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PROFESSOR RICHARD IYIOLA AKINDELE v. FEDERAL REPUBLIC OF NIGERIA (2019)

PROFESSOR RICHARD IYIOLA AKINDELE v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13537(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2019

CA/AK/80C/2019(R)

 

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

PROFESSOR RICHARD IYIOLA AKINDELE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

RATIO

WHETHER OR NOT THE GRANT OF AN APPLICATION FOR BAIL BY A PERSON WHO HAS NOT BEEN TRIED AND CONVICTED BY A COURT IS A MATTER OF COURSE

In his own concurring judgment in Enebeli v. Chief of Naval Staff (supra), Aderemi, JCA stated thus;
?The law is settled that the grant of an application for bail by a person who has not been tried and convicted by a Court of competent jurisdiction, is a matter of course unless some circumstances militate against the grant of it.
However, upon conviction, bail is no longer granted as a matter of course except upon special circumstances being shown by the applicant. Ill?health shown by the applicant is undoubtedly a special circumstance that will necessitate the grant of it particularly in a case of this nature where it was deposed that he remained in continued detention and his illness was never diagnosed. If he were to remain in the prison serving his jail term he would have almost completed his term if he would not complete it before this appeal is heard. These depositions were never contradicted. Undoubtedly, the above depositions constitute very weighty circumstances that compel the release of an applicant from prison custody.
However, in Mohammed Sanni Abacha v. The State (2002) 5 NWLR (pt 761) 638: PER DANJUMA, J.C.A.

THE SPECIAL/EXCEPTIONAL CIRCUMSTANCE TO BE PRESENT FOR THE COURT OF APPEAL TO EXERCISE ITS POWER TO GRANT BAIL TO AN APPLICANT PENDING APPEAL

This is an application for bail pending appeal. By the combined effect of the provisions of SECTION 28(1) of the Court of Appeal Act, 2004 and ORDER 13(6) of the Rules of Court, 2016, the Court of Appeal has the power to grant bail to an applicant pending an appeal against his conviction. BUWAI V STATE (2004) 16 NWLR, PT 899, 285. However, this power is to be exercised in the face of very special/exceptional circumstances. These special/exceptional circumstances would include but not limited to:-
1) If the applicant being a first offender had previously been of good behavior;
2) If substantial grounds are involved in the appeal and there is a likelihood of success;
3) Where a considerable portion of the sentence imposed on the applicant would be served before the applicant can be heard particularly having regard to congestion of appeals pending in the Court.
See: ENEBELI V CHIEF OF NAVAL STAFF (2000) 9 NWLR, PT 671, 199; FAWEHINMI V STATE (1990) 1 NWLR, PT 127, 486 and Ojo V State (1994) 8 NWLR, PT 360, 66. PER MAHMOUD, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling): The Applicant herein had by motion on notice brought pursuant to Sections 158 and 164 of the Administration of Criminal Justice Act, 2015 and under the inherent jurisdiction of the Court prayed for the following orders:-
1. An order admitting the Appellant/Applicant to bail pending the hearing and determination of his appeal against the judgment of the lower Court delivered on 17th December, 2018.
2. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

The grounds for the application are as follows:-
1. The Trial Court lacks jurisdiction to entertain the case, convict and sentence the Appellant.
2. The Appellant is dissatisfied with his conviction and sentence and he has filed his Notice of Appeal and the Records of Appeal has been entered since 1st March 2019.
3. The Grounds of Appeal raise substantial and arguable issues of law, including the jurisdiction of the trial Court to entertain the case in the first instance.
4. The Appellant is having health challenges and his condition has

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been deteriorating in custody before and after conviction.
5. The Appellant will prosecute his appeal diligently as demonstrated by his assistance in the transmission of the Records of Appeal timorously to this Court.
6. The Appellant night have completed his term of 24 months before his appeal can be determined.
7. The Appellant will not jump bail and the Respondent will not in any way be prejudiced, embarrassed and/or overreached if the Appellant is admitted to bail pending the determination of his appeal.

The application is supported by an affidavit of 17 paragraphs deposed to by one Dr Richard Olutayo Akinwale, a Nigeria Lecturer in the Department of Crop Production and Protection in the Obafemi Awolowo University Ile-Ife an uncle to the Applicant herein.

Also annexed to the application are two documents marked Exhibits ?A? and ?B? being reports on the Applicants herein as relating to his medical history and state of health.
?
A written address by applicant?s counsel is also annexed to the motion. On its part, the Respondent filed a counter affidavit of 16 paragraphs with one exhibit

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?A?, being a document titled verification of medical record. It also filed a written address in opposition.

Aside the Record of Appeal entered in this Court on the 1st March 2019, the Applicant/Appellant who is enjoined by the Order 19 of the Court of Appeal Rules 2016 to file the Appellant?s Brief of Argument within 45 days of the receipt of the Record of Appeal has not done so. There is also no motion filed for extension of time to so do out of time.

In the circumstances, this application for bail pending appeal shall not take into consideration the fact of any possible or speculative delay in its adjudication, applicant himself being in lethargy, by not having activated the hearing of the appeal by the filing of brief of argument.

I shall, therefore, discountenance the averments and contentions relating to possible delay in the hearing of the appeal and delivery of judgment for the reason of the workload of this Court and the possibility of the term of sentence being served out before a decision is reached on appeal.

A party shall not be allowed to erect bumps with the sole aim of reaping a benefit therefrom. A Court of

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law and equity will not allow it.

Arguing the application, K. O. Ijatuyi, Esq, learned counsel for the Applicant submitted by his written address filed 29 ? 03 ? 2019 support of the motion by adopting the said address, wherein he raised a sole issue to wit:
?Whether having regard to the circumstances of this case, the Appellant/Applicant has placed sufficient material before the Court to exercise its discretion in its favour.?

The learned counsel submitted that the applicant, though already convicted, may be granted bail upon exceptional circumstances, as the presumption of innocence can no longer avail him. (a) Muri v. I.G. P. (1957) NWLR 3 at 6; R. v. Tunwashe (1935) 2 WACA 236 and Ojo & Anr v. FRN (2006) LPELR 5423 were relied upon.
?
The learned counsel further contended, relying on the affidavit in support that exceptional circumstances had been shown in the nature of (i) Life threatening ill-health:- of the Applicant stated. (ii) That the Applicant is a first offender and has not jumped bail as administrative bail granted him before his arraignment was not violated and (iii) that he had timerously compiled and

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transmitted the record of appeal to this Court on 1st March, 2019.

That this Court should exercise its discretion judicially and judiciously; and relies also on Ogungbaibi v. FRN (2016) LPELR 41283 CA Bamaiyi v. State (2001) 8 NWLR (pt. 715) 270 3. Abacha v. State (2002) 5 NWLR (pt. 715) 270 4. Bonsi v. FRN 2016 LPELR;41294 the learned counsel submitted that the exceptional circumstance placed before the Court were:-
(a) The nature of the appeal, which is on the jurisdiction of the Court and therefore a threshold issue.
(b) The fact that a greater proportion of the term of the imprisonment would have been served before the appeal can be heard that of the 24 months imprisonment term, the Appellant has been in prison for over 4 months till date.
(c) The state of health of the Appellant/Appellant ? relying on Exhibit ?A? and ?B?

Counsel submitted that if bail is not granted, the Applicant would have effectively served his jail term before his appeal can be heard. Relies also on the case of Okoroji v. State (1990) 6 NWLR (pt. 157) 509; Fawehinmi v. The State (1990) 1 NWLR (pt. 127) 486; State v. Jammal (1996) 9 NWLR

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(pt. 473) @ 399 and 400.

In response the learned counsel in opposition argued that the judicial and judicious discretion of the Court to grant bail at this stage and circumstance should reckon that the constitutional presumption of innocence has been removed upon conviction. Eyu v. State (1998) 2 NWLR (pt. 78) pg. 602 relied upon; and that the Applicant was now presumed guilty until otherwise discharged.

That the Applicant must establish peculiar special facts and circumstances to be considered before the grant of bail application herein. Ojo v. FRN (2006) 9 NWLR (pt. 984), 105 andBuwai v. State (2004) 16 NWLR (pt. 899).

The learned counsel contended that it is clear that the bail application is hinged on the ground of ill ? health; but that nonetheless, the applicant had to show that appropriate and effective medical facilities are not accessible to the convict in the confines of prison custody. That the affidavit must be supported by documentary evidence of the state of health of the applicant and a medical doctor ought to give evidence in that regard in compliance with the provisions of Section 57 of the Evidence Act, LFN., 2011. Fawehinmi v. State.

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That there was no such evidence. That the Exhibit tendered was only procured for the purpose of the application. That in Abacha v. State, it was held that ill?health was not a special circumstance for grant of bail pending appeal.

That the Applicant had deposed that his state of health had deterioted since he was committed to prison on 17th December, 2018. That there was no evidence from the prison authorities as to the depletion or deterioration of the Appellant?s health medical need that could not be provided by them and that the applicant would be better attended outside the prisons.

The learned counsel argued that whilst the conduct of the applicant is a factor to put into consideration, none has been shown as a special circumstance in this application.
?
I have carefully and thoughtfully perused the application for bail herein and particularly the supporting affidavit deposed to with the annextures, being reports from the hospital on the Medical history of the Applicant. The report exhibit ?B? was confirmed by the Exhibit ?A? of the Respondent to be authentic and as emanating from

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the Awolowo University Teaching Hospital, Ile?Ife.
However, the report therein does not confirm a specific health condition that was of proximate and clear danger; that was of a character that cannot be attended to in any Medical facility when need be, or in the prisons at Ile?Ife but which can only be remedied when the Applicant is not in custody.
The Report has not shown that solitary confinement or any form of confinement for that matter would aggravate the health challenge; Neither was any special medical particulars of the moment relevant and being the view averred, ever filed.
It is in the same reasoning that I find the Respondent opposing the grant of the application on health ground as sought and referring to the Exhibits annexed as procured Reports filed for the purpose of the instant application.
?That may well be, as the Exhibit ?A? from Modupe Medical Centre only gives a rundown of medical history of the applicant close to 2 decades and suggests that he needs to be with his family for companionship and psychological support; and should stay in a serene conducive homely environment to avoid

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complications that may be irreversible.
Surely, the Report is such that clearly is sui generis and suggests total prohibition and avoidance of any state action against the Appellant that may impinge on his liberty from his family and environment.
A reliance on the genre of Reports as in the character of Exhibit ?A? would create the dangerous precedent of medical officers taking over the decision to grant bail and on generised opinion and of non specialist and unverifiable postulation; reliance on which could render the machinery of justice impotent. A danger to society.
That is not the purport for the justification of the law relying on scientific and professional reports and views.
I see the Exhibit ?A? by its character as being procured and therefore, I shall attach no weight to it; whilst the report from the Obafemi Awolowo University Teaching Hospital, Ile-Ife has only chronicled a history of medical relationship and up to 2008. Nothing indicating the appellant?s current state of health is shown.
?The Respondent?s learned counsel is, therefore, right when he argued that there was no veriable

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medical special need shown why the convict/applicant cannot handle his appeal from custody where he is presumed in law to be lawfully confined. There is no deposition or evidence led indicating that the prison authority at Ile ? Ife cannot appropriately and competently attend to the health needs of the applicant.
To the contrary, the Respondent had deposed to the fact of the availability of such medical facilities in prisons and the right of the Applicant to be so attended to; coupled with the policy of the controller?general of prisons through the controllers to so do and to even out source other medical facilities. Of course, I take judicial notice of this facts.
In any case, that ill-health per se, is not an exceptional circumstance upon which to grant bail pending appeal, is established. See Abacha v. State (2003) 3 ACLR Page 1 @ 8.
?The responsibility of affording him access to proper medical facility befitting his situation rests with the state through those holding him in custody. It is a duty. It has not been provingly denied.
Nothing has been shown that that duty will not continue to be performed; at least, the alleged

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deterioration in health since 2018 has not been proved in this application.
This Court is not an avant?garde with powers to start looking at possible legal mistakes without the hearing of the appeal first, if the mistakes are not apparent.
Therefore, the fact that the appeal has raised the question of jurisdiction of the trial Court to have heard the matter in the first place will not without more, be a basis at this stage to take into consideration in the application for bail; particularly so that the appellant was represented by a counsel and indeed pleaded guilty to the charges before the trial Court on charges brought under the legislations relevant to the Court ostensively. In Austin Enebeli v. Chief of Naval Staff & 2 Ors. (2000) 9 NWLR (pt. 671) 119, the applicant was granted bail pending his appeal because special circumstances were disclosed to wit; that the deterioration in his health was proved with no assistance rendered to him in custody; (2) He was tossed from one detention facility to the other. (3) The record of proceedings of the military Court marshal was not given to him as required by law and the Court of appeal

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therefore saw the need to exercise its discretion to grant bail so that he may be in touch with his counsel.
There was obvious frustration of the right of the appellant/applicant in that case, as against the instant where applicant (1) has a counsel, (2) has not shown any absence of medical care or facility for him (3) has not been frustrated in the prosecution of his appeal but chosen or neglected to pursue same expeditiously.
We are aware of the prime position of criminal appeals and the existence of the Fast Track Rules 2014 of this Court alongside the Administration of Criminal Justice Act and the Constitution, FRN, Applicant should take advantage of those laws by doing the needful.
There is now the suspended sentence provision in our jurisprudence, but that was not imposed by the trial Court.
The rationale for the decision in Enebeli v. Chief of Naval Staff (2000) 9 NWLR (pt. 671) 119 was clearly stated by Galadima, JCA (as he then was) at page 125 of the report thus:-
?I must say that in the case at hand all the above factors are present and these constitute very exceptional circumstances why the applicant after his conviction

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and sentence to 19 years imprisonment should be admitted to bail. These circumstances can be seen clearly from the deposition of the learned counsel for the applicant. The applicant having been entrusted with grave responsibility, set out to lead, as second in command the ECOMOG soldiers and equipment to Liberia. He is not known to have previous criminal record. His detention, trial, conviction and sentence were brazenly carried out in most unsatisfactory manner, akin to a ?Kangaroo? proceeding by the General Court Marshal NNS Olokun. He has clearly expressed his dissatisfaction with the proceedings by filing in his six Grounds of Appeal. On the face of the depositions and preliminary argument of the learned counsel for the applicant which have not been countered. I form an opinion that the conviction of the applicant is prima facie wrong in law and there is likelihood of the appeal succeeding. It is clear from the circumstances of his case that it is highly necessary for the applicant prisoner to be free in order to consult with his counsel to further pursue this appeal depositions in paragraphs. 1 ? 22 clearly show the frustration, lack of

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understanding, and non-challant attitude displayed by the 1st and 2nd respondents who were only interested in dumping him in prison. He was not given adequate opportunity and facility to defend himself. Even after him conviction he was not provided with conductive and free conditions to prosecute his appeal. I have considered as a matter of fact that appeals are usually delayed, given the circumstances in this particular case, and the fact that the prisoner has served and will still serve a considerable part of his term before the appeal is finally disposed of if bail is not granted.
In his own concurring judgment in Enebeli v. Chief of Naval Staff (supra), Aderemi, JCA stated thus;
?The law is settled that the grant of an application for bail by a person who has not been tried and convicted by a Court of competent jurisdiction, is a matter of course unless some circumstances militate against the grant of it.
However, upon conviction, bail is no longer granted as a matter of course except upon special circumstances being shown by the applicant. Ill?health shown by the applicant is undoubtedly a special circumstance

14

that will necessitate the grant of it particularly in a case of this nature where it was deposed that he remained in continued detention and his illness was never diagnosed. If he were to remain in the prison serving his jail term he would have almost completed his term if he would not complete it before this appeal is heard. These depositions were never contradicted. Undoubtedly, the above depositions constitute very weighty circumstances that compel the release of an applicant from prison custody.
However, in Mohammed Sanni Abacha v. The State (2002) 5 NWLR (pt 761) 638:
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

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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. Moreover, even in that letter, there is nothing to suggest that he treated the applicant for this condition.
However, if seems clear from that letter that the applicant went through certain tests, but without any evidence in plain simple language of the nature of the test. I do not think that his view on the case presented for him. Medical language of the kind used in that letter may be useful in a medical conference among doctors but it is hardly of any use in the Court without any explanation of such language in plain and understandable language of the Court.
The Applicant has not proved that the hearing of the appeal lodged will be unduly delayed beyond the term of his imprisonment or that he has served the substantial part thereof.
2. The ill-health of the Applicant has not been shown not to have been diagnosed nor unattended to or that it could not be attended to except while on bail. (3) Special circumstances have not be shown to warrant a departure from the position

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that after conviction, bail is not granted as a matter of course.
This is because the presumption of innocence had been removed by the conviction. Applicant to peruse his appeal expeditiously as it appears to be within a narrow limit. Application is dismissed.

Appellant shall, however, file the Appellant?s Brief of Argument within 30 days from today, and upon service on the Respondent?s counsel, the Respondent?s Brief of Argument to be filed within 30 days; and 5 days for filing of a Reply, if any is granted.

The appeal is fixed for hearing on the 15th September, 2019.
Appellant?s counsel may wish do the needful, in the face of the Record of Appeal apparently having been compiled and transmitted to this Court since 01 ? 03 ? 2019.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead Ruling just delivered by my learned brother, Mohammed A. Danjuma, JCA.
?
I am in agreement with my Lord in the consideration of the appeal wherein resulted in the reasoning and conclusion arrived at.
The application instant is also dismissed by me as

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done in the lead Ruling.
I abide by the orders and taking same as mine.
.
PATRICIA AJUMA MAHMOUD, J.C.A.: This is an application for bail pending appeal. By the combined effect of the provisions of SECTION 28(1) of the Court of Appeal Act, 2004 and ORDER 13(6) of the Rules of Court, 2016, the Court of Appeal has the power to grant bail to an applicant pending an appeal against his conviction. BUWAI V STATE (2004) 16 NWLR, PT 899, 285. However, this power is to be exercised in the face of very special/exceptional circumstances. These special/exceptional circumstances would include but not limited to:-
1) If the applicant being a first offender had previously been of good behavior;
2) If substantial grounds are involved in the appeal and there is a likelihood of success;
3) Where a considerable portion of the sentence imposed on the applicant would be served before the applicant can be heard particularly having regard to congestion of appeals pending in the Court.
See: ENEBELI V CHIEF OF NAVAL STAFF (2000) 9 NWLR, PT 671, 199; FAWEHINMI V STATE (1990) 1 NWLR, PT 127, 486 and Ojo V State (1994) 8 NWLR, PT 360, 66.
?In the instant case, the two

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main conditions relied upon by the appellant/applicant as constituting special circumstances are the alleged deterioration of his health and the fact that his sentence of 24 months might have been completed before his appeal can be determined.
I am satisfied from a preview of the lead ruling just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA that his Lordship has aptly and carefully considered all the alleged special/exceptional circumstances raised by the appellant in this application. He found therefrom that the applicant has not satisfied or proved any reason that qualifies as special/exceptional circumstance in the application to warrant the exercise of the Court’s discretion in his favour. In other words the applicant having been convicted by a Court of competent jurisdiction is no longer covered by the veil of presumption of innocence. In the circumstances I agree and adopt the reasoned conclusions of my learned brother in this ruling that this application lacks merit. I too dismiss it. I abide with all the consequential orders made for the expeditious hearing of the applicant’s appeal.

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Appearances:

K. O. Ijatuyi Esq, l. k. Dare Esq., and C. T. Fagbohun Esq.For Appellant(s)

E. A. Shogunle, Esq.For Respondent(s)

 

Appearances

K. O. Ijatuyi Esq, l. k. Dare Esq., and C. T. Fagbohun Esq.For Appellant

 

AND

E. A. Shogunle, Esq.For Respondent