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MAINA v. FRN (2022)

MAINA v. FRN

(2022)LCN/17054(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 03, 2022

CA/ABJ/CR/126/2022(R)

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

ABDULRASHEED ABDULLAHI MAINA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA IN RE: FEDERAL REPUBLIC OF NIGERIA – COMPLAINANT AND 1. ABDULRASHEED ABDULLAHI MAINA 2. COMMON IMPUT PROPERTY INVESTMENT LIMITED – DEFENDANTS RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE COURT EXERCISING ITS DISCRETIONARY POWERS

It is trite law that, in exercise of discretionary powers, Courts have been enjoined to act judicially and judiciously. There are no hard and facts rules on the exercise of discretion as the facts and circumstance of each case will determine how the discretion of the Court will be exercised in any particular case. However, it is settled law, that no Court is permitted to exercise its discretion arbitrarily, whimsically or capriciously without consideration of the material issues in the matter. See M.A. Williams v. Hope Rising Voluntary Funds Society (1982) ​2 S.C. 145; Duwin v. Beneks (2000) 15 NWLR (Pt. 689) 66, CBN & Anor V. Okojie & Ors (2002) LPELR – 836 (SC), Anachebe v. IJeoma & Ors (2014) LPELR – 23181 (SC) and Kombo – Igbeta v. Olukutu & ors. (2019) LPELR – 48280 (CA). Thus, in Ukachukwu v. PDP & Ors (2013) LPELR – 21894 (SC), the Supreme Court per Kekere-Ekun, JSC had that:
“The law is settled that in an application of this nature, which calls for the exercise of the Court’s discretion, the discretion must be exercised judicially and judiciously taking all the facts and circumstances of the case into consideration.”
PER TSAMMANI, J.C.A.

WHETHER OR NOT DISCRETIONARY POWERS OF THE COURT ARE GRANTED AS A MATTER OF COURSE

It should also be noted that the discretionary powers of Courts are not granted in vacuum or is a matter of course. It must be exercised, based on materials before the Court, sufficient enough to satisfy the Court that, the discretion of the Court be exercised in favour of the Applicant. See CFHO (Nig.) Plc. V. Sanu (2008) 15 NWLR (Pt. 1109) 1 and Noga Hotels International SA v. Nicon Hilton Hotels & Anor. (2007) 7 NWLR (pt. 1032) 86 at 113 – 114. Thus, in Ms. Cecilia Etuk v. The Estate of Obong Livinus Etuk (2017) LPELR – 49924 (CH) this Court per Garba; JCA (as he then was) observed that:
“Applications of this nature and indeed all applications to the Court which call for the exercise of its judicial discretion, are not granted as a matter of course, but on the Court being satisfied that by the peculiar facts disclosed in the affidavit evidence before it, the Applicant was entitled to the exercise of the discretion in his favour. Because it is the Applicant who seeks the exercise of the Court’s discretion in her favour, she bears the burden and the duty to provide all the material facts to satisfy the Court that she is in the peculiar circumstances of her case entitled to the indulgence by the Court in granting the motion as prayed…”
PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): This ruling is in respect of a Motion on Notice filed by the Appellant/Applicant praying for the following relief(s):
1. AN ORDER of this Honourable Court directing the Nigerian Correctional Service, Kuje to move the Appellant/Applicant to the National Hospital, Abuja or any government hospital in Abuja for urgent medical attention by relevant specialists.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.

The Application is predicated on the following Grounds:
1. The Appellant/Applicant was arraigned before the trial Court on the 25th of October, 2019 on a 12 count charge dated 16th October, 2019.
2. The trial Court delivered its judgment on 8th November, 2021 convicting and sentencing the Appellant/Applicant to a term of imprisonment.
3. The Appellant/Applicant having dissatisfied with the said judgment has filed an appeal against it.
4. The appeal touches on issues of breach of the right to fair hearing of the Appellant/Applicant during trial.
5. The Appellant/Applicant is presently in the custody of the Nigerian Correctional Service, Kuje and gravely ill.
6. The Appellant/Applicant presently has a tumor inside both nostrils, under his left check and left eye which may be life-threatening and needs urgent surgery.
7. The Appellant/Applicant’s lumber, housing his spinal card has shifted in three places and he needs urgent surgery to correct it.
8. The Appellant/Applicant urgently needs knee replacement surgeries to be able to work unaided.
9. The Appellant/Applicant’s health has now deteriorated and he is in need of urgent medical attention by specialist(s) to manage his grave health condition.
10. It will be in the interest of justice that the Appellant/Applicant be moved to the National Hospital, or any other government hospital in Abuja for urgent medical treatment.
11. The Appellant/Applicant is desirous and willing to prosecute the appeal pending before this Honourable Court.
12. This Honourable Court has the powers to grant the application for the Appellant/Applicant to be moved to the National Hospital or any other government hospital in Abuja for urgent medical treatment.
13. This Honourable Court has the inherent jurisdiction and discretion to grant the Defendant/Applicant bail in the circumstances of this charge.

The Application is supported by an Affidavit of 22 paragraphs to which are annexed Exhibits A1 – A7. It is also supported by a Written Address which was filed along with the Motion on Notice. Upon being served, the Respondents filed a Counter-Affidavit of 18 paragraphs, on the 23/3/2022. Filed along with the Counter-Affidavit is a Written Address also filed on the 23/3/2022.

Now, in arguing the Application, learned Senior Counsel for the Appellant/Applicant contended that, Courts have been able to preserve the rule of law by evolving mechanism of interpreting discretionary powers. That, the sentence of the Appellant consequent upon the judgment of the trial Court, is eight (8) years, therefore, the Courts have interpreted that to mean, that the Applicant will continue to enjoy his right to liberty as entrenched under the Constitution. That, regardless that the Applicants right to personal liberty is limited by virtue of the Judgment appealed against, the Applicant still enjoy the right to life which cannot be fully fulfilled if not given access to medical attention.

Learned Senior Counsel conceded that the Application is not one for bail but that it seeks that, the Appellant/Applicant be granted access, with the supervision of the Nigerian Correctional Services, to the National Hospital, Abuja or any other government hospital in Abuja for urgent medical treatment by relevant specialists in line with the decision in Ani v. State (2002) 1 NWLR (Pt. 747) 217. That, there is a pending appeal against the judgment of the trial Court delivered on the 8/11/2021. That substantial issues, such as denial of fair hearing were raised in the Grounds of Appeal.

Learned senior Counsel went on to submit that, the discretionary powers of this Court has been established in Section 6(6) of the Constitution of the Federal Republic of Nigerian, 1999 (as amended). That the said discretion must be exercised judicially and judiciously based on the material before the Court, and the prevailing circumstances of any given case. The case of Odigwe v. J.S.C. Delta State (2011) 10 NWLR (Pt. 1255) 254 was cited in support and to submit that, in the instant case, the Applicant has established via his affidavit, the existence of grave medical challenges that would require access to a government medical facility. That, the purpose of granting such access is to ensure the sustenance of the life of the Appellant/Applicant who has filed an appeal challenging the judgment of the trial Court, which appeal raises recondite issues of law.

Learned senior counsel for the Appellant/Applicant then contended that the Courts have held that, ill health of a prisoner is weighty enough as a special circumstance. However, that the ill health must clearly be established. That in the instant application, the Appellant/Applicant has presented before this Court, medical reports and other documentary evidence to show the state of illness and the need for medical care for sustaining the life and management of the health of the Appellant/Applicant. The case of Abacha v. State (2002) 5 NWLR (Pt. 761) 638 was then cited in support. That the Applicant has deposed in paragraphs 10(1), (m) and (n) of the Affidavit in support, the challenges he is facing in respect of access to medical treatment. It is thus submitted that, there is the need to grant this application to compel the Nigerian Correctional Service to take him not just for examination and tests but the treatment of his ailments and symptoms to restore his health and preserve his life. We were accordingly urged to resolve the issue herein, in favour of granting the Application.

In response, learned counsel for Respondent contended that, the Appellant/Applicant has not made out a legal justification for the Court to grant this Application. Firstly, that the Nigerian Correctional Service is the appropriate and legally acceptable place for the detention of convicts. Section 10(a) of the Nigerian Correctional Service Act, 2019 was then cited to submit that, it is not a government hospital or any other hospital or place as suggested by the Applicant.

Secondly, that in the event of ill health of an inmate in the Correctional Centre, the correctional centres are well equipped to deal with the situation. Section 24 of the Nigerian Correctional Service Act, 2019 was cited in support. That, in some cases, it is the Nigerian Correctional Service that refer the inmates to a tertiary hospital for treatment after review by the Correctional Service Board. Section 25(1) of the Nigerian Correctional Service Act, 2019 was then cited to submit that, the authorities cited by the Applicant are not applicable in the circumstances of this case. We were accordingly urged to refuse the relief sought by the Applicant.

I have carefully reflected on the nature of this Application. It prays this Court to direct the Nigerian Correctional Service, Kuje to move the Applicant to the National Hospital, Abuja or any Government Hospital in Abuja for urgent medical attention by relevant specialists. No doubt, this calls for the exercise of discretion by this Court. It is trite law that, in exercise of discretionary powers, Courts have been enjoined to act judicially and judiciously. There are no hard and facts rules on the exercise of discretion as the facts and circumstance of each case will determine how the discretion of the Court will be exercised in any particular case. However, it is settled law, that no Court is permitted to exercise its discretion arbitrarily, whimsically or capriciously without consideration of the material issues in the matter. See M.A. Williams v. Hope Rising Voluntary Funds Society (1982) ​2 S.C. 145; Duwin v. Beneks (2000) 15 NWLR (Pt. 689) 66, CBN & Anor V. Okojie & Ors (2002) LPELR – 836 (SC), Anachebe v. IJeoma & Ors (2014) LPELR – 23181 (SC) and Kombo – Igbeta v. Olukutu & ors. (2019) LPELR – 48280 (CA). Thus, in Ukachukwu v. PDP & Ors (2013) LPELR – 21894 (SC), the Supreme Court per Kekere-Ekun, JSC had that: “The law is settled that in an application of this nature, which calls for the exercise of the Court’s discretion, the discretion must be exercised judicially and judiciously taking all the facts and circumstances of the case into consideration.”
It should also be noted that the discretionary powers of Courts are not granted in vacuum or is a matter of course. It must be exercised, based on materials before the Court, sufficient enough to satisfy the Court that, the discretion of the Court be exercised in favour of the Applicant. See CFHO (Nig.) Plc. V. Sanu (2008) 15 NWLR (Pt. 1109) 1 and Noga Hotels International SA v. Nicon Hilton Hotels & Anor. (2007) 7 NWLR (pt. 1032) 86 at 113 – 114. Thus, in Ms. Cecilia Etuk v. The Estate of Obong Livinus Etuk (2017) LPELR – 49924 (CH) this Court per Garba; JCA (as he then was) observed that:
“Applications of this nature and indeed all applications to the Court which call for the exercise of its judicial discretion, are not granted as a matter of course, but on the Court being satisfied that by the peculiar facts disclosed in the affidavit evidence before it, the Applicant was entitled to the exercise of the discretion in his favour. Because it is the Applicant who seeks the exercise of the Court’s discretion in her favour, she bears the burden and the duty to provide all the material facts to satisfy the Court that she is in the peculiar circumstances of her case entitled to the indulgence by the Court in granting the motion as prayed…”

As deposed in the Affidavit in support of the motion, the Appellant/AppIicant was arraigned, tried and convicted for sundry offences bordering on money laundering and is currently serving his prison term at the Nigerian Correctional Services, Kuje, Abuja. The Applicant then chronicled his medical history wherein he enumerated several ailments that have afflicted him. He then deposed in paragraphs 10(j), (m), (11), (o), (p), (q) and (s) of the Affidavit in Support of the Application as follows:
“10(1) that the health condition of the Appellant/Applicant has deteriorated and he is in need of urgent medical attention by Specialists to manage his grave health condition.
(j) that the health facility in the said Nigerian Correctional Service, Kuje cannot manage the health of the Appellant/Applicant.
(m) that the Nigerian Correctional Service have consistently displayed a marked reluctance to take him to hospital for treatment despite his fast deteriorating condition.
(n) Whenever he is eventually taken to hospital, he is not allowed time to undergo any meaningful treatment despite the prognosis.
(o) that it is urgent and necessary to admit the Appellant/Applicant to a specialist hospital in order for him to be attended to by specialists.
(p) that the Appellant/Applicant will not undermine or jeopardize the objectives or purpose of the criminal justice administration if his application is granted.
(q) that the health of the Appellant/Applicant has deteriorated and the authorities concerned have not been able to manage the medical ailments of the Appellant/Applicant.
(s) that grant of this application will enable him have access to various medical specialist of his choice to effectively treat his several ailments and thus hopefully improve the quality of his health and life.”

In the Respondent’s Counter-Affidavit deposed to by one Geraldine Ofulue, a staff of the Economic and Financial Crimes Commission (EFCC), the agency that investigated and prosecuted the Applicant, it is contended as follows:
5. That I know as a fact that the Applicant was tried and convicted by the Federal Court Abuja for offences bordering on money laundering and has since commenced serving his jail term as a convict.
9. That in response to the depositions in paragraphs 7 and 8 of the Applicant’s affidavit in support, I have studied Exhibit A2, the convict/applicant Notice of Appeal and found the same to be ordinary grounds of appeal, not substantial.
10. That in response to the depositions contained in paragraphs 10, 11, 12, 13, 14, 15, 15 and 17 of the Applicant’s affidavit in support, the convict/applicant is in the custody of the Nigerian Correctional Centre and they are responsible for the upkeep and maintenance of the Convict/Applicant.
11. That in response to the depositions contained in paragraphs 18 and 19 of the Applicant’s affidavit in support, the convict/Applicant is a flight risk and has demonstrated same during the trial of the case at the Federal High Court.
12. That contrary to the deposition contained in paragraphs 10, 11, 12, 13, 14, 15, 15 and 17 of the affidavit in support of the application, the nature of the ailment claimed by the Convict/Applicant is not such that cannot be taken care of even while he is in prison custody.
13. That the prison has sufficient medical facilities which can meet the health challenges of the convict/applicant, if any.
14. That the convict/Applicant is in prison custody serving the sentence imposed on him by the trial Court and his stay will never affect or compound any health issue he might have.
15. That I know as a fact that the convict/applicant is only interested in changing his custody from the detention centre to a hospital to enable him take to flight, therefore, will likely not make himself available to serve the sentence imposed on him in the probable event his appeal fails.
16. That I know as a fact that the Respondent on its part is serious, willing, ready and prepared to defend this appeal and conclude it within the shortest possible time.

Now, it should be remembered that, the Application is premised on the Applicant’s alleged serious ill-health, which the Applicant desires that this Court orders the Nigerian Correctional Service, Kuje, Abuja to take him to the National Hospital, Abuja for treatment. The Applicant contends that the said correctional service has either refused or neglected to take him for such medical attention or treatment. The Applicant and the Respondent are agreed that the Applicant is a convict, serving his prison term. This application is not an application for bail pending appeal. It is therefore an application that may be termed sui generis. In that respect, I am of the view that the principles applicable in an application for bail pending appeal, will not be applicable. It therefore means, that the Applicant has a heavier burden to establish in order to succeed in an application such as this. I dare say, that the discretion of this Court can only be exercised in favour of the Applicant, where he has adduced strong and convincing evidence which establishes beyond reasonable doubt that the Application be granted.

In the instant case, the Respondents have countered the facts deposed to and relied upon by the Applicant. It has been deposed by the Respondent that there are sufficient and efficient medical facilities in the Correctional Centre to take care of the Applicant’s illness(es). That, the Applicant is a flight risk inmate, and that the purpose of the Application is to open an easy escape route for the Applicant who is likely to take flight, thereby not making himself available to serve the sentence imposed on him by the Court. Those facts have not in any way been controverted by the Applicant. It is trite law that, where depositions in an affidavit have been controverted by depositions in a counter-affidavit, and the Applicant fails to file a Further Affidavit to answer to the issues raised in the counter-affidavit, the depositions in the counter-affidavit would be deemed to have been admitted as true; and the Court will be right in relying on them to resolve the controversy. See Hon. Sunday O. Adagba & Anor V. Hon. Joseph Adogah Onah & Ors (2015) LPELR – 40452 (CA), Long – John & Ors V. Blakk & Ors (1998) 6 NWLR (Pt. 555) 524 and Danladi v. Taraba State House of Assembly & Ors. (2015) 2 NWLR (Pt. 1442) 103. Thus in The Honda Place Ltd. V. Globe Motor Holdings (Nig.) Ltd. (2005) 14 NWLR (Pt. 945) 273, the Supreme Court per Edozie, JSC held that:
“The position of the law is that when in a situation in which facts are provable by affidavit, one of the parties deposes to certain acts, his adversary has a duty to swear to an affidavit to the contrary, if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, they may be regarded as duly established…”

On that note, I hold that, the facts deposed to and relied upon by the Applicant in support of this Application have been duly and effectively controverted and demolished by the Respondent’s Counter-Affidavit. It therefore means that the Application has been stripped of any merit. It is accordingly dismissed.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the opportunity  of reading in draft the ruling by my learned brother, Haruna Simon Tsammani, JCA, and I am in total agreement with the reasoning and conclusion reached therein.

I therefore also find the application lacking in merit and it is hereby dismissed.

I make no order as to costs.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead ruling of my learned presiding Justice, HARUNA SIMON TSAMMANI (JCA) just delivered, and it substantially captured all the issues I raised during the conference of Justices that heard this Application.

I therefore agree with the findings and conclusions reached in the lead ruling that this Application lacks merit and it is accordingly dismissed.

Appearances:

O. Jolaowo, SAN with him R. Okotie-Eboh; Esq and Franca Uzowuru; Esq. For Appellant(s)

Faruk Abdullahi; Esq. For Respondent(s)