can be reproved and corrected. In the recent decision of this Court, in the case of Kayode Vs FRN (2018) LPELR 45852 CA, my learned brother, Abubakar JCA, relying on the Supreme Court decision in Suleman Vs C.O.P. (2008) 8 NWLR (Pt.1089) 298” PER ITA GEORGE MBABA, J.C.A.
BAIL: WHETHER ILL HEALTH CAN BE A GROUND FOR THE APPLICATION OF BAIL
“I think the decision in the case of Suleman & Anor Vs C.O.P. Plateau State (2008) LPELR 3126 (SC) is material to the instant case, being founded on the ill health of the Appellant. The law is however settled that merely alleging ill health of Applicant is not enough to entitle him to bail, pending trial in a murder case. It must be established that the sickness is grave; that the illness constitutes health hazard to other inmates of the prison, and that the kind of facility required for his treatment cannot be provided by the prison authority. See Abiodun & Ors Vs FRN (2013) LPELR 21465 CA; Ogbuawa Vs FRN (2011) LPELR 4854 CA; ABACHA VS STATE (2002) LPELR 15 (SC), and Ofulue Vs FRN (2005)3 NWLR (Pt.913)571.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
H.R. EZE BONIFACE IHUEZE Appellant(s)
AND
THE STATE Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of Imo State High Court, in charge No. How/55C/2016, delivered on 17/5/2018 by Hon. Justice T.E. Chukwuemeka – Chikeka, refusing the Appellant bail, pending his trial or completion at the High Court.
Appellant was charged at the High Court, together with 5 other accused persons, for the murder of one Joseph Ihueze contrary to Section 319 (1) of the Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004, as applicable in Imo State of Nigeria. Appellant, who was the 1st Accused person on the Charge sheet, had earlier been arraigned on a holding Charge at the Magistrate?s Court, Owerri, in Charge No. OW/372C/2016 on 6/6/2016 wherein the learned Magistrate remanded the other Accused persons in prison custody, but because of the medical report on the Appellant, remanded him at the Federal Medical Centre, Owerri. The learned Magistrate held:
‘My attention had also been drawn to the medical report in respect of the 1st accused person i.e. H.R.H. Eze Boniface Ihueze by one ACP (Dr) Ndubuisi C.F. And after going through the above, this Court is of the view that the offences for which the accused persons are charged which are offences against the jurisdictional capacity of the Court, hence this Court has no jurisdiction to hear this matters. Consequent upon the above, the accused shall therefore not be allowed to take plea in the matter? and taking into consideration the application by the defence counsel with respect to the 1st accused person. Consequently, the 2nd, 3rd, 4th 5th and 6th Federal Prisons are hereby remanded at the Federal Prison, Owerri. But they are hereby reminded that they have a right to apply for their bail at the High Court?
?With regards to the 1st Accused person, he shall hereby be remanded at the Federal Medical Centre, Owerri at the expense of his relatives, until such a time when he shall be declared medical (sic) fit by a qualified medical doctor at the Federal Medical Centre, Owerri. He shall therefore be transferred to the Federal Prisons, Owerri for continuation of his remand. He has also the right to apply for his bail at the High Court See pages 167 ? 168 of the Records of Appeal.
While the Appellant was on remand at the Federal Medical Centre, Appellant applied for bail at the Federal High Court, Owerri in Suit No. F.H.C/OW/CS/103/2016 and the application was granted on 22/6/16. Appellant was, therefore, on bail (of the Federal High Court) in respect of the offences, when he and the other Accused persons were arraigned at the lower Court on 5/4/17 in the Charge No. How/55C/2016, to which he pleaded, ?NOT GUILTY.? The trial lower Court, thereafter, adjourned the case for hearing, and said:
‘The Court has listened to the submission of the learned Silk and Epelle Esq. The Police Extract Evidencing the manner and nature of the Complaint made to the police is not before the Court. The witnesses being terrorized are not before the Court to narrate to the Court their ordeal. Likewise, the hospital report evidence the admission of the 1st accused, is not before the Court. The 1st accused was granted bail by the Federal High Court and ever since that time, he has been frequenting Court. He is a Traditional Ruler duly recognized by the State Government. I am aware that the law is no respecter of persons. I will allow the 1st accused to be on bail on self-recognition, pending when the motion for bail is moved, but on the condition that he be of good behaviour, where the allegation of obstructing the cause of Justice is found by the Court to be true. His bail will be revoked. Page 183 of the Records.’
The trial had commenced and progressed, but on 4/10/2017, the trial Court revoked the bail of the 1st Accused (Appellant), on the ground that he did not pay his lawyer?s fees for his lawyer to come to Court. The trial Court said:
‘The 1st Accused has informed the Court that his counsel is absent because he has not paid his fees. Epelle Esq., is a very serious and dedicated counsel and for him not to be in Court today, must be for very serious reason. The 1st accused is standing trial for the offence of murder which is very serious. I am mindful of the fact that an accused is deemed innocent until adjudged and that is the reason the Court, taking into consideration the status of the 1st Accused person, exercised its discretion allowing him on bail. From the conduct of the 1st accused, he did not deem it fit to pay his counsel, because he is on bail while the other accused persons are in custody. This is a criminal matter that witnesses are always in Court and very willing to come and testify. Delaying this case may discourage them, especially if it lingers for too long’
I will revoke the bail of the 1st accused so that he will appreciate the seriousness of the charge he is standing trial for. The Court is not a playground but where seriousness prevails. I hereby revoke the bail of the 1st accused, with the rider to reconsider same in future, where the need arises. See pages 204 – 205 of the Records of Appeal.
Appellant filed a fresh application for bail on 6/12/17, and/or for the restoration of the earlier bail (see pages 215 – 216 and 296 – 297) of the Records. The trial Court refused the application to release him on 17/7/18 and said:
On the application of the applicants for bail, I have gone through the processes filed both for and in opposition, taking into consideration the evidence so far adduced in this case, including Exhibits ‘IK1’ and ‘IK2’ I will not exercise my discretion in favour of the accused persons and grant them bail. In respect of the bail application of the 1st Accused, I had on 24/1/18 ordered that the prison authorities allow his doctor access to him. I hereby adopt my said Ruling and add including a specialist doctor in the said field. Where the need arises in respect of Exhibit B1 (sic) have the 1st accused admitted in isolation in the hospital upon an application to the Court and order therefrom. I hereby order accelerated hearing in this case and solicit the cooperation of all the Counsel. Pages 351 – 352 of the Records.
That is the decision Appellant appealed against, as per the Notice of Appeal, filed on 24/8/18 (pages 362 – 365 of the Records), disclosing 2 grounds of appeal. He compiled and transmitted the Records of Appeal to this Court on 19/10/2018. Appellant did not appeal against the decision revoking his bail on 4/10/17. In his Brief of argument, filed on 29/10/18, Appellant donated a lone issue for the determination of the appeal, as follows:
‘Whether the Appellant did not, in his application for bail, prove special/exceptional circumstances warranting the lower Court to admit him to bail? Ground 1 & 2.’
The Respondent filed its brief as well as a preliminary objection to the hearing of the appeal on 27/11/2018 and distilled two issues for the determination of the Appeal, namely:
1) Whether this Honourable Court has jurisdiction to entertain the appeal?
2) Whether having regards to the circumstances of this case, the learned trial Judge was wrong in exercising his discretion to refuse bail and ordered accelerated hearing.
Appellant filed a Reply Brief on 28/11/18 to respond to the preliminary objection etc. When the Appeal came up for hearing on 15/1/19, the Respondent’s Counsel argued the preliminary objection, relying on the issue one in the Respondent’s brief.
As is the practice, we have to consider the preliminary objection, first, that being a threshold issue.
In the Notice of Preliminary objection, filed on 27/11/2018, the Respondent challenged the jurisdiction of this Court (Court of Appeal) to entertain Appellant’s appeal, on the grounds that:
(1) The grounds contained in the Notice of Appeal are grounds of facts or mixed law and facts; thus requiring leave before being filed.
(2) That leave either of this Honourable Court or the Court below, was not sought or obtained by the Appellant before the grounds of Appeal contained in the Notice of Appeal were filed.
(3) That this Appeal is incompetent and cannot be entertained by this Honourable Court
(4) The preliminary objection is argued as issue one in the Respondent’s Brief of argument.
Arguing the Preliminary objection, Counsel for Respondent, C.C. Ohakwe (Mrs.) relied on Sections 241 and 242 of the 1999 Constitution, as amended, to state that Counsel right of appeal against interlocutory decision of Court is regulated; that where the ground(s) of the appeal is not on law, alone, but of facts or mixed law and facts, leave of Court is required to activate the jurisdiction of this Court. Appellant urged us to examine the grounds of appeal, which he said are of facts and/or mixed law and facts. Counsel relied on the case of Ogbechie Vs Onochie (1986) 3 SC; Njemanze Vs Njemanze (2013 )8 NWLR (Pt.1356); State Vs Omoyele (2017)1 NWLR (Pt.1547). She added that the mere tagging of a ground of appeal as ‘error in law’ does not make it a ground of law, simpliciter. NNPC Vs FAMFA Oil (2012) All FWLR (Pt.635).
Counsel further argued that even if the Court can countenance ground one of the appeal, as being a ground of law, that that cannot, certainly, be said of ground 2, which is of mixed law and fact, and so, combining it with ground one to distill the lone issue on which the appeal is argued, corrupts the entire argument, as incompetent ground infects the competent ground. She relied on the case of Gov. of Imo State Vs Iwunze (2018) LPELR 44005.
Counsel urged us to strike out the Appeal.
Replying, Counsel for Appellant, Naths Epelle Esq, submitted that Appellant is entitled to appeal as of right, whether the ground is of law, facts or mixed law and facts, and he relied on Section 241 (1) (a) of the 1999 Constitution as amended. He added that in this appeal Appellant has not been convicted and so he is still presumed to be innocent, pursuant to Section 36(5) of the 1999 Constitution, as amended, and the case of Olawoye Vs C.O.P (2006) All FWLR (Pt.309) 1483.
Counsel asserted that the appeal is founded on Section 241 (1) (f) (i) of the 1999 Constitution, where the liberty of Appellant is concerned, as such the appeal is as of right. He relied on the case Adigwe vs FRN (2015) LER SC 115; Iwuagwu Vs Okoroafor (2012)12 NG SC 3; FHA and Anor. Vs Jaiye (2010) 12 SC (Pt.111)1.
Counsel said that Appellant did not require leave, under Section 242 of the Constitution, to appeal, since the appeal was founded on Section 241 (1) (f) (i), where the liberty of Appellant is the issue.
RESOLUTION OF THE PRELIMINARY ISSUE
I do not think this appeal is caught by the technicality of failure to seek leave to appeal, being one that contests the refusal of Appellant’s application for bail, pending trial or completion of his trial. Application for bail, though ordinarily an interlocutory application, appears to enjoy the status of a final decision, once it is disposed of by the trial Court, entitling the Applicant a right, as of appeal, thereon as of right, the decision refusing the bail, being a final decision in the circumstances, in my view. Thus, under Section 241 (1) (f) (i), the applicant can file his appeal against the refusal of bail, especially as the liberty of the applicant is in issue.
Section 241 (1) (a) (b) and (f) (I) of the 1999 Constitution, as amended, says:
241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance:
(b) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings;
(c) ….
(d)…
(e) …
(f) Decisions made or given by the Federal High Court or a High Court:
(i) Where the liberty of a person, or the custody of an infant is concerned
I have already held that the appeal against the refusal for bail was an appeal against a final decision of the High Court, in the circumstances of this case, and that it touched on the liberty of the Appellant, as such is an appeal as of right, and requires no leave of Court to file pursuant to Section 242 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. See the case of Federal Housing Authority & Anor. Vs Mr. A.A. Kale Jaiye (2010)12 SC (Pt.111)1; Ehighibe Vs Eghigbe (2016) LPELR 4004 CA.
I do not think it is necessary to analyze the two grounds of appeal, again, whether they are, or any of them is, of facts or of mixed law and facts, as I have held that Appellant did not require any leave to file the appeal, being a final decision, and one on liberty of the Appellant. The Preliminary objection is accordingly dismissed.
Arguing the Appeal, learned Senior Counsel, Naths Epelle Esq, submitted that Appellant was an old man of about 80 years and on account of his deteriorating health condition had sought the discretion of lower Court to admit him to bail, while still standing his trial; that the trial Court, which had earlier granted him bail and later revoked the bail because his counsel was absent in Court on alleged ground of not being paid professional fees, refused to grant the bail application, without considering the special and exceptional circumstances raised by the Appellant; he said that the trial Court rather founded its refusal on the evidence led at the trial by the prosecution, or disclosed in the Counter affidavit.
Counsel said that it has been consistently held that, for the purpose of an application for bail in a capital offence, such as murder, it will suffice that to qualify as special circumstance the fact relied on by the Applicant must be so compelling that to refuse bail will amount to injustice. He relied on the case of Ani Vs The State (2001) FWLR (Pt.81) 1715, which he said is on all fours with this case the reason for the bail application being the deteriorating health of the Appellant. He also relied onBamaiyi Vs The State (2001) 2 ACLR, 467; Abacha Vs The State (2003)3 ACLR, 1.
Counsel referred us to the Exhibits A, B and C, attached to the application, to establish the deteriorating health condition of the Appellant, which he said the Respondent helped to produce some, and did not challenged the averments, in paragraphs 10A, 10B and 11 of the affidavit in support of the application for bail; he said that Respondent rather averred that Appellant was a ?terrorist? and had been terrorizing his community, from his place of incarceration in prison custody.
Counsel said that that allegation had earlier been dealt with, by the trial Court, when it granted bail to the Appellant the 1st time, and so pleaded resjudicata, unless there were fresh allegations of threat to the prosecution?s witnesses. Counsel said there was nothing in Exhibits ?IK1?, which the trial Court relied on to refuse Appellant bail, to show that Appellant, who was in custody, was the maker of the document. He also faulted the Exhibit ?IK2?, saying it was made by the PW1, about 6 days after the motion for bail had been filed on 5/3/18 and served on the Respondent. He argued that Exhibit IK2, made by the PW1 at the Police Station, offended the Section 83 (3) of the Evidence Act, 2011, being a statement made by a person interested, at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish. He relied on the case of N.S.I.T.G.M.B. Vs KLIFCO Nig. Ltd (2010) All FWLR (Pt. 534) 73, on the interpretation or meaning of a person interested, as ?a person who has pecuniary and other material interest in the result of the proceedings, a person whose interest, is affected by the result of proceedings and therefore, would have a temptation to pervert the truth to serve his personal or private ends
Counsel also relied on the case of Gwar Vs Adole (2003) NWLR (Pt. 808) 516 and said that PW1 was a person interested, being the son of the deceased in the murder trial of Appellant and the other accused persons. Thus, he said, Exhibits IK1 and IK2, having been made in the course of the pendency the case were inadmissible and offensive to Section 83(3) of the Evidence Act, 2011; that it was wrong for the trial Court to rely on them to refuse bail to the Appellant. He urged us to allow the appeal and grant the bail to the Appellant.
Responding, Learned Counsel for the Respondent, C.C. Ohakwe (Mrs.) said that issue of bail is always exercised by the trial Court upon its discretion; that offence of murder does not usually enjoy grant of bail; that Appellant could not satisfy the legal requirement of special/exceptional circumstance to attract bail, by merely waving unreliable, concocted medical reports.
Counsel said that in the cases of Abacha Vs The State (supra) and Bamaiyi Vs The State (supra), which Appellant relied on heavily, the Court refuse bail, regardless of the mention of ill health by the applicants as ground for their application for bail; she said that Appellant had also misconceived the facts in the case of Ani Vs The State (supra). She said that legal principles in decided cases are not applied across board, without regard to the facts and issues submitted for adjudication in a particular case. He relied on Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 331).
Counsel said that a Court is entitled to look at the content of its file or record or refer to it in considering any matter or issue before it. He relied on Abraham Vs Akeredolu (2018) 10 NWLR (Pt. 1628); Agbareh Vs Mimra (2008) 2 NWLR (Pt. 1628). He said that a look at the medical report (Exhibit B1) showed that Appellant maintained compliance with his treatment and had shown good progress; that there was no report by the prison to show that his case/ailment could not be managed adequately. He submitted that the trial Court was right in its decision, and relied on the case of Ofulue Vs FRN (2005) 3 NWLR (Pt.913) 571, on the principle of law, that anybody relying on ill health as a ground for bail should fulfill in his affidavit, namely:
(1) The ill health is of such a nature that will affect other inmates of the detention place, where the applicant is detained, if being held;
(2) That there is a positive, cogent and convincing medical report issued by an expert in the field of medicine which the accused suffering from the ill health is referable;
(3) That the person or other detention authorities have no access to such medical facilities as are required in treating the accused person’s ailment.
Counsel said that Appellant failed to show any exceptional circumstance to warrant the grant of the bail application; that the affidavit in support of the application was devoid of any cogent, positive and convincing medical report capable of disclosing the exceptional circumstances required. She said that the medical reports should be expunged and facts therein discountenced; that the prison authorities had not indicated their inability to handle the ailment of the Appellant. She added that the trial Court had also ordered the prison authorities to allow Appellant access to a doctor, including specialist in the field of the need of the Appellant, and where the need arose, in respect of Exhibit B1, Appellant be admitted in isolation, upon an application to Court and order therefrom.
She urged us to dismiss the appeal, emphasizing that bail is at the discretion of the trial Court (FRN Vs Bulama (2005) 16 NWLR (Pt. 951) 219).
RESOLUTION OF THE ISSUE
I shall adopt the Issue 2, as distilled by the Respondent, for the determination of this Appeal (except the last phrase thereof), the same being more apt, in my opinion: The issue is:
Whether, having regards to the circumstances of this case, the Learned trial Judge was wrong in exercising his discretion to refuse bail.
As rightly argued by the parties, bail application is determined, usually, at the discretion of the Court hearing the application, but as is usual with the exercise of discretion, the same must be done judicially and judiciously. See Ezenwafor Vs C.O.P. (2009) LPELR – 4004 CA:
‘It is beyond all known and unknown legal argument that the grant of bail to an accused person pending the trial of the case, particularly in a capital offence, is not as a matter of course, but that of grace, as such grant is ordinarily, unmerited. The grant rests purely on the discretion of the trial or appellate Court. The exercise of the discretion must be judicial, judicious and always hinged on nothing but the justice of the particular case. See University of Lagos and Anor. Vs Aigoro (1985) 1 NWLR (Pt.1) 143; Likita and Ors Vs C.O.P. (2002) 11 NWLR (Pt. 777) 145 and Adegbite Vs C.O.P. (2006) 13 NWLR (Pt.995) 252, per Owoleye JCA.
That means where the discretion is not properly exercised, it can be reproved and corrected. In the recent decision of this Court, in the case of Kayode Vs FRN (2018) LPELR 45852 CA, my learned brother, Abubakar JCA, relying on the Supreme Court decision in Suleman Vs C.O.P. (2008) 8 NWLR (Pt.1089) 298 said:
The main function of bail is to ensure the presence of the accused at trial. It is the centerpiece. And so this criterion is regarded as not only the omnibus ground for granting or refusing bail, but the most important. In the light of the circumstances of the instant case, therefore, the refusal to admit the Appellant to bail by the learned judge in the face of available materials before the Court, including the depositions of Appellant, is without semblance of legal justification and is therefore a wrong and injurious exercise of discretion. An Appellate Court may interfere with the exercise of judicial discretion by the trial Court, if it is manifest that the discretion is wrongly exercised, or that the trial Court took extraneous and irrelevant materials into consideration in arriving at its discretion.
There are myriads of authorities to the effect that application for bail, pending trial or completion of trial of a murder case, can be conceded or granted, on grounds of ill health. It is in the interest of justice for the Accused/Applicant (who is presumed to be innocent of the offence with which he is charged, until adjudged guilty by the Court) to remain alive and strong to face his trial, in an atmosphere that is free from oppression and prejudice. Thus, whether the offence carries capital punishment or not, the presumption of innocence of the Accused, under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, should not be curtailed by undue penchant to incarcerate the accused to satisfy feelings that border primarily on prejudice and/or the assumption of his guilt for implication in the offence. See Bamaiyi vs The State (2001) 4 SC (Pt. 11) 18 (2001) 2 NWLR (Pt. 698) 435; Adeniyi Vs FRN (2011) LPELR 4766 CA; Tafida Vs FRN (2013) LPELR 21859 SC.
In the concept of the presumption of his innocence. I think, if the circumstances warrant incarceration of the accused person, or denial of bail to him, or that becomes a strong option, the same (discretion to incarcerate him) should be exercised in the interest of the Accused person, probably to save him from the anger of his accusers, or mob action by the uninformed/vendals; or in the case of an habitual criminal, to deny him the opportunity of committing more crimes.
I think the decision in the case of Suleman & Anor Vs C.O.P. Plateau State (2008) LPELR 3126 (SC) is material to the instant case, being founded on the ill health of the Appellant. The law is however settled that merely alleging ill health of Applicant is not enough to entitle him to bail, pending trial in a murder case. It must be established that the sickness is grave; that the illness constitutes health hazard to other inmates of the prison, and that the kind of facility required for his treatment cannot be provided by the prison authority. See Abiodun & Ors Vs FRN (2013) LPELR 21465 CA; Ogbuawa Vs FRN (2011) LPELR 4854 CA; ABACHA VS STATE (2002) LPELR 15 (SC), and Ofulue Vs FRN (2005)3 NWLR (Pt.913)571.
Appellant had exhibited medical reports to establish the fact of his ailment, the seriousness of same and the possible effect of same on the prison environment, and the incapacity of the prison authorities to treat him.
Exhibit A was prepared by Dr. Chukwuezi of the Nigeria Prisons Service, Owerri (who can be taken as agency or part of the Prosecution) Paragraphs 2, 3 and 4 state:
?Above named 85 years old man was brought to Owerri Prison Clinic on 6th of November, 2017 with complaints of cough, shortness of breath and pain at the site of herriorraphy operation done on (sic) March 2016.
Past medical history revealed that he was a known diabetic and hypertensive patient. On examination then he was ill looking, with a BP of 160/110mmhg. His fasting blood sugar checked the next morning was 83mg/dl – though he has been on metformin (an anti-diabetic drug).
22
Since his confinement, he has been on anti-hypertensive as well as ant-diabetic regimen. In view of his age and dual diagnosis of hypertensive and diabetics, this patient urgently needs the attention of a specialist in a specialist Centre to minimize the obvious deleterious effect of complications resulting from both chronic ailments.? See page 310 of the Records).
Exhibit B was issued by Dr. Ikechukwu Madu of Federal Medical Centre, Owerri, dated 12/1/2018, which among other things said:
Findings on clinical examination confirmed prostrate Cancer with tuberculosis. He has commenced his medications but will remain on isolation to avoid spread to contacts in view of the contagious nature of the disease.? (Page 312 of the Records).
Exhibit B1, on page 314 of the Records, signed by the same Dr. Ikechukwu Madu, was made on 16/2/18 at the Federal Medical Centre, Owerri. It states, in part, that Appellant:
is on treatment for cancer prostrate with tuberculosis in our centre. He has maintained compliance in his treatment for tuberculosis and has shown good progress. However, he was brought into emergency with history of bloody urine, extreme weakness and weight loss, with cough, productive of yellow sputum. Findings on clinical examination confirmed prostrate cancer with tuberculosis. He is to see the specialist urologist, continue his TB medications and remain on isolation to avoid spread to contacts, in view of the contagious nature of the disease.
That report was made by a doctor at the Federal Medical Centre, Owerri, where Appellant was rushed to by the prison authorities. That shows the prison had no facility to take care of the Appellant and the assumption of the doctor was that the isolation of Appellant would continue in the Medical Centre!
The Respondent did not fault or controvert any of the medical reports. See the Counter affidavit, filed by the litigation secretary in the Respondent?s Counsel law firm. pages 318 – 322 of the Records of Appeal. Rather the Respondent relied on Exhibit IK1 (alleged resolution by some hooligans, dated 22/1/18, and Exhibit IK2- (Police extract of report lodged by PW1, Kenneth Ihueze) on 12/3/18, based on the alleged complaint as in Exhibit IK1, alleging that Appellant was terrorizing the community through some hooligans. The trial Court had relied heavily on the said Exhibits IK1 and IK2 to refuse Appellant bail (page 351 of the Records).
Appellant’s Counsel had argued that Exhibits IK1 and Ik2, which the trial Judge based its decision on, was made by a person interested in the proceeding, while the case was pending; he argued that the Respondent’s Counsel was served with the motion for bail on 5/3/18, before PW1 procured the Exhibit IK2, on 12/03/18, to criminalize the Appellant who was still in prison custody. He added that the claims of Appellant interfering with witnesses, as alleged in Exhibit IK1, had earlier been used by Respondent to oppose the of the Appellant, but same was overruled, when the Court allowed Appellant on bail or to continue, on the bail granted by the Federal High Court. He argued that PW1, being the son of the deceased allegedly murdered by the Accused persons, he was a party interested in the proceedings, and that the document (Exhibit IK2) was procured to find ground to oppose the bail of the Appellant.
I tend to agree with the Learned Counsel for the Appellant, that the trial Judge was wrong to base his refusal of the bail of the Appellant on Exhibits IK1 and IK2, supplied by the Respondent, at the expense of weightier evidence of serious health challenge/condition of the Appellant, as evident in the medical reports Exhibits A, B, B1, which were never challenged. And it was obvious that the Exhibit IK2 was procured, while the motion for bail was pending, just for the purpose of supplying ground for stalling the bail application.
I think the Section 83(3) of the Evidence Act, 2011 operates to vitiate the probative value of Exhibit IK2. It says:
‘Nothing in this section shall render admissible as evidence, any statement made by a person interested at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish.’
Of course, the above flows from Section 83(1) (2) of the Evidence Act, 2011, which permits the admissibility of statement (document) made by a person deemed relevant to a case, if the maker of the statement had personal knowledge of the matters dealt with by the statement, or where the document in question is or forms part of a record purporting to be continuous record, made by the statement in the performance of a duty to record, information supplied to him by a person who had or might reasonably be supposed to have personal knowledge of those matter, and if the maker of the statement is called as a witness in the proceeding.
Thus, the Exhibit K2 (Police extract of PW1’s statement) which claimed that on 10/3/18 some (named persons) gathered in the village square and agreed upon themselves that on 15/3/18, if Appellant was not released from detention, they will attack the PW1 and the family members of the deceased, and destroy their new building as well as their present place of abode (see page 325 of the Record of Appeal), was clearly offensive to Section 83(3) of the Evidence Act, being a statement made by a person interested at a time when proceeding (motion) was pending or anticipated, involving a dispute as to any fact which the statement might tend to establish. The document was, therefore, suspect and inadmissible, having been made about 6 days upon being served with Appellant’s motion for bail, filed on 5/3/18. See also the case of N.S.I.T.F.M.B. Vs KLIFCO (2010) ALL FWLR (Pt. 534) 73, on who is a person interested, and when a document made by him can be flawed, for being procured to advance ulterior interest, for ill motive, or in anticipation of same. See also Gwar Vs Adole (2003) NWLR (Pt. 808) 516.
In the case of Ugokwe Vs Chemcus Industries & Services & Ors (2018) LPELR 45562 CA, it was held:
‘From the provisions of Section 83(3) of the Evidence Act 2011, any Statement involving dispute as to any fact which the statement might tend to establish, which is made by person interested at the time when proceedings were pending or anticipated, shall not be admissible as evidence. The two underlining conditions are when proceedings are pending or when proceedings are anticipated.’ Per Abubakar JCA.
See also the case of Olusegun & Anor Vs EFCC & 7 Ors (2018) LPELR 45825 CA, where my Lord, Georgewill, JCA, relying on the case of Mohammed Vs Kayode (1997) 11 NWLR (Pt.530) 584 at 602, said:
‘In considering the applicability of Section 91(3) of the Evidence Act (now Section 83(3) of the 2011 Act), a Court has to consider first whether an action in Court was anticipated or was pending at the time material to the making of the document. It should also at that stage establish who the maker of the document is.? It is my view therefore, that in law, for Section 83(3) of the Evidence Act 2011 to be applied in rejecting a document as being inadmissible in evidence, it must be shown that: (a) the maker of the document is a ?person interested? in the existing proceeding; (b) the time it was made, there is either a pending or anticipated proceeding and (c) there is a dispute which the statement tends to establish.’
I have already held that the PW1, Kenneth Ihueze, who made the statement in Exhibit K1, in company of his uncle, Peter Ihueze, younger brother, Egbula Ihueze and his late father?s wives, Emilia and Joseph (all of Ihuezes family) belonged to the family of the deceased, Joseph Ihueze, whose murder Appellant, and others were standing trial. (See page 325 of the Records), was an interested person, when he lodged the complaint at the Police Station on 12/3/18.
The same (document) was therefore inadmissible for the purpose of the bail application and the trial Court was, therefore, in error when he placed heavy reliance on the said Exhibit IK2 and on Exhibit IK1 (all produced by the Respondent) to deny the Appellant bail, at the expense of the weightier evidence, produced by Appellant, by way of expert evidence (Exhibits A, B and B1) to establish the serious health condition of the Appellant, which complied with his age (85years) showing that his ailment was death threatening and hazardous to the other inmates of the Owerri Prison, considering the contagious nature of one his ailments ? tuberculosis. See again the case of Ofulue Vs FRN (Supra).
I think in the instant case, the trial Court ought to have exercised its discretion, properly, and in favour of Appellant and release him on bail to take care of his health by seeing specialist(s) in the field of his medical needs, which required him to be in isolation, to avoid spreading the disease to his contacts in the Prison.
It is actually in the interest of justice, both for an accused person and the prosecution, for an accused to be assisted to live to face his trial.
Subjecting him to harsh and more stressful life threatening health condition, while in incarceration and denying him appropriate medical treatment and environment to access proper medication, while on trial, may be an indirect and unlawful way to facilitate his death sentence, without trial. In that circumstance, both the Prosecution and the Court, which refused him bail, in my view, could be adjudged culpable for such death, if the Accused was innocent of the offence.
There was evidence that Appellant had earlier been granted bail, based on the reasons of his health challenge, as shown in the Exhibits in the Records, and he was attending trial, dutifully, while also taking care of his health, until 4/10/17, when his Counsel failed to come to Court. There is evidence that Appellant was on bail as at that 4/10/2017, (See pages 172, 173 which carry medical reports of the ailment of Appellant in support of the Application for bail filed on 3/4/17, which the trial Court relied on to grant the bail on 5/4/17) (page 183 of the Records).
The reason which the trial Court gave for revoking the bail of the Appellant on 4/10/17 insinuated that he failed to pay his Counsel’s fees, causing his Counsel to stay away from Court and stall the trial. (Pages 204 – 205 of the Records). Though Appellant did not appeal against that decision of 4/10/17, revoking the Appellant’s bail for the reasons given, I think the trial Court was wrong to have allowed the alleged breach of private contract between Counsel and his client to affect his judicial decisions in the criminal trial. The Counsel for the Appellant did not raise any complaint before the Court against Appellant. There was no case of failure to pay Counsel fees before the Court, to warrant the Court to pass judgment on the Appellant, and punish him for the default, by cancelling or revoking his bail! In my view, that was a gross abuse or misapplication of judicial discretion/powers.
No Court is permitted to serve as agent of a Counsel, to enforce the private contract between him (Counsel) and his client, with regards to payment of legal/professional fees, at the time of trial of the client?s case. And a Counsel, worth his name and reputation, does not raise, and cannot be heard raising issue of non-payment of professional fees by his client in Court, and using same to frustrate the trial of the case! That would be a professional misconduct. He should rather apply to withdraw his appearance, if he and his client cannot work, together.
There was no evidence that Appellant defaulted in attending Court, or breached the condition of the bail granted on 5/4/17, to justify the revocation of his bail, and or the subsequent refusal to grant him fresh bail, in the face of the deteriorating health of the Appellant, and considering his age. I therefore fault the exercise of discretion by the learned trial judge, and reverse his decision, as I resolve this issue in favour of the Appellant and allow the appeal.
I set aside the order of the trial Court in the Charge No. HOW/55C/2016, delivered on 17/7/2018, refusing Appellant bail, pending trial or completion of his trial. I hereby grant Appellant bail pending trial or completion of his trial, under the same terms and conclusion granted by the learned trial judge on 5/4/17, and the same are hereby invoked, and the bail of Appellant restored! Appellant shall, therefore, be released from custody to attend to his failing health, while also standing his trial.
For avoidance of doubt, Appellant, as first Accused, in the Charge No. HOW/55C/2016, is hereby allowed bail in his own self-recognition, and is bound to be of good behavior while standing his trial.
There is no order as to cost.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
Naths Epelle, Esq. with him, S. I. Opara, Esq., J.O. Udegbulem, Esq. and E.A. DurueburuoFor Appellant(s)
C.C. Ohakwe (Mrs.)For Respondent(s)
