Saheed Arowolo V. The State (2007)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

The notice of motion is dated 6th and filed on the 20th March 2007 and pursuant to Order 4 Rule 3(1), Order 4 Rule 13(1) of the Court of Appeal Rules, 2002 for the following prayers:-

“An order of this Honourable Court granting the Appellant/Applicant better conditions of bail to the conditions of bail granted by the High Court of Lagos State (Coram Nwaka J.) in her ruling delivered on the 7th of March, 2007.

AND for such further order and/or orders as this Honourable Court may deem fit to make in the circumstances. ”

The application is supported by a twenty-two paragraphs affidavit sworn to by one Mrs. Sekinat Arowolo the wife of the appellant/applicant. It is also supported by an eleven paragraphs affidavit of urgency sworn to by the same deponent. There is also a further affidavit of eleven paragraphs sworn to by one Samson Bakare, a litigation clerk in the law firm of the appellants solicitors for the purpose of exhibiting the certified true copy of the proceedings at the trial court marked as exhibit SA1.

In moving the application before us, the learned counsel Mr. Ayo Akintunde relied on all the paragraphs of the various affidavits and also the exhibits attached thereto. The facts of this case briefly are that on the 22nd December 2006, the High Court of Lagos State convicted and sentenced the appellant/applicant for the offence of conspiracy and robbery to 21 years imprisonment. The appellant as a consequence appealed to this court against the judgment and also brought an application for bail pending appeal at the lower court. After considering the application the learned trial judge on the the March, 2007 granted bail per exhibit E and in the following terms:-

“Bail is granted the applicant in the sum of N200,000, with two credible sureties in the like sum. Sureties

should be civil servant of not less than grade level 17. Both sureties should be owners of landed properties in Lagos verification of documents is to done by the office of the DCR.”

The learned applicant’s counsel submitted the strenuous effort made on behalf of the applicant to secure officers of the said grade level 17 and above in the state service which he argued proved very difficult. Reliance was also made to the additional facts deposed to on the affidavit of urgency wherein deposition was made to the poor health condition of the appellant/applicant, who is in desperate need of an urgent medical attention. Counsel in particular relied on paragraphs 3, 4 and 5 of the affidavit in support and also exhibit SA1, the medical certificate of the State of the applicant’s health by one Dr. E. E. Amah (DCP) for the Asst. Controller of Prisons. That the state and level of the applicant’s health has risen to a very dangerous position which could lead to his death. That despite the bail granted by the lower court, the conditions were made onerous and therefore very difficult. That a further application could not be made to the same lower court for re-consideration of the bail granted because of the strike action which has made the state courts unattainable. Reference in support was made to paragraphs 7 and 8 of the further affidavit wherein the courts are currently on strike. That where conditions of bail are excessive, it will amount to no bail at all. Counsel relied on order 4 rule 13(6) of the rules of court to vary or relax the conditions of bail which he argued is within this court’s powers.

On the grounds of appeal, counsel referred in particular to ground 1 which raises substantial issues of law to warrant this court give a favourable consideration to the application. That vide the judgment attached to the motion and marked exhibit A certain aspects show that the trial court was in doubt as to the whereabout of the accused person when the offence was committed. That the essence is to show that the appellant has some good chance to succeed on his appeal because the prosecution had failed to prove

the accused’s guilt beyond all reasonable doubts and that the court had also failed to resolve the doubt in favour of the accused person. That the accused did set up a defence of alibi which was never investigated.

That the appellant/applicant is very serious and willing to prosecute his appeal. Counsel therefore impressed upon us to grant the applicant bail on favourable and attainable conditions in the interest of justice.

It is expedient to restate that the respondent was absent at the hearing of this application. The registrar of this court however reliably informed the court of the service of both the motion paper and the hearing notice having been effected on them on the 22nd March 2007, against today. They have neither filed a counter affidavit nor did they come to court to oppose the motion on points of law. I take it therefore that the respondents are not opposing the bail. That notwithstanding it is trite law that granting of a bail pending appeal is not a matter of course as it is no longer a constitutional right of the appellant who had ceased to be presumed as innocent immediately conviction takes place. He must therefore show special circumstance.

In the case of Jammal v State (1996) 9 NWLR (Pt.472) 352 at 359 Orah J.C.A. on the principles guiding application for bail pending appeal had the following to say:-