MOHAMMED ABUBAKAR v. THE STATE (2013)

MOHAMMED ABUBAKAR v. THE STATE

(2013)LCN/6523(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of November, 2013

CA/S/77C/2011

RATIO

CONSIDERATIONS TO GRANT OR REFUSE BAIL

There are mainly two types of bail: a) bail pending trial; and b) bail pending appeal. In bail pending appeal, the convict who has lodged an appeal may be admitted to bail pending the 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.
The principles which this court will consider in granting or refusing bail pending appeal include the following:
a) That the applicant has in fact lodged an appeal to the Court of Appeal which is pending.
b) If the applicant was granted bail during the trial if he has not attempted to jump bail.
c) Bail will not be granted pending appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
d) In the absence of special circumstances, bail will not be granted unless a refusal will have the result of a considerable proportion of the sentence being served before the appeal is heard.
Thus when an applicant shows that either that there are special circumstances in his case, or that his sentence is so short that it or a substantial part of it is likely to expire before the appeal can be heard, he may be granted bail. See Ojo V F.R.N. (2006) 9 NWLR (Pt.984) 105. Per JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES:

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

MOHAMMED ABUBAKAR – Appellant(s)

AND

THE STATE – Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Lead Ruling): This is the ruling on the motion on notice filed by the appellant/applicant praying for

1. An order admitting the appellant/applicant to bail pending the determination of his appeal to the Court of Appeal Sokoto Division.

2. And for such further order as this honourable court may deem fit to make in the circumstances.

The grounds of the application are:

i. The appellant/applicant was convicted by the High Court of Kebbi State sitting at Argungu for the offence of having carnal intercourse against the order of nature punishable under section 284 of the penal code and sentenced to a term of two years imprisonment and N10,000.00 fine.

ii. The appellant/applicant is a first offender and is aggrieved by the decision of the said court.

iii. The appellant/applicant has appealed the decision of the court below and applied to it for bail pending the hearing and determination of his appeal to the Court of Appeal Sokoto Division.

iv. The Court below has in its ruling delivered on 2/5/2013 refused the appellant/applicant’s application for bail.

v. The appellant/applicant is likely to spend a considerable part of the sentence imposed on him if bail is not granted.

vi. Interest of justice.

The application is supported by 13 paragraph affidavit to which a copy of the Notice of Appeal dated 14-3-2013 is attached. The applicant further filed a further and better affidavit in support of his application and exhibited a copy of the judgment in case No.KB/AR/HC/3C/2010
The State V Mohammed Abubakar and a copy of the ruling of the court below refusing him bail.
Paragraph 5, 8 and 9 of the supporting affidavit to the motion is very pertinent, they read;

1. That being dissatisfied with the said conviction and sentence I caused my counsel to file an appeal against the said decision to the Court of Appeal Sokoto Division. A copy of the Notice and grounds of appeal shown to me by my counsel is attached here and marked as Exhibit B.

2. That there is nothing that could possibly compensate me for a stay in prison for such a period as well for the loss of my family in the event my appeal succeeds.

3. That I was previously admitted to bail by the trial Court I was on bail pending trial and did abide by all the conditions of bail set, particularly attending regularly to stand my trial and being of good conduct.

The respondent filed 4 paragraph counter-affidavit to oppose the appellant/applicants application, paragraph 3 of the counter-affidavit which is most instructive reads thus;

That save and except where otherwise expressly stated all facts depose to in this affidavit are facts make known to me by S. M Kibo of counsel handling this matter at his office in Argungu on 23rd day of May, 2013 at 2:30pm in the forenoon and I verily believed the facts to be true and correct as follows:

a. That the grounds of appeal filed by the applicant will not be considered by this honourable court at the point of hearing this application.

b. That the Applicant did not pay for the preparation and transmission of the records of appeal before the High Court of Justice, Argungu. They could have been issued with a receipt.

c. That since no payment of the records was made it is therefore difficult to transmit the said records.

d. That efforts mentioned by the Applicant made by his counsel is not explicit and not very specific.

e. That the motion for bail pending appeal was not granted because the applicant did not prove before the trial court very exceptional circumstances.

f. That the Applicant/Appellant is aware of the fact that he had 3 and 5 years old daughters and aged mother before he went and committed the said offence under section 284 of the penal code.

g. That it will not be in the interest of Justice to grant this application.

The appellant/applicant also filed written address in support of the motion:
He formulated one issue for determination to wit whether the appellant/applicant has disclosed special or exceptional circumstances such as would entitle him to be admitted to bail pending the hearing and determination of the appeal.

Learned counsel for the applicant E. I. Ogiza submitted that an applicant for bail pending appeal must demonstrate to the court that some special or exceptional circumstances exist that would cause the court to be inclined to suspend the sentence imposed on the convict applicant by the court.
He relied as BUWAI V THE STATE (2012) 16 NWLR (PT 899) 285; ENEBELI V CHIEF OF NAVAL STAFF (2000) 9 NWLR (Pt.671) 199, MADIKE V STATE (1992) 8 NWLR (Pt. 257) 76, JAMMAL V THE STATE (1996) 9 NWLR (Pt. 472) 352 and THE STATE V AUGUSTINE ENE (1981) PLR 427.
He submitted further that where a convict applicant for bail would have served a substantial part of the sentence imposed on him before his appeal can be heard/determined special or exceptional circumstance is disclosed.
He contended that the applicant had satisfied all conditions of appeal one of which was the payment for the preparation/transmission of the record of proceedings.
He finally urged the court to grant the application.

I have carefully considered the submission of learned counsel and the averments in the affidavits filed by both parties.
The principles which guide the court in the grant of bail to a convict pending appeal are clear.
These principles are well set out in many cases. In OJO V FRN [2006] 9 NWLR (Pt. 984) 105 it was held that
a. The applicant must show that he had in fact lodged an appeal to the Court of Appeal which was pending
b. That he had complied with the conditions of appeal
c. That he had not earlier attempted to jump bail
d. That the hearing of appeal was likely to be unduly delayed having regard to the length of sentence appealed against.
e. That bail would be granted if its refusal would have the result of a considerable proportion of the sentence being served before the appeal could be heard.
See also BUWAI V STATE (2004) 16NWLR (Pt. 899) 285; FAWEHINMI V STATE (1990) 1 NWLR (Pt. 127) 486.

The relevant question that needs to be answered before considering bail for the convict in this application is whether the hearing of his appeal would be unduly delayed.
It is not in doubt from the averments in the affidavit that the appellant/applicant has appealed against his conviction, see the Notice of Appeal annexed to the supporting affidavit and marked Exhibit A. It is also not a doubt that even though the accused was convicted on 11/3/2013 and the appellant had filed an appeal, the record of appeal had not yet been transmitted to this court – 9 months after. It is also clear that the appellant is serving a jail term of two years imprisonment.
The contention of the respondent as per his counter-affidavit is that the applicant did not pay for the preparation and transmission of the record of appeal hence its non-transmission.
It is pertinent at this juncture to examine the Rules of court on criminal appeal with a view to assessing the quality or otherwise of the contention of the respondent on whose responsibility is to compile and transmit the record of appeal in criminal appeals under the Court of Appeal Rules 2011.
It needs to be stated clearly that there are different and distinct provisions of the Rules governing civil appeals and criminal appeals with respect to compilation and transmission of record of appeal under the rules. Order 8 of the Court of Appeal Rules 2011 is on the compilation and transmission of records under Civil Appeals under part 2 of the Rules. Order 8 Rules 1 – 6 reads;
1. “The registrar of the court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.
2. in pursuit of Rule 1 above, the registrar shall within a reasonable time summon the parties before him to –
a. Settle the documents to be included in the record of Appeal and
b. Fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.
3. The said registrar shall whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settle and determine those matters in accordance with the provisions of Rules 2 (a) & (b) of this Order.
4. where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.
5. Such Record compiled by the Appellant, shall be served on the Respondent or respondents within the time stipulated for transmitting such records to the Court, which is 30 days.
6. Where the respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.”
However part III of the Rules is on criminal Appeals Order 17 Rules 7 of the Rules read;
1. (1) When –
(a) the registrar of the court below has received a notice of appeal or a notice of application to the court for leave to appeal or for extension of the time within which such notice shall be given; or
(b) the court below has granted leave to appeal, the registrar of the court below shall prepare the Record of Appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognizance entered into or any other documents filed in connection with the appeal or application.
(2) Subject to the provisions of Rules 9 of this order, the registrar of the court below shall forward to the Appellant and to the Director of Public Prosecutions of the state from which the appeal emanated a copy of the record. Provided that if the Appellant is not in custody a copy of the record shall only be supplied to him on request.
(3) The Court may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it may impose.”
It is significant to note that although under Order 8 Rules 1 and 2, the Registrar shall within 60 days of filing of the notice of appeal compile and transmit, and therefore should within reasonable time summon the parties to settle the documents and fix the amount to be deposited to cover the estimated cost of making up and forwarding the record of Appeal, there is no similar provision under Order 17 of the Rules except that under Order 17 Rule 8 of the Rules, the appellant was to pay the fees set out in the third schedule. The fees set within the Third schedule which apply to both civil and criminal appeal do not include the amount to be deposited to cover the estimated cost of making up and forwarding the Record of Appeal.
Indeed, the Registrar is mandated under Order 17 (1(b)) to, on receipt of the notice of appeal or notice of application for leave to appeal prepare the record of Appeal and forward seven copies to the Registrar of this court.
For clarity’s sake, I shall quote again Order 17 rule 7 (a) and (b).
It reads;
(a) the registrar of the court below has received a notice of appeal or a notice of application to the court for leave to appeal or for extension of the time within which such notice shall be given; or
(b) the court below has granted leave to appeal, the registrar of the court below shall prepare the Record of Appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognizance entered into or any other documents filed in connection with the appeal or application.
It follows from the above that compilation and transmission of the record of Appeal are not the responsibility of an appellant in a criminal Appeal and the failure to do so should not be a justifiable reason to deny the appellant bail pending appeal having regard to the fact that he has already spent 9 months out of the 2 years term of imprisonment in prison.

I am of the view that this is a case in which the bail application of the appellant should be granted.

JAMES SHEHU ABIRIYI, J.C.A.: On the 11th March, 2013, the High Court of Justice Kebbi State sitting at Argungu convicted the Appellant/Applicant and sentenced him to a prison term of two years and a fine of N10,000 for an offence of having carnal knowledge against the order of nature contrary to Section 284 of the Penal Code.
Dissatisfied with the conviction and sentence, the Appellant/Applicant has appealed to this court against the said conviction and sentence. He applied to the court below for bail pending the determination of his appeal. That court dismissed the application. He has again applied to this court for bail pending the hearing and determination of his appeal.

I had the privilege of reading in advance in draft the lead ruling of my Hon. Justice Tunde O. Awotoye, JCA. learned brother Tunde O. Awotoye, JCA just delivered.
He has exhaustively dealt with the only issue for determination.
I agree entirely with him that this court should exercise its discretion in favour of the Applicant.
I also grant bail to the Applicant in the sum of N100,000 and two sureties in the same amount who shall each swear to affidavit of means.

JA’AFARU MIKA’ILU, J.C.A.: I have read before now the lead ruling of my learned brother I agree with the same and therefore the application has merit and I grant it in the same terms as per the lead ruling.

Appearances

For Appellant

AND

For Respondent