Ifeanyi Martins Amadikwa V. The State (2005)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an application dated 6/02/2015 filed on 6/02/2015 praying for the following order:
“AN ORDER admitting the Applicant Ifeanyi Martins Amadikwa to bail pending the hearing and determination of the Appeal”.
The application is premised on the following grounds:
- Health of the Appellant/Applicant.
- Appellant/Applicant was on bail at the Trial Court before conviction and did not jump bail.
- Appellant/Applicant’s further stay in Prison custody will not only jeopardize his life but also that of other inmates in view of his complicated health situation which includes a highly infectious disease.
In support of the application is a 17 paragraph affidavit with several Exhibits. The applicant also filed a further affidavit of 5 Paragraphs on 2/03/2015. In opposition to the above, the Respondent filed a counter-affidavit of 11 Paragraphs.
The pertinent paragraphs to are herein reproduced. Paragraph 6-10 of the affidavit in support of the motion states thus:
“6. That my health is very frail and bad. I am married with children. Members of my family who are familiar with my condition, usually assist to get on with life. My imprisonment has made my health condition to deteriorate.
- That I have been an Epileptic patient from my childhood. However, sometime in life I contracted Tuberculosis and also suffer from what the Doctors described as Gastropheageal Reflux Disease. With the assistance of my beloved wife, I have been managing these conditions at the CENTRAL HOSPITALS, Benin City. The doctors have described my condition as life threatening. A copy of my medical report from the Central Hospitals, Benin City and duly signed by one Dr. Igbinobaro A. is hereby attached and marked as Exhibit “C”.
- That upon my conviction and sentence on the 17th day of December, 2014, I was taken to the Federal Prisons Oko, Benin City. The prison condition is not good for my health. I complained seriously and was seen by the medical doctor-in-charge one Dr. Uzuegbu Chibuzo, a Deputy Controller of Prisons, (Medical Section). The said medical expert ordered an X-ray to be conducted on me. A copy of the result of the said X-ray is herein attached and marked as Exhibit “D”.
- Thereafter, the said Dr. Uzuegbu Chibuzo referred to able took further steps to examine me. He diagnosed me with Gastro-oesophageal reflux disease with epileptic attack as well as tuberculosis. He thereafter opined and I very believe him that the prisons lack the facilities to manage my complicated condition. He also opined that I will get better treatment outside the prisons. A copy of the medical report duly issued by the prisons medical section is herein attached and marked as Exhibit “E”.
- That my condition is deteriorating every day. I usually pass out blood in my stool. On such occasions when I have epileptic attacks, other inmates usually shun me and avoid coming close to me because they are aware of the fact that I also suffer from tuberculosis which is infectious. I do not enjoy any assistance from other inmates, rather they fear coming close to me. Other inmates claim that they are trying to avoid tuberculosis infection from me.”
The Respondent in opposition stated in paragraphs 8 & 9 of the counter affidavit thus:
“8. That we admit paragraph 9, to the extent that there is a medical report, but deny that he cannot have good medical attention within the prison medical service.
- That I am informed by M.O. Omozeghian the Director of Public Prosecution and lead prosecuting counsel in this case in his office on 26/2/15 at about 2.55 p.m. and I verily believed him as follows:
(a) That the Appellant/Applicant was prosecuted at the Edo State High Court Criminal Division Court (2) Benin City, for the offence of Advance fee fraud.
(b) That the Appellant/Applicant was convicted by the trial court and sentenced to 10 (ten) years in prison with hard labour.
(c) That the basis of the Applicant application is ill-health.
(d) That the ill-health of the Applicant is not life threatening.
(e) That the Appellant/Applicant is entitled to treatment in any Government hospital from the prison custody.
(f) That the Controller General of Prisons (or in an emergency situation) the Superintendent, may by order under his hand direct the removal of the prisoner to any hospital specified in the order for treatment in cases of serious illness of a prisoner.
(g) That there is no order from the Controller General or his Superintendent directing he removal of the Applicant to a designated hospital outside the prison.
(h) That the Appellant/Applicant supporting affidavit to the motion on notice did not disclose any exceptional circumstance.
(i) That the grant of this application will work injustice.
(j) That the Appellant/Applicant will jump bail; in view of the length of years he has been sentenced.
(k) That the appeal has not been entered in the Court of Appeal.
(l) That the Appellant/Applicant has no arguable grounds of appeal.
(m) That the Appellant/Applicant wants to render nugatory the judgment of the High Court of Justice.”
The Applicant’s counsel Mr. Paul Osarenkhoe, at the hearing of the application, submitted that the applicant did not jump bail for four years while he was on trial before the High Court and argued that the Exhibits attached to the motion were not contradicted in the counter-affidavit and urged this court to exercise its discretion in favour of the Applicant and grant him bail.
Learned Respondent’s counsel Mr. M.O. Omojeghian opposed the application and argued that the Applicant did not disclose any exceptional circumstances to warrant the grant of bail, as all the Exhibits were made for the purpose of this application. Counsel contended that under the Prisons Act and in Abacha V. The State (2003) 3 ACLR Pg 1 at Pg 8, it was held that ill health is not an exceptional circumstance and urged this Court to dismiss the application.
On a careful consideration of the affidavit filed by both parties, it is obvious that the Applicant seeks bail pending appeal. It is well settled law that bail after conviction is not granted as a matter of course but on very special circumstances, as it is presumed that the conviction of the applicant is correct until subsequently (if at all) set aside on appeal. The applicant must establish peculiar, special facts and circumstances to be considered before the grant of the application. See Ojo v. F.R.N (2006) 9 NWLR PT 984 PG 105; BUWAI V. STATE (2004) 16 NWLR PT 899. The conviction of the applicant has removed the constitutional presumption of innocence. See the case of Eyu v. state (1998) 2 NWLR (Pt 78) Pg 602. The applicant is therefore still presumed guilty until otherwise discharged.
From the affidavits of the Applicant, he is seeking bail on the grounds of ill health. For the discretion of this court to avail the applicant, he must show concrete evidence that appropriate and effective medical facilities are not accessible to the convict in the confines of prison custody. The applicant’s affidavit must be supported by documentary evidence of the state of health of the applicant and a medical doctor ought to give evidence in that regard in compliance with the provisions of Section 57 of the Evidence Act, Laws of the Federation 1990. See Fawehinmi V. State (1990) 1 NWLR (Pt 127) Pg 486.
The affidavit of the applicant, in paragraph 9, deposed to this fact. He stated thus:
- “Thereafter, the said Dr. Uzuegbu Chibuzo referred to above took further steps to examine me. He diagnosed me with Gastro-oesophageal reflux disease with epileptic attack as well as tuberculosis. He thereafter opined and I very believe him that the prison lack the facilities to manage my complicated condition. He also opined that I will get better treatment outside the Prisons. A copy of the medical report duly issued by the Prisons Medical section is hereby attached and marked as “E”.
When a person is held in detention, the responsibility of affording him access to proper medical facility rests with those in whose custody he is. In the case of Abacha V State (2002) 5 NWLR Pt 761 Pg 638 At 656, Ayoola J.S.C HELD
“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.
There is a medical report -Exhibit E written by Dr. Uzuegbu Chibuzo, a Deputy Controller of Prisons (Medical) Oko Prisons on record, who after examination and tests carried out on the applicant recommends that the applicant will get better treatment outside the Prisons.
Also attached to the Affidavit is a medical report from Central Hospital, Benin marked Exhibit C, a medical X-Ray marked Exhibit D. From the aforesaid Exhibits, one can readily see that the Applicant’s health is deteriorating. These reports were written by Government Doctors from Government hospitals. What is worrisome in the circumstances in the diagnosis is that tuberculosis is a highly infectious disease which should not be allowed to fester in the confines of prison custody. These are exceptional circumstances. The Respondent’s counsel deposition in paragraphs 5 & 8 in his counter affidavit to this application did not make an attempt to disprove these facts, other than to state that the ill health of the applicant is not life threatening. It is my view that had the Respondent attached a medical report to rebut the claim of the applicant, the Court would have had evidence in rebuttal and able to balance two different opinions. The deponent to the Respondent’s affidavit, a civil servant in the ministry of justice is not a medical practitioner whose evidence this court can rely on in this regard.
In an application for bail pending appeal, the conduct of the applicant is always a factor to be considered by the court. An applicant of good behavior has a high chance of being granted bail. The applicant deposed in paragraph 13 thus:
- “That during my trial at the lower court, I was granted bail in 2011 and did not jump bail until 2014 when I was convicted.”
I am also aware that before an applicant can be granted bail pending appeal there must be a Notice of Appeal before this court. The respondent in paragraph 9(k) drew the court’s attention to this fact. He deposed that:
K. “That the appeal has not been entered in the Court of Appeal.”
The applicant in his further affidavit deposed cogent reasons for his inability to perfect same. See Paragraph 3 a-g
In asking this court to dismiss this application, Respondent’s counsel cited the case of Abacha V. The State (supra). I have to distinguish that case from the present case. At page 653, Ayoola JSC held that on the authorities, the exercise of discretion to grant bail after conviction pending appeal would depend on the circumstances of each case. His lordship also held that it does seem accepted generally that ill health is justification for grant of bail at any stage at which bail is sought. In Abacha V. The State (supra), the Supreme Court held that the facts placed before it of unsubstantiated and exaggerated claims of ill health of the applicant during oral address of the applicant’s counsel cannot suffice to convince the Court of the poor state of health of the applicant at the time motion for bail was filed at the High Court. The Supreme Court then dismissed the appeal.
In this case, as I pointed out earlier, two senior civil servants who are medical doctors in Government hospitals have written to say that the applicant is suffering from both epilepsy and tuberculosis. Tuberculosis is understood by every layman to be a highly infectious disease. I am convinced that the argument that the Applicant may pose a health hazard to other inmates has merit. The Prison Doctor states categorically that he cannot get proper treatment from the medical facilities available in Prison for these life threatening illness. I believe the affidavit and Exhibits attached to this motion reveal special circumstances to warrant the exercise of this court’s discretion in favour of the applicant.
Sec. 28(1) Court of Appeal Act (2010 Amendments) allows this court in exercise of its discretion to grant bail irrespective of whether the applicant has been sentenced depending on the special facts, circumstances and severity of the offence.
I have considered the circumstances and the severity of the offence, and the fact that the applicant has been sentenced to ten years imprisonment with hard labour without option of fine. Be that as it may, there is no doubt in my mind that there are special circumstances adumbrated above which warrant the grant of bail to the Applicant. Applicant’s application succeeds. The following orders are hereby made:
(1) Applicant is admitted to bail in the sum of N2,000,000.00 (Two Million Naira) with two sureties each in like sum.
(2) Each surety should swear to affidavit of means.
(3) Each surety shall enter a bond of recognizance to pay the said N2,000,000.00 (Two Million Naira) to Edo State Government on bond, in the event of the non appearance of the Applicant in court during the appeal.
(4) Each surety is to submit title papers of one property in Edo State.
(5) The Applicant to submit his International Passport.
(6) The Deputy Chief Registrar of the Benin Division of the Court of Appeal shall examine and determine the suitability of each surety to meet the conditions of bail.
Order as prayed. Motion filed on 6/2/15 is hereby granted.
Other Citations: (2005)LCN/1715(CA)
