(2018) LPELR-45112(CA)

Transcription

1 MONSOUR v. FRN CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON MONDAY, 21ST MAY, 2018 Suit No: CA/L/234CM/2018(R) MOHAMMED LAWAL GARBA JOSEPH SHAGBAOR IKYEGH YARGATA BYENCHIT NIMPAR NAHEL BERNARD MONSOUR FEDERAL REPUBLIC OF NIGERIA Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Applicant(s) RATIO DECIDENDI - Respondent(s)

2 1. CRIMINAL LAW AND PROCEDURE - BAIL: Factors to be considered in granting or refusing bail pending appeal "Bail pending appeal is not granted as a matter of course. It is not routinely granted; nor is it granted for the asking. The appellant/applicant is required to furnish special, exceptional or unusual circumstances. Good character, severity of the offence, length of sentence vis-a-vis when the appeal may be heard, substantiality of the ground(s) of appeal are factors to be taken together in determining special circumstances to grant bail pending appeal. The respondent did not substantiate the allegation that the appellant/applicant may escape from justice and thus frustrate the appeal if released on bail and being of good character in the sense of not having previous conviction and also not exhibited any tendency or trait to escape from justice at the Court below, is a favourable factor which weighs in the consideration of the application for bail pending appeal of the appellant/applicant. Whilst it was stated by the Court in Duro Ajayi and Ors. v. The State (1977) 1 F.C.A. 1 at 6 that substantial/good grounds of appeal is not a peculiar or special condition or circumstance to grant bail pending appeal in that to do so would prejudge issues before the appeal is heard and that- "... to follow this practice will tend to make mockery of the substantive appeal if and when it eventually comes up for hearing..." The current trend, however, is to consider on face value the substantiality of the grounds of appeal in determining whether there is exceptional/special circumstance to grant bail pending appeal vide Munir v. F.R.N. (supra), and in this case the 5 grounds of appeal taken at a glance are formidable, which is a good ground to be taken into consideration in an application of this nature. The appellant/applicant's sentence of 2 years in prison commenced on His appeal was heard on Judgment in the appeal has been reserved on a date to be communicated to the parties. The appellant/applicant is apprehensive that the Court may take the maximum 90 days provided by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) to pronounce judgment in the appeal. The Court (Lagos Division) follows strictly the Practice Direction, 2013 and the Court of Appeal (Fast Track) Practice Direction, 2014 in prioritising/fast tracking criminal appeals involving the EFCC, for example, as in this case. To demonstrate adherence to the Practice Direction, the respondent's brief which was filed on and the reply brief on were deemed by the Court as properly filed and served on , upon which the Court proceeded to hear the appeal on the same day/date. Between conclusion of exchange of briefs when the appeal became ripe for hearing (deeming of the respondent's brief and the reply brief on ) and when the appeal was heard on the same is fraction of a day. May I stress in particular Clause 9(2) of the Court of Appeal (Fast Track) Practice Directions 2014 which allocates maximum of 21 days of the service of the last document in the application for the Court to resolve the application; and the preceding Clause 8(11) thereof which states that once briefs are closed or deemed closed, the Court should proceed to set down the appeal for hearing which was exactly what was done in the appeal when briefs closed on and the appeal was heard on the same It is also expected that judgment in the appeal would be fast-tracked and not extend to the maximum 90 days prescribed by Section 294(1) of the 1999 Constitution. The fact and fear that the appellant/applicant may serve a substantial or considerable proportion of the sentence and/or the whole sentence before the appeal is heard and determined or judgment pronounced thereon is one of the exceptional circumstances to release a convict on bail pending appeal vide the cases (supra) cited on the issue by the appellant/applicant. The phrase 'substantial' means large in amount, value and importance while the phrase 'considerable' means great in amount, size and importance vide Oxford Advanced Learner's Dictionary (7th Edition) 1476 and 310, respectively. The practice of the Court is to fast track judgment in appeals of this nature in the spirit and letter of both Practice Directions of the Court. In this case, the appeal was heard within 4 months of the conviction and sentence of the appellant/applicant. What is left is the pronouncement of judgment in the appeal which was reserved on Therefore, I do not see the utility of the present application which, with deference to the appellant, is overtaken by events as the reserved judgment in the substantive appeal could be ready and pronounced as a fast-track case within moderate time. Considering the magnitude of the offence(s) and the fact that the appeal has been taken and judgment reserved which would be fast-tracked in tandem with both Practice Direction of the Court, I would refuse the application which is hereby struck out."per IKYEGH, J.C.A. (Pp. 6-10, Paras. C-E) - read in context

3 JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling): This is an application for bail pending appeal. The appellant/applicant was tried, convicted and sentenced by the High Court of Justice of Lagos State (the Court below) to two years in prison on each of the three counts relating to the statutory offence of issuance of dishonoured cheques contrary to the Dishonoured Cheques Act Cap.D Laws of the Federation. The sentence was concurrent. It was passed on It commenced on the same date. The motion and the affidavits in support thereof together with the written address and reply address of the appellant/applicant bear it out that the appellant/applicant had spent about 6 weeks in EFCC custody before trial had commenced at the Court below and another 6 weeks in prison custody awaiting trial aggregating to 3 months or 12 weeks which the Court below did not take into account in sentencing the appellant/applicant to two years in prison. The said Court processes indicated that the notice of appeal with five grounds of appeal was filed on An application for bail pending appeal was 1

4 heard and dismissed by the Court below on The present application was filed on It was heard on together with the substantive appeal. Ruling and judgment on the application and the substantive appeal, respectively, were reserved on a date to be communicated to the parties. The special circumstances for the application are stated in the affidavit accompanying the application with emphasis on paragraph 10 thereof to the effect that the grounds of appeal are recondite and on substantial issues of law upon which the appellant/applicant s conviction may be set aside on the substantive appeal and that having regard to the congestion of appeals pending at the Lagos Division of the Court of Appeal, it is possible that the appellant/applicant may serve out the entire period of his sentence, or a substantial proportion thereof, before the appeal may be heard and determined, and that the appellant/applicant is of good character having not been previously convicted of a criminal offence. The written address and reply on points of law filed by the appellant on and , respectively, supplied 2

5 the cases of Ojo v. F.R.N. (2006) 9 NWLR (pt.984) 103, Munir v. F.R.N. (2008) LPELR-4693, Buwai v. State (2004) All FWLR (pt.227) 540, Abeke v. State (2007) 9 NWLR (pt.1040) 411, Arowolo v. State (2008) All FWLR (pt.404) 1603 at , on the special circumstances (supra) upon which the appellant/applicant urged that in the absence of facts in the counter affidavit controverting the affidavit evidence on special circumstances the application should be granted; more so by the appellant/applicant would have been in prison for almost 3 months and a cumulative period of 7 months in custody since his arrest and arraignment; and that even if the appeal is heard on the Court is allowed 90 days under the Constitution of the Federal Republic of Nigeria 1999 to deliver its judgment which would entail the appellant/applicant spending 6 months in prison out of the sentence of 2 years imprisonment bearing in mind a sentence of 2 years imprisonment is much less on the prison calendar. The respondent opposed the application with a counter affidavit deposed to on to the effect that the appellant/applicant may escape from justice by 3

6 absconding if granted bail as he is a flight risk which would frustrate the appeal; that at least two different panels sit in the Court of Appeal Lagos Division thus hearing of an appeal is now accelerated and speedy, so the issue of the appellant/applicant serving substantial and/or the whole sentence before the appeal is heard would not arise. The respondent contended in the written address filed on that bail after conviction is not a basic constitutional right but is dependent on exceptional and unusual circumstances which were not disclosed by the appellant/applicant, therefore the application which is based on sentiments should be refused; more so the substantiality of the grounds of appeal is irrelevant at this stage and the offence(s) upon which the appellant/applicant was convicted is of serious magnitude and that by the Court of Appeal (Fast Track) Practice Direction 2014 and the Court of Appeal Practice Direction 2013 the substantive appeal would be heard in good time citing in further support of the submissions (supra) the cases of Jammal v. State (1996) 9 NWLR (pt.427) 357, Arowolo v. State (2008) All FWLR (pt.404) 1603, 4

7 George v. F.R.N. (2010) 11 NWLR (pt.1206) 531 at 555, R v. Tunwashe (1935) 2 WACA 236, Ligali v. Queen (1959) 4 F.S.C. 7, Nwoke v. F.R.N. (2005) All FWLR (pt.245) 1083, Munir v. F.R.N. (2009) All FWLR (pt.500) 775, Numuja v. COP (1968) NMLR 84, Uche v. F.R.N. (2016) LPELR 41301, George v. F.R.N. (2010) 5 NWLR (pt.1187) 254 at 276, Buwai and Anor v. The State (2004) 16 NWLR (pt.899) 285; upon which the respondent urged that the application should be dismissed. The reply on points of law further pointed out that had Section 315 of the Administration of Criminal Justice Law of Lagos State (ACJL) 2011 which enjoins the Court below to take into account the length of time the convict had spent in custody before his conviction and sentence the 5 months detention of the appellant/applicant would have been included in the sentence which should have been reduced by the said 5 months which added to the 90 days the Court may deliver judgment in the substantive appeal the period of 11 months would have been spent by the appellant/applicant in prison, therefore there is the prospect of the appellant/applicant spending more than 5

8 2/3 of the prison term of 2 years before the appeal is heard and determined, notwithstanding Section 28(2) of the Court of Appeal Act and the Court of Appeal (Fast Track) Practice Direction 2014 read with the Court of Appeal Practice Direction 2013; and that the appellant/applicant did not attempt to abscond from justice while on bail at the Court below, therefore the fear that he would escape from justice if released on bail pending appeal is unfounded and the application should be granted. Bail pending appeal is not granted as a matter of course. It is not routinely granted; nor is it granted for the asking. The appellant/applicant is required to furnish special, exceptional or unusual circumstances. Good character, severity of the offence, length of sentence vis-a-vis when the appeal may be heard, substantiality of the ground(s) of appeal are factors to be taken together in determining special circumstances to grant bail pending appeal. The respondent did not substantiate the allegation that the appellant/applicant may escape from justice and thus frustrate the appeal if released on bail and being of good character in the sense of not having previous conviction 6

9 and also not exhibited any tendency or trait to escape from justice at the Court below, is a favourable factor which weighs in the consideration of the application for bail pending appeal of the appellant/applicant. Whilst it was stated by the Court in Duro Ajayi and Ors. v. The State (1977) 1 F.C.A. 1 at 6 that substantial/good grounds of appeal is not a peculiar or special condition or circumstance to grant bail pending appeal in that to do so would prejudge issues before the appeal is heard and that to follow this practice will tend to make mockery of the substantive appeal if and when it eventually comes up for hearing The current trend, however, is to consider on face value the substantiality of the grounds of appeal in determining whether there is exceptional/special circumstance to grant bail pending appeal vide Munir v. F.R.N. (supra), and in this case the 5 grounds of appeal taken at a glance are formidable, which is a good ground to be taken into consideration in an application of this nature. The appellant/applicant s sentence of 2 years in prison 7

10 commenced on His appeal was heard on Judgment in the appeal has been reserved on a date to be communicated to the parties. The appellant/applicant is apprehensive that the Court may take the maximum 90 days provided by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) to pronounce judgment in the appeal. The Court (Lagos Division) follows strictly the Practice Direction, 2013 and the Court of Appeal (Fast Track) Practice Direction, 2014 in prioritising/fast tracking criminal appeals involving the EFCC, for example, as in this case. To demonstrate adherence to the Practice Direction, the respondent s brief which was filed on and the reply brief on were deemed by the Court as properly filed and served on , upon which the Court proceeded to hear the appeal on the same day/date. Between conclusion of exchange of briefs when the appeal became ripe for hearing (deeming of the respondent s brief and the reply brief on ) and when the appeal was heard on the same is fraction of a day. May I stress in particular Clause 9(2) of the Court of Appeal 8

11 (Fast Track) Practice Directions 2014 which allocates maximum of 21 days of the service of the last document in the application for the Court to resolve the application; and the preceding Clause 8(11) thereof which states that once briefs are closed or deemed closed, the Court should proceed to set down the appeal for hearing which was exactly what was done in the appeal when briefs closed on and the appeal was heard on the same It is also expected that judgment in the appeal would be fast-tracked and not extend to the maximum 90 days prescribed by Section 294(1) of the 1999 Constitution. The fact and fear that the appellant/applicant may serve a substantial or considerable proportion of the sentence and/or the whole sentence before the appeal is heard and determined or judgment pronounced thereon is one of the exceptional circumstances to release a convict on bail pending appeal vide the cases (supra) cited on the issue by the appellant/applicant. The phrase substantial means large in amount, value and importance while the phrase considerable means great in amount, size and importance vide Oxford Advanced 9

12 Learner s Dictionary (7th Edition) 1476 and 310, respectively. The practice of the Court is to fast track judgment in appeals of this nature in the spirit and letter of both Practice Directions of the Court. In this case, the appeal was heard within 4 months of the conviction and sentence of the appellant/applicant. What is left is the pronouncement of judgment in the appeal which was reserved on Therefore, I do not see the utility of the present application which, with deference to the appellant, is overtaken by events as the reserved judgment in the substantive appeal could be ready and pronounced as a fast-track case within moderate time. Considering the magnitude of the offence(s) and the fact that the appeal has been taken and judgment reserved which would be fast-tracked in tandem with both Practice Direction of the Court, I would refuse the application which is hereby struck out. MOHAMMED LAWAL GARBA, J.C.A.: With the expeditious determination of the Appellant s appeal, this application has been effectively overtaken by that event and the wind 10

13 of its sail. It is struck out by me too in line with the lead Ruling, a draft of which I read before now. YARGATA BYENCHIT NIMPAR, J.C.A.:I have read the draft of the Ruling just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, JCA. I agree with the decision to strike out the bail application pending appeal; it is predicated on the determination of the main appeal. Having done so, the bail application becomes empty and unnecessary in the circumstance. I too too strike out the the application in line with the lead Ruling. 11

14 Appearances: Mr. O. Shasore SAN (with Mr. M. Enitan and Mr. O. Akinkunmi). For Appellant(s) I. O. Daramola Esqr. (with Mr. G. G. Chia-Yakua). For Respondent(s)