A. I. Associates & Anor V. Federal Republic Of Nigeria (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling)

FACTS IN BRIEF:

The 2nd appellant/applicant was arraigned before the lower court on charges of criminal breach of trust under Section 312 of the Penal Code; he pleaded not guilty to the charge, was convicted, has appealed, and filed an application for bail on the 31st of March, 2014 before the trial court, which was dismissed for not showing any special exceptional circumstance justifying the grant of the application.

This is an application brought pursuant to Section 28(1) of the Court of Appeal Act (2010 Amendments,), Sections 341(2) and 432 (2) of the Criminal Procedure Code Act, Laws of FCT, and under the inherent jurisdiction of this court. The application is for:

1. An order of this court admitting the 2nd appellant/applicant, now convicted, to bail, pending the determination of his appear filed at the Court of Appeal, Abuja division.
2. And for such further order or orders as this court may deem fit to make in the circumstances.

The GROUNDS for the application are:

1. The 2nd appellant/applicant is a first time offender.
2. The 2nd appellant/applicant may spend the entire sentence during the process of appeal.
3. The 2nd appellant/applicant is a senior legal practitioner and would be of real assistance in preparing the appeal.
4. That the appeal is contestable having regard to the 1st accused who is not a person in law and which sentence was transferred to the 2nd accused.
5. That there are special circumstances to grant bail to the 2nd appellant/applicant.
6. There is a valid notice of appeal filed.
7. Deteriorating health condition of the 2nd appellant/applicant.

The application is supported by a 55 paragraph affidavit deposed to by Celine Amuzie A.(Mrs.); with Exhibits A, B, B1,C,D, D1, E, F, G, H, I, J, and K attached.

The medical report of the 2nd appellant/applicant dated 14th July, 2014, was filed on the 16th of July, 2014, pursuant to the order of this court; and for the purpose of this Ruling it is referred to hereinafter as Exhibit L.

The respondent in opposition to the application for bail filed an eleven paragraph counter affidavit deposed to by Babangida Hamman.

Patrick Ocheja Okolo Esq. learned counsel to the appellant/applicant formulated the following issues for determination by this court:

1. Whether this court can exercise its discretion in granting bail to the 2nd appellant/applicant pending the hearing and determination of his appeal having regard to the circumstances of his case.
2. Whether there is any special or exceptional circumstance arising from the affidavit evidence to warrant the 2nd appellant/applicant bail pending the determination of his appeal at the Court of Appeal Abuja Division.

Hussaina Gambo learned counsel to the respondent formulated two issue of her own for determination by this court as:

1. Whether there is a valid appeal before this court in this case.
2. Whether the 2nd applicant has shown exceptional and unusual reasons why bail pending appeal should be granted.

The respondent’s issue two is an adaptation of the appellant’s issue two; that leaves three issues, on which this application will now be determined; they are for the avoidance of doubt:

1. Whether there is a pending appeal before this court.
2. Whether this court can exercise its discretion in granting bail to the 2nd applicant pending hearing and determination of this appeal, having regard to the circumstances of this case.
3. Whether there are any special or exceptional circumstances shown by the applicant/appellant’s affidavit to warrant the grant of this application.

ISSUE ONE:

Whether there is a pending appeal before this court.

It is submitted for the respondent that by virtue of order 8 Rule 10(3) of the rules of court, an appeal is said to be entered when the record is transmitted to the appellate court and received and entered in the cause list; learned counsel referred this court NIGERIAN NAVY V LABINJO (2012) 17 NWLR part 56 and OGWUGHE V MBA (1994) NWLR part 336 at 75 and urged this court to dismiss this application.