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NWAOBOSHI V. F.R.N: The Law on the Right of the Accused to Access Good Medical Care: Whether it Includes Medical Practitioner of His Choice.

Citation: (2023) 10 NWLR PT. 1893 AT 565.

Courtesy: Moruff O. Balogun, Esq.

Summary of Facts:

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The Applicant was convicted for money laundering and sundry offences, and sentenced to 7 years imprisonment. However, he did not submit himself to the Nigerian Correctional Services [NCS], which by the order of the Court of Appeal is the legal custodian/ jailer of the Applicant from 1/7/2022 when he became a convict.

On 25-7-2022, the Applicant filed a notice of appeal against the judgment of the Court of Appeal delivered on 1-7-2022 in Appeal No. CA/LAG/CR/988/2021 setting aside his acquittal and discharge from the charge of commission of money laundering offences by the Federal High Court at Lagos in its judgment delivered on 3-9-2021 in charge No. FHC/L/117C/2018, and rather convicting him of committing the offence of money laundering contrary to Section 15(2)(d) of the Money Laundering (Prohibition) Act, 2011 and sentencing him to imprisonment for seven years.

The appeal was entered in the Supreme Court on 28-7-2022, when the record of the trial proceedings were compiled and transmitted. The appellant filed an amended notice of the said appeal on 3-8-2022. The same was deemed filed by the Supreme Court on 22-9-2022.

On 5-8-2022, the appellant filed his brief of argument in the appeal. He filed an amended brief on 6-9-2022 which was deemed filed by the Supreme Court on 22-9-2022.

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This was the status of his appeal when on 23-9-2022, the appellant by a motion on notice applied for an order admitting him to bail pending the hearing and determination of his said appeal.

The application was supported by an affidavit of 20 paragraphs, the judgments of the Federal High Court and Court of Appeal, the amended notice of appeal, INEC Form ECC9 sworn to by him on 15-6-2022, medical report dated 6-7-2022 from National Hospital, Abuja and a written address.

That appellant filed three further affidavits in support of the application, one of which was accompanied by medical reports from Police Hospital Falomo, Lagos.

Thus, the applicant, who has continued to enjoy his right to personal liberty herein, sought an order of the Supreme Court admitting him to bail pending the hearing and determination of his appeal.

The 1st respondent filed a counter affidavit accompanied by a further affidavit in a previous application at the Court of Appeal for bail pending appeal, medical report dated 22/7/2022 from National Hospital, Abuja and its written address in opposition to the application for bail pending appeal.

Both sides addressed the Supreme Court concerning the grant of the applicant’s application on the basis of their respective affidavits and written addresses.

Held: The Supreme Court allowed the appeal by setting aside both the decisions of the Court of appeal and the trial court.

The following issues were raised and determined by the Supreme Court:

 

1. On whether an accused entitled to medical practitioner of his choice-

Were it the law that an accused person remanded in custody to await trial is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial.

There is no general principle of law affording that right to an accused person remanded in custody. The duty of the State to ensure that the medical needs of persons in custody are met does not create such extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice.

 

2. On right of accused to access good medical care:

Everyone is entitled to be offered access to good medical care whether he is being tried for a crime or had been convicted or simply in detention.

When in detention or custody, the responsibility of affording him access to proper medical facility rests with those in whose custody he is, invariably the authorities.

But 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.

 

3. On when bail will be granted on grounds of ill health

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.

A person being tried or who has been convicted for a serious offence will normally be kept or maintained in custody while he receives available medical treatment.

4. On need to establish special medical need relied upon for application for bail pending appeal

The special medical need relied upon for an application for bail pending appeal must be established by satisfactory and convincing evidence and not mere assertions.

In the instant case, the appellant alleged that his medical condition could only be managed outside the prison to eliminate any complication that would end his life and the condition required specialized medical attention which could not be provided in prison custody.

However, Medical reports exhibits F and H2 he procured from National Hospital Abuja and Police Hospital, Falomo, Lagos to prove the allegations, did not support the allegations.

There was no suggestion in any of those reports that the medical condition diagnosed therein could not be managed while he is in prison custody or in any medical facility under the control or auspices of the prison authorities or one chosen by the authorities.

 

5. On attitude of court to medical reports in support of application for bail filed by a fugitive convict

Medical reports sent in by a fugitive from his hiding as an excuse for running or hiding from the law to avoid his serving of a judicially imposed prison sentence and reasonably be regarded as doubtful evidence of his state of health and special medical need, especially where the law enforcement agencies were not afforded reasonable opportunity to be aware of his admission as a patient in any hospital and visit him in such hospital.

It cannot be regarded as convincing evidence of his exact state of health and special medical need without affording the respondent’s officials the opportunity to physically examine him to verify his exact state of health and thereby agree with or join issues with the medical reports.

In the instant case, the medical reports were self-serving. As its obvious they were made in furtherance of applicant’s scheme to avoid prison custody.

 

6. On effect of sentence to a term of imprisonment

Upon sentence to a term of imprisonment, a convict remains in the custody of the law and has no choice on whether he should submit to the physical custody or not. He remains in custody of the law wherever he may be physically.

This places a duty on him to make himself available to the law enforcement agencies or officials of the Correctional Services to begin the confinement or custody of his person in prison.

In the instant case the applicant refused to comply with this legal demand and was frustrating the execution of the custodial sentence imposed on him by the Court of Appeal.

While avoiding his being taken into prison custody the applicant applied to the court to grant him bail on health grounds pending the determination of his appeal to the court.

Thus, the applicant was faced with two difficulties. The difficulty of securing bail pending appeal and the difficulty of securing bail as a fugitive even if he satisfied all the legal requirements for bail pending appeal.

 

About the Author

Moruff O. Balogun Esq. Ijebu Ode,Ogun State. He can be reached via O8052871414

09121207712 [WHATSAPP)

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