Caleb Ojo & Anor. V. Federal Republic of Nigeria (2006)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

This is a motion on notice brought pursuant to the provisions of section 29(1) of the Court of Appeal Act and under the inherent jurisdiction of this Honourable Court. The single relief prayed for in the said motion is for:

“An order admitting the appellants to bail pending the hearing and determination of the appeal filed by the appellants against the judgment of the lower court delivered on 17th March, 2006.”

In moving the motion, learned SAN for the applicants Chief Fagbohungbe stated that the motion was supported by an affidavit of 28 paragraphs. He relied on all the facts deposed to in the affidavit and urged this court to accept all the facts as true as they had not been controverted in any manner by the respondent. The learned SAN submitted that they filed their notice of appeal and compiled and transmitted the record of appeal. He argued further that all the 8 grounds of appeal are quite arguable and have high prospects of success.

The applicants, learned SAN argued further, are presently serving prison sentences. The sentences started from the 17th of March, 2006. The appellants were to serve a term of one year each in respect of each count though sentences were to run concurrently. The nature of the offences charged were criminal conspiracy and corruption to a public officer.

Learned SAN submitted that if the applicants are not granted bail they will serve the entire prison term of one year in prison before the determination of the appeal. He cited an instance where a case of no case submission lasted for almost two years before it was disposed of. He further referred this court to paragraphs 14 – 20 of the affidavit in support. He cited the case of Jammal v. The State (1996) 9 NWLR (Pt. 473) 384.

The applicants, it was argued, were granted bail by the lower court and they never jumped bail. They were also complying with the order of reporting themselves once in every month. Learned SAN submitted finally that the counter-affidavit filed by the respondent did not counter any of the facts deposed to in the affidavit in support and the offences for which the applicants were convicted were of bailable nature. The applicants, he stated, were first offenders. He applied to abandon paragraph 25 of the affidavit in support. He argued this court to admit the applicants to bail on liberal terms.

Mrs. Onuogu, learned leading counsel for the respondent stated that she was opposing the motion. She filed an eleven paragraph counter-affidavit on same day the motion was heard. She sought to rely on all the paragraphs of the counter-affidavit especially paragraphs 2 – 9. She submitted that the applicants were charged under section 9 of the Corrupt Practices and Other Related Offences Act, 2000, for conspiracy to give gratification of N20,000.00 to an official of the ICPC. The offence, she argued, is severe and attracts seven years imprisonment. The offence is bailable before conviction but after conviction, bail can only be granted on exceptional circumstances such as ill-health. She cited the case of Chief Gani Fawehinmi v. The State (1990) 1 NWLR (Pt. 127) 486 at 488.

Learned counsel submitted that no such special circumstances have been shown for the grant of bail in this case. She cited R. v. Theophilus Adenuga Tunwashe (1935) 2 WACA 236; Jammal v. State (supra).

Learned counsel challenged the prospects of success of the grounds of appeal and that they are not arguable. She urged this court to refuse the application.

Bail, generally, is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody,though, they may, if they will surrender him to the court before the date assigned and free themselves from further responsibility. There are mainly, two types of bail: (a) bail pending trial and (b) bail pending appeal. The present appeal is on the latter. Let me however, quickly, use this forum to draw distinction between the two types of bail. In the case of the former, a court of trial, pursuant to provisions made by the enable 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 or during his trial. In the latter’s case, after his conviction and sentence, the convict (appellant) who has lodged an appeal, may be admitted to bail pending the 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 Muri v. Inspector General of Police (1957) NRNLR 3 at page 6. But in the case of R. v. Tunwashe (1935) 2 WACA 236, the West African Court of Appeal enumerated and laid down two different sets of conditions governing the grant of bail to a convict. They are as follows:

(i) The existence of special or exceptional circumstances,

(ii) Where the hearing of the appeal is likely to be unduly delayed.

Yet in the same case, the WACA, put the exceptional circumstance in another way:

“To put it in another way, in the absence of special circumstances, bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard. ” (Italics mine)

In some recent pronouncements of this court, it appears that careful examination of available authorities on matters of bail pending appeal reveals that the principles to guide an appeal court in the grant or otherwise of bail to convict include inter alia:

(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 conditions of appeal imposed, and this will show the seriousness of his applications.

(c) If the applicant was granted bail during the trial, he has not attempted or tried to jump bail.

(d) That the admission of an appellant to bail pending the determination of his appeal is at the discretion of the court.

(e) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.

(f) That in dealing with the 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

(g) 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 be heard.

See State v. Jammal (1996) 9 NWLR (Pt. 473) 384 at pages 399 and 400.

Thus, in the light of the above authorities one would expect that an applicant who shows either that there are special circumstances, in his case or that his sentence is so short that it or a substantial part of it is likely to expire before the appeal can be heard, may be granted bail. Thus, even where the second condition/circumstance above applies, unless there are apparently no merits in the appeal, an appeal court should exercise its discretion in favour of an applicant for bail pending appeal. In an unreported case of Supreme Court, The State v. Ededy, S.C. 85/71. The Supreme Court granted bail to an appellant sentenced to eighteen-month term of imprisonment when after two months following the sentence, the typescript of the record of the High Court proceedings was not ready and it was obviously likely that the appeal could not be heard until after the whole sentence or a substantial part of it has been served.

Learned SAN for the applicants drew our attention to the averments in paragraphs 14 – 20 of the applicant’s affidavit in support. These paragraphs read as follows:

“14. In the course of proceedings at the court below, the appellants made a no case submission which the lower court dismissed in a ruling delivered on 30th October, 2002.

15. On 4th November, 2002, the appellants filed a notice of appeal against the ruling dismissing their no case submission.
16. The record of appeal against the no case submission was complied by the appellants by way of motion for departure from the rules of this court and the said appeal was effectively entered in the Court of Appeal as CA/A/137c/2002 on 23 January, 2003 when the appellant’s motion for departure from the rules was granted.
17. The appellants promptly filed their brief of argument on appeal No. CA/A/137c/2002 on the same 23 January, 2003 when the said appeal was effectively entered in this court and the respondent’s brief was also filed promptly in that appeal whilst the appellants’ reply brief of argument was filed in that appeal on 11 April, 2003.
18. Effectively, the appellants’ appeal No. CA/A/137c/2002 on their no case submission became ripe for hearing on 11 April, 2003 when the appellants’ reply brief filed.
19. Yet, despite the best efforts and diligence of both parties herein as well as the court, the said appeal that had repined for hearing on 11 April, 2003 was not heard and determined by this Honourable Court until 28th January, 2005 when the Court of Appeal delivered judgment in that appeal.
20. From 23 January, 2003, when appeal No. CA/A/137c/2002 was entered in this court, up till delivery of judgment in that appeal on 19 January, 2005, that appeal spent two years in this court before it was finally determined by this court.”

There is nothing from the counter-affidavit of the respondent to counter the above depositions of fact. The law is well settled that what is not denied in affidavit evidences is taken as admitted. See:

i. A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) page 575;

ii. Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317;

iii. University of Ilorin v. Oyalana (2001) 15 NWLR (Pt. 737) page 684.

The facts deposed to in the above paragraphs must be taken admitted by the respondent. In the subsequent paragraphs of the affidavit in support, the applicants further state:

“21. In view of the aforesaid precedent, I know that it is most likely that by the time this appeal is heard, the appellants would have effectively served all the six months jail term that they are sentenced to serve.

22. Unless admitted to bail pending hearing and determination of their appeal, the appellants’ appeal would be rendered nugatory if it is successful because they would have effectively served all of the six months that they are sentenced to serve by the time their appeal is heard and determined.”

Although the applicants have stated in paragraph 24 of their affidavit in support that the record of appeal has already been effectively entered in this court, it is not unusual to find supervening circumstances which will delay the hearing of the appeal to its logical conclusion. If an appeal on a no case submission could take two years before final determination, I do not think it should surprise anyone if an appeal which is decided on its full merit takes the same or even longer period before its final determination. I think it is known to all concerned in this appeal that the machinery of justice in this country is not propelled by a single person or institution and none can claim perfection. There must be allowance to accommodate failures. The failure of one of the persons involved in the whole process will adversely affect the remaining persons or institutions. Again, by the provision of section 29(1) of the Court of Appeal Act, 1976, this court has the discretion of admitting an appellant to bail. The provision provides:

“29(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 his appeal”

Further, our Order 4 rule (3)(6) supports the above provision of the principal law.

Now looking at the nature of the offence for which the appellants were convicted and sentenced to a term of imprisonment, the learned counsel for the respondent submitted that the offence was severe by the provision of section 9(1)(b) of the ICPC Act and attracts seven years imprisonment. Learned counsel however conceded that the offence is a bailable one after conviction on exceptional circumstances. Learned counsel conceded as well that sickness can be an exceptional circumstance. It has been averred in paragraph 9 of the affidavit in support that the 2nd appellant was suffering a slip disc during the trial stage. Nothing was advanced in stage. Nothing was advanced in the counter-affidavit to controvert this fact. It is thus taken on its face value without more, to amount to an exceptional circumstance.

Although the Act cited by learned counsel for the respondent provides a sentence of up to seven years for the offence of official corruption, (section 12(b)(ii)) the same Act, in section 42(1), provides that every offence under the act shall be bailable offence of the Criminal Procedure Act, Criminal Code Act, Criminal Procedure Code Act or Penal Code Act.

It is in evidence that the applicants were granted bail by the trial court. Paragraphs 4, 6, 7 and 8 of the affidavit in support put the picture in a clearer shape:

“4. On 12 July, 2002, the lower court admitted the appellants to bail pending the hearing and determination of the charges preferred against the appellants.

6. I know for a fact, that from 12 July, 2002 to 17 March, 2006, (i.e. a period of almost four years) during which the appellants were on bail at the court below, they did not at any time jump bailor give the lower court cause to question or revoke their bail.
7. The appellants appeared before the lower court on every adjourned dated on which the charges preferred against them came up for hearing before the lower court.
8. I am aware that even when the appellants were required to present or show themselves to the Registrar of the lower court on the first working day of every month, without the Judge, the prosecutor or defence counsel present, the appellants always presented themselves unfailingly to the Registrar of the court below on the first working day of each month.”

I think this alone is potent enough to provide for an exceptional circumstances. This, in my view, shows that the applicants were persons of responsibility who kept to the terms of the bail granted to them by the trial court.

Another important point is the term of imprisonment each of the applicants was to serve in jail. Paragraph 5 of the affidavit in support which was accompanied by exhibit A i.e. judgment of the trial court shows very clearly that the appellants were sentenced to serve a term of one year each. The jail term started from the 17th March, 2006. This is already end of April. The matter is still at bail level. I agree with learned SAN for the applicants that it is most likely that by the time this appeal is heard, the appellants would have effectively served the jail term they were sentenced to serve. This, in my view, is another exceptional circumstance which warrants me to exercise my discretion in favour of the applicants. See Okoroji v. State (1990) 6 NWLR (Pt. 157) 509; Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486; State v. Jammal (supra).

My assessment of the character of the applicants as stated earlier in relation to their bail is that I consider the applicants responsible citizens of this country. They stood trial before the lower court. They were admitted to bail by the trial court. They never jumped bail or breached any of the conditions of bail imposed on them. This will make me presume that the applicants shall continue to maintain their good stance in respect of any bail terms this court may decide to impose on them.

It is true that they have valid and subsisting appeal. I may not, with precession, say when exactly or how quickly the appeal will be disposed of. I am therefore inclined to admitting the applicants to bail pending appeal as their application is meritorious.

Accordingly, I grant this application and the appellants/applicants are hereby admitted to bail in the following terms:

1. Each appellant/applicant to deposit the sum of N10,000.00 (Ten thousand naira) and a surety in the like sum.
2. The surety must be a land owner in Abuja, who shall deposit his documents of title with the courts Deputy Chief Registrar pending the determination of this appeal.

---

Other Citations: (2006)LCN/1942(CA)