CORAM

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ADAMU HOBON FHC

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PARTIES

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GEORGE OGBONNA APPELLANTS

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FEDERAL REPUBLIC OF NIGERA RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant, who was convicted by the trial court and sentenced to 8 years imprisonment, which he is presently serving at the Kirikiri prisons, filed an application before this Court for bail pending the appeal to the Supreme Court. The premised of his application is on health grounds. The Respondent in its counter affidavit is challenging the health ground and the fact that the Appellant has failed to pursue the appeal in the Supreme Court. The Respondent’s opposition is on the ground that the Appellant’s application on the health situation is not compelling enough as there is no evidence from an expert on the current health condition of the Appellant and that there is no evidence that the prison authorities cannot handle that medical condition. Both parties filed their written addresses.

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HELD

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Appeal Dismissed

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ISSUES

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Whether this court should exercise its discretion to grant bail to the Appellant/ Applicant.

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RATIONES DECIDENDI

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BAIL – TYPES OF BAIL AND PRINCIPLES GUIDING THE GRANT OF BAIL PENDING APPEAL

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‘The point must be made that it is easier to secure bail before conviction than after conviction. This is so because the presumption of innocence in favour of the Applicant is no longer in his favour since he has been convicted already. The conviction takes away some of the grounds that could have assisted the Applicant. In Monye vs. FRN (2012) LPELR 14845 (CA), Bada, JCA at pages 15-18 drove home this point in these words:
“By virtue of the provisions of Section 28(1) of the Court of Appeal Act , this Court is empowered to grant bail to an applicant pending the determination of his/her appeal.
There are mainly, two types of bails:
(i) Bail pending trial, and
(ii) Bail pending appeal.
In bail pending trial, a Court of trial pursuant to provisions made by the enabling law or other statutes which create the offence(s) charged, may admit to bail any person to be tried before it, while he is awaiting trial or during his trial. In bail pending appeal, the convict who has lodged an appeal may be admitted to bail pending determination of the appeal.
The circumstances for bail vary in both situations. This is largely due to the fact that before conviction there is a presumption of innocence. After conviction, the convict, save under exceptional circumstances, has no right at all to bail. See the case of: – Muri vs. I.G.P. (1957) NRNLR Page 5.
A long line of decided authorities have shown that in matters of bail pending appeal, 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 saves(sic) 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 heard.
See the case of:- – State v. Jammal (1996) 9 NWLR Part 473 Page 384 at 399 and 400.”
What however both types of bail share in common is that they are all granted based on the discretion of court and the Applicant has the duty to provide material facts to shown special or exceptional circumstance. –

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BAIL PENDING APPEAL – NATURE OF THE EXERCISE OF JUDICIAL DISCRETION IN THE GRANT OF BAIL PENDING APPEAL

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“In A. I. Mustapha &Anor vs. FRN (2014) LPELR 24107 (CA), this court per Mustapha, JCA held at page 21 thus:
“The Court of Appeal Act allows for the grant of bail pending appeal: “….but such discretion like any other discretion must be exercised judicially and judiciously. Consequently, the applicant must place enough material before the court to warrant the exercise of the discretion in his favour. Ogundimu Munir vs. Federal Republic of Nigeria (2008) LPELR 4693 CA”
Similarly, this court per Oniyangi, JCA at pages 4-6 in Okofu vs. State (2017) LPELR-4334 (CA) held:
“Generally, in an application of this nature, the Court is called upon to exercise its judicial discretion and admit the applicant to bail. The question that now agitates the mind is whether in the circumstance of this application the applicant can be admitted to bail. In such application, what the Court is called upon to do is to exercise its judicial discretion in favour of the applicant. Section 28(1) of the Court of Appeal Act 2010 provides: Section 28(1) The Court of Appeal may, if it thinks fit, on the application of an appellant admit the appellant to bail pending the determination of the appeal. The key words in the foregoing provision are that – …the Court of Appeal may if it thinks fit. My understanding of the foregoing provision is that the Court may admit an appellant/applicant to bail in exercise of its judicial discretion consequent upon the facts placed before it by the applicant. One may ask, what then is a judicial discretion. Generally and by numerous judicial pronouncements, judicial discretion” is a familiar and settled concept that the question of the exercise of discretion is governed by several factors at the same time. The factors which are usually not necessarily constant changes with charging (sic) circumstances and times and cannot be regarded as immutable and applicable for all times. In some instance, an exceptional circumstance may be a single factor or a combination of factors. In such circumstance of variable factors and circumstances, it is not possible to adhere to binding judicial decisions. That is to say that every case would be treated based on its facts and law. See Odusote V. Odusote (1971) 1 ALL NLR 219 at P. 222. This Court has times without number reiterated that judicial discretion depends on fact and circumstance of each case and in matters of discretion no one case can be authority for another. See the old English case Jenkins vs. Bushby (1891) 1 CH 484 AT p. 494 where Kay L.J. said: The Court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect an end to the discretion. See: University Of Lagos & Anor. vs. M.I. Aigoro (1985) 11 SC 152.” –

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EXERCISE OF A COURT DISCRETION – PROCEDURE TO BE ADOPTED IN THE EXERCISE OF A COURT’S DISCRETION

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“In exercising the discretion a court will look at the facts placed before it applying the law to those facts. That is what is meant by discretion exercised judicially and judiciously. The discretion must not be arbitrary but must be exercised within the confines of the available evidence. The court will dispassionately look at the evidence before it and decide whether there are sufficient facts to warrant exercising the discretion in favour of the Applicant. In this regard, the court as an unbiased umpire cannot make a case for the Applicant. See: Mohammed vs. The State (2010) LPELR-9019 (CA)”. –

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BAIL PENDING APPEAL– WHETHER A MERE ALLEGATION OF ILL-HEALTH BY AN APPLICANT FOR BAIL PENDING APPEAL, CONSTITUTE SUFFICIENT GROUND TO WARRANT THE GRANT OF BAIL

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“It is established beyond all doubt that ill health is a good ground as an exceptional circumstance for granting bail but I must hasten to add that it is not automatic. In Abiodun & Ors vs.FRN (2013) LPELR-21465 (CA) this court per Iyizoba, JCA at 17 held:
“While ill health is generally accepted as a special circumstance for grant of bail pending appeal, the nature of ill health that will qualify was aptly described by Uwaifo J.S.C. in Abacha vs. The State(2002) 3 SCNJ 1 @ 18 thus:”When in detention or custody, the responsibility of affording him access to proper medical facility rests with those in whose custody he is, invariably the authorities. But it ought to be understood that the mere fact (sic) a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so: see Chinemelu vs. Commissioner of Police(1995) 4 NWLR (Pt. 390) 467. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee for (sic)possibility of a real health hazard to others; there are no quarantine facilities of the authorities for the type of illness.”
Similarly, in Adenigbade vs. Nigeria Customs Service Board (2018) LPELR-45337 (CA), this court per Obaseki-Adejumo, JCA at pages 29-31 held:
“It must be said that mere allegation of ill-health by an Applicant for bail pending appeal, is not sufficient ground to warrant the grant of bail. It is thus not the attitude of the Court to release from custody, a convicted Applicant, solely on the ipse dixit of an Applicant which is not backed by evidence on record. See the decision of the Apex Court in Abacha V. The State (2002) LPELR – 15 (SC) 26to 27, paras C – A, where it was held:
“It must be made quite clear that to (sic) everyone is entitled (sic) be offered access to good medical care whether he is being tried for a crime or has been convicted or simply in detention. When in detention or custody, the responsibility of affording him access to proper medical facility rests with those in whose custody he is, invariably the Authorities. But is (sic) ought to be understood that the mere fact that a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee poses a possibility of a real health hazard to others, and there are no quarantine facilities of the Authorities for the type of illness. A person being tried or who has been convicted for a serious offence will normally be kept or maintained in custody while he receives available medical treatment. The main ground upon which the Applicants application is hinged is ill-health and from the deposition on record, the Applicant failed to prove the allegation of ill-health. It is in this regard that I have no hesitation in reaching the conclusion that the Applicant has not shown special or exceptional circumstance to warrant the grant of bail in the instant case.”

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GRANT OF BAIL – WHETHER IT IS A PRINCIPLE OF LAW THAT AN ACCUSED PERSON IS ENTITLED TO THE GRANT OF BAIL PURSUANT TO A RIGHT TO HAVE ACCESS TO A MEDICAL FACILITY OF HIS CHOICE

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“In Abacha vs. State (2002) LPELR-15, a case referred to by both counsel, the apex court per Ayoola, JSC held at pages 9-12 thus:
“Were it the law that an accused person remanded in custody to await trial is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial. There is no general principle of law affording that right to an accused person remanded in custody. The duty of the State to ensure that the medical needs of persons in custody are met does not create such extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice. In this case, Professor Osinbajo, Attorney-General of Lagos State, has shown expected and befitting sense of responsibility when in the course of his argument before us he stated that the state is prepared to undertake to ensure that whenever the occasion arises medical treatment is available to the applicant . The special medical need of an accused person whose proven state of health needs 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 not brought before the court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.” —

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UNCHALLENGED OR UNCONTROVERTED EVIDENCE – STATUS OF UNCHALLENGED OR UNCONTROVERTED EVIDENCE

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“The law is settled in this respect. This is to say that in the absence of any paragraph challenging the above affidavit, this court deemed them accepted by the Applicant and therefore need no further proof. Paragraphs 12, 13 and 14 of the counter affidavit is therefore treated as an unchallenged affidavit or uncontroverted paragraphs of the affidavit. The effect is that the court will act on those paragraphs. See Adim vs. NBC NSCQR vol. 42 (2010) 851; Kaydee Venture Ltd vs. Hon. Minister FCT & Ors NSCQR Vol. 41 2010 page 83. –

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CASES CITED

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None

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STATUTES REFERRED TO

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Court of Appeal Act|Court of Appeal Rules, 2012|

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