In The Court of Appeal

(Jos Judicial Division)

On Tuesday, the 16th day of February, 2010

Suit No: CA/J/243CM/2009

Before Their Lordships

 Between

 And

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Lead Ruling): This is an application by way of a Notice of Motion, brought by Joseph Ugbor, the applicant for an order admitting the applicant to bail pending the hearing and determination of his appeal, pending before this Honourable Court.

The grounds of the application are that- 

1. The trial High Court, Gboko, had on 6/3/2009 convicted the appellant of the allegation of culpable homicide not punishable with death under S.224 of the penal code and sentenced him to 1 year imprisonment and a fine of N10,000.00 or six months imprisonment in lieu of fine.

2. The appellant had on 28/5/2009 appealed the judgment of the court below and filed Motion No. GHC/311M/09 for bail pending appeal which was refused on 27/7/2009.

3. The appellant has paid the N10,000.00 fine and the sum of N33,000.00 for the compilation and transmission of records of Appeal to this Honourable Court.

4. The appellant may serve substantial or the whole period of one year imprisonment imposed by the court below before his appeal is heard and determined unless admitted to bail pending appeal.

The application is supported by an affidavit sworn to by one R. N. Okoro, a legal practitioner in the law firm of M/S J. S. Okutepa & Co. learned solicitors to the appellant; the judgment of the lower court attached as Exhibit A, the Notice and grounds of appeal attached as Exhibit B, the Ruling of the lower court refusing bail attached as Exhibit C, the receipt of payment of the N10,000.00 fine attached as Exhibit D, and acknowledgement of payment of the sum of N33,000.00 for compiling record of appeal attached as Exhibit E.

In moving the application, learned counsel for the applicant Mr. Okutepa submitted that paragraphs 9 - 11 of the affidavit in support, show special circumstances favourable' to the grant of the application, as the applicant was sentenced to a 1 year imprisonment and has been in prison since the 6th of March, 2009. He cited BUWAI VS. THE STATE (2004) All FWLR (Pt. 227) 540 at 548 C - E. He further submitted that as the respondent had not filed a counter-affidavit, it is deemed to have accepted the facts deposed to in the affidavit.

In opposing the application, the learned Deputy Director of Public Prosecution, Ministry of Justice Benue State, submitted that no special circumstances have been disclosed,to warrant the grant of the application and that one year sentence is benevolent, considering that the offence, is murder. He also attacked the grounds of appeal filed by the applicant and submitted that they are not likely to succeed as they are incompetent, being of mixed law and fact and no leave was sought for and obtained, before they were filed.

In a reply, Mr. Okutepa, submitted-after referring to section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria, that no leave to appeal was required since it was a final decision of the High Court of 1st instance, and not an appeal to it. He urged us to grant the application.

Now, the Court of Appeal is clothed with power under section 28 (1) of the Court of Appeal Act Cap C 36 Laws of the Federation of Nigeria 2004, to admit an applicant to bail, pending the determination of his appeal. The Court of Appeal Rules 2007, also make provisions for admitting an appellant to bail, pending the determination of his appeal" Order 16 rule 13.

I need to point out here, that when considering an application for bail pending appeal, the court has a duty to be circumspect and not jump into the arena of the substantive appeal by making comments or deciding issues that would pre-judge the issues on appeal. See the cases of AKAPO Vs. HAKEEM-HABEEB (1992) 6 NWLR (pt.247) 266 at 287 and ODUNTAN VS. GENERAL OIL LTD. (1995) 4 NWLR (Pt.387) 1. 

I have alluded to this because both counsel have made far reaching submissions on the competency or otherwise of the grounds of appeal filed by the appellant. Any comment on decision at this stage, on the fate of the grounds of appeal filed, would pre-judge, the appeal. That would be grossly erroneous. I therefore decline to be drawn to that quagmire.

The granting of bail before conviction is governed by different considerations from those after conviction and pending appeal. To grant bail pending trial and before conviction, the court should consider:-

(a) the nature of the charge; 

(b) the severity of the punishment to be meted out on conviction;

(c) the nature of the evidence;

(d) the character or the accused person in terms of his criminal record;

(e) the possibility of committing the offence again;

(f) possibility of interfering with witnesses; and

(g) jumping bail.

See MOHAMMED S. ABACHA VS. THE STATE (2002) 5 NWLR (Pt.761) 638 at 674 and OBASEKI VS. POLICE (1959) NRLR 149.

In an application to grant bail after conviction and pending the determination of appeal unusual or exceptional circumstances must be shown to the satisfaction of court - ABACHA VS. STATE (supra) at page 653 and DURO AJAYI & ORS VS. THE STATE 1977, FCA 1.

It is the affidavit in support of the application that must contain depositions showing the exceptional circumstances, to enable this court exercise the discretion judicially and judiciously. 

Counsel for the applicant had submitted that paragraphs 9 - 11 of the affidavit in support, show the special circumstances. In paragraph 10 (b) of the affidavit, "special or exceptional circumstances" are said to be present. What the' special circumstances are, have not been particularized and identified for this court to appreciate, and it is not the business of this court to go through the affidavit and painstakingly fish out what they are. That would be descending into the arena. The offence of culpable homicide not punishable with death, is still a serious offence and no court will take it lightly, especially after the applicant has been convicted thereby. The record, of proceedings has been transmitted to this court and the applicant had no difficulty in paying for their preparation or of having access to his counsel. The serious and recondite issues of law, have not been stated and this court cannot partake in guess work. It has also been; deposed to at paragraph 11 (a), that the applicant did not jump bail when he was granted same during trial, by the trial court. I have perused the record of proceedings. At page 54 thereof, on the 17/3/2007, the trial court overruled the no case submission and called on the accused person to enter into his defence. On the adjourned date of 19/2/2008, the accused was absent in court and a bench warrant for his arrest had to be issued and the matter was adjourned to the 22/2/2008. On that date, the accused was still absent in court, and although his surety was present to give an explanation for the absence of the accused, the trial court held that the reasons given for the absence of the accused was not cogent and a strong warning had to be given to the surety, to ensure the presence of the accused in court in subsequent adjourned dates. These events occurred before the accused was convicted. The likelihood of its re-occurrence after conviction, is even more probable.

In effect, a careful consideration of the application, with all the attached, exhibits and address of counsel, have not convinced me that exceptional circumstances exist, to warrant the grant of the application, the absence of a counter-affidavit notwithstanding. In the circumstances, I do not find merit in the application and it is dismissed.

No order as to costs.

IBRAHIM M. M. SAULAWA, J.C.A.: Having read the lead ruling prepared and delivered by my learned brother, Yahaya, JCA, I cannot but concur with the reasoning and conclusion reached therein, to the effect , the Applicant's application for bail pending appeal is unmeritorious. I adopt the reasoning and conclusion in question as mine, and accordingly dismiss the application for lack of merit.

No order as to costs.

UZO NDUKWE-ANYANWU, J.C.A.: This is a Motion on Notice brought by the Applicant JOSEPH UGBOR praying the Court to admit him to bail pending the determination of his appeal. The Court of Appeal has the power to grant bail to an Applicant pending an appeal against his conviction. Buwai Vs. The State (2004) 16 NWLR Pt. 899 Pg. 285.

The Court of Appeal will not grant an application for bail pending an appeal unless there are exceptional and unusual reasons why bail ought to be granted to the Appellant.

Granting bail to a convict is a discretionary power that ought to be granted judicially and judiciously by this Court. The Appellant/Applicant has not deposed to the exceptional circumstances that will sway the Court to exercise its discretion.

In the Court below the Applicant did not attend court consistently to take his trial even though he was on bail. 

After conviction, the convict save under exceptional circumstances, has no right at all to bail.

Ojo Vs. Federal Republic of Nigeria (2006) 9 NWLR Pt. 984 Pg.105.

Nothing has been placed before this Court to sway this Honorable Court to exercise its discretion to grant the convict bail pending his appeal. 

I therefore refuse this application for bail pending appeal. I abide by the order as to cost in the lead Ruling.

     Appearances