MR. JOHN BIGWAN V. URBAN HOUSING CO-OPERATIVE LIMITED
May 2, 2025Legalpedia Citation: (2015) Legalpedia (CA) 11657
In the Court of Appeal
Wed May 13, 2015
Suit Number: CA/L/194C/15
CORAM
UMARU ATU KALGO,- JUSTICE COURT OF APPEAL
UMARU ATU KALGO,- JUSTICE COURT OF APPEAL
PARTIES
MRS. MUBO IKOTUN APPELLANTS
1. FEDERAL REPUBLIC OF NIGERIA
2. MESSRS SMITH NIGERIA LTD
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Applicant/Appellant who was arraigned with four (4) others before the Lagos State High Court was convicted and sentenced to three years imprisonment. The Applica conditionally or upon reasonable conditions which the court may deem necessary pending the determination of the appeal filed against the decision of the trial court. The application was based on several grounds upon which were that the Appellant’s health condition requires strict medical attention which is inaccessible while in custody as the prison’s medical facilities are inadequate. The Respondent opposed the application and contended that the Applicant/Appellant would flee from justice if granted bail.
HELD
Application Refused
ISSUES
Whether the Honourable Court can in the circumstances of this case exercise its discretion in favour of the Applicant and admit her to bail pending appeal
RATIONES DECIDENDI
BAIL PENDING TRIAL – AN ACCUSED PERSON HAS A RIGHT OF BAIL PENDING TRIAL
“Bail pending trial generally is of a right to a person accused of committing a crime, this is informed by the presumption of innocence that the accused enjoys under the constitution of the Federal Republic of Nigeria.”PER Y.B.NIMPAR J.S.C.
BAIL PENDING APPEAL –GUIDING PRINCIPLE FOR THE EXERCISE OF THE COURT’S DISCRETION IN GRANTING BAIL PENDING APPEAL
“Bail pending appeal is at the discretion of the court and that guiding principles have been settled in Rex V Theophilus Adenuga Tunwashe (1935) 2 WACA 236; Fawehinmi V State (1990) 1 NWLR (Pt 127) 486 at 494; Okoroji V State (1990) 6 NWLR (Pt 157) 509; Abiola V Federal Republic of Nigeria (1993) NWLR (Pt 370) 155; Mohammed V Olawunmi (1993) 4 NWLR (Pt 287) 2 54 at 275; Said Jammal V State (1992) 8 NWLR (Pt 257) 85 all these settled the following principles:
(a) Bail to be granted in exceptional circumstances
(b) Where hearing of appeal is likely to be unduly delayed
(c) That in considering above the court will have regard to
(i) Not only the length of time which must elapse before the appeal can be heard, but also;
(ii) Length of sentence to be appealed from.
(iii) That the two to be considered in relation to one another”. PER Y.B.NIMPAR J.S.C.
GRANT OF BAIL PENDING APPEAL – RATIONALE FOR GRANTING BAIL PENDING TRIAL
“This court in the case of Chief Olabode Georges & Ors V The Federal Republic of Nigeria (2010) LPELR – 4194 (CA)held as follows:
“The 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 very exceptional circumstances. See Bworal 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. Per Mshelia, J.C.A.”PER Y.B.NIMPAR J.S.C.
RIGHT OF A CONVICT TO MEDICAL ATTENTION – EXTENT OF THE RIGHT OF A CONVICT TO MEDICAL ATTENTION
“A convict is entitled to medical attention but does not have the right to insist on a medical practitioner of his choice. The authorities have referred the applicant to a medical facility and she should attend the said hospital, See Abacha V State (Supra).” PER Y.B.NIMPAR J.S.C.
BAIL – BAIL IS NOT OF RIGHT TO A CONVICT
“Beyond that and upon conviction, bail is not of right to a convict because at that stage, the presumption of innocence has ceased and crystallized into conviction. Even at that, bail being a discretionary relief, it is sparingly granted after conviction but on the existence of exceptional factors. Bail after conviction and pending the determination of an appeal is granted only on unusual or exceptional circumstance which must be shown to exist to the satisfaction of the court, see Abacha V State (2002) 5 NWLR (Pt 761) 638 at 674and Duro Ajayi & Ors V The State (1977) FCA I.”PER Y.B.NIMPAR J.S.C.
DETERMINATION OF BAIL – MATERIALS REQUIRED WHEN DETERMINING AN APPLICATION FOR BAIL
“The materials required to be considered in determining bail are usually in the affidavit in support which must show the unusual or exceptional circumstances and the court must be satisfied that the circumstances which exist are unusual and exceptional.”PER Y.B.NIMPAR J.S.C.
GRANT OF BAIL ON MEDICAL GROUNDS – CONDITIONS FOR GRANTING BAIL ON MEDICAL GROUNDS
“To grant bail on medical grounds the Supreme Court held in the case Abacha V The State (2002) 5 NWLR (Pt 761) 638 as follows:
“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 not brought before the court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence…………………………….
It must therefore be clear that everyone is entitled to be offered access to good medical care whether he is being tried for a crime or had been convicted or simply in detention. When in detention affording him access to proper medical facility rests in whose custody he is, invariably the authorities. But it ought to be understood that the mere fact that a person in custody is ill does not entitled him to be released from custody or allowed compelling grounds. See also Chenemulu V 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 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.” Per Uwaifo J.S.C”.PER Y.B.NIMPAR J.S.C.
CASES CITED
STATUTES REFERRED TO
Court of Appeal (Fast Track) Practice Directions 2014
Court of Appeal Practice Directions, 2013
