In The Court of Appeal of Nigeria

On Thursday, the 9th day of February, 2017


Before Their Lordships

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria






YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling): This ruling is predicated on a Motion on Notice brought by the Appellant/applicant dated 1st November, 2016 filed on the 3rd November, 2016 praying the Court for the following:
1. An order granting bail to the Appellant to seek medical attention herein pending the determination of his appeal.
2. And for such further orders as this Honourable Court may deem fit to make in the circumstances.
The application is supported by an affidavit of 8 paragraphs duty sworn to by Kelechi Amajoyi with one annexure- Exhibit – A (a Medical Report) and accompanied by a written address. There is also an affidavit of urgency filed on the 3rd November, 2016. The Applicants relied on the affidavits and adopted the written address to urge the Court to grant the application.
In the written address in support of the application for bail, learned counsel for the Applicant submitted that it is required that the Applicant places before the Court facts in his affidavit, which would enable the Court exercise its discretion in his favour and that this discretion must be exercised judicially and judiciously. Counsel referred to the following cases; ALAMIEYESEIGHA V FRN (2006) 15 NWLR (PT 1004) 1, OLADIDIMEJI & ORS V FMWH & ORS (2002) 7 WRN 39, BILBIS v AG ZAMFARA STATE & ORS (2003) 9 NWLR (PT 826) 624, LIKITA v COP (2002) FWLR (PT 106) 1075, MORAL V OKWUAYANGA (1990) 1 NWLR (PT 125) 225. He further submitted that the health of the Applicant is fast deteriorating and that a medical report from the Nigeria Police Medical Services has been attached to show the nature of the Applicant’s sickness. Learned counsel therefore submitted that they have provided sufficient facts warranting this Court to exercise discretion in the Applicant’s favour, citing OGBHEMBE V COP (2001) 2 ACLR 103; (2002) FWLR (PT 103) 358 and urged the Court to so do.
The learned counsel to the Respondent did not oppose the application. Instead, he listed grounds to support the application, namely;
1. Fugitive has been in detention for 10 years.
2. They received information that the Applicant’s health is failing.
3. The offence for which he is needed in the US carries a maximum of 7 years imprisonment.
4. The Attorney General has 
signaled the US Government to withdraw the application because he has served more than the period of imprisonment if he was to be convicted.
The Nigeria Police Interpol Section on the 11th, June, 2007 arrested the Applicant on his return from a trip to China on a warrant of arrest issued by a Judge of the United States of America on allegations of a crime against the United States. The extradition proceedings lasted from 2009 to 30th June, 2015 when the order was made. For the period the application was pending, the Applicant was in Police custody and his health deteriorated. Exhibit A attached to the affidavit in support is a Medical report issued by DCP Emeka Nwakor Osaji of the Police Medical Services, Lagos. The Applicant also filed a Notice of Appeal dated 14th July, 2015 appealing against the order of extradition made by the Federal High Court on the 30th June, 2015.
There are two types of bail; (a) bail pending trial and (b) bail pending appeal. This one is pending appeal. Bail pending appeal is not granted as a matter of course, it is governed by a different set of factors unlike bail pending trial where the applicant is still presumed innocent. The primary consideration is that there must be a special circumstance clearly disclosed in the affidavit in support. Other conditions necessary for the Court to consider before granting bail pending appeal are:
a. That the applicant has indeed, infact lodged an appeal to the Court of Appeal which is pending.
b. That he has complied with conditions of bail imposed, as this will show seriousness of his application;
c. If he was granted bail during the trial, that he has not attempted or tried to jump during trial.
 See JAMMAL V STATE (1996) 9 NWLR (PT. 472) 352 AT 360.
Grant of bail pending appeal is at the discretion of the Court depending on special facts and circumstances of the application. See OKOROJI V THE STATE (1990) 6 NWLR (PT.157) 509.


Section 28(1) of the Court of Appeal Act, 2004 empowers the Court to admit the Applicant to bail pending the determination of his appeal and that is reinforced by Order 17 Rule 13 of the Rules of this Court. SeeMOHAMMED v OLAWUNMI (1993) 5 SCNJ 126; ABACHA v THE STATE (2002) 5 NWLR (761) 638 and OJO v FEDERAL v REPUBLIC OF NIGERIA (2006) 9 NWLR (PT. 984) 103. The provision of the statutory powers implies that the exercise of discretion is to be exercised on the material presented in support of the application and which must be judicially and judiciously exercised.
It is trite that medical ground or condition of ill health is a special circumstance that sways the Court into granting an application for bail pending appeal particularly when the available medical facility where the Applicant is detained cannot handle the medical condition. In the case of ABACHA v STATE (2002) 5 NWLR (PT 761) 638, the Court held:
“The special medical need of an accused person whose proven state of health needs medical attention which the authorities may not be able to provide is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to the accused person. Such need is not brought before the Court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.” Per AYOOLA, J.S.C.
Furthermore, where the ailment is a contagious one to avoid exposing other inmates from contacting the disease, the Court ought to grant an application for bail. In this application, the special circumstance disclosed by the supporting affidavit and affidavit of urgency and the annexure attached is on medical ground or ill health. The Applicant going by the medical report is suffering from multiple illnesses primary amongst which is tuberculosis with pneumonia; hypertension and dyslipidemia. Pulmonary Tuberculosis is a highly contagious disease; it can spread by merely breathing in the air droplets from a cough or mere sneeze of an infected person. It is common knowledge that detention facilities in this country are congested with inmates thereby making the Applicant a serious health risk to other inmates. See EZE MOSES ONYEBUCHI V FEDERAL REPUBLIC OF NIGERIA (2007) LPELR- 4134 (CA) where the Court held that where the ill health of an Applicant requires some special medication and attention then, that is a special circumstance for bail to be granted. The Applicant requires special medication to be administered under supervision and his condition is bad.
Furthermore, the medical report recommended further medical attention by a specialist and to be admitted in a hospital for intensive DOTS therapy (Directly Observed Treatment Short course). The drugs must be administered by a health worker under supervision for like 4, 6,8 weeks before the patient can be allowed to take the medication himself. That is ensure that the potency of the infection is reduced, weakened and to avoid resistance.
To further buttress the medical ground highlighted by the Applicant, learned counsel to the Respondent admirably supported the application and gave more grounds to assist the Court in doing justice to the Applicant. He informed the Court that the Applicant had been in Police custody for almost 10 years far in excess of the sentence he would have served if he were convicted for the offence alleged in the request for extradition and that it will be unfair to deny the Applicant bail. Respondent’s counsel as a minister in the temple of justice also informed the Court of efforts being made by the Attorney General of the Federation to quash the indication against the Applicant on the basis of his overstay in custody. That is a good and commendable step by the Chief Law Officer of the Federation.
Apart from the fact that the medical reason is justified for the sake of the Applicant and also to safe guard the health of other detainees, the of his long detention also justifies the exercise of discretion in favour of the Applicant. The fact that a person is accused of committing an offence does not mean he should be denied his right to life. The Applicant was not sick when he was initially detained and therefore it can be safely assumed that he was exposed to the infection in custody. It will be inhuman to deny him further treatment and medical care. It is also proper to safe guard the health of other detainees. See IFEANYI MARTINS AMADIKWA v THE STATE (2015) LPELR-24569 where this Court held that for bail pending appeal to be granted on health grounds, the ailment must be grave and virulent and dangerous to public health and/or be one that is capable of transmission to other human beings.
Beyond the issue of health, the facts surrounding the application are peculiar because the Applicant is not a convict per se but a fugitive awaiting extradition. There is a valid Notice of appeal, records of appeal complied and transmitted to the Court on the 15/12/2015 and the Appellant’s Brief filed on the 2/12/16.


Without any much ado, there is merit in this application and bail is hereby granted to the Applicant in the sum N500,000’00 (Five Hundred Thousand Naira) only and 2 sureties in like sum. The two sureties must file an affidavit of means and must be resident within the jurisdiction of the Court. One of the sureties must be the owner of real property within the jurisdiction of the Court and who must produce evidence of ownership of the said real property. The other, a blood relation of the Applicant. The Applicant must seek the leave of Court before travelling of this country.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege to read in draft the lead Ruling just delivered by lord YARGATA BYENCHIT NIMPAR, JCA., and I am in complete agreement with the impeccable reasons adroitly marshaled out and the inescapable conclusions reached therein and which I hereby adopt as mine.
My lords, in this Country bail before conviction is a basic right to the citizens. This is underscored by the constitutionally guaranteed presumption of innocence of the citizen until the contrary is proved. See Section 36 (5) of the Constitution of Nigeria 1999 (as amended)
In considering whether or not to admit a person to bail, it is of utmost importance to bear in mind that whenever the health of a person is going to be in jeopardy by reason of his incarceration pending his trial, it would constitute special circumstances for the Court to intervene, if so called upon, to admit such a person to bail, notwithstanding the nature of the offence alleged against the person including even the highest of offences in the land which are ordinarily not bailable except on proof of special circumstances. See Abacha V. The State (2002) 5 NWLR (Pt. 761) 638. See also Ogbhembe v. COP (2002) FWLR (Pt. 103) 358.
It is worthy to note that in the instant application the Appellant/Applicant has neither been tried nor convicted of any offence but has been in custody for all of ten years awaiting the conclusion of his extradition proceedings. I therefore, hold the firm view that the ground of grave ill health as copiously made out by the Appellant/Applicant constituted special circumstances why he should be admitted to bail pending the determination of his appeal challenging the decision of the Court below permitting his extradition to the United States of America to stand trial for some alleged offences. Instructively, it is only the living that can stand trial and be convicted no matter the heinous nature of the offences alleged since dead men do not stand trial. SeeOgbhembe V COP (Supra) per Obadina JCA.

It is for the above reason, it is true that in the administration of criminal justice system, on death all debts owed to criminal prosecution by a person is brought to an end and therefore, a person accused of having committed an offence, no matter how heinous, must be kept alive to stand his trial and if convicted to receive the punishment he would so richly deserve.
It is in the light of the above few comments of mine and for the fuller reasons marshalled out in the lead Ruling that I too, hold that the Application for the bail of the Appellant/Applicant pending appeal has merit and ought to be granted. I hereby so grant it too. I shall abide by the conditions of bail as imposed in the lead Ruling.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft Ruling of my learned brother, HON. JUSTICE NIMPAR, JCA, and agree with the lucid reasoning and conclusio contained therein, except to add some remarks below:
The Apex Court held per AYOOLA JSC, in ABACHA V. STATE (2002) 5 NWLR (PT 761) 638, thus:
“The special medical need of an accused person whose proven state of health needs special medical attention which the authorities may not be able to provide is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to the accused person. Such need is not brought before the Court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.”
I am convinced on the affidavit evidence before the Court that exceptional circumstances have arisen that the Court’s discretion must be exercised judicially and judiciously in favour of the Appellant/Applicant.
The application succeeds, I too admit the Applicant to bail and I also abide by the conditions of the bail in the lead judgment.

AKINWALE KUYE –For Appellant


PIUS AKUTAH (ACSC, FMOJ) with him, EKONG ARIEKAN (SC) –For Respondent.

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