Joseph Ugbor V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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;