Adeyemo Abiodun & Ors V. Federal Republic Of Nigeria (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH (Delivering the Lead Ruling)

The appellant/applicant, a Mr. Adeyemo Abiodun, is by this application praying for an order of the court for a departure from the Rules of this Court under order 20 rule 1 (2) of the Court of Appeal Rules, 2011, and for expeditious determination of the appeal and/or for accelerated hearing of the appeal. By a separate motion, the appellant/applicant also prayed for an order admitting the appellant/applicant to bail pending the hearing and determination of the appeal.

The affidavit evidence in support of the application attributes it to the ill-health of the applicant who is said to be hypertensive and is also suffering from glaucoma which has caused the loss of his right eye, consequently the court should allow the appellant/applicant to rely on the main and supplementary record of appeal already compiled by the appellant/applicant’s counsel and duly certified and transmitted by the registrar of the court below to the registry of this court on 26-6-13 and 10-7-13, respectively, to be used for the determination of the appeal at the earliest opportunity.

Reliance was placed by the appellant/applicant on the medical reports in Exhibits JA1 and JA5 together with the three affidavits for the contention that the ill-health of the applicant warrants the granting of bail pending his appeal vide the cases of Munir v. Federal Republic of Nigeria (2009) 16 NWLR (pt.1168) 481 at 497 – 498, Abacha v. The State (2002) 3 S.C. 53 and Fawehinmi v. The State (1990) 1 NWLR (pt. 127) 487.

It was also contended by the appellant/applicant that the grounds of appeal, especially grounds 1, 5 and 6 thereof in the notice of appeal filed on 03-07- 2013, raise substantial and recondite issues of law that warrant the granting of the application for bail pending appeal vide Munir (supra) and Fawehinmi (supra); consequently the appellant/applicant has shown exceptional and special circumstances for a grant of the application for bail, which should be granted accordingly.

The respondent opposed the motion with a counter affidavit of eight paragraphs to argue that the prayer for accelerated hearing of the appeal is unnecessary as the Court of Appeal Practice Directions, 2013 already make statutory provision for the accelerated hearing of a criminal appeal; that the record of appeal compiled and transmitted was made in the absence of the respondent contrary to Order 8 rule 2 of the Court of Appeal Rules, 2011; that the respondent intends to file a cross appeal therefore the prayer for a departure from the Rules should not be granted; and that the appellant’s brief of argument has already been filed, therefore it is superfluous to grant the application for a departure from the Rules.

The respondent contended in respect of the motion for bail pending appeal that having regard to the counter affidavit of eight (8) paragraphs together with the entry of the appeal in the registry of this Court, as well as the fact that the order of the court below alluded to by the appellant/applicant in paragraphs 32, 33 and 34 of his affidavit to the effect that the prison authority are to ensure that the ill-health of the appellant/applicant is attended to, there is no special or exceptional circumstance for granting the motion for bail pending appeal; all the more so a similar application at the court below was abandoned by the appellant/applicant who should not be heard on the present application for bail pending appeal, as the remedy open to the appellant/applicant is to go back to the court below to move the application which, if refused by the court below, the appellant/applicant can approach this court for bail pending appeal.

The respondent also contended that the appellant/applicant cannot, without withdrawing the first notice of appeal, rely on the second notice of appeal vide paragraph 7 of the Court of Appeal Practice Directions, 2013, therefore the application for bail pending appeal should be dismissed.

Order 20 rule 2 of the Court of Appeal Rules, 2011, (the Rules of the Court) permits the Court to direct a departure from the Rules of the Court in any way this is required in the interest of justice, while rule 3 thereof allows the court in an exceptional circumstance and in the interest of justice to waive compliance by the parties with the Rules of the Court.

Criminal appeals are to be given priority by way of accelerated hearing for the purpose of fast-tracking their determination at the earliest opportunity as complemented by paragraphs 2(a) and 3(a)(i) of the Court of Appeal Practice Directions, 2013. In the present case, the main record of appeal and the supplementary record of appeal were compiled on behalf of the appellant/applicant by his learned counsel and was caused to be transmitted to the registry of this Court by the registrar of the court below on 26-06-2013 and 10-07-2013, respectively.

The quarrel of the respondent who placed reliance on Order 8 rule 2 of the Rules of the Court is that it was not invited by the court below to participate in the compilation of the record of appeal. Order 8 rule 2 of the Rules of the Court is grouped under part 2 of the said Rules dealing with Civil Appeals which starts with Order 6 thereof, so it is inapplicable to the present application which arose from a criminal trial which is categorised under part III of the Rules of the Court, starting with Order 17 thereof. And, Order 17 rules 7 and 9(1) thereof read together clearly shows that the preparation of the record of appeal in a criminal case is the sole responsibility of the registrar of the court below who does not require to summon any of the parties for the preparation of the record of appeal.

The contention of the respondent that the application for departure from the rules is unnecessary is not well taken, as the intention of the rule of court is to quicken the pace of appellate criminal justice, therefore to deny a party of it would be untenable and contrary to the letter and spirit of the Court of Appeal (Practice Directions) 2013 that has been put in place as a facility to eliminate the scandalous delay in the administration of appellate criminal justice.

I do not, with respect to learned counsel for the respondent, appreciate the argument that the intention of the respondent to file a cross appeal should forestall the progress of the appellant/applicant’s appeal.

Because a cross-appeal is an appeal in its own right like a counter-claim which may proceed on its own without necessarily being tied to the fortunes of the main appeal. So it is not right to hold the hand of the clock for the progress of a substantive appeal on account of the prospect of a respondent filing a cross-appeal, in my view. Accordingly, I agree with the learned senior counsel for the appellant/applicant that this is a veritable occasion or instance to accelerate the hearing of the appeal on the main record of appeal together with the supplementary record of appeal prepared by the appellant/applicant and duly certified by the registrar of the court below who caused them to be forwarded to the registry of this Court on 26-6-13 and 10-7-13 respectively.