IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON WEDNESDAY, THE 29TH DAY OF SEPTEMBER, 2021
BEFORE THEIR LORDSHIPS:
OBIETONBARA OWUPELE DANIEL-KALIO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ADEBUKOLA A.I. BANJOKO JUSTICE, COURT OF APPEAL
CA/LAG/PRA/ROA/CV/335m1/2021
BETWEEN:
DAYO FAMOROTI……………………………………………… APPLICANT
AND
FEDERAL REPUBLIC OF NIGERIA ..………………..…… RESPONDENT
RULING
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This is an application by way of motion on notice brought pursuant to Order 7 Rule 1, Order 17 Rule 13, Court of Appeal Rules, 2016, Section 28 (1) (2) and (3) of the Court of Appeal Act, CAP C. 36, Laws of the Federation of Nigeria, 2004, Sections 33 & 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 4 & 5 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9 Laws of the Federation of Nigeria, 2004 and under the inherent jurisdiction of this Court, wherein the Applicant, Dayo Famoroti, sought for an order admitting him to bail pending the determination of his appeal before this Court against the Judgment of the High Court of Lagos State, which convicted and sentenced him on 5th January, 2021.
The application is predicated on the following grounds:
“(i) The Notice of Appeal against the conviction and sentencing of the Appellant/Applicant to 3 years’ imprisonment by the lower court in its judgment of 5th January 2021 raises substantial and arguable grounds of law.
(ii) The health condition of the Appellant/Applicant who is known to be a hypertensive and diabetic patient and also a carrier of the highly communicable Koch’s disease (Tuberculosis) continues to deteriorate and might lead to fatal consequences in the correctional facility.
(iii) The Applicant/Applicant is presently 65 years old and the congestion in the correctional facility puts him in the high risk cadre of vulnerability to the deadly Covid 19 virus.
(iv) The Appellant/Applicant’s appeal has a strong likelihood of success at the Court of Appeal but due to the congestion and backlog at the Court of Appeal arising from the recently suspended Judiciary Staff Union of Nigeria (JUSUN) strike, the hearing and determination of the appeal is likely to be delayed.
(v) The Appellant/Applicant is first time offender and has never jumped bail prior to his conviction, despite having his bail conditions varied on four occasions to enable him travel abroad for urgent medical attention.
(vi) The delay encountered in the compilation of the Appellant/Applicant’s records for transmission to the Court of Appeal as a result of the vandalization of the lower court during the END SARS riots, and the recently suspended Judiciary Staff Union of Nigeria (JUSUN) strike might have a negative effect on the Appellant’s Appeal, such that he would have served the 3 year jail term before his appeal is eventually determined at the Court of Appeal.
(vii) It is within the discretionary and statutory right of this Honourable Court to grant this application.
(viii) That the exceptional circumstances raised by the Appellant/Applicant are weighty enough for this Honourable Court to exercise its discretion in favour of the Appellant/Applicant and admit him to bail pending hearing of his appeal”
In support of the application is an affidavit of 13 paragraphs deposed to by one Nina Famoroti, the wife of the Applicant, annexed to which are five Exhibits marked as Exhibits A, B, C, D and E. There is also the written address of counsel which was adopted as counsel’s submission when the application came up for hearing on 7th July, 2021. From the affidavit in support of the application, the Applicant was arraigned b4 the High Court of Lagos State sitting at Ikeja, Coram: Okunnu, J, on a 9 count Information for stealing and conspiracy to steal. He was convicted of all the counts and sentenced to a consecutive term of 3 years’ imprisonment in a Judgment delivered on 5th January, 2021. The Applicant filed an appeal against the said judgment vide 2 Notices of appeal dated 14th January, 2021 and 30th March, 2021. The said Notices and grounds of Appeal are annexed to the affidavit as Exhibits A and A1. Exhibits B and C are medical reports from Charles Hammond’s Clinic and Police Hospital, Falomo respectively. Exhibit D is a letter from the Ikoyi Correctional facility while Exhibit E is the Ruling of the lower Court denying the Applicant bail after his conviction and sentence.
Upon being served with the application, the Respondent caused to be filed on its behalf a counter-affidavit, which is of 6 paragraphs, deposed to by one, Oke Oluwatobi, a Litigation Officer in the law firm of Rotimi Jacobs & Co., counsel to the Respondent, together with counsel’s written address in opposition to the application. In response to the counter-affidavit, the Applicant filed a further and better affidavit, to which the Respondent filed a further counter-affidavit.
The resume of the facts deposed to in the affidavit and further affidavit in support of the application is as follows:
After his conviction and sentence, the Applicant filed a Notice of Appeal and proceeded to apply for bail before the lower court which was refused. He then applied before this Court. The Record of Appeal is yet to be transmitted to this Court. The reason for that failure is given in the affidavit as partly because of the delay in transmitting the case file to the Appeal Section, citing the ENDSARS protest which led to the destruction and vandalisation of the Courtroom; and partly due to the strike action by the Judiciary Staff Union of Nigeria. That the Applicant has already served 6 months in prison and that considering the backlog of cases at the Court of Appeal following the ENDSARS protest and the JUSUN strike, the chances of the Applicant’s appeal been heard and determined before the conclusion of his 3-year prison sentence is very slim. That the 65 year old Applicant is a known hypertensive, hyperlipidemia and diabetic patient since 2006 and has recently being diagnosed with Koch’s disease (Tuberculosis) that is highly contagious. His medical condition has deteriorated due to congestion of inmates and lack of proper care at the Correctional facility, Ikoyi. Reliance is placed on Exhibits, B & C annexed to the affidavit and Exhibit F annexed to the further and better affidavit, all of them being reports on the Applicant’s health condition or status. Exhibit B is from the Applicant’s personal Physician at Charles Ham
mond’s Clinic, Victoria Island, Lagos and it partly reads:
“….January 8th, 2021
TO WHOM IT MAY CONCERN
MEDICAL REPORT
Re: DAYO FAMOROTI (HOSPITAL NUMBER-12001321)
The above named 64 year-old male, has been our patient for many years. He is a known case of Diabetes, hypertension and hyperlipidaemia since 2006.
He was stable on: -Gilbenclamide (Daonil)
-Metformin
-Norvasc 10mg daily
-Lipitor 5mg nocte
Mr. Dayo Famoroti’s age makes him very vulnerable to a bad outcome in case of Covid-19 infection. For him to add Hypertension, Diabetes and Hypercholesteremia with attendant Arteriosclerosis which predisposes to Thrombo-Embolism (the route of death for Covid-19 infection) makes the outcome very poor.
As such, he has been advised to stay away from people.
Thank you,
Yours faithfully,
Dr. A.O. Balogun
Consultant Physician
(PGDHA; MBBS; FMCP; FNSEM etc.)”
Exhibit C is another Report from Police Hospital, Falomo, and it partly reads:
“29th January, 2021.
AD: 1111/NPMS/VOL. 15/5
TO WHOM IT MAY COCNERN
MEDICAL REPORT
RE: FAMOROTI DAYO/MALE/ADULT
The above-named, is a patient of this health facility, a known diabetic who presented to us on the 12th November 2020, with the complaints of:-
He was diagnosed with Koch’s disease after duly examined and investigated.
He is currently on recommended therapies as the condition requires regular medical assessment.
Kindly accord him all necessary assistance.
Thank you.
DR THOMPSON E.O.
MEDICAL OFFICER
FOR: COMMISSIONER OF POLICE
MEDICAL.”
Exhibit F annexed to the further and better affidavit is a report addressed to the lower Court from the Ikoyi Custodial Centre on the request of counsel to the Applicant that report reads:
“NIGERIAN CORRECTIONAL SERVICE
OFFICE OF THE DEPUTY CONTROLLER OF CORRECTIONS
IKOYI CUSTODIAL CENTRE
Hon. Justice L.A. Okunnu,
Court No 18,
High Court of Lagos
ATTENTION:
REGISTRAR
MEDICAL REPORT: DAYO FAMOROTI (CHARGE NO ID/115c/2011)
I am directed to write a medical report on the above-named inmate of Ikoyi Custodial Centre based on your court order dated 15th February, 2021.
He is sixty-four years old and suffering from Diabetes mellitus, Hypertension and Dyslipidemia.
He was also recently diagnosed with pulmonary Tuberculosis based on a report from Police Hospital Falomo where he was undergoing treatment
He is currently on glibeclamide, metformin, Norvasc, Lipitor and other medication.
Accept the esteemed regards of the officer in charge of Ikoyi Custodial Centre.
DEPUTY CONTROLLER CORRECTIONS (M)
FOR: DEPUTY CONTROLLER OF CORRECTIONS
IN CHARGE IKOYI CUSTODIAL CENTRE”
One common feature of all these medical reports is that they were all prepared after the conviction and sentence of the Applicant on 5th January, 2021. While Exhibit B stated that the Applicant was stable on his recommended drugs, it went further to warn that in view of his age, he can be vulnerable to a bad outcome of Covid-19 infection. He has been advised to stay away from people. Exhibit C said he was diagnosed with Koch’s disease and that he is on recommended therapies and requires regular medical assessment. Exhibit F merely repeated the earlier diagnosis in Exhibits B & C. In fact, it was prepared based on the two Exhibits.
In the counter affidavit in opposition to the application, the deponent stated that there is nothing in Exhibit B to show that the Applicant has an urgent need of medical treatment as deposed to in paragraph 6a of the affidavit in support of the application. On Exhibit C, the deponent to the counter-affidavit stated that the said Exhibit is clear that the Applicant’s illness is being monitored and that the Ikoyi Custodial Centre has not stated that it cannot manage the Applicant’s illness or that it lacks the medical competence to handle the Applicant’s health needs, just as the Centre did not state in any report before this Court that the Applicants’ sickness is highly contagious. The deponent further stated that contrary to the deposition in paragraph 9h of the affidavit in support of the motion, Exhibits B, C and F did not state that the Applicant’s health is deteriorating. On the fears expressed by the Applicant about delay in hearing his appeal, the Respondent replied that there are Practice Directions for accelerated hearing of criminal appeals by or against EFCC in both the Court of Appeal and the Supreme Court. He cited the appeals of Jolly Nyame and Joshua Dariye that were heard and determined by the Court of Appeal within six months, as examples. That the Applicant is exaggerating his ill health and merely trying to use his wealth and status to avoid staying in prison. It is deposed that the Ikoyi Custodial Centre had put in place measures to prevent the spread of Covid-19, hence there was no reported outbreak of the disease in the facility. That there is high incentive for the Applicant to jump bail.
Learned senior counsel for the Applicant, Seyi Sowemimo, SAN, identified a single issue for determination in the written address in support of the application settled by Oluwakemi Ayodele. The issue is couched thus:
“Whether the Appellant/Applicant has placed before this Honourable Court facts constituting exceptional circumstances for exercise of the Honourable Court’s discretion to grant him bail pending appeal.”
For the Respondent, the issue formulated for determination by Rotimi Jacobs, SAN, in a written address settled by Oladipupo Yeye Esq is this-
“Whether the Appellant/Applicant who has been convicted and sentenced by this Honourable Court (sic) to 3 years imprisonment has placed before this Court sufficient fact that will entitle him to bail pending the determination of his appeal.”
The issues formulated by both parties are identical as both addressed the matter of whether sufficient materials/exceptional circumstances are shown by the Applicant. I will however jettison the issue formulated by the Respondent while adopting the issue formulated by the Applicant in the resolution of this application. My reason for jettisoning the issue formulated by the Respondent is that this Court did not convict and sentenced the Applicant as couched in the Respondent’s sole issue for determination. The problem with the Respondent’s issue is a case of ‘copy and paste’ gone wrong. Counsel must endeavor at all times to carefully proof-read all processes before submitting them for filing in Court, in order to avoid the kind of error that happened here.
In treating the sole issue, it is agreed by counsel to both parties that grant of bail after conviction and sentence and pending appeal is a rare judicial act wherein the court can only exercise its discretion in favour of an Applicant who placed before it facts constituting special and exceptional circumstances. On what constitute exceptional circumstances, the Court is referred to the cases of Jammal vs. The State (1996) 9 NWLR (Pt.472); Buhari vs. The State (2004) 16 NWLR (Pt.899) 285; Fawehinmi vs. The State (1990) 1 NWLR (Pt.121) 486 and Obakponvwe vs. The State (2019) LPELR-47180. Counsel for the Applicant submitted that the Applicant has attached Exhibits in support of his stated peculiarities which amounts to exceptional circumstances that will convince this Court to grant him bail pending appeal. It is submitted that the Applicant’s appeal might not be heard on time because of the backlog of cases occasioned by the Endsars protest and the JUSUN strike. Added to this are the grounds of appeal which raised arguable and substantial points of law and the length of time before the hearing of his appeal which constitute special circumstances for exercise of this Court’s discretion in favour of the Applicant. The case of Munir vs. FRN (2009) 16 NWLR (Pt.1168) 481 @ 497-498 on what constitute exceptional or special circumstances for the grant of bail pending appeal, is also cited in aid of the argument canvassed for the Applicant. It is further argued that the deterioration of the Applicant’s health coupled with his age also constitute exceptional circumstances to warrant his admission to bail. This Court is urged to take judicial notice of the notoriety of the inadequacy of government hospitals and prison health facilities in terms of drugs and equipment which cannot cater for the medical needs of the Applicant. The case of Ogundipe vs The State (Unreported decision of this Court) is also commended to us. This Court is urged to grant the Applicant bail pending the determination of his appeal.
In response, counsel for the Respondent submitted that the Applicant’s motion is predicated on two main grounds, to wit; (a) The alleged ill health of the Applicant, and (b) the likelihood of the Applicant completing his jail term before the determination of his appeal. After making reference to the principles that guide the Court in the grant of bail to a convict as enunciated in plethora of judicial authorities, including Ojo vs. FRN (2006) 9 NWLR (Pt.984)103 @ 116-117, counsel submitted that when these principles are applied to the instant application, it will be clear that the Applicant has not made a case to entitled him to bail pending appeal.
It is submitted that even though ill health may constitute special circumstance for the grant of bail, mere allegation of ill health and exaggerated claim of deteriorating condition without evidence to substantiate will not be sufficient as special circumstance for the grant of bail. He referred to Exhibit B and submitted that there is nothing therein to even suggest deterioration of the Applicant’s health as the Applicant is said to be a known hypertensive and diabetic patient since 2006 and that he is stable on his prescribed medications. Counsel submitted that from the medical reports exhibited, there is no need for urgent medical attention that would warrant the release of the Applicant on bail. It is submitted that there is no evidence before the Court to show that the State and the Ikoyi Custodial Centre cannot afford to provide medical care to the Applicant while in custody. On this submission, the Court is referred to the case of Abacha vs. State (2002) 5 NWLR (Pt.761) 638 @ 664. Counsel contended that there is no evidence before the Court that the authority has not afforded the Applicant access to good medical care, or that they lacked adequate capacity to enable strict adherence to prevent the spread of Covid-19 in prison or if necessary, to isolate the Applicant from other inmates. It is argued that there is no recent medical report from an expert that categorically states the true state of health of Applicant as both Exhibits B and C were written in January, 2021 and refers to medical condition been treated since 2006 and November, 2020 respectively.
On the Applicant’s argument that he would have spent substantial part of his sentence before his appeal is determined, counsel for the Respondent submitted that the said argument is speculative in view of the new Practice Direction of the Court of Appeal for speedy hearing of appeals by or against EFCC in corruption related cases. He cited the cases of Jolly Nyame and Joshua Dariye were their appeals to the Court of Appeal were heard and determined within six months. Counsel also referred to the cases of George Ogbonna vs.FRN, Appeal No. CA/L/365C/2018; Emmanuel Morah vs. FRN, Appeal No. CA/L/365B/2018 and Rocky Energy Limited vs. FRN, Appeal No. CA/L/365CA/2018 in which this Division of the Court of Appeal determined all the appeals in October 2018, under the Fast Track Practice Direction. In urging the Court to refuse the application, counsel argued that if every person in custody were to be released on bail because of an underlying health condition which puts them at risk of contracting Covid-19, then no person will choose to remain in custody.
RESOLUTION.
Section 28 of the Court of Appeal Act, CAP. 36, Laws of the Federation, 2004, clothed this Court with power to admit an Appellant/Applicant to bail pending the determination of his appeal. Order 17 Rule 13 of the Court of Appeal Rules, 2016, compliments the power granted under the Act. However, unlike the granting of bail pending trial where the presumption of innocence inures to the Defendant, bail pending appeal against conviction and sentence robs the Appellant of that presumption as enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). Therefore, bail after conviction and pending appeal is granted only on exceptional circumstances which must be shown to exist to the satisfaction of the Court. It is the duty of every Applicant to present the necessary materials before the Court in support of his application to enable the Court exercise its discretion in his favour. In the case of Ojo vs. Federal Republic of Nigeria (supra) this Court set out two different sets of conditions governing the grant of bail to a convict pending his appeal. The conditions are:
“… In the absence of special circumstances, bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.”
In the determination of an application for bail pending appeal, the Courts have over the years advanced some guiding principles to be considered which includes:
i.The Applicant has lodged and appeal to the Court of Appeal.
ii. The Applicant has complied with the conditions of appeal imposed, which will show his seriousness.
iii. If the Applicant was granted bail during the trial, he has not attempted or tried to jump bail.
iv. If the hearing of the appeal is likely to be unduly delayed.
v. The Court will have regard not only to the length of time that will elapse before the appeal can be heard but also the length of the sentence appealed from, and these matters will be considered in relation to one another.
vi. Bail will be refused unless the refusal will have the result of a considerable proportion of the sentence being served out before the appeal can be heard.
vii Bail will not be granted pending appeal save in exceptional circumstances.
It is not in dispute that the Applicant has lodged an appeal against his conviction and sentence by the High Court of Lagos State. His two Notices of Appeal are dated 14/01/2021 and 30/03/2021 respectively. Appellant’s counsel argued that the grounds of appeal raised substantial points of law. This argument is unsubstantiated and cannot be accepted by this Court in view of the absence of the record of appeal and the judgment appealed against. It is from the record of proceedings and judgment of the lower court that this Court will determine whether or not the grounds of appeal raised arguable and substantial points of law. These important materials are not yet before this Court. Besides, it will amount to speculation to prejudge the appeal by determining at this stage the substantiality or otherwise of the grounds of appeal, as this is a matter for determination in the substantive appeal. In the case of Bode George vs. FRN (2010) LPELR-43088 (CA), Ogunbiyi JCA, (as he then was) held that whether or not the grounds of appeal are substantial, strong, cogent and arguable is for determination at the appeal and not at the stage of application for bail. That the Court cannot speculate or deduce on the outcome of either the merit or otherwise of the appeal since the merit of the appeal is not for consideration at this stage. Therefore, even though the Applicant has lodged an appeal before this Court, he is yet to comply with the conditions of the appeal by compiling and transmitting the record of appeal.
The Applicant has advanced ill health as special circumstance why he should be admitted to bail. He annexed two medical reports, Exhibits B and C, to the counter-affidavit of Nina Famoroti and one medical report, Exhibit F, to the further and better affidavit. In all the medical reports, the Applicant is said to be a known hypertensive, hyperlipidaemia and diabetic patient since 2006, in the case of Exhibit B, and since November, 2020, in the case of Exhibit C. Exhibit F is a medical report from the Ikoyi Custodial Centre and it is based on Exhibits B and C. In Exhibit B, authored by the Applicant’s personal Physician, Dr. A.O. Balogun, a Consultant Physician of Charles Hammond’s Clinic, it is stated that the Applicant is stable on the following medications: Glibenclamide (Daonil), Metformin, Norvasc 10mg daily and Lipitor 5mg nocte. The Doctor suggested that in view of his age, the Applicant is vulnerable to bad outcome of Covid-19 infection. He advised that the Applicant should stay away from people. Even though the deponent to the affidavit in support of this application stated that the Applicant’s health has deteriorated in the Ikoyi Correctional facility, nether Exhibits B and C nor Exhibit F which emanated from the Correctional Centre at the instance of the Applicant, and which are heavily relied upon by the Applicant, stated the current state of health of the Applicant or confirmed the assertion of the deponent. It is one thing to state in an affidavit that the Applicant’s health is deteriorating; it is another thing to support or substantiate that assertion by medical report. None of the medical reports presented by the Applicant stated or even suggested that his health condition is deteriorating in the Ikoyi Custodial Centre. The report in Exhibit B that he is vulnerable to bad outcome of Covid-19 infection is speculative as there is no evidence to show that the Custodial Centre has not put in place precautionary measures to limit the spread of the virus. I agree with the submission of the Respondent’s counsel that the Covid-19 disease is a disease that is present outside of the Custodial Centre, and the Applicant cannot be relying on it as a special circumstance in the absence of evidence that the disease is presently spreading in the Custodial Centre where the Applicant is serving his sentence.
It is settled law that ill health of an Applicant can constitute special circumstance for the grant of bail pending appeal. See Fawehinmi vs. State (1990) 1 NWLR (Pt.127) 486; Abacha vs. State (2002) 5 NWLR (Pt.761) 638; Arolowo vs. State (2008) All FWLR (Pt.404) 1603 @ 1606. However, mere assertion of sickness by an Applicant will not qualify him for bail unless there are compelling grounds for doing so. Uwaifo, JSC, stated the legal position in Abacha’s case (supra) at page 656 thus:
“The special medical need of an accused person whose proven state of health need 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 the mere assertion of his counsel but on satisfactory and convincing evidence.”
He proceeded at page 664 of the report as follows:
“….it ought to be understood that the mere fact that a person 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.”
The Medical report from Police Hospital, Falomo, Exhibit C, was signed by one Dr. Thompson E.O., a Medical Officer. It is only in that report that the Applicant is said to have been diagnosed with Koch’s disease and that he is put on recommended therapies. Nothing in that report indicates that the Applicant’s condition has deteriorated in the Custodial Centre. What is more, not only is the author of that report not an expert in the field of infectious diseases, but a mere Medical Officer, the report relates to the Applicant’s visit to the Hospital in November, 2020. That report is not indicative of the current health status of the Applicant.
In the result, I hold that there is nothing in the three medical reports presented by the Applicant to show that he cannot be treated for his ailments in the Correctional facility of the Respondent at Ikoyi, or that he needs urgent medical care which the Correctional facility cannot provide. There is also no concrete evidence that the medications needed by the Applicant are not accessible to him in the Custodial Centre. This ground of the Applicant’s application has not been substantiated and has therefore failed.
The other leg upon which this application is predicated is that there is the likelihood of the Applicant serving out his jail term of three years or substantial part of it before the determination of his appeal, having already served six months. The Applicant cited the backlog of pending cases before this Court following the Endsars protest and the JUSUN strike as basis for his assertion. As at the date of hearing this application on 7th July, 2021, nearly six months after the filing of the first Notice of Appeal on 14th January, 2021 and over three months after the filing of the 2nd Notice of appeal on 30th March, 2021, the record of appeal was yet to be transmitted to this Court. I take judicial notice of the fact that the Endsars protest took place in October, 2020. How that protest, which occurred three months before the conviction of the Applicant, affected the compilation and transmission of record of appeal has not been explained in the two affidavits in support of this application. The Court’s record must have been intact after the Endsars protest for the lower court to be able to prepare and deliver its judgment. If the Courtroom was damaged and vandalized during the Endsars protest in October, 2020, which event affected the compilation and transmission of the record of appeal, as alleged in the affidavit, what materials did the lower court relied upon in writing and delivering its judgment on 5th January, 2021, more than two months after the Endsars protest? This explanation in the affidavit of Nina Famoroti is not plausible, and therefore incapable of believe. For this Court to believe the explanation that the casefile was not released to the Appeal Section by the lower court until March, 2021, an affidavit by the Registrar of the lower court, on whose door the reason for delay in transmitting record is squarely put, disclosing, affirming or denying this fact ought to have been filed. No such affidavit was filed. Indeed, the Registrar of the lower court was not even served with the affidavit in support of the application to enable him respond to the allegation of delay on the part of the trial court in the release of the casefile to the Appeal Section for the compilation and transmission of record of appeal to this court. I consider this deposition as a concocted story and therefore incapable of influencing the decision of this court.
Even if it is true, as speculated by the Applicant and his counsel, that this court is overwhelmed with backlog of cases as a result of the Endsars protest towards the end of 2020 and the JUSUN strike that lasted for two months between April and June this year, ample provisions have been made in the Rules to fast track the hearing of the Applicant’s appeal if he so desires. The Court of Appeal (Fast Track) Practice Directions, 2014 was issued to achieve the objective of fast tracking the hearing of certain types of appeal to wit; Debt appeals, appeals pertaining to or connected with Corruption, Human Trafficking, Kidnapping, Money Laundering, Rape and Terrorism. In particular, the Fast Track Practice Directions covers appeals by or against the EFCC and all other prosecutorial or security agencies. Therefore, both in terms of subject matter and the prosecuting agency, the Applicant’s appeal qualifies for fast track hearing under which the period for transmitting record and filing of briefs are abridged to accord with the fundamental objectives of the Practice Direction. In this light, this court is enjoined to give preference to such appeals notwithstanding the size of its docket. The procedural causes of delay in the prosecution of the type of appeal filed by the Applicant herein have been eliminated by the provision of the Fast Track Practice Direction. It is therefore up to the Applicant to utilize that window to ensure the quick disposal of his appeal. Whether or not the Applicant’s appeal is heard and determined expeditiously under the Fast Track Practice Direction greatly depend on him. Where an Appellant/Applicant for bail as the instant one, whose appeal falls squarely within the Fast Tract Practice Direction, fails or is unable to utilize that window of opportunity for the quick and timely hearing and disposal of his appeal, he cannot be heard pleading delay or complaining that if his bail application is not granted he will serve out his prison term or substantial part of it before the determination of his appeal. The law does not allow a party to benefit from his negligence or indolence. In the instant application, there is nothing to show that as a result of the failure of the Registrar of the lower court to compile and transmit the record of appeal within the prescribed time, the Applicant or his counsel has taken steps to do so as required by order 8 rule (4) of the Court of Appeal Rules or paragraph 13 (3) of the Fast Track Practice Direction. This ground of the application fails.
In the final analysis, I hold that the Applicant has not shown special or exceptional circumstances that would warrant his admission to bail pending the determination of his appeal before this court. This application is devoid of merit and is accordingly dismissed.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
