Adedamola Ogungbaibi V. Federal Republic of Nigeria (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
The Appellant/Applicant vide a motion on notice dated and filed 23rd March, 2016 sought for an order, to wit, “admitting the Applicant to bail on very liberal terms, pending the hearing and determination of the appeal against his conviction and sentencing to 12 years imprisonment by Hon. Justice Abang at the Federal High Court, Lagos with Charge No: FHC/L/156C/2014.” The grounds upon which the application is predicated are as follows:
1. “The Applicant has appealed against the Judgment of the lower Court delivered on 30th October, 2015;
2. The appeal raises substantial grounds of law with very strong likelihood of success;
3. The Applicant was on bail all through the proceedings before the lower Court and did not jump bail or interfere with the prosecution of the case;
4. The Applicant is asthmatic and hypertensive, and requires specialized medical and herbal attention.
5. The Applicant will not be able to get the required constant medical supervision and access to his personal physicians in prison.
6. The Applicant is also psychological
1
and emotionally traumatized as his immediate elder brother, of same Mother and Father, MR. OLUMIDE OGUNGBAIBI died on the 26th of October, 2015, four days before his conviction, and the double tragedy has caused his mother to be admitted in the Hospital.
7. The Applicant will be unable to attend and participate in the burial activities of his late brother if he is not allowed bail.
8. The Applicant filed a similar dated 20th November, 2015 before the lower Court, but same could not be heard before the compilation and transmission of the record of appeal to this honourable Court.
9. It is in the interest of Justice to admit the Applicant to bail on very liberal terms.”
The application is supported by an Affidavit in support dated 23rd February, 2016; a Further Affidavit in support filed 25th June, 2016 and a 2nd Further Affidavit filed 17th June, 2016; deposed to by Mike Ogie, a legal practitioner in the law office of Femi Atoyebi & Co, Solicitors to the Appellant/Applicant.
In response, the Respondent filed a Counter-Affidavit dated 27th June, 2016 and filed 28th June, 2016 and deposed to by one Moses Awolusi, an
2
Investigative officer of the Economic and Financial Crimes Commission (EFCC).
Both the Applicant and the Respondent filed a written address dated 17th June, 2016 and 25th June, 2016 respectively. In the Applicant’s written address prepared by Femi Atoyebi, SAN; Abosede Akande (Mrs.); Tony Dania Esq.; Gbenga Awoseye, Esq.; of Femi Atoyebi & Co, a sole issue was formulated thus:
“Whether this is a proper case in which this honourable Court should exercise its discretion in favour of the Applicant by admitting her to bail on liberal terms pending the determination of the Applicant’s appeal to the Court of Appeal?”
Rotimi Oyedepo Iseoluwa, Esq., prepared the Respondent’s written address dated 27th June, 2016 where a sole issue was also nominated thus:
“Whether from the facts and circumstances of this case as presently constituted, it could be said that the Appellant/Applicant as placed sufficient materials before this honourable Court upon which this Court can exercise its discretion in his favour.”
The issues formulated by counsel are basically the same, save for semantics. The application shall therefore be resolved on
3
the sole issue nominated as enumerated above.
Arguing the sole issue, Applicant’s counsel submitted that the Applicant never breached any of the terms of the bail earlier granted it by the lower Court in the course of the proceedings before it. It is the submission of counsel that what the Applicant was convicted for are bailable offences for which this honourable Court has the power to admit the Applicant to bail on very liberal terms vide Section 165 (1) of the Administration of Criminal Justice Act, 2015 and the decision whether to admit the Applicant to bail on very liberal terms is absolutely at the discretion of this Court. He cited DOKUBO ASARI v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320 at 349 to submit that the Applicant has disclosed cogent reasons upon which the honourable Court ought to exercise its discretion in his favour. Counsel enumerated the five exceptional circumstances where it is expected to grant bail to a defendant vide MUNIR v. F.R.N. (2009) 16 NWLR (Pt. 1168) 481 at 497 – 498; BAMAIYI v. STATE [2001] 8 NWLR (Pt. 715) 270 that the Applicant has placed before the Court material facts upon which the Court is to exercise its discretion and
4
jurisdiction in its favour. He also referred to MOHAMMED ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638; SULEIMAN v. C.O.P. (2008) 8 NWLR (Pt. 1089) 298 at 322 – 323, paras H – A; Section 35 (4) of 1999 Constitution; ANAEKWE v. C.O.P. [1996] 3 NWLR (Pt. 436) 320 at 330, paras F – H; OBEKPA v. C.O.P. (1980) 1 NLR 113 at 119, Line 1 – 3. Counsel conceded that though it may be argued that the Applicant is no longer innocent but the relevant question is: what happen where its appeal eventually succeeds and it is found innocent at the end of the day? He referred to ODOGU v. A-G, FED. [1996] 6 NWLR (Pt, 456) 508 at 518, G – H. Citing Section 119 of the Criminal Procedure Act and Section 35 (4) of the 1999 Constitution (as amended), he contended that though the offence for which the Appellant was charged and convicted may be grievous, the Court is still vested with the power to grant bail. He relied onDANBABA v. THE STATE (2000) 14 NWLR (Pt. 687) 396 at 411; EYU v. THE STATE [1988] 2 NWLR (Pt. 78] 602; to submit that the main function of bail is to ensure the presence of the accused at the hearing and that all other criteria are dependent on this. He cited DOKUBO ASARI
5
v. F.R.N. (supra); STATE v. OKAFOR (1964) ENLR 96 362 – 363 to urge the Court to adopt a liberal approach in determining the question of bail to the Applicant and admit him pending the determination of the appeal and that the Applicant would be available and not jump bail. That the Applicant undertakes to be available for the hearing of his appeal and would attend Court for hearing of his appeal.
The Respondent in response submitted that the only materials the Applicant has furnished are as contained in the Affidavit in support of the motion but has been discredited by the counter-affidavit. He submitted bail pending appeal is not granted as a matter of course and the Applicant must show special and exceptional circumstances upon which the Court can exercise its discretionary power vide ADAMU MURI v. I.G.P. (1957) NNLR 5; JAMMAL v. THE STATE [1996] 6 NWLR (Pt. 472) 352 at 359; MUNIR v. F.R.N. (2000) 16 NWLR 481 at 498. It is the submission of counsel that one of the considerations of the Court is where there is a doubt as to the correctness of the conviction on point of law. He referred to FAWEHINMI v. THE STATE [1990] 1 NWLR (Pt. 127) 486 at 498
6
before submit that by the provision of Section 1(17) of the Miscellaneous Offences Act under which the Applicant was convicted the sentences upon conviction is life imprisonment. He further submitted that another consideration is whether the duration of the appeal will likely outlast the duration of the sentence imposed on the convict vide MADIKE v. THE STATE [1992] 8 NWLR (Pt. 257) 85. He submitted that in view of the nature of the offence for which the Applicant was convicted, this is a situation for this Honourable Court to dismiss this application and that there is a presumption that findings of fact of a trial Court or Tribunal are right or correct and so remains until dislodged by the party who challenges such finding but that the Applicant in the instant appeal has not dislodged the findings of fact made by the trial Court. He citedATTAH v. STATE [2009] 15 NWLR (Pt. 1164) 284 at 304. He argued that the Applicant had not placed a compelling and exceptional material before this Court to warrant this application; that what the Applicant placed before the Court was all intended to whim up sentiment, which has no place for the consideration of the Court. He
7
referred to UWAJEH v. UWAJEH [2009] ALL FWLR (Pt. 458) 287 at 304, paras B – D; ABACHA v. STATE [2004] 5 NWLR (Pt. 761) 638 SC; BAKER MARINE (NIG) LTD. v. CHEVRON NIG. LTD (2006) 6 SC; PLATEAU STATE v. A.G. FEDERATION [2006] 3 NWLR (Pt. 967) 346 at 420 – 421.
I have carefully examined the sole issue as well as the argument of counsel herein. Now, Section 28(1) of the Court of Appeal Act, 2004 provides that “the Court of Appeal may, if it thinks fit, on the application of an Appellant, admit the appellant to bail pending the determination of appeal.” While Order 17(13) of the Court of Appeal Rules, 2011 stipulates the conditions to be attached to the bail granted to an Appellant.
A person charged with a felony other than one punishable with death, as in the instant case, may be granted bail if the Court deems it fit. The decision whether or not to grant bail in such cases is a matter within the judicial discretion of the Court. The Black’s Law Dictionary 8th Edition, defines Judicial discretion as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to
8
act when a litigant is not entitled to demand the act as a matter of right. Thus the judicial discretion must be exercised in accordance with the law and also taking into consideration the facts of the particular case.
Indeed, the factors to be considered in the grant of bail pending trial are undoubtedly different from those considered in the grant of bail pending the determination of appeal. For bail pending trial, the factors to be considered in the grant or otherwise of bail to an Applicant include: (a) the availability of the accused to stand trial; (b) the nature and gravity of the offence; (c) the likelihood of the accused committing offence while on bail; (d) the criminal antecedents of the accused; (e) the likelihood of the accused interfering with the course of justice; (f) the likelihood of further charge being filed; (g) detention for the protection of the accused. See also BAMAYI v. STATE [2001] 8 NWLR (Pt. 715) 270; ABACHA v. STATE [2002] 5 NWLR (Pt. 761) 638.
?While the position of the law in an application of this nature with respect to application to bail pending appeal is that the Applicant must show special and exceptional
9
circumstances. The question then is whether the Applicant has shown special and exceptional circumstances herein? In determining whether there are exceptional circumstances, the Court considers:
1. Whether the Applicant is a first time offender and has been of good behaviour;
2. Whether substantial grounds of law are involved in the appeal;
3. Whether the sentence is manifestly contestable as to whether or not it is a sentence known to law;
4. Whether a refusal of the Court to admit the Applicant to bail will have the result of the whole or a considerable portion of the sentence being imposed on the Applicant being served before the appeal can be heard;
5. Whether the application is based on ill health and the Applicant cannot get the necessary treatment in prison.
See; FAWEHINMI v. THE STATE [1990] 1 NWLR (Pt. 127) 486.
The relevant facts deposed to in the Affidavits are as follows:
a. The complex nature of the appeal requires constant close consultation between the Applicant and his counsel.
b. The Applicant is asthmatic and hypertensive, and requires specialized medical attention.
c. That the clinic in
10
the prisons could not manage the Applicant and sometime between the 13th and 21st January, 2016 he was referred to the Military Hospital at Ikoyi where he was admitted and treated.
d. The Applicant will not be able to get the required constant medical supervision and access to his personal physicians in prison and shall be better and more conveniently managed if granted bail.
e. The Applicant is psychologically and emotionally traumatized by the death of his immediate elder brother.
f. The Applicant believes that the appeal filed the judgment of the trial Court has a very strong likelihood of succeeding and shall pursue and prosecute the appeal diligently and to a logical conclusion.
g. The Applicant filed a similar application before the lower Court, but same could not be heard before the compilation and transmission of the record of appeal to this Court.
h. The offences for which the Applicant was convicted by the lower Court are bailable, and the Court has the discretionary powers to grant bail to the Applicant on liberal terms, pending the hearing of his appeal.
i. The Applicant’s children have been falling sick regularly and
11
have not been able to concentrate in school because of their father’s absence from home.
The relevant paragraphs of the Respondent’s counter-affidavit in opposition are:
a. The Applicant has not shown any exceptional circumstances to justify the grant of the application.
b. The offences for which the Applicant was convicted are grievous economic sabotage against the economic well being of this country.
c. By the practice direction of this Court, the Honourable Court deals with criminal appeal expeditiously.
d. The Applicant did not have any substantial grounds of appeal and there is nothing technical about the Applicant’s appeal.
e. The Applicant is not interested in the expeditious hearing and determination of this appeal.
f. Granting this application will be highly prejudicial to the Respondent and will create a bad and dangerous precedent in the administration of criminal justice in Nigeria.
Juxtaposing the above depositions of the Applicant and the Respondent as enumerated, it is instructive to note that the burden here is on the Applicant to establish that he is entitled to be admitted to bail because the
12
presumption of innocence as well as that of liberty is no longer available to the Applicant consequent upon his conviction. SeeEyu v. THE STATE (supra); MADIKE v. THE STATE (1992) 8 NWLR (Pt. 257) 85.
A careful consideration of the application, with all the attached, exhibits and written addresses of counsel, has not convinced me that exceptional circumstances exist, to sway the Court to exercise its discretion to warrant the grant of the application. It is beyond dispute that the offence for which the Applicant was convicted is grievous and a look at the Notice of Appeal exhibited by the Applicant in this case shows that same does not involve recondite point of the law.
A fortiori, although the Applicant had deposed to the fact that he is asthmatic and hypertensive, hence ill health, I must say that the position of the law is settled that mere allegation of ill-health does not entitle an Applicant to be admitted to bail unless such ill-health is so compelling that a refusal of same may lead to hazard or death. See ABACHA v. F.R.N. (supra). Although the Applicant in the instant application had exhibited a medical report signed by one Dr. Nebo
13
K. C., a doctor with the Nigerian Prison Service, there is nothing on the face of the medical report to show that the Applicant’s ailment cannot be managed by the prison authorities. The medical report merely states that the Applicant, “though a known hypertensive, was referred to the Military Hospital, Ikoyi on 13th January, 2016 due to sudden rise in his blood pressure and sugar levels and was discharged on 21st January, 2016 and has since been on his medications.” As evident on the medical report, it relates to an incident about some months ago, there is nothing on record to show that he cannot take the medications while in prison.
I firmly believe therefore that nothing has been placed before this Court to sway this Court to exercise its discretion to grant the Applicant bail pending her appeal. A fortiori, by virtue of Paragraph 3(a)(i) of the Court of Appeal Practice Direction, 2013, “all criminal appeals originating from or involving the E.F.C.C., I.C.P.C. or any other statutorily recognised prosecutorial agency or person…” shall be given priority and accorded accelerated hearing.
?In the circumstances, I hold that the application lack
14
merit and it is hereby dismissed. The appeal is set down for hearing for 27th September, 2016.
Other Citations: (2016)LCN/8922(CA)
