It is trite law that the judicial officers are saddled with right to exercise their powers by choosing among two or more open alternatives, each being provided by law in deciding some legal matters before them.
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It is not in doubt that this paper is of more concerns about the bail application and the judicial discretion in granting or refusing same.
– Bail is defined according to Black Law Dictionary Eighth Edition (pg. 150) as “A security such as cash or a bond; especially security required by a court for the release of a prisoner who must appear at a future time.”
Bail and its process also explained by Muhammad J.C.A (as he then was) in the case of Caleb Ojo and Anor vs. Federal Republic of Nigeria (2006) 9 NWLR Pt. 984 Pg.103 @115 as follows: –
”Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though they may free themselves from further responsibility if they surrender him to the court before the date assigned.”
– Judicial Discretion also defined as “the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. ” Black Law Dictionary Eighth Edition pg. 499
There are instances where a judge is allowed to exercise the judicial discretion, one of which is granting or refusing the bail application. A court is given a power where an accused person has been arraigned for the commission of an offence to grant or refuse bail pending the time the case would be determined.
Furthermore, Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 as amended guarantees the presumption of innocence of the accused person until the contrary is proved.
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
The trite position of law is that, an accused person who has not been tried and convicted by a competent court is entitled to be admitted to bail as a matter of course except where some special circumstances proved to exist.
Moreover, every accused is entitled to pre- trial freedom even though such is restricted in some exceptional circumstances as provided under section 35 (1) of the Constitution of Federal Republic Nigeria 1999 as amended which provides that:
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law…..”
Also, Section 158 of Administration of Criminal Justice Act 2015 provides for general entitlement of an accused to bail that “When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this Part, be entitled to bail.”
It is paramount to note that, when it comes to the issue of whether to grant or refuse bail
pending trial of an accused by the trial court, there are general criteria which a judge should put into consideration before admitting him to bail, and these criteria are as follows;
1- The availability of the accused to stand trial,
2- The nature and gravity of the offence,
3- The likelihood of the accused committing offence while on bail,
4- The criminal antecedents of the accused,
5- The likelihood of the accused interfering with the course of justice.
6- Likelihood of further charge being brought,
7- The probability of guilt,
8- Detention for the protection of the accused,
9- The necessity to procure medical or social report pending a final disposal of the case.
It is mostly important for a judge to consider the above criteria before the determination of bail application and weigh these criteria in any given case; this is because, the judicial discretion must be exercised judicially and judiciously. In most cases in Nigeria, there are two criteria which are always considered by the court;
(a) Availability of Accused to stand trial, and
(b) Nature and gravity of the offence.
Availability of Accused to stand Trial: The whole essence of granting or refusing bail is to ensure the attendance or presence of the accused person throughout his trial except where some special circumstances genuinely exist. Admitting an accused person to bail doesn’t in any way amount to withdrawal of charges or acquittal, rather, it is just a temporary freedom pending the determination of the case.
Nature and Gravity of the Offence Charged: Due to the punishment attached to the offence committed; one can have a logical conclusion that, there’s a likelihood of accused person jumping bail, although this may not be true all the times. ASARI vs. FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (Pt.375)5588
Note that the mere fact that the alleged offences allegedly committed by the accused person are serious is not sufficient reason for the trail court to refuse bail in an offence that is non-capital. As a matter of fact, bail application was even granted in some capital offences, as in case of EBUTE vs. STATE (1994) 8 NWLR (Pt. 360) 66 at 71.
ISSUES ARISE FROM THE DETERMINATION OF BAIL APPLICATION:
There are several issues arise which must be addressed as far as bail application is concerned in Nigeria. These issues are as follows;
ISSUE ONE:
Whether the right to personal liberty and presumption of innocence as provided under section 35(1) and 36(5) of the Constitution of Federal Republic of Nigeria makes bail automatic.
Though, it may be argued that section 35(1) and 36(5) of the Constitution allow an accused to enjoy his personal liberty and presume everyone innocent, and that a mere allegation of offence be it capital or non-capital cannot automatically suspend the section 35 and 36 of the 1999 Constitution which deal with the entitlement of an accused person to bail.
It is my view that, the presumption of innocence does not in any way make the grant of bail automatic or absolute since the court is given the judicial discretion either to grant or refuse bail; if the court is of the view that there are substantial grounds to consider before the determination of bail application .Not only this, the intendment of every law is always important in any given case. No doubt that law is made to ensure that there is a peace and security in every society and if it is believed that an accused person may disturb the peace, progress, and prosperity of the society or country; the bail application made on behalf of the accused person may not be granted for security wise.
In ASARI vs. FEDERAL REPUBLIC OF NIGERIA (supra). Tanko Muhammad JSC (now the CJN) posited that”
“I entirely agree with the Court below that a charge of treasonable felony is a very serious offence and is prejudicial to National Security. I believe neither the appellant nor his counsel would sit down to fold up his arms, if on the seat of power, to allow any citizen to put his reign into terror and utter hopelessness or despondency while dancing to the music of a citizen who plots a Coup d’état against him. He will certainly fight it to the end”.
With careful reading of section 35(1) (c) which provides that: for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
I humbly submit that, section 35(1) and 36(5) cannot be said to be disregarded if the section are not invoked in isolation of section 35(1) (c) and 35(7) (a) of the Constitution. Where the National Security which the Constitution aims to provides is at stake. Thus, the security and welfare of the people should be the primary purpose of the government.
ISSUE TWO:
Whether decision of a Superior Court in determining the bail application binds a lower court.
Since the issue of granting or refusal of bail is placed within the discretionary power of the court, previous decisions are of no essence. Though, it can serve as broad guidelines for the lower court but it doesn’t have a binding force or serve as precedent. Just recent, some lawyers erroneously justified the position of DSS as to the continued detention of Omoyele Sowore after court has granted his bail application by referring us to the Case of Dokubo-Asari vs. Federal Republic of Nigeria (supra).
In this notorious case, bail was applied for Dokubo-Asari but was refused by the Federal High Court and the Court of Appeal on appeal. By a further appeal to the Supreme Court (the Apex court of the land), the Supreme Court and same was refused. They are of the view that the decision of the courts forms part of our criminal jurisprudence in Nigeria, especially when it comes to the issue of granting of bail by courts to an accused person.
In response to their views, two points must be made first addressed to clear the dust the case caused.
(1) The two cases are similar to an extent, and
(2)The decisions of court in both cases are different.
ASARI was charged with felony and Sowore also charged with the same offence.
The court refused ASARI’s bail application and court granted Sowore’s bail application. To be sincere, what brought the argument was that, what is the justification of continued detention of Sowore by DSS after court has given a release order to release him on bail and the bail conditions have been fulfilled, and not to determine the propierity of admitting him to bail.
In Sarami vs Kotove (1990)4 NWLR (pt. 143)144 @ 151, Obaseki, JSC, put it this ways:
“The proper role of the Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the Appellate Court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the Appeal Court. “
I therefore submit that, even if two cases are exactly similar, the lower court cannot be rightly bound by a previous decision where the judicial discretion is required. If that is done, the essence of exercising discretion is automatically defeated.
ISSUE THREE:
Whether a court can ordinarily refuse bail in a capital offence without any proof of evidence justifying such.
It is worthy to note that, bail pending trial is not ordinarily granted especially where the offence is capital in nature. However, court may grant bail pending trial in special circumstances i. e.; where prosecution fails to present proof of evidence to justify continued detention of accused person.
In Chinemelu vs. Commissioner of Police (1995) 4 NWLR (Pt.390) 467, the Court of Appeal granted bail pending trial to a murder accused, in the light of the special circumstances of the case. And the special circumstances were the absence or lack of facts justifying the continued detention of the accused. Ejiwunmi, J.C.A (as he then was) in his concurring judgment said:
“The only evidence about the case before the lower court and this court remains the affidavit filed by the inspector involved with the investigation of this case. And he only made references to what he considered to be the eye witnesses of the offence for which the appellant stands charged. However, there is nothing that can be likened to a complete proof of evidence from the witnesses themselves. For the respondent to justify the continued detention of the appellant I think it is only right for the respondent to produce such evidence for the consideration of the court.”
I strongly submit that, a mere disposition to an affidavit that the accused commits a capital offence cannot be a justification for the continued detention or refusal to grant him bail in absence of any relevant evidence proves same.
ISSUE FOUR:
Whether a court can rightly grant bail with excessive or oppressive conditions.
The condition which may be attached to bail is always at discretion of the court having considered the facts and circumstances open to the court. However, the court is expected of attaching liberal term to bail and such should not be excessive.
The proper starting point to address this issue is that, Section 165. (1) Of Administration of Criminal Justice Act 2015 provides that “The conditions for bail in any case shall be at the discretion of the court with due regard to the circumstances of the case and shall not be excessive.”
It is well settled that, the nature of offences committed determines the bail conditions, therefore, a great offence attracts great condition and vice versa. It must be noted that, the gravity of offence should not call for oppressive or stringent bail conditions. It is my view that, since it is discretionary power of court to grant or refuse bail, no need for court of law to merely grant the bail application and tie the accused person down with stringent bail conditions attached.
In OBIANA vs. FEDERAL REPUBLIC OF NIGERIA (2005)13 WRN @ pg.167 lines 15 -25 the court held that:
“It is however settled that conditions of bail must not be unreasonable or oppressive. They must not amount in effect to punishment. Once the conditions of bail are so stringent, its effect amounts to refusal.”
Though, application for variation of the bail conditions may be of help to vary the bail conditions, but yet, it is worthy of note that, before the hearing of the said application the accused remains in custody suffering continued detention.
It is therefore my humble submission that, a court granting bail by exercising its discretion should carefully look at the circumstances of the case before admitting the accused to bail and should not follow part of law and disregard part. This to me amount to showing an accused person a way out from detention but the door key is thrown away.
ISSUE FIVE:
Whether a surety in the event of the accused evades justice forfeits only bail bond or also losses his Fundamental Rights.
In every case which has to do with bail, a reliable surety (sureties) must be produced who undertakes and stands for the accused person to pay or forfeit a sum for the accused in the event where he fails to appear in court.
There is a laid down procedure to be followed when this event arises and the surety fails to produce him. This procedure is clearly stated in Federal Republic of Nigeria vs. Maishanu & ors (2019) LPELR –46380 (SC). The court held that:
” A community reading of the provisions of sections 137,141 and 143 of the Criminal Procedure Act that when an accused person/defendant is granted bail and jumps it, the trial court may, upon noticing such a breach by the accused/ defendant :
i- Revoke the bail,
ii- issue a bench warrant for his arrest,
iii- order the forfeiture of the bail bond, and
Iv- upon forfeiture of the bail bond, order the surety (sureties ) to (each) pay the sum stated in the bond into the Court’s Registry .
Regarding whether a surety losses his Fundamental Rights upon his failure to produce the accused person. It is my view that, there is no law that says in the event an accused person evades justice and the person stands as a surety for releasing him on bail fails to produce him losses his fundamental rights as guaranteed under section 34, 35, and 44 of the Constitution of Federal Republic of Nigeria 1999 as amended.
In just decided case between Charles Aiyeni and Economic and Financial Crime Commission. In this case, the accused that was arrested and released on bail to the surety jumped bail and he couldn’t be found or produced, the person stood as his surety was arrested and detained. In deciding the case for Enforcement of Fundamental Rights of the Applicant, Hon. Justice I. N Oweibo said as follows;
1- The arrest, detention of the Applicant because he could not produce a suspect he stood surety for is not a crime known to law.
2- The only liability for the Applicant for failure to produce the suspect is to show cause or forfeit the sum of 18 million Naira bail bond.
3- The arrest, detention of the Applicant was not justified and therefore unlawful.”
It is my submission that, failure to produce the accused doesn’t in any way affect fundamental rights of a surety; rather, the surety forfeits the bail bond. Not only this, if there is sufficient evidence that the accused jumps bail in the aid of his surety by obstructing the cause of justice, the surety may be trial for that.
CONCLUSION:
The judicial discretion is expected to be exercise judicially and judiciously in any given case. It is a judicial responsible of a court faced with the bail application to consider each and every circumstances open to it before the determination of the bail application and conditions to be attached. Equally, the high premium should be placed on the intendment of law while exercising such discretionary power; that will definitely help the court to arrive at a sound decision which will be in favor of individuals and the country respectively.
By: Y. A, Usman Esq. (AR–ROHEES), Email: rohees9090@gmail.com, Phone: 07033589425
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