NWOSU v. FRN (2021)LCN/15538(CA)
In The Court Of Appeal (LAGOS JUDICIAL DIVISION)
On Wednesday, July 14, 2021
CA/LAG/PRE/ROA/CR/158/21(R)
Before Our Lordships:
Fatima Omoro Akinbami – Justice of the Court of Appeal
Frederick Oziakpono Oho – Justice of the Court of Appeal
Abdullahi Mahmud Bayero – Justice of the Court of Appeal
Between
OKEY NWOSU – Appellant(s)
And
FEDERAL REPUBLIC OF NIGERIA – (Respondent(s)
Appearances:
Rotimi Jacobs (SAN)]
G.O. Balogun ] …For Appellant(s)
and
S.A. Ogundele (For Respondent(s)
Abdullahi Mahmud Bayero, J.C.A. –
(Delivering the Leading Judgment):
Before this Honourable Court is an application by way of Motion on Notice filed on 24/02/2021 and brought pursuant to Order 17 of the Court of Appeal Rules 2009, Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the inherent jurisdiction of this Court.
An Order of this Honourable Court admitting the Applicant to bail pending the determination of the Appeal filed against the Judgment of the High Court of Lagos State delivered by I. A. Okunnu J on 5/01/2021 in Charge No. ID/115c/2011.
The grounds for the application are stated therein. In support of the Motion is a 16 Paragraph affidavit deposed to by one Kate Nwosu of Number 1A, Lugard Avenue, Ikoyi, Lagos State with 9 (nine) Exhibits marked as Exhibits A, B, C, D, E, F, G, H & I.
In opposing the motion of the Appellant/Applicant, the Respondent filed a counter affidavit of 7 paragraphs on 15/06/2021, deposed to by one Oke Oluwatobi of Number 50 Queen Street, Alagomeji – Yaba, Lagos State with one annexure marked as Exhibit RJ 1, further counter affidavit filed on 21/06/21 and a written address on the same date. The Applicant also filed further affidavit on 16/06/21 with two annexures and further and better affidavit filed on 22/06/21 with two Exhibits. Upon receipt of the Respondent’s address, the Applicant filed a reply on 22/06/21.
In the Applicant’s written address, a sole issue is distilled for determination thus:-
“Considering the facts and circumstances of this case viz a viz the applicable principles of law whether the Applicant is not entitled to the grant of this application.”
According to Counsel, the Applicant has placed sufficient and succinct facts before this Court to establish the existence of extra ordinary circumstances to justify the exercise of the discretionary powers of the Court in his favour. Thus:-
1) The failure of the trial Court to release the case file for the compilation of the record of Appeal for over five months since the conviction of the Applicant and with no hope in sight thereby making the Applicant spend a substantial part of the three years imprisonment in jail.
2) The requirement of special medical attention of Applicant which is as a result of the Applicant’s life threatening health challenges.
3) The likelihood that the Applicant would have completely served his jail term before the determination of his Appeal and the eventual exhaustion of his right of Appeal as guaranteed under the circumstances. Reliance was placed on Jammal vs. The State (1996) 9 NWLR (PT. 472) 352 at 359-360; Okoroji vs. State (1990) 6 NWLR (Pt. 157) 509 at 512-513 and Madike vs. State (1992) 8 NWLR (Pt. 257) 85 at 95.
At Paragraphs 15(a), (b), (c), (d) and (e) of the supporting affidavit it was deposed to thus:-
(a) “There exist special circumstances warranting the Applicant’s application before this Honourable Court.”
(b) “That the Applicant is greatly ill and is in urgent need of medical treatment and attention. The Applicant herein, has for a long time been suffering from various ailments and hypertension, in which his medical Doctors have been managing over the years to help him live a normal life. The Applicant is suffering from hypertensive heart disease, cervical Spondylosis with Radiculopathy, borderline type 2 diabetes mellitus and Meniere’s disease.”
(c) “That the state of health of the Applicant needs urgent medical attention and treatment. The medical report evidencing the state of health of the Applicant is hereby annexed and marked as Exhibit H.”
(d) “That the Applicant’s health has greatly deteriorated since being convicted and sentenced to jail at the Nigerian Correctional Service, Ikoyi and he is currently on admission at the Police Hospital where he was rushed to by the Prison authorities.”
(e) “That the Nigerian Correctional Service, Ikoyi lacks the medical facilities to handle his peculiar health needs.”
In the instant appeal, one of the special circumstances relied on by the applicant is that of bad health. Ill health of a convict may constitute a special circumstance in granting bail pending Appeal, Exhibit H the medical report annexed to the supporting affidavit states that the applicant is being managed by the Police Hospital Falomo, Ikoyi, Lagos, the report does not show that the health status of the Applicant is life threatening as claimed by his Counsel in Paragraph 4.4 of his written address. The medical report further stated that the Applicant is on certain medications with regular reviews with the cardiologist and undergoes daily physiotherapy sessions.
After a thorough appraisal of the Motion on Notice with the supporting affidavit, the Further affidavit, the Further and Better affidavit, the Applicant’s written address and the Applicant’s Reply address in opposition to the Respondent’s written address on one hand; the Respondent’s Counter affidavit, the further Counter affidavit and the Respondent’s written address in response to the Appellant/Applicant’s motion on notice on the other hand, the Appellant/Applicant’s application for bail is unmeritorious, same is hereby refused. It is accordingly dismissed. No cost awarded. Parties to bear their respective costs.
Fatima Omoro Akinbami, J.C.A.: I have read in advance the Ruling of my learned brother, Abdullahi Mahmud Bayero, JCA, where the facts giving rise to this appeal, and the issues in contention have been set out and determined. I agree with my learned brother’s reasoning and his conclusion that the Appellant/Applicant’s application for bail is unmeritorious, thereby refusing it. I also refuse and dismiss the application.
Frederick Oziakpono Oho, J.C.A.: I had the opportunity of reading the draft of the Ruling just delivered by my learned Brother, ABDULLAHI MAHMUD BAYERO, JCA and I am in agreement with the reasoning and conclusions in dismissing the Application as lacking in merit. I subscribe to the consequential orders made in the Ruling.
