PETER v. STATE (2020)

PETER v. STATE

(2020)LCN/15327(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/MK/7C/2020(R)

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

AFAM PETER APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT BAIL PENDING APPEAL IS GRANTED AS A MATTER OF COURSE ONCE THE APPLICATION IS MADE

One point which must be emphasized is that bail pending appeal is not granted as a matter of course once application has been made. The reason for this is not farfetched. The applicant in such application has already been found guilty and convicted. The constitutional presumption of innocence of an accused person under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) no longer inures in his favour. This is in contradistinction to the case of an applicant in an application for bail pending trial who is presumed innocent till proven guilty; Ogu v. COP (2017) LPELR-43832(SC); Alo v The State (2015) LPELR-24404(SC). Once the applicant for bail has been convicted and sentenced, his conviction by the lower Court, becomes a subsisting judgment until set aside on appeal; NCC v. Motophone Ltd & Anor (2019) LPELR-47401(SC); Fidelity Bank Plc v. The M.T. Tabora & Ors (2018) LPELR-44504(SC). Now a prisoner, the applicant is not entitled to bail as a matter of course; Jammal v State (1996) 9 NWLR (Pt.472) 352 at 366.
The grant of an application for bail pending appeal lies within the discretion of the appellate Court, which discretion may be exercised in favour of the applicant upon the applicant showing peculiar, exceptional or special circumstance; Ojo v FRN (2006) LPELR-5423(CA); Arowolo v. State (2007) LPELR-8711(CA); Obakponovwe v. State (2019) LPELR-47180(CA). In the case of Jammal v State (supra) at 359, Orah J.C.A. on the principles guiding application for bail pending appeal, said:
“From a careful examination of available authorities, it is clear: –
(1) That the admission of an appellant to bail pending the determination of his appeal is at the discretion of the Court.
(2) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(3) That in dealing with the latter class of case, the Court will have regard not only to the length of time which must elapse before the appeal can be heard but also the length of the sentence to be appealed from and further, that these two matters will be considered in relation to one another. PER OTISI, J.C.A.

PARAMETERS FOR DETERMINING SPECIAL AND EXCEPTIONAL CIRCUMSTANCES FOR GRANTING BAIL PENDING APPEAL

The Courts have laid down parameters for determining special and exceptional circumstances. In Ogundimu Munir V. Federal Republic of Nigeria (2009) 16 NWLR (Pt. 1168) 481 at 497 to 498 this Court listed some of the circumstances thus:
“In determining exceptional or special circumstances, the Courts take into consideration the following:
1) If the applicant being first offender had previously been of good behavior.
2) If substantial grounds of law are involved in the appeal, it is useful to see if there is any prospect of success on appeal or where a sentence is manifestly contestable as to whether or not it is a sentence known to the law, bail should be granted. See Obi V. The State (1992) 8 NWLR (Pt. 257) Pg.76, Buwai V. The State (2004) 16 NWLR (Pt. 899) 285, Fawehinmi V. The State (1990) 1 NWLR (Pt. 127) 486 at 498-499, and R. V. Phillip Wise (1924) 17 CAR 17.
3) Where having regard to the very heavy congestion of appeals pending in the Courts, a refusal of bail to the applicant will have the result of the whole or a considerable portion of the sentence imposed on the applicant being served, before the applicants appeal can be heard. R. V. Tunwashe (1935) 2 WACA 236, Okoroji V. The State (1990) 6 NWLR (Pt. 157) 509, Jammal V. State (supra).
4) Where the applicant will be of assistance for the preparation of his appeal and where the appeal is so complex that there is obvious need for close consultation between the applicant and his counsel. In determining the complex nature of the appeal, regards must also be had to the nature of the offence, number of witnesses taken and the quantum of documents admitted in the course of trial. See R. V. Isaac Waxman (1931) 22 CAR 81.
5) Where the application is based on ill health and the applicant cannot get the necessary treatment in prison or where the machine used in treating the applicant is not movable, thus cannot be moved to prison. In such circumstance and in order not to put the applicant’s health in serious jeopardy, bail will be granted. See Fawehinmi V. The State (supra), Jammal V. State (supra). However, mere allegation of bad health and no more, will not amount to exceptional circumstance. See R. V. Gott (1922) 16 CAR 56.” Per JAURO JCA. PER OTISI, J.C.A.

WHETHER OR NOT THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON UNDER SECTION 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) APPLIES ONCE A PERSON HAS BEEN CONVICTED FOR AN OFFENCE

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Federal High Court sitting at Lafia in a judgment delivered on February 2, 2020 in Case No: FHC/LF/CR/53/2017 convicted and sentenced the Appellant to three years imprisonment without option of fine for the offence of Advance Fee Fraud punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, Laws of the Federation of Nigeria, 2004.

Dissatisfied with his conviction and sentence, the Appellant lodged an appeal to this Court by Notice of Appeal filed on 5/5/2020. The Appellant also filed a Motion on Notice on 8/7/2020 seeking the following reliefs:
1. An Order of the Hon. Court admitting the Appellant/Applicant to bail pending the hearing and determination of his appeal against the judgment of the Federal High Court Lafia made on the 05/02/2020, which Appeal is pending and subsisting before the Hon. Court.
2. And for such further order or orders as the Hon. Court may deem fit to make in the circumstance and in the overall interest of justice.
TAKE FURTHER NOTICE that the grounds upon which the instant application is brought are:

a. The trial Federal High Court Lafia, on the 05/02/2020 convicted the Appellant/Applicant and sentenced him to 3 years imprisonment without option of fine.
b. The Appellant/Applicant was dissatisfied with the said judgment and has appealled same to this Appellate Court with records already transmitted and served and the Appellant (sic) brief of argument filed and served.
c. That the Appellant/Applicant have (sic) already spent a substantial part of the term of imprisonment in the Lafia correctional service centre and may end up serving out the whole term of imprisonment if his (sic) not admitted to bail pending his appeal against the said judgment.
d. The Appellant/Applicant’s grounds of Appeal amongst others, relates to the issue of lack of jurisdiction of the trial Court to entertain the case from the onset.
e. That the Appellant/Applicant will suffer irreparable damage if it turns out that he serves out his prison term before his Appeal is decided one way or the other without being admitted to bail pending Appeal.
f. That admitting the Appellant/Applicant will be in the best interest of justice in the circumstance of the Appeal and this application instant.
NOTICE IS HEREBY GIVEN that the Appellant/Applicant shall place reliance on all the processes that are filed before the Hon. Court in respect of the substantive Appeal as well as the application instant in arguing out this application.

The Respondent was served with the Motion on Notice on 10/7/2020 through Inspector Zakari Magaji, C.I.D. Lafia, but filed no Counter Affidavit.

At the hearing of the application on 27/7/2020, Eric Irehovbude, Esq. who appeared with M.T. Yusuf, Esq. for the Appellant/Applicant moved in terms of the motion seeking bail pending the hearing and determination of the appeal. O. A. Tijani, Esq. who appeared for the Respondent, was not opposed to the grant of the application.

It is the law that failure to file a counter affidavit means that the depositions of an applicant are uncontroverted and may be acted upon by the Court, unless they are moonshine; Mabamije v. Otto (2016) LPELR-26058(SC); Henry Stephens Engineering Ltd v. S. A. Yakubu (Nig) Ltd (2009) LPELR-1363(SC); Ogoejeofo v. Ogoejeofo (2006) LPELR-2308(SC). Therefore, a respondent who fails to challenge the depositions of an applicant is taken not to be opposed to the application and is deemed to have admitted the truth of the depositions in support of the application.

However, it is also well settled that the failure of a respondent to file a counter affidavit in opposition to an application does not deter the Court from looking into the merits of the said application. A Court must not accept every evidence led by a plaintiff simply because the defendant has led no evidence. Although the affidavit or oral evidence adduced by a plaintiff is unchallenged, the Court still has the duty to evaluate the evidence adduced to see it if such is credible enough to sustain the relief sought or claim; Omoregbe v. Lawani (1980) LPELR-2655(SC); Tanko v. Nongha (2005) LPELR-11405(CA); UBA PLC v. Patkan Ventures Limited (2017) LPELR-42392(CA). Therefore, notwithstanding the failure of the Respondent to file a counter affidavit and the fact that Mr. Tijani for the Respondent did not oppose the grant of the application, the Court would still have to look into the reasons relied upon by the Appellant/Applicant for seeking bail pending the hearing and determination of his appeal.

The affidavit in support of the application, deposed to M.T. Yusuf, Esq., stated in paragraphs 5 – 16, as follows:
5. That I know as a fact that I was informed by the Appellant/Applicant at the Lafia correctional centre on the 05/05/2020 at about 10am of the following facts and I verily believed because as the Appellant/Applicant, his involve (sic) in the whole transaction leading to his trial/conviction and sentence.
6. That he entered into a contract for the sale of his house to the nominal complainant where upon they entered a hand written agreement with the understanding that the consideration for his house is N2,500,000.00 (Two Million Five Hundred Thousand Naira) only.
7. That the nominal complainant paid him the sum of N1,000,000.00 (One Million Naira) instantly with the unpaid balance of N1,500,000.00 (One Million five Hundred Thousand Naira) agreed to be paid within two months (60 days). A photocopy of said hand written agreement is hereto attached and marked as Exhibit “A”.
8. That after over two year, the nominal complainant could not pay the balance, as agreed, it was then agreed between the parties that the Appellant/Applicant should sell the house to a third party and refund the deposit to the nominal complainant.
9. That when later the Appellant/Applicant got a buyer for the house, he sold the house and requested the nominal complainant to avail him with her Account details so he can send/refund her deposit back to her but the nominal complainant refused to avail him with her Account details.
10. That the Appellant/Applicant then engaged the services of a legal practitioner to formally write to the nominal complainant and demand for her Account details, so that he can send/refund her deposit. A photocopy of the said letter is hereto attached and marked as Exhibit “B”.
11. That instead of providing her Account details, the nominal complainant reported the matter to the Respondent as a criminal case, hence the Applicant was put on trial, convicted and sentenced to 3 years imprisonment at the Lafia Correctional Centre and have been there since 05/02/2020 to date.
12. That the Appellant/Applicant is dissatisfied with the judgment of the trial Court made on the 05/02/2020, Appeal against the said judgment on the 05/02/2020. A photocopy of the Notice of Appeal is hereto attached and marked as Exhibit “C”.
13. That the Appellant/Applicant Notice of Appeal, has special circumstances that will necessitate the grant of bail pending Appeal, and the Appellant/Applicant was admitted to bail throughout his trial before the trial Court and has never attempted to jump bail.
14. That if the bail pending Appeal is not granted, the Appellant/Applicant will serve out his term of imprisonment/sentence before the Appeal is heard and determined and thereby render the Appeal as a mere academic exercise.
15. That the damages they Appellant/Applicant will suffer if this application is not granted, is such that cannot be compensated in the monetary damages.
16. That the Appellant/Applicant have (sic) already filed his Appellant (sic) Brief of Argument as well as compiled and transmitted the records of proceedings which are before the Hon. Court.
17. That it is in the interest of justice to grant the application as the Respondent has nothing to lose but the grant will enhance the justice of the case.

Annexed as Exhibit A is a copy of the handwritten agreement between the Appellant/Applicant and the complainant, made on 28/4/2013, for the sale of the house belonging to the Appellant/Applicant to the complainant for the sum of N2.5 million. The terms of the agreement were for an initial deposit of N1 million to be paid and for the balance of N1.5 million to be paid within the next sixty days. Exhibit A acknowledged the payment of the sum of N1 million. Exhibit B, dated 2/8/2016, was a letter written by Solicitors to the Appellant/Applicant requesting for the complainant’s account to refund the sum of N1 million, the agreed balance having not been paid within the agreed period of sixty days. The Notice of Appeal, attached as Exhibit C, has four grounds of appeal. The Appellant/Applicant seeks orders to set aside the judgment of the lower Court for want of jurisdiction to try the case as a criminal matter and that the essential ingredients of the alleged offence as charged were not proved.

In the written address filed by Eric Irehovbude, Esq. in support of the application, the sole issue raised was:
Whether the instant application is grantable in law and by the facts of the application.

Learned Counsel submitted that by Section 28 of the Court of Appeal Act (2010 Amendments), which is the same as the provisions of Section 28 of the Court of Appeal Act, 2004, this Court has jurisdiction to admit an Appellant to bail pending the determination of his appeal. It was submitted that in a long line of decided cases, the appellate Courts have exercised discretion in admitting an applicant to bail where the facts of the case are such that an appellant would have served a considerable portion of the sentence before the hearing of the appeal, thereby creating an unusual and exceptional circumstance, justifying the grant of bail pending appeal. The decisions in Duro Ajayi & 2 Ors v The State (1977) FCA 1, (1977) 1 NCAR 1; Alexander Akpulu v The State 28/10/1977 FCA/K/86/77 (Unreported) were relied on. It was submitted that the Appellant/Applicant in this application had satisfied the conditions for the grant of this application. He had filed an appeal. The Appellant was granted bail by the trial Court and did not jump bail or attempt to do so. The Appellant may serve out his sentence before the hearing and determination of the appeal; and, the issue on appeal, which borders on jurisdiction of the lower Court, is an exceptional circumstance. Reliance was placed onJammal v The State (1998) 1 ACLR 530 at 532. The Court was urged to exercise its discretion in favour of the Appellant/Applicant and grant the application.

Resolution
Counsel for the Appellant/Applicant has rightly submitted that the instant application is of a nature that can be entertained by this Court by virtue of the provisions of Section 28(1) of the Court of Appeal Act, 2004, thus:
The Court of Appeal may, if it thinks fit, on the application of an appellant admit the appellant to bail pending the determination of his appeal.
See also Order 17 Rule 13 of the Court of Appeal Rules, 2016. Therefore, once an appeal is filed, a motion for bail pending appeal may be entertained by the Court. One point which must be emphasized is that bail pending appeal is not granted as a matter of course once application has been made. The reason for this is not farfetched. The applicant in such application has already been found guilty and convicted. The constitutional presumption of innocence of an accused person under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) no longer inures in his favour. This is in contradistinction to the case of an applicant in an application for bail pending trial who is presumed innocent till proven guilty; Ogu v. COP (2017) LPELR-43832(SC); Alo v The State (2015) LPELR-24404(SC). Once the applicant for bail has been convicted and sentenced, his conviction by the lower Court, becomes a subsisting judgment until set aside on appeal; NCC v. Motophone Ltd & Anor (2019) LPELR-47401(SC); Fidelity Bank Plc v. The M.T. Tabora & Ors (2018) LPELR-44504(SC). Now a prisoner, the applicant is not entitled to bail as a matter of course; Jammal v State (1996) 9 NWLR (Pt.472) 352 at 366.
The grant of an application for bail pending appeal lies within the discretion of the appellate Court, which discretion may be exercised in favour of the applicant upon the applicant showing peculiar, exceptional or special circumstance; Ojo v FRN (2006) LPELR-5423(CA); Arowolo v. State (2007) LPELR-8711(CA); Obakponovwe v. State (2019) LPELR-47180(CA). In the case of Jammal v State (supra) at 359, Orah J.C.A. on the principles guiding application for bail pending appeal, said:
“From a careful examination of available authorities, it is clear: –
(1) That the admission of an appellant to bail pending the determination of his appeal is at the discretion of the Court.
(2) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(3) That in dealing with the latter class of case, the Court will have regard not only to the length of time which must elapse before the appeal can be heard but also the length of the sentence to be appealed from and further, that these two matters will be considered in relation to one another.
To put it in another way, in the absence of special circumstances, bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.”
In the case of Obakponovwe v. State (supra), Ogunwumiju, JCA further elaborated:
“In exercising the discretion whether or not to grant bail, a long line of decided authorities have shown that the principles to guide an appeal Court in the grant or otherwise of bail to convict include among others: –
(1) The Appellant has in fact lodged an appeal to the Court of Appeal which is pending.
(2) The Appellant has complied with the conditions of appeal imposed, and this will show the seriousness of his application.
(3) If the Appellant was granted bail during the trial, he has not attempted or tried to jump bail.
(4) That the admission of an Applicant to bail pending the determination of his appeal is at the discretion of the Court.
(5) That bail will not be granted pending an appeal except in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(6) That in dealing with latter class of case, the Court will have regard not only to the length of time that will elapse before the appeal can be heard but also the length of the sentence to be appealed from and that these two matters will be considered in relation to one another, and
(7) In the absence of special circumstances, bail will not be allowed unless a refusal will have the result of a considerable proportion of the sentence being served before the appeal can be heard.

See Jammal v. State (1996) 9 NWLR Pt. 472 Pg. 352 at 360 CA; Munir v. F.R.N (2008) LPELR-4693 (CA); Fawehinmi v The State (supra).”
The common thread running through judicial pronouncements in this regard demonstrates that the granting of bail pending an appeal is at the discretion of the Court, which discretion would be exercised in cognizance of the special facts, circumstances and severity of the offence. Every application for bail pending appeal by a convict who is sentenced to a term of imprisonment is considered on its peculiar, special facts and circumstances. It is now to see whether the Appellant/Applicant satisfied the burden on him to demonstrate to the Court that there are exceptional circumstances to persuade this Court to grant the application for bail pending appeal.

Now, it has already been noted that the Respondent filed no counter affidavit to the depositions in support of this application. It is not in issue that there is a pending appeal. The Appellant’s Brief was filed on 8/7/2020. Some of the issues raised by the said appeal are whether the trial Court has the requisite jurisdiction to try the appellant on a criminal charge flowing from a simple contract between the appellant and the nominal complainant without any dent of criminality and whether the charge against the Appellant was proved by the Respondent. In other words, the issue of jurisdiction of the trial Court to try and convict the Appellant/Applicant over a contract between the Appellant and the complainant, resonates in this appeal. In my considered view, having regard to the contents of the unchallenged Exhibits A and B attached to the affidavit in support, this amounts to a peculiar and special circumstance.

Further, by the said unchallenged depositions, the Appellant/Applicant was admitted to bail by the trial Court throughout his trial thereat and he did not jump bail or attempt to do so. I also note that a considerable proportion of the sentence may be served by the Appellant/Applicant before the appeal may be heard and determined, thereby reducing the appeal to a mere academic exercise. In my view, therefore, this application deserves favourable consideration by this Court, in the interest of justice, the Appellant/Applicant having satisfied the conditions for its grant.

Accordingly, this application has merit and is granted as prayed. The Appellant/Applicant is hereby admitted to bail pending the hearing and determination of his appeal on the following conditions:
1. The Appellant/Applicant is to enter into recognizance in the sum of N500,000.00 with two sureties in like sum.
2. The sureties must swear to an affidavit of means and be resident in Lafia, Nasarawa State.
It is further ordered that the hearing of the pending appeal lodged by the Appellant/Applicant is hereby fixed for September 21, 2020.

ADAMU JAURO, J.C.A.: I had the advantage of reading in draft the ruling just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA. I am in complete agreement with the reasoning and conclusion contained therein, to the effect that the application for bail pending appeal is meritorious and ought to be granted.

Though an application for bail pending appeal is normally not granted as a matter of course because the doctrine of presumption of innocence is no longer in favour of the applicant as he Is now a convict. That notwithstanding, bail pending appeal can be granted in special and exceptional circumstances.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In view of the foregoing and the fuller reasons contained in the leading ruling which I adopt as mine, the application is hereby granted on the terms specified in the ruling. I abide by all consequential orders made.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead ruling of my learned brother, Otisi, JCA. which has just been delivered. I agree with the reasoning and conclusion therein that the application has merit and therefore ought to be granted.

Once a person has been convicted for an offence, the Constitutional presumption of innocence of an accused Person under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) no longer applies to him. Consequently, he can not be granted bail pending appeal against his conviction except there are exceptional and unusual circumstances why bail ought to be granted. See Buwai V. State (2004) 16 NWLR (Pt. 899) 285, Ojo V. Federal Republic of Nigeria (2010) 5 NWLR (Pt. 1187) 254 and Meregini V. Federal Republic of Nigeria (2018) 2 NWLR (Pt. 1633) 331. In an application for bail pending appeal, the principles to be considered include:
(a) that an appeal has infact been lodged by the appellant;
(b) that the appellant has complied with the conditions of appeal, showing seriousness of his application;
(c) if the appellant was granted bail during the trial and he had not attempted or tried to jump bail;
(d) admission w bail is at the discretion of the Court;
(e) bail will not be granted pending appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed;
(f) in dealing with (e), the Court will have regard not only to the length of time that will elapse before the appeal can be heard but also the length of the sentence to be appealed from and that the two matters will be considered in relation to one another;
(g) in the absence of special circumstances, bail will not be allowed unless a refusal will have the result of a considerable proportion of the sentence being served before the appeal can be heard. See Ojo V. Federal Republic of Nigeria supra, and Meregini V. Federal Republic of Nigeria supra.
It is clear from the above that the Court may grant bail pending appeal where there are exceptional circumstances warranting such an unusual course. A substantial ground of law touching on the jurisdiction of the trial Court may be considered as an exceptional circumstance, in which case the Court will see if there is any prospect of success on appeal. See Buwai V. State supra, 295.
Ground 1 of the grounds of appeal in the notice of appeal raises an issue of the jurisdiction of the trial Court to entertain the criminal charge leading to the conviction of the appellant on the basis that the transaction the subject of the charge was a simple contract without “any dent of criminality”. In the circumstances of this appeal. I do not think that this is a frivolous ground of jurisdiction. Whether or not it will succeed is a different matter entirely. In the case of George V. Federal Republic of Nigeria supra, 257, it was held that a substantial ground of appeal which will make the Court suspend a valid decision of the trial Court must exhibit features of a fundamental error ex-facie, with examples such as lack of jurisdiction, conviction on undefined offences or clearly perverse interpretation or wrong application at unclear statutory provision. Ground 1 of the grounds of appeal, as I have already stated, raises an issue of jurisdiction which does not seem to be frivolous.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is on account of the foregoing and the more comprehensive reasons set out in the lead ruling of my learned brother that I find that the application has merit. I also grant the same as prayed on the terms set out in the ruling of my learned brother.

Appearances:

Eric Irehovbude, Esq., with him, M.T Yusuf, Esq. For Appellant(s)

O.A Tijani, Esq. For Respondent(s)