In The Court of Appeal

(Lagos Judicial Division)

On Thursday, the 6th day of November, 2008

Suit No: CA/L/465M/08

Before Their Lordships

 Between

 And

ADAMU JAURO, J.C.A.(Delivering the Lead Ruling): This is an application for bail pending the hearing of an appeal. The application which was dated and filed in this court on the 3rd day of June, 2008 together with an Affidavit of Urgency, prays this court for the following orders:

"1. Admitting the Applicant to bail pending the final determination of the appeal filed against the judgment of the High Court of Lagos delivered on 21/4/2008 by Justice M.D. Obadina in charge NO.ID/13C/2007.

2. And for such further or other Orders as this Honourable Court may deem fit to make in the circumstances,"

The application which was made pursuant to Section 28(1) of the Court of Appeal Act; Laws of the Federation of Nigeria' 2004 and Order 7 Rule 1 of the Court of Appeal Rules 2007, was supported by an affidavit of 31 paragraphs deposed to by Adedapo Adesoji, a litigation officer in De-Remedium Chambers, solicitors to the applicant. The affidavit in' support of the application had eight annextures marked exhibits 'A' to 'H'. An eleven paragraphs reply affidavit to the respondents counter affidavit sworn to by one Adeyinka Adesanwo of the same De-Remedium Chambers, was filed on 24th June, 2008 in further support of the application. The reply affidavit was also accompanied with five annextures marked exhibits 'I' to 'M'. In opposition to the 'application, the respondents filed a 14 paragraphs Counter affidavit sworn to by Abubakar Omede, an Assistant Superintendent of Police attached to the Economic and Financial Crimes Commission, 18B Awolowo Road Lagos, The counter affidavit was accompanied with an annexture marked exhibit EFCC 1, being the notice of cross appeal.

The facts giving rise to this application are briefly stated thus. The applicant herein Mr. Ogundimu Munir, is a Chief Executive Officer in the Cabinet Office of Lagos State Government at the Secretariat Alausa Ikeja. He was arraigned before the Lagos State High Court on an eleven counts charge of obtaining money by false pretences by sale of a plot of land at Isheri North Scheme to one Fashola Shamsiddeen, Forgery and uttering Lagos State Government official receipts and land allocation papers as well as Deed of assignment, and making and uttering false declaration on Oath.

The said offences being contrary to Section 1(3) of Advance Fee Fraud and other offences Act NO.13 of 1995, as amended and Sections 467, 468 and 192 of the Criminal Code, Laws of Lagos State 2003. Upon the conclusion of the trial, the applicant was convicted on eight counts of the charges and sentenced to three years on each count, but the sentences to run concurrently and was further ordered to refund N1.5 Million to his victim, the complainant. Apparently aggrieved by the said decision, the applicant lodged in an appeal challenging same in this court. The application for bail pending appeal filed by the applicant was refused in the High Court, hence the present application.

On realizing the contentious nature of the application, this court made an order for written addresses. Both parties filed in their written addresses, which were duly identified and adopted on the date the application was moved. In his address, learned counsel for the applicant stated that this court has the power to grant bail pending appeal under Section 28(1) of the Court of Appeal Act. Learned counsel submitted that the grant of bail pending appeal is not made as a matter of course but subject to special circumstances as the presumption of innocence is no longer in favour of the applicant. In support of this submission learned counsel relied on the cases of Madike V. The State (1992) 8 NWLR (pt. 257)76 at 92-97, Jammal V. The State (1996)9 NWLR (Pt. 472)352 at 366. Obi V. The State (1992)8 NWLR (Pt. 257)76 at 83 and Akunnia V. A.G. Anambra State (1977) SC 161.

As to what constitutes special circumstances, learned counsel submitted that the following situations have been considered and pronounced upon by the courts as constituting special circumstances, namely:-

(i) Where the applicant will be assistance for the preparation of his appeal and need for consultation with his counsel, as in R.V. Waxman (1931) 22 CAR 81.

(ii) Where to refuse the application will put the applicant health in serious jeopardy, and in support of his ground, reference was made to Fawehinmi vs. The State  (1990) 1 NWLR (Pt. 127) 486.

(iii) Where the sentence is contestable or substantial grounds of appeal with the possibility was made on the cases of Fawehinmi vs. The State  (Supra) and R.V. Phillip Wise (1924) 17 CAR 17.

(IV) Where the applicant will serve the whole or substantial portion of this ground reference was made to following:- R.V Tunwase (l935) WACA 236 and Okoroji V. State (1990)6 NWLR (Pt. 157)509 and.

(v). Where the applicant had been of good behavior and had no previous criminal record.

Having stated the general grounds as captured above, learned counsel relied on the last three i.e. numbers (iii) - (v) in support of this application. To that effect, learned counsel contended that the Notice, of Appeal, exhibit b has raised substantial questions of law with the probability of his appeal succeeding. Learned counsel submitted that the ingredients of the offences charged were not proved beyond reasonable doubt, hence the arraignment and conviction was unconstitutional having violated Section 36(8) and (2) of the 1999 Constitution. In concluding on this ground, learned counsel contended that the legal advise, exhibit 'D' has exonerated and absolved the applicant from any criminal wrong. On the issue of the applicant being previously of good behaviour, learned counsel relied on paragraphs 10 and 11 of the affidavit in support which he said have not been countered by the respondent. On the last ground, relating to serving substantial portion of the sentence before the appeal is heard, learned counsel relied on paragraphs 5, 12,13, 14 and 15 of the affidavit in support and paragraphs 5, 6, 7 and 8 of the reply affidavit. Learned counsel further relied on exhibits 'C' and 'K' being the cause list of this court and exhibits 'L' and 'M' the letters sent to the registry of the lower court. Learned counsel finally relied on paragraph 13(g) of the counter affidavit, which he contended has supported his case and urged this court to grant the application.

In his address, learned counsel for the respondent restated the position of the law to the effect that post conviction bail is only granted in special circumstances. In support of this submission learned counsel relied on the cases of Jammal V. State (supra) and Obi V. State (supra). Learned counsel further contended that the notice of appeal does not contain substantial grounds of law with the probability of the appeal succeeding. In support of this contention, learned counsel relied on the case of Enebeli V. Chief of Naval Staff (2000)9 NWLR (Pt. 671)119. Learned counsel further argued that the applicants only listed the general principles for the grant of bail pending appeal, without indicating the relevant one to the application. Consequently learned counsel submitted that the cases of R. V. Waxman (supra) and Fawehinmi V. The State (supra) is irrelevant and inapplicable to this application. Learned counsel further argued that, to say substantial portion of the sentence will be served before the appeal is heard is only a speculation and probability. Learned counsel further contended that this court can order a departure from the rules and order accelerated hearing in order to minimise delay. In concluding, learned counsel urged the court to refuse and dismiss the application and in its place make an order for accelerated hearing of the substantive appeal.

This application prays for an order of this court admitting the applicant to bail pending the determination of his appeal. The application was brought pursuant to Section 28(1) of the Court of Appeal Act 2004 which provides thus:- "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."

Undoubtedly this court has the power and discretion to grant bail pending appeal based on the aforementioned provision, but such discretion like any other discretion must be exercised judicially and judiciously. Consequently the applicant must place enough materials before the court to warrant the exercise of the discretion in his favour. See Williams V Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 153. The grant of bail pending appeal is therefore at the discretion of the court depending on the special facts, circumstances and severity of the offence.

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 determination of his appeal. In Rex V. Theophilus Adenuga Tunwashe (935)2 WACA 236 it was held that:-

"The principles upon which an applicant will be admitted to bail pending his appeal have been well settled. In order to adjudicate on the question of bail, it is useful to see if there is any prospect of success of the appeal.

It has frequently been laid down that the court will not grant an application unless there are exceptional and unusual reasons. (See Fawehinmi V. The State (1990)1 NWLR (Pt. 127)486 at 494.

In Tunwashe's case the West African Court of Appeal (WACA), after a careful consideration of reported cases came to a conclusion:-

(i). that bail will not be granted pending an appeal save in exceptional circumstances or 

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

(ii). that in dealing with the latter class of the case, the court will have regard.

(a). not only to the length of time which must elapse before the appeal can be heard, but also to

(b). the length of the sentence to be appealed from and further

(c). that the two matters will be considered in relation to one another.

In other words in the absence of special circumstances, bail will not be granted unless, a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard,"

See the cases of Ani V. The State (2004)7 NWLR (Pt. 872) Pg. 249 and R. V. Tunwashe (1935)2 WACA 236. Numuoja V. C.OP. (1968) NWLR 84, and Okoroji V. State (1990)6 NWLR (Pt. 157) P2. 509.

It is therefore, much easier to obtain bail pending or during trial than after a conviction. This is so, because trial bail being a constitutional right, the burden is squarely on the prosecution who oppose bail to prove that the facts relied upon by the applicant do not warrant the granting of the application. This is because there is a constitutional presumption in favour of the liberty and innocence of the individual. See Eyu V. The State (1988)2 NWLR (Pt. 78)602. But in the case of post conviction bail, the position is quite different. The burden, this time around is on the applicant because the constitutional presumption of innocence is gone by virtue of the conviction. So also is the presumption in favour of liberty. See Madike V. The State. (1992) 8 NWLR (Pt. 257)85 and Enebeli V. Chief of Naval Staff (2000)9 NWLR (Pt. 671) Pg. 119 at 124. Every application for bail pending appeal by a convict who is sentenced to a term of imprisonment is therefore considered on its peculiar and special facts and circumstances. See Okoroji V. State (1990)6 NWLR (Pt. 157)509.

The question now for consideration and determination in this application is whether the appellant/applicant has discharged, the burden placed on him to enable this court exercise the discretionary power vested in it under Section 28(1) of the Court of Appeal Act 2004. 

The law is well settled, that 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 he granted to the applicant. In determining exceptional or special circumstances, the courts take into consideration the following:-

(1). If the applicant being first offender had previously been of good behaviour.

(2). If substantial grounds of law are involved in the appeal, it is useful to see if there is any prospect of success on appeal or where a sentence is manifestly contestable as to whether or not it is a sentence known to the law, bail should be granted. See Obi V. The State (1992)8 NWLR (Pt. 257) Pg. 76. Buwai V. The State (2004)16 NWLR (Pt. 899) 285, Fawehinmi V. The State (990)1 NWLR (Pt. 127) 486 at 498 - 499, and R. V. Phillip Wise (1924)17 CAR 17.

(3). Where having regard to the very heavy congestion of appeals pending in the courts, a refusal of bail to the applicant will have the result of the whole or a considerable portion of the sentence imposed on the applicant being served, before the applicatnt's appeal can be heard. R. V. Tunwashe (1935) WACA 236, Okoroji V. The State (1990) 6 NWLR (Pt. 157), Jammal V. State (supra).

(4). Where the applicant will be of assistance for the preparation of his appeal and where the appeal is so complex that there is obvious need for close consultation between the applicant and his counsel. In determining the complex nature of the appeal, regards must also be had to the nature of the offence, number of witnesses taken and the quantum of documents admitted in the course of trial. See R. V. Isaac Waxman (931)22 CAR 81.

(5) Where the application is based on ill health and the applicant cannot get the necessary treatment in prison or where the machine used in treating the applicant is not movable, thus cannot be moved to prison. In such circumstance and in order not to put the applicant's health in serious jeopardy, bail will be granted. See Fawehinmi V. The State (supra), Jamal V. State (supra). However mere allegation of bad health and no more will not amount to exceptional circumstance. See R. V. Gott 16 CAR 56.

Before considering the above conditions for admitting a convicted person serving a term of imprisonment to bail pending determination, of his appeal, it is necessary or imperative to ensure that the following preliminary conditions have been complied with, namely:-

(a). that the applicant has indeed, infact lodged an appeal to the Court of Appeal which is pending

(b). has complied with the conditions of appeal imposed, and these will show the seriousness of his application, and

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

See Jammal V. State (1996)9 NWLR (Pt. 472)352 at 360. Paragraphs 7 and 10 of the affidavit in support of the application and paragraph 13 (d) of the counter affidavit of the respondent have clearly established that the above listed preconditions have been satisfied."

A consideration will now be made on the merit of the application. I will however start with the ground relating to serving the whole or substantial part of the sentence before the appeal is heard. The cumulative total number of years the applicant is to serve in prison is 3 years, because of the concurrent nature of the sentence. In support Of this ground are paragraphs 5,12,13,14 and 15 of the affidavit in support and paragraphs 5, 6, 7 and 8 of the reply to counter affidavit. In further support and annexed to these affidavits are exhibits C, K, Land M. The averments in the two affidavits are to the effect that because of the difficulty and delay in the compilation of records in the lower court and the congestion of appeals in this court, the applicant might exhaust the 3 years sentence or substantial part of it before the appeal is heard. A close study of Exhibits C and K, being cause list of this court for the weeks of 5th to 8th May, 2008 and 9th to 12th June, 2008, will show that the earliest appeals listed for hearing during, the period covered by the two exhibits are mostly 2005 and 2006 appeals. Exhibits Land M is letters written by the applicant's solicitors to the registry of the lower court in relation to compilation, settlement and transmission of records.

The respondent countered these averments to the effect that the applicant can compile records to expedite hearing the appeal and the congestion of appeals complained by the applicant is merely speculative. I however find paragraph 13(g) of the counter affidavit intriguing and amazing and is hereby reproduced thus:

13(g)

"That as a matter of fact several matters involving the Respondent have gone on appeal and it has taken in most cases barely 2 years to dispose of the appeals, as counsel had recourse to departure from the Court of Appeal Rules"

If the above averment is anything to go by, it has only strengthened the case for the applicant because it means, it will take about 2 years before the appeal is determined. If the 2 years for determination of appeal as stated in paragraph 13(g) of the counter affidavit is considered in relation to the 3 years sentence, the two years are obviously substantial part of three years.  Furthermore it is evident from exhibits C, K, L and M and the averments in the affidavit relating to the compilation of records, that the hearing of the appeal is likely to be unduly delayed. Consequent upon the foregoing, if bail is not granted the applicant may spend a greater proportion, if not all the period of his sentence before his appeal is ripe for hearing. On this ground alone this application succeeds. See Ani V State (supra) Okoroji V State (supra), Obi V State (supra) and Madike V State (supra).

  Accordingly the applicant is granted bail in the sum of N1, 000, 000.00 (One Million Naira) only, with two sureties each in the sum of N500, 000.00. The two sureties must swear to an affidavit of means and are resident and real property owners within the jurisdiction of the High Court of Lagos State and must produce evidence of ownership of the real property in Lagos.

DALHATU ADAMU, J.C.A.: I have had a preview of the lead ruling of my learned brother ADAMU JAURO, JCA in this application to admit the appellant/applicant to bail. I am in full agreement with the lucid application of the principles of law applicable to the said application and the conclusion reached in the said ruling granting the application which I hereby adopt as mine.

The grant or otherwise of bail (both pending trial or pending an appeal) is discretionary to the court faced with such an application which like all other discretions is required to be exercised judiciously and judicially- see SULAIMAN Vs. COP PLATEAU STATE (2008) 8 NWLR (Pt. 1089) 298. ALH. BELLO USMAN V. STATE (2004) All FWLR (Pt. 227) 540; ORJI V. FRN (2007) 18 NWLR (Pt 1050) 64.

In order to satisfy the court an applicant for bail pending an appeal (which is not normally granted as a matter of course) must in his affidavit evidence show some special circumstances which entitle him to such an exercise of discretion in his favour. For this purpose and like all other discretionary remedies, each case must be considered by the court on its own merit -see ADAMU Vs. FRN (2008) ALL FWLR (Pt. 425) 1796 at P.1802

In the present case and upon due consideration of the facts deposed to in the supporting affidavit which have not been controverter (or affectively countered) I am of the firm view that the applicant has established his entitlement to such an exercise of discretion in his favour by this court as per the lead ruling. Some of such facts which have not been countered are as follows:-

(1) that the applicant is a first offender and not an ex-convict or a habitual criminal who is likely to commit similar offence if admitted.

(2) That he will not jump bail if granted because he did not do so or attempt to do so at his trial and as a civil servant or public servant who was serving in the cabinet office in Lagos State he is not likely to abscond.

(3) That under our adversary system and the rules of practice he is likely to finish serving his term (or substantial part of it) before his appeal is heard. The said term being three years to run concurrently. The lame reason given by the respondent in countering this fact has been faulted in the lead ruling based on the concession that the maximum or minimum period for the disposal of an appeal by this court is only 2 years. I agree that 2 years out of 3 years should be regarded as substantial as rightly held by my learned brother.

For my above consideration and the more detailed consideration in the lead ruling, I also hereby grant the application and admit the applicant to bail under the same condition as imposed in the lead ruling.

PAUL ADAMU GALINJE, J.C.A.: I read in advance the ruling just delivered by my learned brother Jauro, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.

I therefore grant the application in terms of the orders made in the lead ruling.

     Appearances