Akindele Ikumoluyi & Anor. V. Federal Republic of Nigeria (2008)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

By a motion dated and filed on the 9th November 2007, the Applicant herein sought for an order of this Court granting him bail pending the determination of his appeal against the decision of Abubakar Tijani given on the 22nd May 2007 and for such further order or orders as this Court may deem fit to make in the circumstances. The application is accompanied by a 20 paragraphs affidavit deposed to by one Chukwuemcka Okoroma, counsel to the Accused/Applicant. Several exhibits including some Medical reports are attached to the affidavit in support. The Applicant also filed a further affidavit of fifteen paragraphs on the 23rd November 2007 to which he attached a ruling of the lower Court which was delivered on the 12th June 2007 wherewith the lower Court refused a similar application for bail.

The Respondent rather than respond by deposing to a counter affidavit gave a notice to rely on a preliminary objection on the contention that the applicants’ application is incompetent and it constitutes an abuse of judicial process and should therefore be struck out in limine.

The grounds upon which the preliminary objection is founded as set out in the notice of preliminary objection are hereunder recounted as follows: –

1. Appellant/Applicant had appealed against the decision of Justice Tijani dated 22nd May, 2007 in April No.CAL/423M/07
2. The subject matter of Appeal NO. CA/L/423M/07 is the refusal of bail to the Applicant by Justice Tijani.
3. The determination of the motion for bail dated 9th November, 2007 will overreach Appeal No. CA/L/423M/07 that Appellant has requested, be given accelerated hearing.
4. Applicant’s application is belated and statute barred. Therefore, this Court has no jurisdiction to entertain same by virtue of Order 3 Rules 3 and 4 of the Court of Appeal Rules 2002.
5. There is no application for leave to bring this application for bailout of time and no special or new circumstance has been shown.
6. The application is a gross abuse of judicial process.

When this application came up for mention on the 15th of November 2007, parties were directed to file written addresses in respect of the application and incorporate in the written addresses their respective arguments in respect of the preliminary objection. In compliance with the directive, parties filed and exchanged written addresses. When the application came up for hearing on the 3rd of December 2007, Mr. A. S, Oyinloye learned counsel for the Applicant, identified the Applicant’s written address which is dated 22nd November 2007 and filed on the 23rd November 2007. Learned counsel adopted the Applicant’s written address and relied on the argument canvassed thereupon. Finally, learned counsel urged this Court to grant the application.

Mr. R.J. Himikaye, learned counsel for the Respondent, who is also Assistant Chief Legal Officer attached to the National Drug Law Enforcement Agency identified the Respondent’s written address which is dated 30th November 2007 and filed the same date. Learned counsel adopted the Respondent’s written address and urged the Court to dismiss the application.

The rules of this Court do not provide for filing of a notice of preliminary objection to the hearing of an application. However Order 10 rule 1 of the Court of Appeal Rules 2007 under which the application for bail was brought provides for a preliminary objection to the hearing of appeal. Be that as it may, where a Respondent files a notice of preliminary objection to the hearing of any matter, he must seek the leave of the Court to move his preliminary objection before the hearing of that matter. This is predicated on the fact that the success of the preliminary objection will lead to a final determination of the matter against which such preliminary objection is raised. Where the Respondent fails to argue his preliminary objection before the hearing of the matter, such preliminary objection will deemed abandoned. See: Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1; Odu v. Agbor-Hemeson (2003) 1 NWLR (pt. 802) 624.

Learned counsel for the Respondent in this application failed to argue the preliminary objection before the hearing of the application for bail, same is therefore deemed abandoned and it is hereby struck out.

By paragraph 3 of the affidavit in support of the application for bail, the Applicant’s averment is that the Accused Applicant has been in prison custody since March, 2006 when he was arrested by operatives of the National Drug Law Enforcement Agency for alleged offences of sponsoring hard drug trafficking outside the shores of Nigeria.

Applicant further made the following deposition at paragraphs 10, 11, 12 and 13 of the said affidavit as follows: –

“10. That from the records, the Accused Applicant in his bid to securing his liberty from prison custody applied to the Federal High Court orally and by Motions on Notice applied for bail on health grounds on several occasions but was refused on each occasion without the trial court given proper, adequate and deserving consideration to the facts and circumstances presented by the Applicant.

11. That I know as a fact and from the records that the Federal High Court in its rulings delivered by Hon. Justice Tijani Abubakar refused the Accused/Applicant’s application for bail, without taking into consideration the factors and circumstances favorable to the Applicant and which were made available to the Court.
12. That I know further as a fact that the accused Applicant had filed a Notice of Appeal against the ruling before this Honourable Court to challenge the last ruling of Hon. Justice Abubakar of the Federal High Court Lagos delivered on the 22nd May 2007. Annexed herein and marked Exhibit C03 is a copy of the Notice of Appeal dated 14th June 2007.
13. That I know as a fact and from the records that the accused/Applicant’s appeal is pending before this honourable Court and it is yet to be heard. Which appeal this Court (sic) from the antecedent of disposition time of cases in the Court of Appeal may take at lease 3 years to be determined while the Applicant has spent 2 years in custody on charges that are yet to be proved against him and despite his obvious and established poor and critical health condition.”

The Notice of Appeal is annexed to the supporting affidavit herein as exhibit C03 and it is dated 14th June 2007. The Notice of Appeal reads in part as follows:-

“1 Akindele Ikumoluyi, have on the 12th day of June 2007 been refused bail upon being charged with the offences of: –

1. Failure to disclose assets while completing NDLEA Assets Declaration Form contrary to Section 26(3)(A) of the Nigerian Drug Law Enforcement Agency Act Cap 253 (sic) of the Federation of Nigeria 1990.
2. False declaration of Assets while completing NDLEA Assets Declaration Form contrary to Section 26(3)(b) of the Nigerian Drug Law Enforcement Agency Act Cap 253 Law (sic) of the Federation of Nigeria 1990.

And now being detained in Federal Maximum Prison Custody at Kirikiri do hereby gives (sic) Notice of Appeal against the refusal of my application to the Court of Appeal………….”

Clearly from the depositions at paragraphs 3, 10-13 of the supporting affidavit and the content of the Notice of Appeal, which I have reproduced above, the subject matter of the appeal to this Court is the refusal of bail by the lower Court. The Supreme Court in a myriad of decision followed by this Court have consistently held that issues to be determined in a substantive appeal should not unwittingly be decided at an interlocutory stage. See A.G. Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396; Egbe v. Onogun (1972) 1 ALL NLR 95.

In Ola v. Willimas (2003) 5 NWLR (Pt. 812) 48 at page 66 paragraph E-F, this Court per Adamu JCA said:-

“On the payment of rent to the applicant by the various tenants who swore to affidavits No. 1-15, I am of the view that that is an issue to be determined in the substantive appeal and this court should not unwittingly decide the very matter which is yet to be decided or dealt with in the substantive appeal before it at this interlocutory stage,”

My Lord Justice Muhammad, JCA in UBA v. Ekpa (2003) 12 NWLR (Pt. 834) 332 at 373 paragraphs F – H had this to say:-

“A trial court has a duty to ensure that its ruling on an interlocutory matter does not render nugatory the substantive suit.”

See also Bamaiyi v. The State (2003) 17 NWLR (Pt. 848) 47; NDIC v. SBN Plc (2003) 1 NWLR (Pt. 801) 311: Kosare L.G v. Demuren (2003) 9 NWLR (Pt. 826) 435

The exercise of the Courts discretion in granting bail pending appeal, is only possible where an Appellant has been duly convicted and there is a subsisting appeal against the conviction. Where the subject matter of the appeal is the refusal of the Court below to grant bail to the Appellant, a Court’s decision at an interlocutory stage will surely render the appeal nugatory.

On the basis of the reasons which I have enumerated above, this Court cannot exercise its discretion in favour of the Applicant.

Accordingly this application is refused and dismiss for lacking in merit.

Other Citations: (2008)LCN/2631(CA)