In The Court of Appeal of Nigeria

On Friday, the 19th day of January, 2018


Before Their Lordships

UGOCHUKWU ANTHONY OGAKWU  Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO  Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR  Justice of The Court of Appeal of Nigeria






UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was one of six defendants arraigned before the High Court of Lagos State on a two count charge of conspiracy and stealing in CHARGE NO.ID/2678C/2016: FEDERAL REPUBLIC OF NIGERIA vs. KINGSLEY EMEKA UMUNNA & ORS. The Appellant was the 4th Defendant at the lower Court.
The Appellant applied to be admitted to bail and in a Ruling delivered on 21st December 2016, the lower Court dismissed the application. The Appellant did not appeal against the said Ruling of 21st December, 2016. However, the Appellant filed another application for bail before the lower Court on 24th January, 2017. The lower Court took argument on the application and in its Ruling delivered on 7th March 2017, it dismissed the said application. The Appellant being dissatisfied appealed against the said Ruling of 7th March 2017. The Ruling is at pages 505-511 of the Records, while the Notice of Appeal is at pages 522-525 of the Records. The Records of Appeal having been compiled and transmitted, the Appellant filed his brief of argument on 24th May 2017, the brief was deemed as properly filed on 31st October 2017. The Respondent was duly served with the Court processes but it failed to file its brief of argument. The time for filing the Respondent’s Brief having expired, the Court proceeded with the hearing of the appeal, whereupon the Appellant’s counsel urged the Court to uphold the submissions in the Appellant’s Brief in the determination of the appeal.
The Appellant distilled three issues for determination as follows:
“1. Whether the Trial Judge was right in refusing bail when the prosecution failed to discharge the onus of proving that the 4th Defendant/Appellant is not entitled to bail.
2. Whether the Trial Judge exercised the discretion of the lower Court judicially and judiciously when she refused the bail application of the 4th Defendant/Appellant.
3. Whether the ruling of the Trial Judge is perverse.”

The grant of bail is discretionary. So the central issue is whether the lower Court rightly exercised its discretion by refusing to admit the Appellant to bail pending trial. It is in this wise that I find the Appellant’s issue number two to be all-embracing and the other two issues can be subsumed under the said issue. It is therefore on the basis of the said issue number two that I will consider the submissions of learned counsel and determined this matter.
Whether the Trial Judge exercised the discretion of the lower Court judicially and judiciously when she refused the bail application of the 4th Defendant/Appellant.
The Appellant submits that the constitutional presumption of innocence enures in his favour and that the onus is on the prosecution to establish that he is not entitled to bail. The cases of THEOPHILUS vs. FRN (2015) LPELR – 25984 and OKOMODA vs. FRN (2016) LPELR – 40191 (CA) were referred to. It was posited that the prosecution must furnish concrete materials to show that a defendant is not entitled to bail as the mere deposition that the defendant is not entitled to bail does not suffice. The counter affidavit of the prosecution it was stated did not meet this standard, and the deposition that the criminal record of the Appellant was being investigated was speculative and a Court does not act on speculation. The case of AMAECHI vs. THE STATE (2016) LPELR – 40977 (CA) was relied upon. It was further submitted that the Respondent did not challenge the depositions in the Appellant’s affidavit and the lower Court ought to have treated the said depositions as admitted. The cases of MABAMIJE vs. OTTO(2016) LPELR – 25058 (SC), EZEAGU vs. NWONU (2016) LPELR – 40164 (CA) and NJOEMANA vs. UGBOMA (2014) LPELR -22494(CA) were cited in support.
The Appellant posited that from the facts presented, the lower Court, by refusing the bail application, did not exercise its discretion judicially and judiciously. It was stated that discretion is exercised on the peculiar facts of the case and that the depositions of the Appellant were not denied. The case of THEOPHILUS vs. FRN (supra) was called in aid. The Appellant submits that Section 162 of the Administration of Criminal Justice Act employs the compulsive word “shall” and it enjoins the Court to grant bail except where the circumstances set out therein are shown to exist. It was maintained that the prosecution did not establish any of the circumstances in the said Section 162. The case of BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270 and AKEEM vs. FRN (2016) LPELR – 41120 (CA) were referred to.


The Appellant contended that the proof of evidence does not link him to the offences charged and mere suspicion does not amount to proof. The case of ABAI vs. THE STATE (2016) LPELR – 40127 (CA) and LIMAN vs. THE STATE (2016) LPELR – 40260 (CA) were relied upon. The lower Court, it was stated, ought to have exercised discretion in favour of granting bail based on the Appellant’s critical health condition which was deposed to and the fact that the proof of evidence does not show a prima facie case of stealing against the Appellant. The cases of AYENI vs. THE STATE (2016) LPELR – 40105 (SC) and LIMAN vs. THE STATE (supra) were cited in support.
The Appellant asserted that the decision of the lower Court was perverse as it failed to take into consideration the relevant facts before the Court. The cases of MTN vs. MUNDRA VENTURES (NIG) LTD (2016) LPELR – 40343 (CA) and C.S.S. BOOKSHOP LTD VS. THE REGD TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 SCM 310 were called in aid. It was opined that the decision of the lower Court did not take into account the fact that the depositions in the Appellant’s affidavit were not challenged and that the prosecution failed to provide cogent evidence that the Appellant was not entitled to bail; in consequence of which the lower Court failed to exercise its discretion judicially and judiciously.
Let me reiterate that the lower court had in an earlier Ruling delivered on 21st December, 2016 dismissed the Appellant’s first application for bail. The Appellant did not appeal against the said Ruling so it remains subsisting and binding. See Appeal No. SC/40/2005: NSIRIM vs. AMADI delivered on 22nd January 2016, CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD vs. AKINGBADE (2016) LPELR (40437) 1 at 20- 21 and A-G ANAMBRA STATE vs. A-G FEDERATION (2005) 9 NWLR (PT 931) 572 at 612.

Indeed, in so far as the facts on which the application for bail refused by the lower Court on 21st December 2016 are concerned, the lower Court had become functus officio and could not revisit the same facts, even if contained in the latter application for bail, subject of the Ruling of 7th March 2017. See DINGYADI vs. INEC (2011) LPELR (950) 1 at 44 and KASHAMU vs. A.G FEDERATION (2013) LPELR (22357) 1 at 49- 50. The lower Court was conscious of the legal position in this regard and at page 508 of the Records, it stated thus:
All the Defendants had earlier filed applications for bail.
Their applications failed and were dismissed on 21st December 2016. This is 2nd application for each of the Defendants.
The only issue, which this Court must determine here, is whether or not the Defendants can be admitted to bail in the circumstances of this case. What has changed since the Ruling of 21st December 2016?”

The lower Court then continued and stated as follows at pages 510-511 of the Records:
“No doubt the offences for which the Defendants are charged are non-capital in nature and are therefore bailable. But as stated earlier, bail is not just granted as a matter of course. All the averments in all the affidavits were considered by the Court in its earlier Ruling of 21st December 2016 in reaching its decision to deny the Defendants bail. I will refer all the Defendants to that Ruling. The 2nd, 3rd and 4th Defendants have now alleged ill health.”
So the lower Court declined to result the materials it had considered in the earlier Ruling of 21st December 2016, which was not appealed against, but considered the application based on the ground of ill-health alleged by the Appellant in his second application for bail. The lower Court did not find the materials presented by the Appellant on his ill-health credible enough to warrant the exercise of discretion in favour of granting bail. It is against this ratio decidendi of the lower Court refusing to grant bail that the issue of whether the lower Court exercised its discretion, judicially and judiciously will be examined.
Now, the whole concept of bail is not to set a defendant free, bail is generally about a surety or sureties taken by a person duly authorized for the appearance of a defendant at a certain day and place to answer charges leveled against him. The primary object of bail is to ensure that the defendant will attend Court to stand his trial: NWUDE vs. FGN (2004) 41 WRN 124 and 145.
The grant of bail is discretionary. The grant of bail is not as a matter of grace. It is neither automatic nor is it a process that slavishly follows the arraignment of an accused person. It is not a discretion that is exercised in vacuo. The applicant for


bail must place sufficient materials before the Court to sway the Court to exercise discretion in his favour. The lower Court was not swayed by the materials furnished by the Appellant on his allegation of ill-health and it emphatically held as follows at page 511 of the Records:
The 3rd Defendants are coming up with ill-health for the first time. They have not complained to the Prison Hospital and have not met any of the conditions specified above. I cannot find, in any of the Affidavits placed before this Court any credible material upon which to anchor the exercise of the Court’s discretion to grant bail.”
The pristine question is whether this was a proper exercise of judicial discretion. We will find out in a trice.
The facts on which the Appellant predicated his application for grant of bail on grounds of ill-health are as deposed to in Paragraphs 7 – 14 of the supporting affidavit. They read:
7. That new facts have developed after the order of this honourable Court was delivered on the 21st day of December, 2016.
8. That the health condition of the defendant has worsened while in remand at the Kirikiri 
Maximum Prison, Lagos.
9. That the 4th defendant went for a medical check up on the 9th day of November, 2016 at the Isalu Hospital Limited which situates at 3498, Odusami street, Off Wempco Road, Ogba, Lagos State of Nigeria.
10. That the 4th defendant was diagnosed with Scrotal Swelling and on further physical examination, an assessment of Inguinoscrotal Hernia rule out Hydrocoele was made and he was scheduled for frequent review and check with the above mentioned hospital. A copy of the medical report is hereby attached and marked ‘Exhibit B’.
11. That the 4th defendant has been unable to go for further treatment due to his incarceration at the Kirikiri Maximum Prison, Lagos State of Nigeria.
12. That I was at the Kirikiri Maximum Prison on the 4th day of January, 2017 to visit my husband that is the 4th defendant.
13. That the 4th defendant’s condition has become critical and life threatening.
14. That the 4th defendant needs to be given full medical treatment at the above mentioned hospital to enable him to be fit to stand trial before this honourable Court.”

It has to be noted that the health of every citizen is of very important consideration to the State, whether he is a defendant/suspect or a free man. I wholeheartedly subscribe to the view that a defendant should be alive to stand his trial and face the just desserts of his crime, if he is adjudged guilty as charged. As stated by Obadina, JCA in ANI vs. STATE (2002) 11 WRN 53 at 68:
“… it is only the living that can praise God, so it is only the living that can be tried, convicted and punished for an offence…”
ln the words of Onnoghen, JCA (as he then was, now CJN) in JIMOH vs. C.O.P (2004) 17 NWLR (PT 902) 389 at 407:
In any event no dead man stands trial in our Courts of law.”
Ill-health can be a special circumstance for the grant of bail to a defendant. However, the bare and empty assertion of ill-health does not suffice as a special circumstance for the grant of bail. See ABACHA vs. STATE (2002) 5 NWLR (PT 761) 638 at 655 (supra) and FAWEHINMI vs. STATE (1990) 1 NWLR (PT 127)486. I must make it quite clear that everyone is entitled to be offered access to good medical care whether he is being tried for a crime or had been tried or simply in detention. When in detention or custody, like in the instant case, the responsibility of affording the person access to proper medical facility rests on the authorities in whose custody he is. From the Appellant’s affidavit, he never presented himself for medical evaluation at the facility where he is being held in custody. It is deposed that he has to go for medical treatment in the hospital where he had presented himself for treatment before his incarceration. Howbeit, it must be understood that the mere fact that a person who is in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so: See CHINEMELU vs. C.O.P (1995) 4 NWLR (PT 390) 467. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee poses a possibility of a real health hazard to others, and there are no quarantine facilities of the authorities for the type of illness. See ABACHA vs. STATE (2002) 3 5C 53 at 67. 
There is no such allegation in this case. Indeed, the medical report attached to the Appellant’s affidavit shows that upon the examination of the Appellant “an


assessment of inguinoscrotal hernia rule out Hydrocoele was made”. This is a diagnosis of questioned hernia of the groin and scrotum region. Laying aside the medical jargon, it is in banal layman terms, a protrusion of the scrotum. It is effulgent that the illness is not such that the continued detention of the Appellant will pose a possibility of real health hazard to others who are in custody with him.
The exercise of discretion is that of the Court of trial and where the Court of trial has judicially exercised the discretion, an appellate Court will not interfere. An appellate Court will not interfere merely because it may have exercised the discretion differently. See UNILAG vs. AIGORO (1985) NWLR (PT 1) 143 and NIGERIA LNG LTD vs. A.D.I.C. LTD (1995) 8 NWLR (PT 416) 677 at 694. An appellate Court will only interfere with the exercise of discretion where it is perverse or where it is arbitrary or based on extraneous or irrelevant materials.
After an insightful consideration of the materials furnished by the Appellant I agree with the lower Court that there is no credible material authenticating the alleged ill-health and on the basis of which discretion could have been exercised in favour of granting the application. The exercise of discretion by the lower Court was therefore judicial and judicious. This Court cannot set it aside: ADEJUMO vs. AYANTEGBE (1989) 3 NWLR (PT 110) 417 at 438. The conflation of the foregoing is that the issue for determination is resolved against the Appellant. The appeal has no merit and it is hereby dismissed. The decision of the lower Court delivered on 7th March 2017 is hereby affirmed. There shall be no order as to costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I was privileged to read before now the judgment written by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, and I agree with him that the appeal ought to fail. I have nothing more, which I can usefully add.
The present appeal is a challenge to the exercise of judicial discretion of the learned trial judge wherein the Appellant was refused to be admitted to bail. It remains to be said that an Appellate Court will not readily interfere with the exercise of discretion by a lower Court unless it is shown that the exercise is capricious or based on extraneous factors leading to a perverse decision. See NGWU & ORS v ONUIGBO & ORS [1999] 13 NWLR (PT 636) 512; NDAYAKO v DANTORO (2004) 18 NWLR (PT 889) 187; OSHE, SAN v OKIN BISCUITS LIMITED & ANOR [2010] 11 NWLR (PT 1206) 482.
To this extent, I have no hesitation in affirming the decision of the lower Court and dismiss the appeal. I abide by the consequential order(s) made in the leading judgment.


Ayodeji Ayinde, Esq.For Appellant


Absent and not represented-For Respondent

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