NWOSU v. FRN (2021)

NWOSU v. FRN

(2021)LCN/15538(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, July 14, 2021

CA/LAG/PRE/ROA/CR/158/21(R)

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

OKEY NWOSU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): Before this Honourable Court is an application by way of Motion on Notice filed on 24/02/2021 and brought pursuant to Order 17 of the Court of Appeal Rules 2009, Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the inherent jurisdiction of this Court. It prays for the following:-
​An Order of this Honourable Court admitting the Applicant to bail pending the determination of the Appeal filed against the Judgment of the High Court of Lagos State delivered by I. A. Okunnu J on 5/01/2021 in Charge No. ID/115c/2011.
For such further Order(s) as this Honourable Court may deem fit to make in the circumstances.

The grounds for the application are stated therein. In support of the Motion is a 16 Paragraph affidavit deposed to by one Kate Nwosu of Number 1A, Lugard Avenue, Ikoyi, Lagos State with 9 (nine) Exhibits marked as Exhibits A, B, C, D, E, F, G, H & I.

In opposing the motion of the Appellant/Applicant, the Respondent filed a counter affidavit of 7 paragraphs on 15/06/2021, deposed to by one Oke Oluwatobi of Number 50 Queen Street, Alagomeji – Yaba, Lagos State with one annexure marked as Exhibit RJ 1, further counter affidavit filed on 21/06/21 and a written address on the same date. The Applicant also filed further affidavit on 16/06/21 with two annexures and further and better affidavit filed on 22/06/21 with two Exhibits. Upon receipt of the Respondent’s address, the Applicant filed a reply on 22/06/21.

In the Applicant’s written address, a sole issue is distilled for determination thus:-
“Considering the facts and circumstances of this case viz a viz the applicable principles of law whether the Applicant is not entitled to the grant of this application.”

According to Counsel, the Applicant has placed sufficient and succinct facts before this Court to establish the existence of extra ordinary circumstances to justify the exercise of the discretionary powers of the Court in his favour. Thus:-
1) The failure of the trial Court to release the case file for the compilation of the record of Appeal for over five months since the conviction of the Applicant and with no hope in sight thereby making the Applicant spend a substantial part of the three years imprisonment in jail.
2) The requirement of special medical attention of Applicant which is as a result of the Applicant’s life threatening health challenges.
3) The likelihood that the Applicant would have completely served his jail term before the determination of his Appeal and the eventual exhaustion of his right of Appeal as guaranteed under the circumstances. Reliance was placed on Jammal vs. The State (1996) 9 NWLR (PT. 472) 352 at 359-360; Okoroji vs. State (1990) 6 NWLR (Pt. 157) 509 at 512-513 and Madike vs. State (1992) 8 NWLR (Pt. 257) 85 at 95.

At Paragraphs 15(a), (b), (c), (d) and (e) of the supporting affidavit it was deposed to thus:-
(a) “There exist special circumstances warranting the Applicant’s application before this Honourable Court.”
(b) “That the Applicant is greatly ill and is in urgent need of medical treatment and attention. The Applicant herein, has for a long time been suffering from various ailments and hypertension, in which his medical Doctors have been managing over the years to help him live a normal life. The Applicant is suffering from hypertensive heart disease, cervical Spondylosis with Radiculopathy, borderline type 2 diabetes mellitus and Meniere’s disease.”
(c) “That the state of health of the Applicant needs urgent medical attention and treatment. The medical report evidencing the state of health of the Applicant is hereby annexed and marked as Exhibit H.”
(d) “That the Applicant’s health has greatly deteriorated since being convicted and sentenced to jail at the Nigerian Correctional Service, Ikoyi and he is currently on admission at the Police Hospital where he was rushed to by the Prison authorities.”
(e) “That the Nigerian Correctional Service, Ikoyi lacks the medical facilities to handle his peculiar health needs.”

However in Paragraphs 4(e), (f), (g) and (h) of the counter affidavit it was deposed to thus:-
4 (e) “That contrary to the averments contained in Paragraphs 15(a-i) of the affidavit in support of the Appellant/Applicant’s Motion on Notice dated 22nd February, 2021 wherein it was stated that there exist special circumstances warranting the grant of bail due to urgent need of medical treatment, the attached Exhibit H to the Applicant’s affidavit in support of the motion on notice does not state the ‘urgent need of medical treatment’ as the exhibit only stated that the Appellant/Applicant is being managed by the medical facility, has regular reviews with the cardiologist and undergoes daily physiotherapy sessions with the physiotherapist. The report further stated that the Applicant is currently on antihypertensive, muscle relaxant, occasional neck collar and diet restrictions.”
4(f) ”That there is nothing in the medical report issued which suggests that the Applicant is not receiving adequate medical assistance and that it is only when he is released that he can receive his treatment.”
4(g) “That the medical report attached to the Appellant/Applicant’s bail application does not suggests that the Applicant’s health was threatened in anyway and there is no medical report issued by the Nigerian Correctional Service, Ikoyi stating the alleged ill health of the Applicant contrary to Paragraphs 15(a), 15(b) and 15(d) of the Applicant’s affidavit in support of the Applicant’s motion on notice.”
4(h) “That contrary to the averments contained in paragraph 15(e) of the Appellant/Applicant’s affidavit in support… the Nigerian Prison Service, Ikoyi has not said that the Appellant/Applicant cannot be treated in their facility or that they lacked the medical facilities to handle the Appellant’s/Applicant’s health needs.”

Bail is not granted to a convicted person pending appeal as a matter of course. The Applicant must show exceptional circumstance why it should be granted pending appeal – Ojo vs. FRN (2006) 9 NWLR (Pt. 984) 103 at 116-117; State vs. Jammal (1996) 9 NWLR (Pt. 473) 384; Fawehinmi vs. State (1990) 1 NWLR (PT. 127) 486 and Munir vs. FRN (2009) 16 NWLR (PT. 1168) 481 at 498. This Court in Jammal vs. State (Supra) Per Orah JCA held that:- “Generally, the grant of bail to a convict sentenced to term of imprisonment is not made as a matter of course. The principle of presumption of innocence no longer exist, because of his conviction, he must show special circumstances to be entitled to bail pending the determination of his Appeal.”

In the instant appeal, one of the special circumstances relied on by the applicant is that of bad health. Ill health of a convict may constitute a special circumstance in granting bail pending Appeal, Exhibit H the medical report annexed to the supporting affidavit states that the applicant is being managed by the Police Hospital Falomo, Ikoyi, Lagos, the report does not show that the health status of the Applicant is life threatening as claimed by his Counsel in Paragraph 4.4 of his written address. The medical report further stated that the Applicant is on certain medications with regular reviews with the cardiologist and undergoes daily physiotherapy sessions.
This goes to show that the medical needs of the Applicant are being met. This Court further observes that the Prison authorities in Ikoyi where the Applicant is serving his term of imprisonment have not issued any report that the medical condition of the Applicant cannot be monitored or handled in prison. It is only where the State cannot provide for the medical need of the Applicant that the Court may exercise its discretion to grant bail. In Abacha vs. State (2002) 5 NWLR (Pt. 761) 638 at 656 the Supreme Court stated that:-
“The special medical need of an accused person whose proven state of health need special medical attention which the authorities may not be able to provide is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to the accused person. Such need is brought before the Court by the mere assertion of the accused or his Counsel but on satisfactory and convincing evidence.”
The Appellant through his Counsel stated in Paragraphs 4.7 – 4.8 of his written address that his health condition based on the Medical Report (Exhibit H) should be considered as a special circumstance in view of the Covid 19 pandemic. In the case ofMrs. Mubo Ikotun vs. FRN (2015) LPELR-24684 (CA) it was stated that:-
“As decided in the case of Bode George vs. State (Supra) if every ailment is considered exceptional then nobody would be in prison serving a sentence because it is common knowledge that hypertension and diabetes are ravaging the Nigerian populace.”
The Apex Court captured the position of the law on the onus of proof on the Applicant where he is relying on ill health as a ground for bail when it was pronounced in Abacha vs. State (Supra) at Pages 675-676 thus:-
“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 condition of the Appellant did not state he was an expert in that field of medicine. More so, even in the letter, there is nothing to suggest that he treated the applicant for the condition.”
In this case, there is no credible evidence given by an expert in the field of medicine relating to the alleged ill health of the Applicant.

On the possibility of the Applicant spending substantial part of his prison term before the Appeal is heard, is speculative as the Court of Appeal, Lagos Division is giving effect to the Practice Direction by granting accelerated hearing to all Criminal Appeals by or against the Economic and Financial Crimes Commission. It is only where a considerable proportion of sentence would have been served in prison before the Appeal is heard, that the Court exercises its discretion to grant bail as was done in Ojo vs. FRN (Supra) where the sentence was just one year. It cannot be the basis in the instant case where the term of imprisonment is three (3) years. It is the argument of the Applicant in his address at Paragraphs 4.5 – 4.9 placing reliance on Jammal vs. State (Supra) that the inability to compile the record of Appeal was due to the lower Court not releasing the case file. However in Paragraph 3(r) of his Further Affidavit in support of the motion on notice filed on 16/06/2021, it was deposed to that the case file has been released before the commencement of the Judiciary Staff Union (JUSUN) strike. This suggests that the Appeal section of the lower Court was already working on transmitting the record of Appeal to this Court before the commencement of the strike. At this stage, the Applicant can now complete the compilation of the record of Appeal and transmit same to this Court to enable him benefit from the Fast Track Practice Direction of this Court.

​After a thorough appraisal of the Motion on Notice with the supporting affidavit, the Further affidavit, the Further and Better affidavit, the Applicant’s written address and the Applicant’s Reply address in opposition to the Respondent’s written address on one hand; the Respondent’s Counter affidavit, the further Counter affidavit and the Respondent’s written address in response to the Appellant/Applicant’s motion on notice on the other hand, the Appellant/Applicant’s application for bail is unmeritorious, same is hereby refused. It is accordingly dismissed. No cost awarded. Parties to bear their respective costs.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the Ruling of my learned brother, ABDULLAHI MAHMUD BAYERO, JCA, where the facts giving rise to this appeal, and the issues in contention have been set out and determined. I agree with my learned brother’s reasoning and his conclusion that the Appellant/Applicant’s application for bail is unmeritorious, thereby refusing it. I also refuse and dismiss the application.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling just delivered by my learned Brother, ABDULLAHI MAHMUD BAYERO, JCA and I am in agreement with the reasoning and conclusions in dismissing the Application as lacking in merit. I subscribe to the consequential orders made in the Ruling.

Appearances:

…For Appellant(s)

Rotimi Jacobs (SAN), with him, G.O. Balogun and S.A. Ogundele For Respondent(s)