JIBRIN v. NIGERIA ARMY (2020)

JIBRIN v. NIGERIA ARMY

(2020)LCN/14737(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/J/163/C/2020(R)

RATIO

BAIL: PRINCIPLES APPLICABLE IN THE GRANT OF BAIL

Bail is not ordinarily granted to a convict or prisoner pending the determination of his appeal. The grant of bail to a convict is only done where there are exceptional or special circumstances shown by the applicant why such bail ought to be granted to the applicant. In other words, the applicant must present cogent, credible and necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour, and such exercise of discretion must also be done judicially and judiciously. PER HASSAN, J.C.A.
APPEAL: CONDITIONS THAT SHOULD BE CONSIDERED IN DECIDING WHETHER OR NOT TO ADMIT A CONVICTED PERSON WHO IS TO APPEAL

It is also to be noted that in an application pending the determination of an appeal the principle of presumption of innocence no longer exists in view of the conviction.
That is why the appellate Courts laid some guidelines or conditions that should be considered in deciding whether or not to admit a convicted person who is to appeal. The conditions are:
(a) That the applicant has in fact lodged an appeal to the Court of appeal which is pending.
(b) That the applicant has complied with the conditions of appeal imposed and this will show the seriousness of his application.
(c) If the applicant was granted bail during trial, he has not attempted or tried to jump bail.
(d) That the admission of the appellant to bail pending the determination of his appeal is solely at the discretion of the Court.
(e) That bail will not be granted pending appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(f) That in dealing with the latter case, the Court will have regard not to only the length of time which must elapse before the applicant’s appeal can be heard but also the length of the sentence to be appealed against and further, that these two matters will be considered in relation to one another; and
(g) That in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable portion of the sentence being served before the appeal can be heard.
See Ojo Vs. FRN (2006)9 NWLR (Pt. 984)105; Ibori Vs. FRN (2009) 3 NWLR (Pt.1127)94; Meregini Vs. FRN (2018) 12 NWLR (Pt. 1633)331; Rex Vs. TARAN (The Times December, 1947) and Williams Vs. Hope Rising Fund Society (1982) 1-2 SC 145. PER HASSAN, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

SGT. NASIRU JIBRIN APPELANT(S)

And

NIGERIA ARMY RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Motion on Notice dated 20th July, 2020 and filed on the 21st July, 2020 was brought pursuant to Order 18 Rules 8(1),(6) of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Honourable Court. The Motion prays for:
1. An order admitting the applicant to bail pending the determination of the appeal lodged before this Honourable Court.
2. And for such further order or orders as the Court may deem fit to make in circumstances.

The grounds upon which the application is predicated, are:
(a) The applicant was arrested on 3rd March, 2018, detained and later tried and convicted on a three counts charge by the respondent.
(b) The applicant has been sentenced to a concurrent prison term of 4 and 5 years with effect from 29th January, 2019.
(c) Dissatisfied with the conviction and sentence, the applicant has filed an application for leave to appeal against the same before this Court.
(d) The applicant has been in custody since 3rd March, 2018 and has spent almost two years of his five years prison term, and may complete or serve a substantial portion of

the same before this appeal is determined.
(e) It is in the interest of justice and fair hearing to grant the applicant bail pending the determination of this appeal.

The application is supported by twelve paragraphs affidavit with two annextures attached as exhibit “N1” the Notice of Application for extension of time to appeal and Exhibit “N1A”, the Notice and Grounds of appeal. There is also a written address in support of the application for bail, which was adopted as the argument in respect of the application, and which the appellant’s counsel urged the Court to consider and admit the applicant to bail. There is a further affidavit attached to the application with certified true copies of the record of proceedings marked as exhibit “N1”, application for transmission of record as exhibit “N2” and the judgment of the lower Court as exhibit “N3”.

The respondent filed a counter affidavit on the 28th of August, 2020 in opposition to the application for bail. The counter affidavit is of ten paragraphs. The appellant/applicant filed a reply on point of law to the respondent’s

counter affidavit on the 7th of October, 2020.

The appellant/applicant’s counsel formulated one issue for the determination of the application, which is:
“Having regard to the material evidence placed before the Court by way of affidavit evidence, whether it was not in the interest of justice to admit the applicant to bail pending the determination of his appeal.”

In arguing the issue, applicant’s counsel referred to Order 18 Rule 8 of the Court of Appeal Rules, 2016 which empowers the Court to exercise its discretion in granting bail to an applicant upon an application or even suo motu.

That in determining whether or not to grant bail to an applicant pending appeal, the Court usually consider the length of the sentence and the likelihood that a substantial portion of the term would have been served before the appeal is determined. The Court was referred to Meregini Vs. FRN (2018) 12 NWLR (Pt. 1633) 331; Okoroji Vs. State (1990)5 NWLR (Pt. 157) 509; Ojo Vs. FRN (2006)9 NWLR (Pt. 984)103; Arowolo Vs. State (2007) LPELR – 8711 (CA) and Jammal Vs. State (1996)9 NWLR (Pt. 472) 352, to submit that the facts in the

above decisions are similar to the facts in the instant case particularly regarding the term of imprisonment, the likelihood of delay in hearing the appeal and the probability of the applicant serving whole or substantial part of the 5 years imprisonment term before the appeal is determined.

It is submitted that the sympathetic and traumatizing situation the applicant found himself, regarding the death of his wife, the loss of his twins and the fact that his two little children had to put up with a relation for almost three years, the Court is urged to grant the application with liberal terms.

The respondent’s counsel in response also formulated a lone issue for determination thus:
“Whether the applicant is entitled to the grant of an order of this Court admitting the applicant to bail pending the hearing and determination of the substantive appeal.”

Learned counsel submitted that the appellant is not entitled to the grant of the application admitting him to bail pending the hearing and determination of the appeal as a matter of course or right. That the appellant was found guilty of the alleged offences after full trial

by the General Court Martial and the sentence was confirmed by the confirming authority.

Counsel argued that, even though this Court has a discretion to admit the applicant to bail, but the applicant having been found guilty by competent authority, bail is no longer a matter of right for him. That bail is granted on compelling reasons which the applicant has not satisfied.

Referring to the submission of the applicant’s counsel, that the applicant is in a sympathetic and traumatizing situation, it is submitted that justice is a three way traffic, justice for the accused, justice for the victim and justice for the society. That the law is settled, before conviction bail is granted as of right to an accused person standing trial notwithstanding the gravity of the offence, because of the presumption of innocence, until proved guilty.

Counsel argued that after conviction, bail is no longer granted as of right because the constitutional presumption of innocence is gone by virtue of the conviction. He relied on George Vs. FRN (2010) 11 NWLR (Pt. 1206) 531 at 555 paras D-E and 556 paras F-G.

That the law is trite, bail to convicted applicants

pending appeal is absolutely discretional and depends on exceptional circumstances and severity of the offence. It is submitted that the applicant is no longer entitled to bail having been convicted and failure to disclose any exceptional or unusual circumstances necessitating the grant of the application for bail. The Court was referred to the cases of Jammal Vs. State (supra); Okoroji Vs. State (supra); Fawehinmi Vs. State (1990)1 NWLR (Pt. 127) 486 and George Vs. FRN (supra).

Relying on Rex Vs. Tunwashe (1935)2 WACA 236 and Buwai Vs. State (1990)1 NWLR (Pt. 899)285; it is submitted that the consideration for grant of bail to a convict pending appeal, there must be established special circumstance to warrant the grant. That the appellant who is convicted for sexual violation of an innocent young girl of 14 years placed under his care, the Court should consider such application with circumspection for a person in the position of the applicant who rather than offer protection and succor preferred to prowl on a girl child as a predator. The Court is urged to refuse the application.

The applicant’s counsel in reply on point of law, submitted that

the respondent’s 10 paragraph counter affidavit did not controvert the applicant’s affidavit materially apart from alleging that the applicant’s affidavit is misleading without demonstrating in what way was the applicant’s affidavit attempted to mislead the Court.

That as it is, the applicant’s affidavit remained unchallenged and should be acted upon by the Court. He relied on Citizens International Bank Ltd. Vs. SCOA NIG. LTD. & Anor. (2006) LPELR 5509 (CA). It is also his submission that the cases of George Vs. FRN (supra) heavily relied on by the appellant is inapplicable to this case.

judiciously.
It is also to be noted that in an application pending the determination of an appeal the principle of presumption of innocence no longer exists in view of the conviction.
That is why the appellate Courts laid some guidelines or conditions that should be considered in deciding whether or not to admit a convicted person who is to appeal. The conditions are:
(a) That the applicant has in fact lodged an appeal to the Court of appeal which is pending.
(b) That the applicant has complied with the conditions of appeal imposed and this will show the seriousness of his application.
(c) If the applicant was granted bail during trial, he has not attempted or tried to jump bail.
(d) That the admission of the appellant to bail pending the determination of his appeal is solely at the discretion of the Court.
(e) That bail will not be granted pending appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(f) That in dealing with the latter case, the Court will have regard not to only the length of time which must elapse before the applicant’s appeal can be heard

but also the length of the sentence to be appealed against and further, that these two matters will be considered in relation to one another; and
(g) That in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable portion of the sentence being served before the appeal can be heard.
See Ojo Vs. FRN (2006)9 NWLR (Pt. 984)105; Ibori Vs. FRN (2009) 3 NWLR (Pt.1127)94; Meregini Vs. FRN (2018) 12 NWLR (Pt. 1633)331; Rex Vs. TARAN (The Times December, 1947) and Williams Vs. Hope Rising Fund Society (1982) 1-2 SC 145.
In the instant case, the relevant paragraphs in the applicant’s affidavit in support of the application for bail pending appeal is paragraph 3 (h-n) reproduced thus:
3(h) That shortly after his arrest in March, 2018, his wife Latifat Nasiru, gave birth to twins but died in the process of delivery.
(i) That about a week later, he was informed of the death of the twins too.
(j) That as a result of the above, his two other children, Kamal Nasiru (Male) age 10 and Kadija Nasiru (female) age 6 are currently being accommodated by his brother by name Haliru

Jibrin.
(k) That his brother has a large family of his own to cater for and so it has not been easy adding the applicant’s own children to the lot.
(l) That he also has a dependent younger brother who is a student of NTA College, Jos by name Nafiu Abdulhamid who is reliant on him.
(m) That he desires to be released on bail to enable him take care of his little children as they have not had the type of parental care he would love to give them for almost three years now.
(n) That he undertakes
(i) Not to jump bail
(ii) To provide credible sureties to take him on bail
(iii) To appear in Court each time his appeal comes up, and
(iv) To diligently prosecute the appeal and clear his name.
By virtue of Section 28(1) of the Court of Act, 2004, the Court of Appeal may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal. Thus, one would expect the applicant to show that there are special circumstances in his case or his sentence is so short that substantial part of it is likely to expire before the appeal can be heard. See Buwai Vs. State (2004)16 NWLR

(Pt. 899)285; Enebeli Vs. Chief of Naval Staff (2000) 9 NWLR (Pt. 127) 486.
After examining the affidavit in support of the application for bail pending appeal, particularly with regard to the relevant paragraphs reproduced above, there are no special or exceptional circumstances disclosed to warrant the grant of this application. All the reasoning put across notwithstanding, the favorable consideration of application of this nature not present, this application is not grantable.
In my view the mere fact that the applicant is in prison custody, and his children are accommodated by his brother is not a ground upon which bail could be granted, unless there are compelling grounds, especially where it is shown that his continuous stay in prison could pose real hardship on the children. That has not been shown to be the case.
In paragraph 3(n)(iv) the applicant/prisoner indicated his desire to diligently prosecute the appeal. However apart from the Notice of Appeal dated the 17th day of July, 2020 attached to the affidavit in support of the application, it is noted, there is no indication that the appeal was filed, not to talk of transmitting the

record and filing of a brief of argument. By Order 4 Rule 10 of the Court of Appeal Rules, 2016, an appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rules. My finding therefore is that there are no special or exceptional circumstances to warrant the grant of this application.
The applicant’s counsel in arguing the application drew the attention of the Court to the sympathetic and traumatized situation the convict found himself. Counsel must appreciate the fact that sentiments command no place in the judicial adjudication. The law should be administered in accordance with rules of Court devoid of sympathy or emotions. See Fapohunda Vs. R.C.C Ltd. (2019) 3 NWLR (Pt. 1658) 163 at 175 and Ekiti State Vs. Jegede (2016)8 NWLR (Pt. 1514) 402.
Accordingly, the application is refused.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the benefit of reading in draft the Ruling just delivered by my learned brother TANI YUSUF HASSAN JCA.

I agree with the reasoning and conclusion thereat. Therefore, I also conclude that

the application lacks substance and hence I refuse and dismiss same while the objection thereto by the Respondent is sustained.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead ruling of my learned brother TANI YUSUF HASSAN, J.C.A. I am in agreement with his reasoning and conclusion. I also refuse the application for bail.

Appearances:

…For Appellant(s)

…For Respondent(s)