Mohammed Sani Abacha V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

This is an application by Mohammed Sani Abacha (the applicant) for an order admitting him to bail pending the determination of an appeal now pending before this court. The appeal has been fixed for hearing on 9th May, 2002 upon an application for accelerated hearing made by the Attorney-General of Lagos State.

The applicant is one of four persons standing trial in the High Court of Lagos State on an information containing four counts charging him and three others in the first and second counts, respectively, with conspiracy to commit murder and murder contrary, respectively, to Sections 324 and 319 (1) of the Criminal Code, Cap. 32 Laws of Lagos State, 1994; and, charging the applicant alone in the third and fourth counts with being accessory after the fact to murder, contrary to Section 322 of the said Code.

By a motion on notice dated 10th December, 1999 said to be brought pursuant to Sections 167, 340(3) and 221(4) of the Criminal Procedure Law, Cap. 33 Laws of Lagos State and under the inherent jurisdiction of the court, the applicant sought an order quashing the information as regards him on the grounds that the proof of evidence did not disclose prima facie case against him and that the entire information was an abuse of process. On 1st February, 2000 the trial Judge, Kekere-Ekun, J., dismissed the application. The appeal of the applicant to the Court of Appeal from that decision was itself dismissed on 11th December, 2000. Now pending before us is an appeal from the decision of the Court of Appeal.

In the mean time the applicant seeks an order admitting him to bail pending the determination of that appeal on the ground of exceptional circumstances constituted by the facts, as stated in the motion paper that: (i) there is an order staying proceedings in the charge; (ii) this court is the only court currently seized of charges No. ID/43c/99 by virtue of the pending appeal; and (iii) the applicant is seriously ill and is on admission at the National Hospital, Abuja and cannot receive the desired medical attention while in detention.

It is evident that in relation to the question whether a discretion should be exercised to grant the prayer of the appellant or not, only the third of the facts stated above is capable of constituting exceptional circumstance. The first two merely attempted to explain why in the opinion of counsel for the applicant this court is the appropriate venue. Whatever comment may be made hereafter on the appropriateness of the venue, that question should not be of any importance since the respondent had not raised any such issue. The only question that needs be addressed, therefore, is whether sufficient facts have been put before this court to justify the grant of bail.

At the hearing of the application, learned counsel for the applicant emphasised that the application was based on ill-health. It is thus not necessary to range all over the field to consider the multifarious circumstances in which bail may be granted to an accused person. It suffices to note that the considerations that may determine the exercise of discretion to grant bail will often depend on the stage of criminal proceedings at which bail is sought. Different considerations may apply where bail is sought before conviction in the trial court from those which may apply where bail is sought in the appellate court after conviction. In this case bail is sought not at the trial court but in an appellate court before conviction and not by way of appellate review of a discretion exercised by the Court of Appeal.

However, it does seem accepted that whatever the stage at which bail is sought by an accused person, ill-health of the accused is a consideration weighty enough to be reckoned as special circumstance. In Fawehinmi v. The State (1990) 1 NWLR (Pt. 127) 486 one of the circumstances accepted by the Court of Appeal as justification for grant of bail on the ground of special circumstance is ill-health. Rex v. Gott 16 Cr. App R 86 is authority for the view that mere allegation of bad health will not be sufficient as special circumstance for the grant of bail

In matters of discretion previous decisions can only offer broad guidelines. Each exercise of discretion depends on the facts of each case. Notwithstanding that fact, it is right to note that, as a matter of judicial attitude, in the case of Oladele v. The State (1993) 1 NWLR (Pt.268) 249 this court did say (per Olatawura, JSC) at p.308:

It is very unusual for a person accused of murder to be on bail pending trial. Murder is a very serious offence.

Against the broad statement of principles as above, I turn to a consideration of the facts on which the applicant relies.

There have been filed two affidavits in support of the application and two against. In support, Mr. Simon Amobeda, a legal practitioner on 28th December, 2001 deposed to the facts that the applicant had been in detention at Kirikiri maximum security prison, Apapa on the order of Kekere-Ekun, J., since October 1999, to await trial for offences contained in charge No. ID/43c/99; that because of his detention it had become impossible for him to have access to good Medicare and that this had greatly affected his health; that he developed some complications sometime in May 2000; that the prison clinic lacked equipment for proper diagnoses; that his poor state of health had continued to worsen and that he was suffering from serious kidney problem. It is stated that the applicant was on admission at the National Hospital for Women and Children where he was under going intense Medical Investigation’. There were attached to the affidavit, among others, (1) a letter addressed by the Assistant Controller Prisons, Kuje Prison, F.C.T. to the Human Rights Violation Investigation Commission stating that the applicant was on admission for acute malaria, upper-respiratory track infection and hay fever and was consequently unable to appear before the Commission; and (2) a letter dated 7th November, 2001 written by Dr. Priye Briggs to the Controller-General, Nigerian Prisons Service intimating him of the deteriorating medical condition of the applicant and indicating the need to investigate the left kidney vis-a-vis the stones.

A Counter-affidavit sworn to by Mrs. Olabisi Ogungbesan, Assistant Director of Public Prosecutions in the Lagos Ministry of Justice, had attached to it a letter dated 17th January, 2002 written by the Chief Medical Director of the National Hospital Abuja in response to information sought by the Director of Public Prosecutions, Lagos State Ministry of Justice concerning the medical condition of the applicant. The salient portion of the letter is as follows:

Alhaji Mohammed Sani Abacha was first admitted at this hospital for investigation for a minor ailment on the 10th December, 2001 and was discharged on the 21st December, 2001.