Ogundimu Munir V. Federal Republic Of Nigeria (2008)

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ADAMU JAURO, J.C.A.

This is an application for bail pending the hearing of an appeal. The application which was dated and filed in this court on the 3rd day of June, 2008 together with an Affidavit of Urgency, prays this court for the following orders:

“1. Admitting the Applicant to bail pending the final determination of the appeal filed against the judgment of the High Court of Lagos delivered on 21/4/2008 by Justice M.D. Obadina in charge NO.ID/13C/2007.

2. And for such further or other Orders as this Honourable Court may deem fit to make in the circumstances,”

The application which was made pursuant to Section 28(1) of the Court of Appeal Act; Laws of the Federation of Nigeria’ 2004 and Order 7 Rule 1 of the Court of Appeal Rules 2007, was supported by an affidavit of 31 paragraphs deposed to by Adedapo Adesoji, a litigation officer in De-Remedium Chambers, solicitors to the applicant. The affidavit in’ support of the application had eight annextures marked exhibits ‘A’ to ‘H’. An eleven paragraphs reply affidavit to the respondents counter affidavit sworn to by one Adeyinka Adesanwo of the same De-Remedium Chambers, was filed on 24th June, 2008 in further support of the application. The reply affidavit was also accompanied with five annextures marked exhibits ‘I’ to ‘M’. In opposition to the ‘application, the respondents filed a 14 paragraphs Counter affidavit sworn to by Abubakar Omede, an Assistant Superintendent of Police attached to the Economic and Financial Crimes Commission, 18B Awolowo Road Lagos, The counter affidavit was accompanied with an annexture marked exhibit EFCC 1, being the notice of cross appeal.

The facts giving rise to this application are briefly stated thus. The applicant herein Mr. Ogundimu Munir, is a Chief Executive Officer in the Cabinet Office of Lagos State Government at the Secretariat Alausa Ikeja. He was arraigned before the Lagos State High Court on an eleven counts charge of obtaining money by false pretences by sale of a plot of land at Isheri North Scheme to one Fashola Shamsiddeen, Forgery and uttering Lagos State Government official receipts and land allocation papers as well as Deed of assignment, and making and uttering false declaration on Oath.

The said offences being contrary to Section 1(3) of Advance Fee Fraud and other offences Act NO.13 of 1995, as amended and Sections 467, 468 and 192 of the Criminal Code, Laws of Lagos State 2003. Upon the conclusion of the trial, the applicant was convicted on eight counts of the charges and sentenced to three years on each count, but the sentences to run concurrently and was further ordered to refund N1.5 Million to his victim, the complainant. Apparently aggrieved by the said decision, the applicant lodged in an appeal challenging same in this court. The application for bail pending appeal filed by the applicant was refused in the High Court, hence the present application.

On realizing the contentious nature of the application, this court made an order for written addresses. Both parties filed in their written addresses, which were duly identified and adopted on the date the application was moved. In his address, learned counsel for the applicant stated that this court has the power to grant bail pending appeal under Section 28(1) of the Court of Appeal Act. Learned counsel submitted that the grant of bail pending appeal is not made as a matter of course but subject to special circumstances as the presumption of innocence is no longer in favour of the applicant. In support of this submission learned counsel relied on the cases of Madike V. The State (1992) 8 NWLR (pt. 257)76 at 92-97, Jammal V. The State (1996)9 NWLR (Pt. 472)352 at 366. Obi V. The State (1992)8 NWLR (Pt. 257)76 at 83 and Akunnia V. A.G. Anambra State (1977) SC 161.

As to what constitutes special circumstances, learned counsel submitted that the following situations have been considered and pronounced upon by the courts as constituting special circumstances, namely:-

(i) Where the applicant will be assistance for the preparation of his appeal and need for consultation with his counsel, as in R.V. Waxman (1931) 22 CAR 81.

(ii) Where to refuse the application will put the applicant health in serious jeopardy, and in support of his ground, reference was made to Fawehinmi vs. The State (1990) 1 NWLR (Pt. 127) 486.

(iii) Where the sentence is contestable or substantial grounds of appeal with the possibility was made on the cases of Fawehinmi vs. The State (Supra) and R.V. Phillip Wise (1924) 17 CAR 17.

(IV) Where the applicant will serve the whole or substantial portion of this ground reference was made to following:- R.V Tunwase (l935) WACA 236 and Okoroji V. State (1990)6 NWLR (Pt. 157)509 and.

(v). Where the applicant had been of good behavior and had no previous criminal record.

Having stated the general grounds as captured above, learned counsel relied on the last three i.e. numbers (iii) – (v) in support of this application. To that effect, learned counsel contended that the Notice, of Appeal, exhibit b has raised substantial questions of law with the probability of his appeal succeeding. Learned counsel submitted that the ingredients of the offences charged were not proved beyond reasonable doubt, hence the arraignment and conviction was unconstitutional having violated Section 36(8) and (2) of the 1999 Constitution. In concluding on this ground, learned counsel contended that the legal advise, exhibit ‘D’ has exonerated and absolved the applicant from any criminal wrong. On the issue of the applicant being previously of good behaviour, learned counsel relied on paragraphs 10 and 11 of the affidavit in support which he said have not been countered by the respondent. On the last ground, relating to serving substantial portion of the sentence before the appeal is heard, learned counsel relied on paragraphs 5, 12,13, 14 and 15 of the affidavit in support and paragraphs 5, 6, 7 and 8 of the reply affidavit. Learned counsel further relied on exhibits ‘C’ and ‘K’ being the cause list of this court and exhibits ‘L’ and ‘M’ the letters sent to the registry of the lower court. Learned counsel finally relied on paragraph 13(g) of the counter affidavit, which he contended has supported his case and urged this court to grant the application.