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SHUAIBU v. FRN (2020)

SHUAIBU v. FRN

(2020)LCN/15546(CA)

In The Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/K/465/CM/2019

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Between

MUHAMMAD SHUAIBU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

PRINCIPLE GOVERNING APPLICANT’S BAIL PENDING THE HEARING OF APPEAL

The Applicant has relied on those facts among others, to be admitted to bail pending the hearing of his appeal.
In addressing questions similar to this, the Court in Moji Olamolu v. State (2009) All FWLR (Pt. 485) 1800, per Rhodes Vivour, JCA (as he then was) observed that the principles governing the grant of bail pending appeal as are follows:
“a. That the applicant has in fact lodged an appeal to the Court of Appeal which is pending.
b. The applicant has complied with the condition of appeal imposed and this will show the seriousness of his application.
c. The applicant was granted bail during the trial, he has not attempted, tried to jump bail.
d. That the admission of appellant to bail pending the determination of his appeal is at the discretion of the Court.
e. That bail will not be granted pending appeal safe in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
f. That in dealing with the later class of cases, 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.
g. In the absence of special circumstance, 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 further, the decision in Abacha v. State (2002) 5 NWLR (Pt. 721) 638, 674. In Chief Olabode George & Ors. v. FRN (2010) LPELR-43088 (CA), it was held that: “This Court of Appeal will not as a rule grant bail to a prisoner pending the determination of his appeal unless there are exceptional and unusual reasons why bail ought to be granted to the appellant. It is the duty of every applicant to present the necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour. The exercise of the discretion must be judicial and judicious. A number of factors have been identified as constituting only exceptional circumstances. See: Buwai v. State (2004) 16 NWLR (Pt. 899) 285; Ani v. State (2004) 7 NWLR (pt. 872) 249 and Enebeli v. Chief of Naval Staff (2000)9 NWLR (pt. 219) 119. The compelling consideration for the exercise of this discretion lies with and within the peculiar facts of the individual circumstances made out as exceptional. Therefore no one case is on all fours with the other”.
​Thus, bail pending appeal can be granted on ground of ill-health. The ailment must be grave and dangerous to public health, see: Abiodun v. FRN (2011) LPELR-21465 (CA); Amadikwa v. State (2015) LPELR-24569 (CA); Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486;
2. Where the hearing of the appeal is likely to be unduly delayed and the possibility of the applicant serving a substantial part of his sentence. See R. v. Tunwashe (1935) 2 WACA 236: Ligali v. Queen (1959) 4 FSC 7; Nduri v. IGP (1957) NRNLR 5. SAIDU TANKO HUSSAINI, J.C.A. 

 

 

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgement): The Applicant, Mohammed Shuaibu was charged, tried at the Federal High Court Kaduna and convicted and sentenced to a term of 2 years for the offence of obtaining property under false pretence contrary to Section 1(1) of the Advance Fee fraud and other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.

Against that Judgment and Order of the Federal High Court delivered on the 23rd May, 2019, the Applicant appealed to this Court vide the Notice of appeal filed on the 24th July, 2019. On the 19th August, 2019 the Applicant filed a Motion on Notice in this Court wherein he prayed for two (2) reliefs viz: –
(1) An Order admitting the Convict/Appellant to bail pending the hearing and determination of his Appeal.
(2) Any other Order(s) that may be granted in the circumstance of this case.

The Applicant in his Motion paper, predicated his application on two grounds, namely:
(1) The Convict/Applicant has exercised his constitutional right to appeal from the Federal High Court, Kaduna Division to the Court of Appeal.

(2) There are strong and arguable grounds in the Notice of Appeal with a chance of success.

In support of that application is the affidavit of Seventeen paragraphs deposed to by one Amina Mohammed, a litigation Secretary in the law firm of Yemi Adekunle & Coy. to which is annexed, five (5) documents as Exhibits, including the Notice of Appeal, (Exhibit A) and the Judgment of the Federal High Court (Exhibit D).

The applicant through his counsel further filed a Written Address on the 25th March, 2020.

​In the bid to oppose the application the Respondent filed their counter-affidavit of Eighteen (18) paragraphs on the 20th November, 2019. The counter-affidavit was deposed to by one Zaharadeen Bature. Two (2) documents are attached to the counter- affidavit and are marked as Exhibits “EFCC 1” and “EFCC 2”. There is also a Written address of the Respondent in support of the counter-affidavit dated the 20th November, 2019 and filed the same date. On the 8th June, 2020, being the date of hearing, learned counsel for the applicant moved the Court in terms of the prayers contained in the Motion paper and further adopted the Written address. We were urged to grant the application.

Contrariwise, the Respondent or counsel representing her, urged us to refuse the application and dismiss same.

I have considered all the submissions contained in the respective Written addresses. Needless to say, it is the applicant who must satisfy the Court, by his affidavit evidence, that by the facts contained therein, he is entitled to the reliefs sought by him, for bail pending appeal. He needed to show some extenuating circumstances, so special or unique to warrant such an order being made. This is particularly so as bail after conviction is no longer a right so far as the concept at presumption of innocence has been displaced by reason of the judgment of the trial Court by which the applicant was convicted and sentenced.
Notable in the 17-paragraph affidavit in support of the application are facts deposed to at paragraph 3, 4, 12, 13, 14, 15 thus:
“3. I was particularly informed by A. B. Raji Esq. when he returned from Federal Prison, Kaduna on the 3rd July, 2019 at about 2:30 p.m. where he saw the Convict/Appellant where he was serving his Jail term.
4. That he was arraigned by Economic and Financial and Crimes Commission (EFCC) at Federal High Court Kaduna Division on a civil transaction sale of house between the Convict/Appellant and one Hajia Aisha Maman Bashir.
12. The Convict/Appellant is a family man with (2) wives (10) Children and aged mother with several dependants.
13. The Convict/Appellant will not commit any offence while on bail and is ready to fulfill any other condition that may be imposed if granted bail.
14. If the bail is granted to the Convict/Applicant he will be able to rally round to mobilize his counsel to adequately represent him and timorously in the course of his trial.
15. It is in the interest of justice to grant this application.
The Applicant has relied on those facts among others, to be admitted to bail pending the hearing of his appeal.
In addressing questions similar to this, the Court in Moji Olamolu v. State (2009) All FWLR (Pt. 485) 1800, per Rhodes Vivour, JCA (as he then was) observed that the principles governing the grant of bail pending appeal as are follows:
“a. That the applicant has in fact lodged an appeal to the Court of Appeal which is pending.
b. The applicant has complied with the condition of appeal imposed and this will show the seriousness of his application.
c. The applicant was granted bail during the trial, he has not attempted, tried to jump bail.
d. That the admission of appellant to bail pending the determination of his appeal is at the discretion of the Court.
e. That bail will not be granted pending appeal safe in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
f. That in dealing with the later class of cases, 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.
g. In the absence of special circumstance, 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 further, the decision in Abacha v. State (2002) 5 NWLR (Pt. 721) 638, 674. In Chief Olabode George & Ors. v. FRN (2010) LPELR-43088 (CA), it was held that: “This Court of Appeal will not as a rule grant bail to a prisoner pending the determination of his appeal unless there are exceptional and unusual reasons why bail ought to be granted to the appellant. It is the duty of every applicant to present the necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour. The exercise of the discretion must be judicial and judicious. A number of factors have been identified as constituting only exceptional circumstances. See: Buwai v. State (2004) 16 NWLR (Pt. 899) 285; Ani v. State (2004) 7 NWLR (pt. 872) 249 and Enebeli v. Chief of Naval Staff (2000)9 NWLR (pt. 219) 119. The compelling consideration for the exercise of this discretion lies with and within the peculiar facts of the individual circumstances made out as exceptional. Therefore no one case is on all fours with the other”.
​Thus, bail pending appeal can be granted on ground of ill-health. The ailment must be grave and dangerous to public health, see: Abiodun v. FRN (2011) LPELR-21465 (CA); Amadikwa v. State (2015) LPELR-24569 (CA); Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486;
2. Where the hearing of the appeal is likely to be unduly delayed and the possibility of the applicant serving a substantial part of his sentence. See R. v. Tunwashe (1935) 2 WACA 236: Ligali v. Queen (1959) 4 FSC 7; Nduri v. IGP (1957) NRNLR 5.
The applicant in this application has shown none of these to warrant this application being granted from a stand point that exceptional circumstances characterised the application.
​Moreover, the respondent in their counter-affidavit has deposed to certain facts, illuminating as they are but which were not dispelled or contradicted by a further affidavit of the applicant. Those facts deposed in the counter affidavit are at paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16 which state thus:
“8. That contrary to paragraphs 6, 11, 13 and 14 of the Applicants affidavit which are not correct. I state that the Applicant is not ready to prosecute this appeal as his application before this Honourable Court seeks to validate shabby deal, he entered into with the officials of the Nigeria correctional services which is still under investigation.
9. That in furtherance to the fact above, I state that sometime in early September, 2019, we received intelligent report that the applicant who was supposed to be serving his jail term in the Nigeria correctional service Kaduna as ordered by the trail Court was seen in Zaria, walking freely.
10. That as a result of the above intelligent report, I personally visited the Nigerian Correctional Services, Kaduna on 25th September, 2019 to ascertain the veracity of the said intelligent. Attach herewith is my investigation activities letter which they received and acknowledged marked Exhibit EFCC 1.
11. That on getting to the facility, I requested to see the Applicant but the officials of the Nigerian Correctional Services started dribbling me and kept me waiting for hours, while they were having private meetings in low tones.
12. That when it became obvious to me that they wanted to frustrate me, I demanded to see the Applicant in person but they could not provide him and later directed me to their open prison somewhere in television area, Kaduna with an introductory letter.
13. That I quickly photocopied the said introductory letter and kept the photocopy with me as I suspected that they might collect it from me and refused to give me a copy at the open prison. Attached and marked Exhibit EFCC 2 is the photocopy of the said introductory letter.
14. That on getting to the said open prison and upon my request to see the Applicant with introductory letter, the officials collected the said letter from me and started dribbling me again ad later told me that the applicant was taken to his house in Zaria.
15. That my visits to the Nigeria Correctional Services revealed that the Applicant has not been in the custody of the Nigerian Correctional Services as ordered by the Court but was fraudulently released to go home without servicing his jail term.
16. That on getting to the office and reporting my findings, an investigation was ordered into the matter which is still ongoing.”
Those facts were not contradicted by a further affidavit of the applicant. They are deemed accepted as true. See Ajomale v. Yaduat (No. 2) (1991) 5 SCNJ 178, 184. Those averments to my mind knock the bottom out of the applicant’s application for bail pending appeal.
​The applicant was indeed not in the custody of the Nigerian Correctional Centre (Prison) as at the time his application was made for bail pending his appeal, or at time the application was argued in this Court notwithstanding the existing Judgment and Order of the Federal High Court.
To me therefore, the application has not shown any Exceptional Circumstances to as would warrant any order being made in favour admitting him to bail pending appeal. It ought to be dismissed. The application can be likened to an abuse of Judicial Process.
Application for bail pending appeal is only available to prisoners in the custody of prison authorities or such other places of confinement at the relevant time the application was made. It is thus an insult on the sensibilities of the Courts, and the party against whom the relief is sought, to come to Court with application such as this, knowing too well that the averments or depositions made in support of that application are not true. It can be irritating. See: Saraki v. Kotoye (1992) 9 NWLR (Pt. 264)

The application is dismissed.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the ruling just delivered by my learned brother, SAIDU TANKO HUSAINI, J.C.A. I agree with the reasons therein and the conclusion arrived thereat that the application is bereft of substance and should be dismissed. I subscribe to the consequential orders made therein.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the Ruling of my learned brother SAIDU TANKO HUSAINI, J.C.A. and I agree with his reasoning and conclusion. I only wish to make a comment arising from the counter-affidavit of the respondent to which the Appellant filed no response by way of a reply to the counter-affidavit or a further affidavit which failure to respond will be deemed to mean that the Appellant admits the facts in the said counter-affidavit. SeeAJOMALE V YADUAT (NO. 2) (1991) 5 SCNJ 178, 184.

​The facts in the Counter affidavit state that the Appellant is not in prison (now Called correctional centre) to serve out his sentence. This is very serious indeed. It is the Appellant laughing in the face of the law or put bluntly, holding the law in derision. It must not be allowed. All those complicit in this, namely the officials of the Kaduna Prison or correctional centre must be identified and punished. The Appellant himself must face justice for his brazen act of defiance of his sentence by leaving the prison or correctional centre without any lawful order of Court.

Appearances:

A.B. RAJI ESQ. For Appellant(s)

ONYEKA EKWEOZOR ESQ. For Respondent(s)