Mrs. Mubo Ikotun V. Federal Republic Of Nigeria & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling)

This ruling is premised on a motion on Notice brought by the appellant/applicant dated 23rd February, 2015 filed on the same day praying the court for the following orders:

1. AN ORDER of this Honourable Court admitting the Appellant to Bail either unconditionally or upon such reasonable conditions which the Honourable Court may deem necessary pending the hearing and determination of the Appeal filed by the Appellant against the judgment of the High Court of Lagos State in Charge No. LCD/17/2007 delivered by His Lordship HON. JUSTICE O.A. WILLIAMS on Thursday the 9th day of October, 2014 wherein the Appellant was convicted and sentenced on the 28th November 2014.

The grounds upon which the application is brought consist of 12 paragraphs which states as follows:

1. That the Applicant, together with four (4) others was arraigned before the Lagos State High Court Igbosere, Lagos State, whereat the Court pronounced judgment convicting and later sentenced the Applicant.
2. That the Applicant being dissatisfied with the judgment delivered at the Lagos State High Court by his Lordship, HONOURABLE JUSTICE O.A. WILLIAMS, on Thursday the 9th day of October, 2014, wherein the Applicant was convicted and sentenced on the 28th November 2014, filed a Notice of appeal on the 2nd day of December, 2014.
3. That the Notice of Appeal of the Applicant raises serious issues of law and facts which the Court need to properly consider in order to do justice in this case.
4. That the Applicant has been in prison custody at the Kirikiri Minimum Security Prison, Kirikiri, Lagos since 2014, Bail pending Appeal having been refused by the Lordship, HON. JUSTICE O.A. WILLIAMS of High Court of Lagos State on the 10th day of February, 2015.
5. That Unless the Applicant’s application for bail pending appeal is timeously heard and determined, the Applicant is likely to serve the entire or a substantial part of the sentence before this Application is heard, thus rendering this application meaningless and nugatory.
6. That should the Applicant succeed on appeal, the eventual outcome of the Appeal would have been rendered nugatory if the Applicant has already served the entire or a substantial part of the sentence before the Appeal against the judgment is heard.
7. That Applicant’s precarious health condition requires strict medical attention which she cannot have access to while in prison custody, because the prison’s medical facilities are not adequate.
8. That the Applicant is a first offender without previous criminal records and the Bail of this Court will enable her prepare for her defence properly.
9. That if bail is granted to the Applicant, he will not jump Bail of this Honourable Court but rather be in a position to defend his case.
10. That Applicant has exhibited through Affidavit evidence and facts showing special and exceptional reasons why the Honourable court should not refuse her Bail.
11. That the Honourable court has the inherent power and jurisdiction to exercise its discretion in favour of the Applicant.
12. That the Applicant is already serving part of the punishment/terms without final determination of this case.

The motion is supported by an affidavit of 30 paragraphs and Exhibits A01, A02, A03, A04, A05, A06, E, F, G, H and I and affidavit of urgency. It is also accompanied by a written address of learned counsel in support of the motion.

There is a further affidavit of 12 paragraphs with Exhibits A01, A06, A02, A03 and A04 attached. Applicant relied on the Exhibits as learned counsel adopted the written address in making the application.

The Respondent opposed the motion and filed a counter affidavit of 29 paragraphs with Exhibit ‘ICFC. I’ attached. It is also accompanied by a written address of the learned counsel for the Respondent which was adopted after relying on the counter affidavit.

The applicant formulated a sole issue for determination namely:

Whether the Honourable court can in the circumstances of this case exercise its discretion in favour of the Applicant and admit her to bail pending appeal.

The Respondent on its part formulated the following issue:

Whether or not the Appellant has met and fulfilled the criteria set in law for the exercise of the Honourable Court’s discretion in her favour admitting her to bail pending the determination of the appeal.

The two issues are basically the same, questioning whether the appellant/applicant is entitled to the court’s discretion in granting her bail pending appeal. The court shall adopt the issue formulated by the applicant.

The appellant/applicant in proffering arguments in support of the issue for determination conceded to the legal position that bail pending appeal is at the discretion of the court and that guiding principles have been settled in REX v. THEOPHILUS ADENUGA TUNWASHE (1935) 2 WACA 236; FAWEHINMI v. STATE (1990) 1 NWLR (Pt. 127) 486 at 494; OKOROJI v. STATE (1990) 6 NWLR (Pt. 157) 509; ABIOLA v. FEDERAL REPUBLIC OF NIGERIA (1993) NWLR (Pt. 370) 155; MOHAMMED v. OLAWUNMI (1993) 4 NWLR (Pt. 287) 254 at 275; SAID JAMMAL v. STATE (1992) 8 NWLR (Pt. 257) 85 all these settled the following principles:

(a) Bail to be granted in exceptional circumstances.

(b) Where hearing of appeal is likely to be unduly delayed.