Saheed Arowolo V. The State (2007)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
The notice of motion is dated 6th and filed on the 20th March 2007 and pursuant to Order 4 Rule 3(1), Order 4 Rule 13(1) of the Court of Appeal Rules, 2002 for the following prayers:-
“An order of this Honourable Court granting the Appellant/Applicant better conditions of bail to the conditions of bail granted by the High Court of Lagos State (Coram Nwaka J.) in her ruling delivered on the 7th of March, 2007.
AND for such further order and/or orders as this Honourable Court may deem fit to make in the circumstances. ”
The application is supported by a twenty-two paragraphs affidavit sworn to by one Mrs. Sekinat Arowolo the wife of the appellant/applicant. It is also supported by an eleven paragraphs affidavit of urgency sworn to by the same deponent. There is also a further affidavit of eleven paragraphs sworn to by one Samson Bakare, a litigation clerk in the law firm of the appellants solicitors for the purpose of exhibiting the certified true copy of the proceedings at the trial court marked as exhibit SA1.
In moving the application before us, the learned counsel Mr. Ayo Akintunde relied on all the paragraphs of the various affidavits and also the exhibits attached thereto. The facts of this case briefly are that on the 22nd December 2006, the High Court of Lagos State convicted and sentenced the appellant/applicant for the offence of conspiracy and robbery to 21 years imprisonment. The appellant as a consequence appealed to this court against the judgment and also brought an application for bail pending appeal at the lower court. After considering the application the learned trial judge on the the March, 2007 granted bail per exhibit E and in the following terms:-
“Bail is granted the applicant in the sum of N200,000, with two credible sureties in the like sum. Sureties
should be civil servant of not less than grade level 17. Both sureties should be owners of landed properties in Lagos verification of documents is to done by the office of the DCR.”
The learned applicant’s counsel submitted the strenuous effort made on behalf of the applicant to secure officers of the said grade level 17 and above in the state service which he argued proved very difficult. Reliance was also made to the additional facts deposed to on the affidavit of urgency wherein deposition was made to the poor health condition of the appellant/applicant, who is in desperate need of an urgent medical attention. Counsel in particular relied on paragraphs 3, 4 and 5 of the affidavit in support and also exhibit SA1, the medical certificate of the State of the applicant’s health by one Dr. E. E. Amah (DCP) for the Asst. Controller of Prisons. That the state and level of the applicant’s health has risen to a very dangerous position which could lead to his death. That despite the bail granted by the lower court, the conditions were made onerous and therefore very difficult. That a further application could not be made to the same lower court for re-consideration of the bail granted because of the strike action which has made the state courts unattainable. Reference in support was made to paragraphs 7 and 8 of the further affidavit wherein the courts are currently on strike. That where conditions of bail are excessive, it will amount to no bail at all. Counsel relied on order 4 rule 13(6) of the rules of court to vary or relax the conditions of bail which he argued is within this court’s powers.
On the grounds of appeal, counsel referred in particular to ground 1 which raises substantial issues of law to warrant this court give a favourable consideration to the application. That vide the judgment attached to the motion and marked exhibit A certain aspects show that the trial court was in doubt as to the whereabout of the accused person when the offence was committed. That the essence is to show that the appellant has some good chance to succeed on his appeal because the prosecution had failed to prove
the accused’s guilt beyond all reasonable doubts and that the court had also failed to resolve the doubt in favour of the accused person. That the accused did set up a defence of alibi which was never investigated.
That the appellant/applicant is very serious and willing to prosecute his appeal. Counsel therefore impressed upon us to grant the applicant bail on favourable and attainable conditions in the interest of justice.
It is expedient to restate that the respondent was absent at the hearing of this application. The registrar of this court however reliably informed the court of the service of both the motion paper and the hearing notice having been effected on them on the 22nd March 2007, against today. They have neither filed a counter affidavit nor did they come to court to oppose the motion on points of law. I take it therefore that the respondents are not opposing the bail. That notwithstanding it is trite law that granting of a bail pending appeal is not a matter of course as it is no longer a constitutional right of the appellant who had ceased to be presumed as innocent immediately conviction takes place. He must therefore show special circumstance.
In the case of Jammal v State (1996) 9 NWLR (Pt.472) 352 at 359 Orah J.C.A. on the principles guiding application for bail pending appeal had the following to say:-
“From a careful examination of available authorities, it is clear:
(a) that the admission of an appellant to bail pending the determination of his appeal is at the discretion of the court;
(b) 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;
(c) that in dealing with the latter class of case, the court will have regard not only to the length of time which must elapse before the appeal can be heard but also the length of the sentence to be appealed from and further, that these two matters will be considered in relation to one another; and
(d) that 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.”
Also in the case of Ani v State (2004) 7 NWLR (Pt.782) p.249 at 253 Ogebe J.C.A had this to say amongst others:-
“The principles guiding the grant of bail after conviction and sentence of an applicant are well set out in the case of Jammal v The State (1996) 9 NWLR (Pt.472) 352 at 366 as follows:-
“Generally, the grant of bail to a convict sentenced to a term of imprisonment is not made as a matter
of course. The principle of presumption of applicant’s innocence no longer exists, because of his conviction, he must show special circumstances to be entitled to bail pending the determination of his appeal.”
The granting of bail pending an appeal is therefore at the discretion of the court depending on the special facts, circumstances and severity of the offence. Every application for bail pending appeal by a convict who is sentenced to a term of imprisonment is considered on its peculiar, special facts and circumstances. See Okoroji v State (1990) 6 NWLR (Pt.157) 509; Fawehinmi v State (1990) 1 NWLR (Pt.127) 486.With reference to paragraphs 3, 4 and 5 of the affidavit of urgency, in support of the application at hand and under consideration, same reproduced state as follows:-
“3. That before his incarceration, the Appellant/Applicant has been a hypertensive patient being managed by our family doctor.
- That his health deteriorated sharply after his conviction for an offence he knew nothing about.
- That his dissatisfaction with his conviction and 21 years imprisonment for an offence of which he is innocent has aggravated his hypertensive condition. A copy of a medical report issued on him by the Assistant Controller of Prisons of the Nigerian Prison Service is now produced and shown to me marked Exhibit “SAl”. The said exhibit ‘SAl’ a medical report on the applicant’s situational health in part reads as follows:-
“Clinical examination showed a young man averagely built. The Blood pressure was 150/120mmHg which is on the High side. Systemic examination was essentially normal. A diagnosis of severe hypertension was made and the
patient was commenced on anti-hypertensive therapy. His condition could result in organ damage and stroke.
Please treat with strict confidentiality.
(Sgd.)
DR. E. E. AMAH (DCP.)
FOR: ASST. CONTROLLER OF PRISONS”
With reference also made to the further affidavit in support of the application for better conditions of bail, paragraphs 7 and 8 deposed to the fact that a further application could not be made to the same lower court for reconsideration of the conditions in granting bail in view of the current ongoing strike action by the State High Court.
The learned appellant’s counsel in his further submission relied and paid great premium on the notice of appeal in particular to ground No.1 of the grounds of appeal attached to the affidavit in support of the motion and marked exhibit B. The said ground of appeal and the particulars reproduced state as follows:-
“GROUND ONE
- The learned trial judge erred in law and thereby misdirected herself when she placed the onus of resolving the doubt/confusion which she admitted played in her mind over the question of where the Appellant was at the time of the alleged robbery on the Appellant as there never was such a duty on the Appellant.
PARTICULARS OF ERROR
The law is trite that the standard of proof in a criminal case is one beyond reasonable doubt and once the court was able to admit the existence of a cloud of doubt/confusion over the whereabouts of the Appellant of the time of the “robbery” the court came under a bounden duty to resolve the doubt in favour of the Appellant.”
As rightly submitted and argued by the learned counsel for the applicant, the said ground, prima facie, raises substantial issue of law which are arguable. This is not to say however that the Apellant/applicant is likely to succeed on his appeal but rather that given the situation as it portrays, the appellant’s grounds of appeal are worthy of consideration. Order 4 rule 13(6) of the rules of this court referred to by the learned applicant’s counsel also reproduced states as follows:-
“When an appellant is present before the court, the court may, on an application, made by any person or, if it thinks right so to do without any application, make an order admitting the appellant to bail, or revoke or vary any such order previously made, or enlarge from time to time, the recognizances of the appellant or of his sureties or substitute any other surety for surety previously bound as it thinks right.”
It is innately evident from the medical condition of the appellant in this case that his state of health appears to be in great danger of deterioration and which places his life in dire jeopardy. If he is released on bail, he may therefore be in a position to make adequate arrangements for his medical care. In applying the authorities of Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486 and Chukwunyere v Commissioner of Police (1975) 5 ECSLR 44, a decision of the High Court of Justice of Onitsha, decided by Nnaemeka-Agu J.(as he then was), it was held “that special serious health condition of the applicant amounts to a special circumstance.”
Relying therefore on the said two authorities under reference supra, I am of the firm view that the applicant’s health condition constitutes special or exceptional circumstance upon which he can be admitted to a better and an attainable condition of bail pending the hearing and determination of his appeal.
On the totality of the entire material facts placed before me in this application I am of the considered opinion that the applicant’s application deserves to be given a favourable discretion.
In the result therefore and also having regard to the gravity and nature of the offence for which the applicant has been convicted and sentenced, he is hereby admitted to bail on the following conditions, pending the determination of his appeal.
(i) The applicant is to enter into cognizance in the sum of N2,000,000= with two sureties in like sum.
(ii) The sureties to swear to a satisfactory affidavit of means and must be landed property owners in Lagos which certificates of occupancy are to be deposited in the custody of the Deputy Chief Registrar of this court.
(iii) The applicant is to further deposit his International Passport, if any, also with the Deputy Chief Registrar of this court.
Other Citations: (2007)LCN/2295(CA)
