Mohammed Sani Abacha V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

This is an application by Mohammed Sani Abacha (the applicant) for an order admitting him to bail pending the determination of an appeal now pending before this court. The appeal has been fixed for hearing on 9th May, 2002 upon an application for accelerated hearing made by the Attorney-General of Lagos State.

The applicant is one of four persons standing trial in the High Court of Lagos State on an information containing four counts charging him and three others in the first and second counts, respectively, with conspiracy to commit murder and murder contrary, respectively, to Sections 324 and 319 (1) of the Criminal Code, Cap. 32 Laws of Lagos State, 1994; and, charging the applicant alone in the third and fourth counts with being accessory after the fact to murder, contrary to Section 322 of the said Code.

By a motion on notice dated 10th December, 1999 said to be brought pursuant to Sections 167, 340(3) and 221(4) of the Criminal Procedure Law, Cap. 33 Laws of Lagos State and under the inherent jurisdiction of the court, the applicant sought an order quashing the information as regards him on the grounds that the proof of evidence did not disclose prima facie case against him and that the entire information was an abuse of process. On 1st February, 2000 the trial Judge, Kekere-Ekun, J., dismissed the application. The appeal of the applicant to the Court of Appeal from that decision was itself dismissed on 11th December, 2000. Now pending before us is an appeal from the decision of the Court of Appeal.

In the mean time the applicant seeks an order admitting him to bail pending the determination of that appeal on the ground of exceptional circumstances constituted by the facts, as stated in the motion paper that: (i) there is an order staying proceedings in the charge; (ii) this court is the only court currently seized of charges No. ID/43c/99 by virtue of the pending appeal; and (iii) the applicant is seriously ill and is on admission at the National Hospital, Abuja and cannot receive the desired medical attention while in detention.

It is evident that in relation to the question whether a discretion should be exercised to grant the prayer of the appellant or not, only the third of the facts stated above is capable of constituting exceptional circumstance. The first two merely attempted to explain why in the opinion of counsel for the applicant this court is the appropriate venue. Whatever comment may be made hereafter on the appropriateness of the venue, that question should not be of any importance since the respondent had not raised any such issue. The only question that needs be addressed, therefore, is whether sufficient facts have been put before this court to justify the grant of bail.

At the hearing of the application, learned counsel for the applicant emphasised that the application was based on ill-health. It is thus not necessary to range all over the field to consider the multifarious circumstances in which bail may be granted to an accused person. It suffices to note that the considerations that may determine the exercise of discretion to grant bail will often depend on the stage of criminal proceedings at which bail is sought. Different considerations may apply where bail is sought before conviction in the trial court from those which may apply where bail is sought in the appellate court after conviction. In this case bail is sought not at the trial court but in an appellate court before conviction and not by way of appellate review of a discretion exercised by the Court of Appeal.

However, it does seem accepted that whatever the stage at which bail is sought by an accused person, ill-health of the accused is a consideration weighty enough to be reckoned as special circumstance. In Fawehinmi v. The State (1990) 1 NWLR (Pt. 127) 486 one of the circumstances accepted by the Court of Appeal as justification for grant of bail on the ground of special circumstance is ill-health. Rex v. Gott 16 Cr. App R 86 is authority for the view that mere allegation of bad health will not be sufficient as special circumstance for the grant of bail

In matters of discretion previous decisions can only offer broad guidelines. Each exercise of discretion depends on the facts of each case. Notwithstanding that fact, it is right to note that, as a matter of judicial attitude, in the case of Oladele v. The State (1993) 1 NWLR (Pt.268) 249 this court did say (per Olatawura, JSC) at p.308:

It is very unusual for a person accused of murder to be on bail pending trial. Murder is a very serious offence.

Against the broad statement of principles as above, I turn to a consideration of the facts on which the applicant relies.

There have been filed two affidavits in support of the application and two against. In support, Mr. Simon Amobeda, a legal practitioner on 28th December, 2001 deposed to the facts that the applicant had been in detention at Kirikiri maximum security prison, Apapa on the order of Kekere-Ekun, J., since October 1999, to await trial for offences contained in charge No. ID/43c/99; that because of his detention it had become impossible for him to have access to good Medicare and that this had greatly affected his health; that he developed some complications sometime in May 2000; that the prison clinic lacked equipment for proper diagnoses; that his poor state of health had continued to worsen and that he was suffering from serious kidney problem. It is stated that the applicant was on admission at the National Hospital for Women and Children where he was under going intense Medical Investigation’. There were attached to the affidavit, among others, (1) a letter addressed by the Assistant Controller Prisons, Kuje Prison, F.C.T. to the Human Rights Violation Investigation Commission stating that the applicant was on admission for acute malaria, upper-respiratory track infection and hay fever and was consequently unable to appear before the Commission; and (2) a letter dated 7th November, 2001 written by Dr. Priye Briggs to the Controller-General, Nigerian Prisons Service intimating him of the deteriorating medical condition of the applicant and indicating the need to investigate the left kidney vis-a-vis the stones.

A Counter-affidavit sworn to by Mrs. Olabisi Ogungbesan, Assistant Director of Public Prosecutions in the Lagos Ministry of Justice, had attached to it a letter dated 17th January, 2002 written by the Chief Medical Director of the National Hospital Abuja in response to information sought by the Director of Public Prosecutions, Lagos State Ministry of Justice concerning the medical condition of the applicant. The salient portion of the letter is as follows:

Alhaji Mohammed Sani Abacha was first admitted at this hospital for investigation for a minor ailment on the 10th December, 2001 and was discharged on the 21st December, 2001.

He was re-admitted on 6th January, 2002 preparatory to a minor operation on 8th January, 2002.

His surgeon operates only once a week on Tuesday. Owing to the Christmas holiday on Tuesday 25th December, 2001 and the New Year day, 1st January 2002 he was unable to carry out the minor surgery which was therefore done on the next available Tuesday 8th January, 2002.

The operation was very successful and Alhaji Abacha was duly discharged on Friday 11th January 2002. The condition and state of health on discharge was satisfactory.

Alhaji Abacha has an appointment to be reviewed in six weeks from the date of his discharge.

(Emphasis mine.)

A document dated 21st January, 2002 headed To whom it may concern and written by Dr. Priye R. Briggs, Asst. Comptroller (Medical), of the Nigerian Prisons Service was introduced by a further affidavit sworn to by Mr. Amobeda, but it is evident that the writer of the document merely narrated therein the course of treatment that the applicant had received at the National Hospital, about which the letter of the Chief Medical Director of the hospital is a more authentic and more competent account. The use of medical terminologies in Dr. Brigg’s document does nothing to make its contents any more impressive or weightier.

The counter-affidavit sworn to in opposition to the application by Mrs. Olabisi Ogungbesan shows, in paragraphs 22-28 thereof, in summary that the applicant had access to medical attention at the National Hospital where he was treated for a minor ailment and underwent minor surgery with his state of health satisfactory upon discharge. The document referred to as Exhibit DPP2 which is the letter of the Chief Medical Officer of the National Hospital amply bore out these facts. The facts before us, summarised, show that on 7th November, 2001 the medical condition of the applicant was brought to the attention of the Controller-General of the Nigerian Prisons Services and medical investigation was recommended (Exh. MSA 8); on 10th December, 2001 the applicant was admitted for investigation and was discharged on the 21st December, 2001; on 6th January 2002 he was readmitted preparatory to a minor operation which was carried out on 8th January; the operation was successful and applicant was discharged on 11th January, 2002 with his state of health on discharge describe as satisfactory (Exh. DPP2). The applicant’s application brought on 28th December, 2001 was prior to the applicant’s re-admission and treatment which produced such result as enabled his medical condition to be described as satisfactory. Nothing has been put before us to show that his medical condition has changed for the worse thereafter.

There is thus nothing before this court, beyond the exaggerated and unsubstantiated claims of learned counsel for the applicant in his oral address, to show that the state of health of the applicant at the time the motion was filed on 28th December, 2001 up to the time of the hearing of the application on 7th February, 2002 was anything but satisfactory. No reasonable tribunal exercising its discretion responsibly and judiciously will on the facts as stated exercise a discretion to grant bail on the ground of special circumstance.

In his oral address, counsel for the applicant argued that the appellant was entitled to be treated by a medical practitioner of his choice. He did not cite any authority for the right he claims for the applicant. Were it the law that an accused person remanded in custody to await trial is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial. There is no general principle of law affording that right to an accused person remanded in custody. The duty of the State to ensure that the medical needs of persons in custody are met does not create such extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice.In this case, Professor Osinbajo, Attorney-General of Lagos State, has shown expected and befitting sense of responsibility when in the course of his argument before us he stated that the state is prepared to undertake to ensure that whenever the occasion arises medical treatment is available to the applicant.

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. Such need is not brought before the court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.Such has been absent in this case.

On the whole, it is manifest that there is really no substance in this application and that, consequently, the application should be refused. However, before I part with the matter, it is expedient to point out that the fact that this application has been considered on its merits should not be seen as an indication that it has been held, albeit by implication, that this court is the proper and competent venue for applications such as this, brought when the charge is still before the trial court which had made an order remanding the accused in custody. The order remanding the accused in custody still subsists and has not been appealed from nor discharged. There is nothing to show that an application has been made to the trial court for bail. The appeal before this court is an interlocutory appeal. In these circumstances at the appropriate time, should the matter be raised, the true ambit of Section 31(1) of the Supreme Court Act which empowers this court, if it thinks fit, on the application of an applicant to admit the appellant to bail pending the determination of his appeal, will be determined in view of subsections (2) and (3) of that section which seemed to envisage the exercise of power to grant bail upon conviction.

Quite apart from the competence of the venue, it is still to be seen, should the matter be raised, whether this court will as a matter of discretion think fit to grant bail to an accused whose trial is still pending in the trial court and who has not challenged the order remanding him in custody which still subsists and who has not applied for bail in the court below or the trial court and when the appeal before this court is not after conviction of the accused or related to anything concerning bail. As I have said, these are not issues that have arisen in this application. They are merely adverted to so that entertaining this application and determining it on its merit may not be regarded as precedent in future as to the propriety of the venue for such applications.

Be that as it may, I feel no hesitation in coming to the conclusion that this application is utterly without merit and should be dismissed. I accordingly dismiss it.

SC.290/2001(-R)