MUHAMMED MADUGU HALIRU V. FEDERAL REPUBLIC OF NIGERIA (2012)

MUHAMMED MADUGU HALIRU V. FEDERAL REPUBLIC OF NIGERIA

(2012)LCN/5594(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of July, 2012

CA/IL/M16/2012

RATIO

BAIL PENDING APPEAL: THE POWER OF THE COURT OF APPEAL TO GRANT BAIL TO A CONVICTED CRIMINAL

I have taken time to consider the copious arguments of the learned counsel on both sides and the law is settled on the authorities cited in the respective Addresses of counsel that this Court by Section 28(1) of the Court of Appeal Act, 2005 and Order 17 Rule 13(6) of the Court of Appeal Rules 2011 is siesed with the power and discretion to admit a convicted Appellant to bail pending the hearing and determination of his Appeal against his conviction by a lower Court. For the avoidance of doubt, Section 28(1) of the Court of Appeal Act and Order 17 Rule 13(6) of Rules, which were appositely cited and reproduced by learned counsel for the Appellant/Applicant provide as follows:
Section 28(1) of the Act:
“The Court of Appeal may, if it thinks fit, on the application of the Appellant admit the Appellant to bail pending the determination of his appeal”.
Order 17 Rule 13(6) of the Court of Appeal Rules, 2011 on its part states thus:
“When an Appellant is present before the Court, the Court may, on an application, made by any person or, if it thinks right so to do without any application, make an order admitting the Appellant to bail, or revoke or vary any such order previously made, or enlarge from time to time, the recognizance of the Appellant or of his sureties or substitute any other surety for surety previously bound as it thinks right”.PER IGNATIUS IGWE AGUBE, J.C.A.

BAIL: BAIL PENDING APPEAL: WHEN BAIL PENDING APPEAL WILL BE GRANTED

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

Between

MUHAMMED MADUGU HALIRU Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Lead Ruling): This is an application dated 11th of April, 2012 brought pursuant to Section 28(1) of the Court of Appeal Act and Order 17 Rule 13(6) of the Court of Appeal Rules, 2011. The Application which is by way of motion on Notice prays for:
(i) Admission to bail of the Appellant pending the hearing and determination of his appeal; and
(ii) For such further Order or other Orders as the Honourable Court may deem fit to make in the circumstances.
In support of the Application one Ahamed Muhammed of 3rd Floor Coscharis Plaza No. 6 Faskari Street, Area 3, Garki, Abuja, has deposed to an affidavit of 13 (thirteen) paragraphs to which two documentary Exhibits marked Madugu 1 and Madugu 2 are annexed. Exhibit Madugu 1 is the Notice of Appeal with seven Grounds already filed in this Honourable Court against the decision of Hon. Justice A.O. Bamigbola of the Kwara State High Court convicting the Appellant/Applicant on a three count charge of:
1. Conferment of corrupt advantage upon himself by collecting the sum of N500,000.00 (Five Hundred Thousand Naira) which he was not entitled to while being in the Public Service as Chairman of Kaiama Local Government between December, and January, 2001 or thereabout at Ilorin, Kwara State to perform the lesser Hajj;
(2) Using his position his chairman of Kaiama Local Government to gratify himself by collecting the said sum which he was not entitled to from the coffers of the Local Government; and
(3) Using his said position as chairman of Kaiama Local Government to confer unfair advantage upon himself by collecting the said sum of N500,000.00 (Five Hundred Thousand Naira) which he was not entitled to from the coffers of the Local Government to perform the lesser Hajj; contrary to the Corrupt Practices and other Related Offences Act, 2000 – the charges to which he pleaded not guilty.
Opposing the Application for Bail the Respondent represented by Vickson Enyindah Male, Adult; public servant and Litigation Clerk of the Prosecution Department of ICPC whose address is given as Plot 802 Constitution Avenue, Central Area, Garki-Abuja, swore to a Counter-Affidavit of six paragraphs. Replying to the averments of the said representative of the Respondent, one Tochukwu D. Nwachukwu of 6, Faskari Crescent, Coscharis Plaza, Area 3, Garki-Abuja; deposed to a Further Affidavit of two paragraphs in support of the Application for Bail.
There is also a Further And Better Affidavit of 5 (five) paragraphs dated 10th May, 2012, deposed to by Tahir Aduagba a Legal Practitioner and a member of the team of lawyers handling the Appeal on behalf of the Appellant/Applicant herein. The Affidavit filed the same date carries two annexures – the first which is unmarked is the written Address in support of the Application whereas the second is the Judgment of the lower Court sought to be appealed against which he marked as Exhibit Madugu 3. It is pertinent to note that following the directive of this Honourable Court parties filed their respective Written Addresses in support or against the grant of the Application in view of its contentious nature.
On the 17th day of May, 2012, when the motion was argued and the Addresses of learned counsel on either side were adopted, M.I. Hanafi Esq., of counsel for the Appellant/Applicant; intimated the Court that he only received the Respondent’s Written Address the previous day through their agent in Ilorin and could therefore not file a Written Reply on points of law. He therefore sought for and was granted five minutes within which to proffer a viva voce Reply On Points of Law in respect of the complaint in para. 4.0 pages 3 & 4 of the Respondent’s Address.
In his oral submission he contended that the deposition of Ahmed Muhammed on behalf of the Appellant/Applicant fulfils the provision of Section 115 of the Evidence Act, 2011. On the complaint by the Respondent in respect of Exhibit Madugu 2 (the Medical Certificate and the date on it); Learned Counsel for the Applicant submitted that it is a common mistake or typographical error because the document would not have been dated 7th of December, 2012. He accordingly urged us to deem the Certificate as having been issued on 7th December, 2011 and finally urged us to consider the special circumstances and the combination of factors like age and ill health and be persuaded to grant the Application.
The learned counsel for the Respondents G. O. Igbadume, Esq. (Asst. Chief Legal Officer, I.C.P.C); on his part, adopted the Respondent’s Written Address and urged us to refuse the Application.

MATERIAL FACTS
The material facts of the case as stated in the Applicant’s Written Address are that, the Appellant was convicted on the 9th of December, 2011 by the High Court of Kwara State presided over by Bamigbola J. under Section 19 of the Independent Corrupt Practices and Other Related Offences Act, 2004; for the offences of conferring corrupt and unfair advantage upon himself and gratification. The Applicant was sentenced to imprisonment for 5 years and by a Notice of Appeal filed on the 6th of January, 2012, the Applicant appealed against his conviction on seven grounds and consequently filed this application seeking for his bail pending the determination of Appeal.
The grounds for seeking bail pending appeal, according to the affidavit in support of the application are:
(i) The applicant is a man of advanced age of over 68 years
(ii) The applicant is a known hypertensive and diabetic patient and his health has continued to deteriorate for lack of the required drugs where he is detained;
(iii) The appeal raises substantial issues of law: i.e. whether one of the offences for which he was convicted (the offence of gratifying himself) is an offence known to law;
(iv) The applicant is a first offender and has always been of good behaviour;
(v) The applicant may serve substantial portion of his punishment before the appeal is determined;
According to the Appellant/Applicant, as indicated earlier, the Respondent filed a counter affidavit the substance of the Respondent’s case being that it is aware that most prisons have provisions for medical facilities and where there are none; arrangements can be made for the attendance of the inmates at other hospitals.
In the Written Address of the Appellant/Applicant learned counsel on his behalf formulated a sole ISSUE FOR DETERMINATION which is “Whether the Applicant has made out a good case for him to be admitted to bail pending the determination of his appeal?” The learned counsel for the Respondent, on the other hand, did not formulate any issue for determination.
Arguing the sole issue, the learned counsel for the Appellant referred to the Section of the Court of Appeal Act 2004 and the 2011 Rule upon which the application is predicated and submitted that this Court by the provisions of the Act and Rule so cited; possesses the jurisdiction and the discretion to grant bail to an accused person pending the determination of his appeal.
Citing Muhammed v. Olawunmi (1993) 4 NWLR Pt.287, 254 where the Supreme Court pronounced on Section 29(1) of the Court Appeal Act 1976 which is in pari materia with the provision of Section 28(1) of Court of Appeal Act 2005, he placed reliance on the dicta of Uwais, J.S.C (as he then was) and Olatawura, J.S.C at pages 276c and 279b of the Report which were followed in The State v. Jammal (1996) 9 NWLR (Pt. 473) at page 397 per Orah J.C.A and submitted that the jurisdiction of this Honourable Court to entertain and grant the Application is available notwithstanding that no such Application was filed or refused in the Court below.
On the merit of this Application, learned counsel submitted that before conviction, the burden is on the prosecution to show why an applicant shall not be admitted to bail but after conviction, as in this case, the burden is on the Applicant to show special circumstances why he should be admitted to bail. Enebeli v. Chief of Naval Staff (2000) 9 NWLR Pt. 671 119 at 124 – 125 refers. Citing again Buwai V. The State (2004) 16 NWLR Pt.899 285 at 295, he enumerated the factors to be considered in granting bail pending appeal submitting further that in the in the instant case, the Further Affidavit shows that the Applicant is a first offender and is of good behaviour, which facts were never controverted by the Respondents and must therefore be deemed admitted.

Secondly, and more importantly, he added, the Applicant has shown special circumstances in terms of his age and health conditions in paragraph 5 of the main Affidavit, in support of the application that he is a man of over 68 years of age; and in paragraph 6 thereof has established that he suffers hypertension and chronic diabetics and that his condition has continued to deteriorate. The state of health of the Applicant, according to learned counsel, is further buttressed by the Medical Report attached as Exhibit Madugu 2.
It was therefore contended from the foregoing that the combination of the age of the Applicant and his health condition is a compelling factor creating special circumstances why the Applicant should be granted bail. For the above submission, he placed reliance on the case of Fawehinmi v. The State (1990) 1 NWLR Pt. 127 486; where this Court upheld the issue of hypertension of the Applicant, as a special circumstance for granting bail; insisting that diseases such as hypertension and diabetes are known to be characterized by sudden and severe attacks and crises and are therefore good grounds for bail pending appeal . Fawehinmi v. The State (supra) at 496 G-H referred.
Learned counsel for the Appellant/Applicant rounded up his submission on the age and health conditions of the Applicant constituting special circumstance for the grant of the Application by contending that on the hard facts in the affidavit placed before this Honourable Court, the insulin required by the Applicant is not readily available in Igbeti General Hospital and the Appellant has to make personal efforts to procure the same as it is sometimes severally scarce, even at major hospitals.
On the factor of substantiality of the Grounds of Appeal filed by the Appellant/Applicant, the learned counsel stressed that the six grounds upon which the Applicant’s appeal is predicated are not only substantial but have the high chances of success. He then highlighted the complaints of the Applicant, as borne out from the notice of appeal.
From the foregoing complaints he therefore reasoned that the Applicant’s Grounds of Appeal are substantial enough to constitute special circumstance why the applicant, should be admitted to bail pending the determination of his appeal . Enebeli v. Chief of Army Staff (Supra) at Page 125; refers. Still on this factor, it was his further submission that unless bail pending appeal is granted to the Applicant, he may serve substantial portion of his years of imprisonment before this appeal is determined. The learned counsel related how the Applicant was convicted on the 9th of December, 2011 a period of over 5 months and that by prison calendar, the five years term of imprisonment to which the applicant was sentenced is about 3 years of conventional calendar. Moreover, the Record of Appeal has just been transmitted to this Court from the lower Court and this Court will proceed on vacation in July. Accordingly, he posited that it is clear from the foregoing scenario that the Applicant can hardly serve less than a year from his prison sentence before this appeal is fully determined.
Addressing on the Respondent’s Counter-Affidavit the learned counsel for Appellant/Applicant took the view that the entire paragraph 4 of the Respondent’s Counter-Affidavit is speculative and is therefore of no evidential value. The affidavit, he maintained, is not a statement of fact in the sense that it failed to state categorically if the so called medical facility is available at the prison where the applicant is detained. According to learned counsel for the Applicant, to say that most prisons have such facilities; it is duty incumbent on the Respondent to state the exact state of things in Igbeti prison where the Applicant is detained.

Furthermore, he finally contended, the Respondent’s Counter-Affidavit failed to meet the averment of the Applicant on the availability of Insulin at the Igbeti Genera Hospital. Accordingly, he insisted that, the fact that the Applicant may be taken to that hospital is not enough to cater for the medical needs of this diabetic patient.
In conclusion he urged us to grant the application for the following reasons, among others that:
(i) The combined effect of the old age of the Applicant with the fact that the applicant suffers from hypertension and diabetes, two diseases that are prone to sudden attacks, crises and complication.
(ii) The non-availability to insulin, an essential injection for the treatment of the Applicant’s diabetics.
(iii) The fact that the grounds of appeal are very substantial with high chances of success and likelihood of this Honourable Court holding that the Appellant has been convicted of a non-existence offence of “gratifying himself”.
(iv) The fact that the Applicant is a first offender and who has previously been of good character.
(iv) The possibility that the Applicant may serve substantial portion of his prison terms before this appeal is heard regard being had to the 5 months imprisonment which the Applicant has served.

RESPONDENT’S ARGUMENTS
Responding to the above arguments of the learned counsel for the Appellant/Applicant, learned counsel for the Respondent noted by way of prefatory remark under the heading “A GUILTY/CONVICTED APPLICANT” that the motion of this Applicant is seeking and praying this Court to grant him bail pending the determination of his appeal and it is paramount to note and state clearly that the Applicant herein, as a convict has ceased to enjoy the presumption of innocence as provided for in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) (as amended) which he reproduced.
Addressing on the heading “SPECIAL REASONS OR CIRCUMSTANCES”; the learned counsel argued that the onus therefore lies on the Applicant to put forward enough and sufficient materials before this Court and such materials must explicitly and convincingly show that there exist special reasons or circumstances for this Honourable Court to exercise its discretion judicially and judiciously to grant bail in his favour as an Applicant who has been found guilty and, convicted but that this Applicant has failed to do so. In his view, at best the Applicant has made a desperate attempt and failed by so doing and therefore does not deserve/merit the relief sought. For the above contentions he referred us to the decision of this Court in Chinemelu v C.O.P. (1995) 4 NWLR (Pt.390) 467, 484 para. D-E ratio 9 and Ojo v. FRN (2006) 9 NWLR (Pt. 984) 103, 115 – 116 paras. F-A. Ratio 2; on the circumstances where bail can be granted as of right and upon the existence of special circumstances as in this case where the Applicant is a convict.
Turning to the depositions particularly in paragraph 1 and other paragraphs by one Ahmed Muhammed in the Applicant’s Affidavit in Support of the Motion dated 13th April, 2012, to the effect that he is a member of the family of the Applicant, the learned counsel for the Respondent opined that Section 115(1) of the Evidence Act, 2011; states that a deponent can only depose to facts which are personal either within his own knowledge or from information which he believes to be true. Mr. Ahmed Muhammed (the deponent), the learned counsel added; did not depose to any fact or information which he derived from any source or which he believes to be true and therefore this presupposes that all the facts deposed to by him in all the paragraphs of the said Affidavit in support, were facts within his own personal knowledge. It was then submitted on the above score that the said Ahmed Muhammed having not shown by his depositions that he is a qualified Medical Doctor and/or officer or alternatively stated the source(s) of his information or that he believed same to be true is not entitled to depose to the depositions or facts in paragraphs 6, 7, 8 and 9 of the Affidavit in support; since he is not in a position to prove the accuracy of the facts contained in the said paragraphs.
Placing reliance again on the decision in Nahman v. Wolowicz (1993) 3 NWLR (Pt.282) 443; 456 para G. Ratio 6 & page 457 paras. A-B which interpreted Section 85 of the old Evidence Act (now Section 115 of the 2011 Act); and the effect of the provision thereof we were urged to strike out the depositions contained in paragraphs 6, 7, 8 and 8 (sic) of the Applicant’s affidavit in support as they offend the provisions of Section 115(1) of the Evidence Act 2011. According to him, when this is done the entire affidavit in support is deprived of the predicate facts upon which the discretion of this Court would be based as the facts contained therein no longer can be attached or ascribed any evidential value.

Addressing also on the Medical Report marked as Exhibit “Madugu 2”; he submitted that this Report is not relevant as it has no nexus whatsoever with the motion of the Applicant since it is dated 7th December, 2012, which is in the future and thus immaterial to this application. He then contended that it is to all intent and purposes to be likened to a falsely procured document intended to mislead.
Upon the assumption but without conceding that the Medical Report is relevant, he maintained that it further reiterates the fact that the Applicant herein consequent upon his conviction and detention has enjoyed access to prompt medicare and expressly permitted by the prisons authorities to attend hospital during his appointment days which are on “Tuesday” every week for proper medical checkup and attention.
Furthermore, learned counsel reiterated that the Deponent restates that the Applicant suffers from hypertension with a persistent Blood pressure range of 160/120 and he is diabetic, which statement of facts relating to the health status of the Applicant herein, if the same were to be ascribed any evidential weight, is certainly “not chronic diabetics” as has been false has and tenuously deposed to in paragraphs 6 of the affidavit in support by Mr. Ahmed Mohammed.
He proceeded to describe the word “chronic” as foreign and belonging to the Deponent and not founded upon the Medical Report, the same having been introduced to misrepresent facts to as well mislead the Court, thus amounting to a false impression/claim which cannot be proved by the Deponent.
Also, alluding further to the same paragraph 6, learned counsel observed that the Deponent had deposed to the fact that the Applicant’s condition in prison is deteriorating at an alarming rate, which not fact is equally stated in the Medical Report and there is nothing from the Prisons Authorities at the Igbeti Prisons, located at Oyo State, where the Applicant is being detained; to support this claim, thus amounting to a false impression/claim as it cannot also be proved by the Deponent.
In respect of paragraph 7 of the affidavit in support which according to learned counsel had tenuously, stated that the Applicant is in serious need of urgent medical attention, check up and treatment; he submitted that Exhibit “Madugu 2”, which is the Medical Report annexed herewith, clearly stated that the Applicant comes for treatment every Tuesday and it did not state to any extent the extenuating challenges posed to the proper treatment being presently enjoyed by the Applicant. Thus, the facts contained in this paragraph, according to him, also amounts to a false impression/claim and cannot be proved by the Deponent.
As for paragraphs 8 and 8(sic) which aver that the Applicant will have to travel abroad for proper medical attention, learned counsel insisted that the averment is a very bogus claim from the Deponent, firstly because no previous records from the medical institutions based overseas that had hitherto attended to the Applicant’s medical needs was presented to this Court and the Deponent has equally not deposed to having any medical qualification or exposure. Thus, these paragraphs are all false impressions/claims which cannot be proved by the Deponent.
Citing in support of the above submission Ekekuegbu v. Fiberesima (1994) 3 NWLR (Pt. 335) 707 731; he urged us to find and hold that the depositions contained in the said paragraphs of the Affidavit in support are inconsistent with the Exhibit which they seek to corroborate.
Relying again on the cases of Nnajiorfor v. Unkonu (1984) 4 NWLR (Pt. 36) 505 at 521 and Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61, 74; the learned counsel further contended that the position of law is that where a Deponent falsely deposes either to facts and circumstances, which he professes as matters within his knowledge, his affidavit evidence ought not be credited with any truth or veracity. In the light of the above submissions we were further invited to strike out paragraphs 6, 7, 8 and 8(sic) of the Affidavit in support of the Applicant’s motion.

Reflecting on the argument of the learned counsel for the Applicant in paragraphs 3.14 of his address where he equated the combined effect of age and health condition as special circumstance but certainly not age alone; he submitted that where the ill health has been disproved as in this case, then age at above 68 with sound health; is no special circumstance.
Commenting on Applicant’s Further Affidavit in Support deposed to by one Tochukwu D. Nwachukwu and dated 4th day of May, 2012; the learned counsel again was of the view that the Deponent did not state his relationship with the Applicant or that he obtained the consent of the Applicant to depose to this affidavit on his behalf. He therefore argued that this Deponent is unknown to the Applicant and has no authority to depose to this affidavit on behalf of the Applicant. The affidavit he maintained should be disregarded on this ground.
Still on this Further Affidavit, he noted that the Deponent alleged that he received information from Dr. Idayat Usman in paragraphs 2(i) to (v) thereof but did not state the relationship existing between the said Doctor and the Applicant or that he believed him or her. The case of Nahman v. Wolowicz (supra) and also section 115(1) Evidence Act 2011 was relied upon to buttress the above submission.
It was his further submission that Tochukwu D. Nwachukwu, also deposed to information that the Applicant needs medical attention in paragraph 2(1) of his Further Affidavit and adding that paragraph 6 of the affidavit in support deposed to by Ahmed Mohammed and the annexed Medical Report, Exh. Madugu 2 including the fact that Dr. Idayat Usman being a family friend to the Deponent is not conclusion that he or she is the personal physician of the Applicant. Noting the fact that the relationship between the Deponent and the Applicant is not established; he further pointed out that the Deponent in paragraphs 2(ii) and (iii) deposed to information he received from Dr. Idayat Usman as regards what obtains in any prison in Kwara State and the University Teaching Hospital Ilorin, Kwara State when the Applicant is presently serving his prison term in Igbeti prison located in Igbeti town in Oyo State.
Accordingly, he was of the view that there is a huge disconnect between Igbeti Prisons in Oyo State and Prisons in Ilorin in Kwara State and for this reason all the above are material contradictions in the Further Affidavit that strongly militate against the grant of this application. As for the deposition in paragraph 2(iv) of the Further Affidavit by the Deponent that he knows as a fact that this Honourable Court is congested, learned counsel maintained that the Deponent is not in the best position to prove this fact since he is not the Registrar of the Court and he has not attached any letter from the said Registrar in proof of this fact or stated that he received such information from any official of this court.
On the assumption but without conceding that the Applicant is being altruistic and conscientious of the consequences attendant upon delay in the hearing of his appeal, we were urged to take judicial notice of the fact that after filing his Notice of Appeal, the Applicant went to steep and was indifferent in taking steps to ensure the prompt transmission of the records of proceedings from the trial court to this court, bearing in mind that the determination of his Appeal is predicated upon the transmission of the said Records.
He added that the Record of Proceedings was only transmitted upon the prompting of this Court after our proceedings of 7/5/12 and the Respondent herein was only served on the 10/5/2012. We were again urged to disregard both the affidavit in support and the further affidavit for lacking the necessary substance as required by the law to support this application and for falling grossly short of the requirements of section 115 of the Evidence Act 2011.

Commenting on the Written Address of the Applicant where in paragraph 3.13 of the Applicant’s Address it was stated that the further affidavit shows that the Applicant is a first offender and is of good behaviour; the learned counsel for the Respondent again submitted that such deposition is not in the Further Affidavit served on him in Court on the 7th day of May, 2012 which he personally endorsed and is relying on in this matter.
Still on the issue of the good behaviour of the applicant as raised by learned counsel for the Applicant in his address, we were referred to pages 161 to 163 of the Record of Proceedings at the lower Court; especially the Record of Proceedings of 27th July, 2011 at page 162; where a bench warrant was ordered for the arrest of the Applicant herein as well as for his sureties to attend court to show cause.
Learned Counsel drew our attention to the fact that in the proceedings of 18th July, 2011 at page 161 of the Records; the learned counsel to the Applicant (then an accused) informed the Court of the ill health of the Applicant who he stated was suffering from renal failure as the excuse for his repeated failure to attend court and therefore requested for an adjournment for four weeks. The Presiding trial judge was said to have adjourned the matter for a week to 27th July, 2011 for the Applicant to tender medical evidence in proof of his ill health; which he did furnish a Medical Report but the Medical Report stated that the accused person had fever and not renal failure as had been claimed which is a much more serious an ailment. Consequently, the Court below rejected the Medical Report. The learned counsel remarked that this attitude of the accused then, was to his mind not good behaviour.
In conclusion, he submitted that the Applicant has failed to forward the necessary material before this Honourable Court for him to merit the relief sought. We were therefore finally urged not to exercise our priceless discretion to grant bail pending the determination of his appeal in favour of the Applicant/Appellant and to disregard the entire submissions of the Applicant in his address and refuse the Application.

RESOLUTION OF THE SOLE ISSUE
I have taken time to consider the copious arguments of the learned counsel on both sides and the law is settled on the authorities cited in the respective Addresses of counsel that this Court by Section 28(1) of the Court of Appeal Act, 2005 and Order 17 Rule 13(6) of the Court of Appeal Rules 2011 is siesed with the power and discretion to admit a convicted Appellant to bail pending the hearing and determination of his Appeal against his conviction by a lower Court. For the avoidance of doubt, Section 28(1) of the Court of Appeal Act and Order 17 Rule 13(6) of Rules, which were appositely cited and reproduced by learned counsel for the Appellant/Applicant provide as follows:
Section 28(1) of the Act:
“The Court of Appeal may, if it thinks fit, on the application of the Appellant admit the Appellant to bail pending the determination of his appeal”.
Order 17 Rule 13(6) of the Court of Appeal Rules, 2011 on its part states thus:
“When an Appellant is present before the Court, the Court may, on an application, made by any person or, if it thinks right so to do without any application, make an order admitting the Appellant to bail, or revoke or vary any such order previously made, or enlarge from time to time, the recognizance of the Appellant or of his sureties or substitute any other surety for surety previously bound as it thinks right”.
As was rightly submitted by the learned counsel for the Appellant/Applicant, Section 29(1) of the Court of Appeal Act, 1976 which is in pari materia with Section 28(1) of the 2011 Act was interpreted per Uwais, Ag. CJN (as he then was) in Muhammed v. Olawunmi (1993) 4 NWLR Pt. 287, 254 at pages 276 para. C with Olatawura, JSC (of blessed memory) concurring at 279 para. B. and their Lordships held that there is nothing in that Section of the Court of Appeal Act 1976 (now Section 28(1) of the 2011 Act), which requires that an application for bail pending appeal to the Court of Appeal must be made in the High Court first before being made in the Court of Appeal; since bail is a basic constitutional right and a party convicted of an offence who has an appeal pending in the Court of Appeal can exercise that right. All that is needed ordinarily is to furnish the Court of Appeal with sufficient materials to warrant the exercise of its undoubted discretion in favour of the Appellant/Applicant. See also the State v. Jammal (1996) 9 NWLR Pt.473. At page 397 per Orah J.C.A who adopted the dicta of the learned Emeriti Justices of the Supreme Court. The rationale behind the principle enunciated above is that the presumption of innocence as entrenched in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); inures in favour of the Appellant. Thus, apart from certain extenuating provisions of the Criminal Procedure Law and Code, bail is as of right to any person accused of committing an offence. See for instance Section 341(1) and (2) of the Criminal Procedure Code.
The above decisions notwithstanding, the issue of bringing the application first in the High Court does not arise here as the gravamen of this application, as the respective counsel were ad idem in their submissions, is that the Appellant is a convict (in other words), who is not entitled to the presumption of innocence as guaranteed by the Constitution and the onus is on him to show cause why he should be admitted on bail.
The learned counsel for the Appellant did hit the nail on the head when he cited the locus classicus of Enebeli v. Chief of Naval Staff (2001) 9 NWLR (Pt.671) 119 at 124 H – 125A which was adopted by Ba’aba, JCA in Buwai & Anor. v. The State (2004) 16 NWLR (pt.899) 285 when he held that:
“The law is well settled that the Court of Appeal will not grant an application for bail pending an appeal unless there are exceptional and unusual reasons why bail ought to be granted to the applicants. The following facts will amount to very exceptional circumstances:
(i) if the Applicant is a first offender and has previously been of good behavior;
(ii) if the Appeal raises substantial question of law;
(iii) where having regards to the congestion in the Court, the Applicant may serve substantial portion of his punishment before the Appeal is heard.”
See Fawehinmi v. The State (1990) 1 NWLR (pt.127) 486, 494 and 496; Ogwuegbu, JSC in Muhammed Sani Abacha v. The State 9 NSCQR 501 at 514 and 517 and Ojo v. FRN (2006) 9 NWLR (pt.984) 103, 115-116 paras F-A Ratio 2 ably cited by the learned counsel for the Respondent.
From the dicta of their Lordships in the cases above cited, it is clear that bail will normally not be granted a convicted Appellant except for exceptional and unusual reasons which must be advanced by the Appellant/Applicant.
In the instant case, whereas the learned counsel for the Applicant submits that the Applicant has shown special circumstances in terms of his age and health conditions, the Respondent’s counsel argued per contra submitting that he had not fulfilled the conditions. The question now is whether from the totality of the evidence or materials placed before this Court, the Appellant/Applicant has shown special circumstances to warrant the exercise of our discretion in his favour. This question can only be answered by a resort to the Affidavits and Counter-Affidavit of the respective parties and a juxtaposition of the averments vis-a-vis the conditions set down in the Enebeli and Buwai cases.

CONDITION 1: WHETHER THE APPLICANT IS A FIRST OFFENDER AND HAS PREVIOUSLY BEEN OF GOOD BEHAVIOUR
On this condition it is pertinent to note that the Deponent had averred in paragraphs 9 and 10 of the main Affidavit in support that the Appellant/Applicant is a first offender and is a responsible member of the society having been chairman of Kaiama Local Government Area of Kwara State, a position he held judiciously for the upliftment of the Council and its people. Furthermore, the Applicant is said to be a Prince who hails from the well known Royal Family of Kaiama.
In paragraphs 10, 11 to 13 he has also deposed to the fact that Applicant is responsibly married with two wives and twelve children who all rely on him for their feeding and other daily needs. He is also said to be the pillar of the family or caters for every member including the school needs of the children, four of whom are in the primary school, four in secondary schools and two in different higher institutions. Moreover, he is willing and able to provide substantial sureties in the persons of Nurudeen Muhammed, a former Commissioner of Finance in Kwara State who is also the Tafidan Kaiama.
In the Counter-Affidavit of the Respondent sworn to by Vickson Enyindah, these averments were not challenged and ought to be deemed admitted by the Respondent. However, in paragraph 7.0 pages 8 to 9 of the Respondent’s Written Address, he alleged that in the copy of the Further Affidavit served on him there is no deposition as to good behavior but that counsel raised the issue only in his Address and for this reason he has referred us to pages 161 to 163 of the Record of proceeding at the lower Court particularly the Records of proceedings of 27th July, 2011 at page 162 where a bench warrant was issued for the arrest of the Applicant as well as his surety to show cause.
Learned counsel for the Respondent again alluded to the proceedings of 18th July, 2011 at page 161 of the Records where the learned counsel for the Applicant (then accused person) informed the Court of the ill health of the Applicant who stated that he was suffering from renal failure as the excuse for his repeated failure to attend Court and therefore requested for an adjournment for four weeks. On the 27th of July, 2011 the Applicant was said to have tendered a medical evidence in proof of his ill health and the medical report rather stated that he had fever and not renal failure as had hitherto been claimed. The Court below therefore rejected the medical report. This is to show that the Applicant had previously not been of good behaviour. Although these facts are not contained in the Affidavit and Counter Affidavit of the parties, Courts are bound by the Records of proceedings and this Court in particular, can take judicial notice of its Records.
I have had a careful perusal of the pages of the Record of Appeal cited by the learned counsel for the Respondent and it is true that what the learned counsel has disclosed actually took place, culminating in the issuance of a bench warrant against the Applicant/Appellant and his sureties when he failed to turn up for his Judgment on the 27th of July, 2011. Despite the issuance of the bench warrant, the Appellant and the sureties could not be found until the 9th day of December, 2011 when the Judgment was read. Definitely this is not evidence of good behaviour.
As for the evidence that the Appellant/Applicant is a first offender there is no doubt that Igbadume Esq. the learned counsel for the Respondent during allocutus in the lower Court had stated at page 165 of the Records thus: “We have nothing to the contrary in respect of the evidence of good character of the convict given”, following the evidence of character witness Ahmed Muhammed and this warranted the Court to give him concurrent sentences. From all indications the Appellant/Applicant had been a man of good behaviour before the unfortunate incident culminating in his conviction. I am therefore inclined to exercising the discretion of this Court in his favour.

CONDITION 2: WHETHER THE APPEAL RAISES SUBSTANTIAL QUESTION OF LAW.
A careful perusal of the seven Grounds of Appeal would reveal that Grounds 1, 2, 4, 5 and 6 and their particulars all complain of errors in law, whereas Ground 3 complains of misdirection in law and Ground 7 is the omnibus Ground. The learned counsel for the Appellant has rightly in my view distilled out the purport of the Grounds of appeal and I agree with him that the gravamen of Grounds 1 and 2 is that the prosecution’s case at the lower court was that the Applicant obtained money from the Kaiama Local Government to perform the lesser Hajj in year 2000, when the budget of year 2000-2001 did not make provision for lesser Hajj. However, at the trial, the said budget was never tendered. See Grounds 1 and 2 of the Notice of Appeal.
As for Ground 3 of the Notice of Appeal, I also agree that it raises the issues of the burden of proof of whether there was such provision for the performance of the lesser Hajj in the budget of year 2000-2001 and that the Applicant complains that such a burden was wrongly placed on him instead of the prosecution.
As regards Ground 4, there is no doubt that it is based on the finding of the lower Court that the Applicant did not obtain permission to perform the lesser Hajj and that in proving his case, the complaint is that the prosecution did not mention whose approval ought to have been sought and which law requires the Applicant, as the Executive Chairman of the Local Government to obtain someone else’s approval before embarking on the journey.
In respect of Ground 5, it is clear that its complaint is on the approval limit of the Applicant which according to him, the prosecution failed to tender any documentary evidence to show his approval limit.
Ground 6 is very crucial and substantial in view of the constitutional provisions that no person shall be tried or convicted for an offence which is not created or known to law and particular (1) of the Ground alleges that there is no clear definition of Section 19 of the Independent Corrupt practices and Other Related Offences Act under which the Appellant/Applicant was tried and convicted.
Finally, Ground 7 is the omnibus Ground as earlier stated, which can by itself sustain the appeal if it is successful. I therefore hold that the Grounds of appeal are substantial and arguable enough to constitute special circumstance warranting our exercise of the discretionary powers of the Court in favour of the Appellant. See Enebeli v. Chief of Naval Staff (supra) at Page 125.

CONDITION 3: WHETHER HAVING REGARDS TO THE CONGESTION IN THE COURT, THE APPLICANT MAY SERVE SUBSTANTIAL PORTION OF HIS PUNISHMENT BEFORE THE APPEAL IS HEARD
On this condition, even though the Appellant’s proxy has deposed in paragraph 2(ii) of the Further Affidavit in support of the Application that he knows that this Court is highly congested and most of the Justices of the Court of Appeal are just recovering from the rigors of deciding several Elections Appeals, and it may therefore take a long time to decide this appeal in which event the Appellant would have served a substantial term of his imprisonment; I do not however agree that a substantial part of the 5 years sentence imposed on the Appellant would be served before the Appeal already pending before this Honourable Court can be determined. Notwithstanding that the Respondent never controverted this fact in their Counter-Affidavit; I agree completely with the learned counsel for the Respondent that there is no letter from the Registrar of this Court or averment from him by way of Affidavit Evidence that this Court is so congested to the extent that the Court cannot determine his Appeal before the expiration of 3 years which is the prisons calendar.

There is no doubt that in the land mark cases of R v. Tunwashe (1935) WACA; Ligali & Laja v. The Queen (1959) 4 FSC 7 which were decided before the recent cases of Buwai & Anor v. The State (supra); Enebeli v. C.O.N.S. (2001) 9 NWLR (pt.671) 119 at 125 and Fawehinmi v. The State (supra); the West African Court of Appeal and the Federal Supreme Court had respectively held that:
“From a careful examination of the reported cases it is clear (1) 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. (2) that in dealing with the latter class of cases the court will have regard not only to the length of time which must elapse before the appeal can be heard but also to the length of sentence to be appealed from, and further that these two matters will be considered in relation to one another.”
Taking the above dictum into consideration a refusal of the bail of the Appellant in the above circumstance, I reiterate, would not have the result of a considerable proportion of the sentence being served before the appeal can be heard. I therefore hold that the Appellant/Applicant has not fulfilled the third condition for the exercise of our undoubted and priceless discretion in his favour.
I have not lost sight of the averments of Appellant’s proxies in paragraphs 5, 6, 7, 8 and 8 (sic) of the Supporting Affidavit and paragraphs 2(i) (ii) (iii) and (iv) of the Further Affidavit- the summary thereof which are encapsulated in the Grounds enumerated in paragraph 2.02 of the Applicant’s Address to the effect that:
(i) The applicant is a man of advanced age of over 68 years
(ii) The applicant is a known hypertensive and diabetic patient and his health has continued to deteriorate for lack of the required drugs where he is detained;
(iii) The appeal raises substantial issues of law: i.e. whether one the offences for which he was convicted (the offence of gratifying himself is an offence known to law;
(iv) The applicant is a first offender and has always been of good behavior;
(v) The applicant may serve substantial portion of his punishment before the appeal is determined.

The above are the basis of the contention of the learned counsel for the Applicant both in the his viva voce argument and adopted Written Address that the Applicant has shown special circumstances in the combination of his age and health condition to warrant the grant of this Application. In Fawehinmi v. The State (supra) the fact that he suffered hypertension was undoubtedly held to be a special circumstance for granting him bail and I agree that diabetes and hypertension are deadly diseases which are normally characterized by sudden and severe attack and crisis and ought to be a good reason for the grant of this Application.
However, going by the contents of Exhibit Madugu 2 the Medical Report tendered by the Applicant that document prima facie is of doubtful integrity as it was in the first place issued on 7th December, 2012 which is an impossibility and demonstrates as was rightly argued by learned counsel for the Respondent that by virtue of the date of issuance, there is no nexus between it and the motion at hand. Secondly, the name of the Officer, his qualification and rank are not stated in the so called Medical Report and the Report itself has demonstrated that the Appellant/Applicant has access to the clinic for medical checkup every Tuesday. The Report too fell short of informing the Court as to the severity and extenuating circumstances of his (Applicant’s) medical condition which would have warranted his seeking medical attention abroad and indeed the Report did not so recommend him for such attention.
The said Report has also not indicated that there is shortage of insulin in the Hospital and nothing has been said therein that the Appellant’s condition in the prison is deteriorating.
It is pertinent to note that the learned Counsel for the Respondent had in his arguments alluded to the depositions particularly in paragraph 1 and other paragraphs by one Ahmed Muhammed in the Applicant’s Affidavit in Support of the Motion dated 13th April, 2012, to the effect that he is a member of the family of the Applicant, which depositions are contrary to the provisions of Section 115(1) of the Evidence Act, 2011; to effect that a deponent can only depose to facts which are either within his own personal knowledge or from information which he believes to be true.
He had added that Mr. Ahmed Muhammed (the Deponent), did not depose to any fact or information which he derived from any source or which he believes to be true and therefore this presupposes that all the facts deposed to by him in all the paragraphs of the said Affidavit in support, were facts within his own personal knowledge.

It was then submitted on the above score that the said Ahmed Muhammed having not shown by his depositions that he is a qualified Medical Doctor and/or Officer or alternatively stated the source(s) of his information or that he believed same to be true, is not entitled to depose to the depositions or facts in paragraphs 6, 7, 8 and 9 of the Affidavit in support; since he is not in a position to prove the accuracy of the facts contained in the said paragraphs.
There is no doubt that Nahman v. Wolowicz (1993) 3 NWLR (pt 282) 443, 456 para. G, Ratio 6 & page 457 paras. A-B; interpreted Section 89 (not Section 85 as erroneously stated by learned counsel for the Respondent) of the old Evidence Act (now Section 115 of the 2011 Act) and the effect of the provision thereof. I agree completely with the position taken by the learned counsel for the Respondent in this respect and ordinarily the offensive paragraphs 6, 7, 8 and 8 (sic) of the Applicant’s affidavit in support ought to have been struck out as they offend the provisions of Section 115(1) of the Evidence Act 2011.
When this is done the entire Affidavit evidence of Ahmed Muhammed deposed to on behalf of the Appellant/Applicant would still be bereft any substance or evidential value as far as the health status of the Appellant/Applicant is concerned. See NEC & Anor. v. Ezekiel Izuogu & Ors. (1993) 2 NWLR 270, at pp. 286-287. However, there is a long line of authorities on the interpretation of this section of the Evidence Act which had established that any affidavit which offends the provisions of the Act may be struck out by the Court but if not struck out then the court may not attach any weight to it. See Flour Mills of Nigeria Ltd. v. R.I. Osian (1968) 2 All N.L.R 73, Thus, contrary to the submission of the learned Counsel for the Respondent which is not mandatory that the offending paragraph be struck out for (see Section 84) which provides that the Court may permit an Affidavit to be used, notwithstanding that it is defective in form according to the Act, if the Court is satisfied that it has been sworn before a person duly authorized. See also the case of Josien Holding Ltd. & Anor. v. Lornamead Ltd. & Anor. (1995) 1 NWLR 254, S.C. where the Supreme Court held that the contents of an affidavit should be carefully scrutinized to assure that they not clearly go contrary to the provision of the Evidence Act.
On the whole, I agree with the learned counsel for the Respondent that averments on the Medical condition of the Appellant/Applicant are false claims which are at variance with the so called Medical Report and on the authority Ekekuegbu v. Fiberesinma (1994) NWLR (Pt. 335) 707, 731; Nnajiorfor v. Ukonu (1984) 4 NWLR (Pt. 36) 505, 521 and Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61, 74; the depositions in respect of the health status of the Appellant having been found to be inconsistent with the Exhibit Madugu 2, the entire dispositions and the Exhibit are hereby discountenanced.
In Mohammed Sanni Abacha v. The State, 9 NSCQR 501 at pp. 531- per Ejiwunmi, JSC (of blessed memory) had this to say:
“What remains to be considered is whether the applicant has brought for my consideration such evidence as would lead to the view that he was indeed suffering from ill health. It is clear that though his learned counsel claimed that he was suffering from kidney failure, it is my humble view that the evidence led in support of that claim has been less than satisfactory. In this regard, I think it is the law that where it is sought to lay claim to ill health in circumstances such as this, credible evidence given by an expert in that branch of medicine ought to have been made available. The prison doctor who wrote a letter about the conditions of the appellant did not state that he was an expert in that field of medicine”.
See also Nwude v. FGN (2005) 1 NCC 196 at pp. 215-217 per Muhammad, JCA (as he then was); Chinemelu v. COP (1995) 4 NWLR (Pt. 390) 467 and Chukwunyere v. Police 5 ECSLR 4 where the state of health of the Appellant was adjudged to have constituted special circumstance having by his Medical Report demonstrated that he was suffering from chronic bronchitis and cardiopathy each of which is characterized by sudden and severe attacks and crises and the Court considered it safe to allow him bail in the circumstances because his health may be in serious jeopardy if allowed to stay in the prison without seeking medical attention.
I adopt the dictum of Ejiwunmi, JSC in the Abacha case and hold that the Appellant/Applicant did not satisfy the condition as stipulated in the above case so as to warrant the grant of his Application.
In respect of old age as claimed by Appellant/Applicant and the fact that he is the breadwinner of the family with two wives and children some who are in Primary, secondary and Higher Institutions, it has been held in Nummoja v. Police (1968) NMLR 84; that notwithstanding the facts that the Appellant/Applicant who applied for bail was more than 50 years of age had a family of 10 depending on him and he was a man of substance and in a position to produce substantial sureties (as equally deposed to in the Affidavit in support of the Appellant/Applicant’s Motion herein); these by themselves were not special circumstances justifying bail. Finally, in the same vein such reasons as advanced in the paragraphs 10-13 of the main Affidavit in support of the Appellant/Applicant’s motion would not avail for the grant of his application for bail.

On the whole, upon a consideration of all the factors, the weight of law is against the grant of the Application which I hereby refuse. The Application is accordingly dismissed and we shall rather order that this Honourable court shall endeavour to give the appeal accelerated hearing upon resumption from vacation.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading the illuminating lead Ruling of my learned brother, I.I. AGUBE, JCA, on this application and I agree with his reasonings and conclusions.
I also agree with the need to expedite the hearing of the main appeal against the conviction/sentence of the applicant/appellant. This is to forstall the danger of his being made to serve substantial part (or the whole) of the terms of the imprisonment before the appeal is determined, as that would visit incalculable and unmeticable/unjust damages on the applicant, in the event of the appeal being determined in his favour, finally.
I think one of the cardinal points to consider in an application for bail, pending appeal, should be the concern about the applicant/appellant, that is, what happens, in the likely event of his succeeding on the appeal and vindicated, but not before he had served the term, or spent considerable time in jail, wrongly and unjustly! Appellate court should therefore be very circumspect in determining application for bail, in order to save the applicant (or reduce for him) the troubles/odium of a likely unjust/fales imprisonment! I believe that was part of the underlying essence of section 28(1) of the Court of Appeal Act, 2004 and Order 17 Rule 13(6) of the Court of Appeal Rules, 2011, which permit grant of bail pending appeal.
The burden of establishing special and exceptional circumstances to assist the appellate court to exercise discretion in his favour, however, resides with the applicant. See the case of ENEBELI VS. CHIEF OF NAVAL STAFF (2001) 9 NWLR (Pt.671) 119 at 124 – 125; BUWAI VS. THE STATE (2004) 16 NWLR (Pt.899) 285; FAWEHINMI VS THE STATE (1990) 1 NWLR (PT.125) 486.
For this and other, more elaborate, reasons in the lead Ruling, I too, dismiss the application for lacking in merit, and abide by the consequential orders in the Ruling.

OBANDE OGBUINYA, J.C.A.: I have had a preview of the lucid ruling delivered by my learned brother, I.I. Agube, JCA, and I agree with his reasons and conclusions therein.
The applicant’s application is a paradigm of a post-trial application for bail. In this specie of post-conviction application, the applicant, having gone through the furnace of full-scale trial, is dispossessed of his right to presumption of innocence as entrenched in section 36(5) of the 1999 Constitution, as amended. In this wise, for the applicant to earn a favourable discretion of this court, he must establish special or exceptional circumstances.
In the eyes of the law, a special or exceptional circumstance denotes: “a peculiar or unique circumstance which is additional to the ordinary state of affairs”, see Nika Fishing v. Lavina Corp. (2003) 35 NSCQR 1 at 39, per Tobi, JSC; NIWA V. SPDCN Ltd. (2008) 13 NWLR (Pt. 1103) 48. Special circumstances are inexhaustible and open ended in applications for bail. The existence or non-existence of one special circumstance is sufficient to make or mar an application for bail, see Bamaiyi V. State (2001) 8 NWLR (Pt. 715) 270. The applicant’s neglect to establish that he will serve out a substantial part of his penalty, 5 years term of imprisonment, before his appeal is heard and determined, is a costly failure which constitutes an albatross around the success of his application.
Moreover, exhibit Madugu 2, the medical report, is, totally, weightless given the cold fact that it is still in incubation having been prepared on 07/12/2012, a date yet to come in the lunar calendar. By that in futuro status, the exhibit is not yet operational, until that date, as to avail the applicant by demonstrating his failing health to warrant a grant of his application.
It is for these reasons, coupled with detailed ones marshaled out in the leading ruling, that I, too, dismiss the application and abide by the consequential orders made therein.

Appearances

M.I. Hanafi Esq.For Appellant

AND

G.O. Igbadimme Asst. Chief Legal Officer I.C.P.C.For Respondent