Attitude Of Nigerian Courts On Bail Application In Criminal Proceedings. - Crime

INTRODUCTION:

The main function of bail is to ensure the presence of the accused at the trial. This criterion is regarded as not only the omnibus one but also the most important of all criteria for granting bail at the trial court. As a matter of fact, all other criteria are dependent on the omnibus criterion of availability of the accused to stand trial. Arising directly from the omnibus is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the greater the incentive to jump bail, although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the court than one charged with a misdemeanor, like affray. The distinction between capital and non-capital offence in one way crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the accused person absconding. But the above is subject to the qualification that there may be less serious offences in which the court may refuse bail, because of its nature. See DOKUBO-ASARI v. F.R.N (2007) 12 NWLR Pt.1048) 331; R v. JAMAL 16 NLR 54; STATE v. OKAFOR (1964) ENLR 96.

To grant bail or not is a discretionary matter for which the trial judge in the exercise of his discretion must act judicially and judiciously. He must, therefore, act only on evidence placed before him. The grounds for refusing bail must be upon facts on record. The trial judge must not act on his instinct on which there is no evidence in support. The prosecution would always be in the best position to advise or suggest to the court on the antecedent or probability or even the tendency of the applicant to escape from being tried. See OMODARA v. STATE (2004) 1 NWLR (Pt.853) 83.

The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pretrial freedom to an accused person whose appearance in court can be compelled by financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial and it stops on conviction of the accused. It also stops on acquittal of the accused person. The contractual nature of bail is provided for in section 345 of the Criminal Procedure Code, which provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if a person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See LOCAL GOVERNMENT POLICE v. ABIODUN (1958) WRNLR 212; SULEMAN v. C.O.P, PLATEAU STATE (2008) 8 NWLR (Pt.1089) 301.

RIGHT OF AN ACCUSED PERSON TO BAIL:

Bail is a basic right of every citizen of Nigeria who is charged with a criminal offence by virtue of section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria. Thus, every person is entitled to his personal liberty and no person is to be deprived of his liberty except as stipulated by the constitution or statute. And in furtherance of that right, section 35 (4) of the 1999 constitution provides that any person who is arrested or detained in accordance with subsection 1 (c) of this section must be brought before a court of law within a reasonable time and if he is not tried within a period of:

Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
Three months from the date of his arrest or detention in the case of a person who has been released on bail.

He shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for his trial at a later date. This section is, however, excluded where a person is detained upon reasonable suspicion of having committed a capital offence. See ALAYA v. STATE (2007) 16 NWLR (Pt.1060) 487.

Under the Nigerian Law, bail is a right of an accused person. An accused person is not usually denied bail, except where the offence is a capital offence where special circumstances genuinely exist. See BOLAKALE v. STATE (2006) 1 NWLR (Pt.962) at 511.

An accused who has not been tried and convicted by a competent court for an offence known to law is entitled to be admitted to bail as a matter of course, unless some circumstances militating against his admission to bail are shown to exist. See ANI v. STATE (2002) 1 NWLR (Pt.747) 217; PRESIDENT OF IBADAN v. LANGUNJU (1954) 14 WACA 549.

WHAT DETERMINES BAIL TERMS:

In granting an application for bail to an accused person, the court will not overlook the seriousness of the offence as alleged by the prosecution as that will determine the bail terms. Conditions attached to grant of bail must not be suffocating, unbearable, unworkable and unduly burdensome. See ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638.

A court may properly consider denying a citizen of his liberty if it is satisfied on cogent evidence. Conversely, the liberty of a citizen should not be fettered on the basis of unsubstantiated allegations. See ORJI v. F.R.N (2007) 13 NWLR (Pt.1050) 65.

CONSTITUTIONAL GUARANTEE OF RIGHT TO PERSONAL LIBERTY:

By virtue of the provision of section 35 (1) and 36 (5) & (6) of the 1999 Constitution of the Federal Republic of Nigeria, every citizen of Nigeria is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the Constitution or statute.

A Nigerian citizen is entitled to his God's given natural right free from incarceration save in accordance with all the fundamental laws of the land, that is, the Constitution of the Federal Republic of Nigeria and other relevant legislations which are not inconsistent with the Constitution; which affirms that every person is entitled to his personal liberty save 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". See ONYIRIOHA v. I.G.P (2009) 3 NWLR (Pt.1128) at 351.

RIGHT OF ACCUSED PERSON TO PRESUMPTION OF INNOCENCE AND FAIR HEARING:

The presumption of innocence of every person charged with a criminal offence is also guaranteed by the 1999 Constitution. So is his right to fair hearing which encompasses, amongst others, the following:

Entitlement to be informed of the nature of the offence he has committed;
Adequate time and facility for the preparation of his defense;
To defend himself either personally or by a legal practitioner of his choice;
To examine witnesses and or call those witnesses as may assist his case;
To seek the assistance of interpreter.

By virtue of section 35 (4) and 36 (5) of the 1999 Constitution, an accused person is entitled to his unfettered liberty and is presumed innocent until proved guilty, and the onus is on the prosecution to prove that an accused person is not entitled to bail.

However, the presumption of innocence and the right to liberty as enshrined in sections 36 (5) and 35 (4) respectively of the Constitution can only be invoked where there is no prima facie evidence against the accused. Thus, if there is prima facie evidence against the accused person, it would be foolhardy to allow him on bail because the constitution could not have envisaged a situation where accused persons of every shade could be allowed bail just at the mention of the magic words of presumption of innocence and right to liberty. Thus, the proviso in section 36 (5) of the 1999 Constitution states that nothing in the section shall invalidate any law by reason only that the law imposes upon any such person the onus of proving particular facts. See ABIOLA v. F.R.N (1995) 7 NWLR (Pt.445) 155.

GROUNDS FOR GRANT OF BAIL TO PERSON CHARGED WITH OFFENCE OF SERIOUS NATURE:

Under section 341 (2) of the Criminal Procedure Code, in order to grant bail to an accused person charged with an offence of serious nature, the accused person must satisfy the following conditions:

That by reason of grant of bail, the proper investigation of the offence would not be prejudiced;
That no serious risk of the accused person escaping from justice would be occasioned; and
That no ground exists for believing that the accused person, if released, would not commit other or similar offence.

In other words, where an offence is of a serious nature, once the accused person has satisfied the conditions stipulated under section 341 (2) of the Criminal Procedure Code, the court shall exercise its discretion in granting him bail. See CHINEMELU v. C.O.P (1995) 4 NWLR (Pt.390) 467.

In the case of an offence not ordinarily bailable, it is the duty of the applicant to make an application with an affidavit stating the reasons why he should be granted bail. On the other hand, the onus, is on the prosecution to show why the applicant should not be admitted to bail; that is, to show that the conditions stipulated under section 341 (2) of the Criminal Procedure Code have not been satisfied by the accused. See OGBHEMHE v. C.O.P (2001) 5 NWLR (Pt.706) 215.

PRINCIPLES GUIDING GRANT OR REFUSAL OF BAIL:

The grant or refusal of an application for bail is at the discretion of the court. Like all other discretions, it must be exercised judiciously and judicially. And before it can be said that a court properly exercised this discretion, that is to say, with sufficient, correct and convincing reasons and not on its whims and fancies, it must have examined all the materials placed before it and considered the applicable laws. The discretion must be based on facts and not in vacuo. See UWAZURIKE v. A.G FEDERATION (20080 19 NWLR (Pt.1096) 450.

The relevant criteria to be considered in the grant or refusal of an application for bail are:

The nature of the charge;
The character of the evidence;
The severity of the punishment;
The criminal record of the accused;
The likelihood of the repetition of the offence;
Evidence that should applicant be granted bail; the witness for the prosecution may be interfered with or prevented from appearing to testify; and
Whether if the applicant is granted bail; he would fail to attend court to face trial.
The evidence available against the accused;
The availability of the accused to stand trial;
The nature and gravity of the offence;
The likelihood of the accused committing another offence while on bail;
The likelihood of the accused interfering with the course of justice;
The criminal antecedents of the accused person;
The likelihood of further charge being brought against the accused;
The probability of guilt;
The detention for the protection of the accused;
The necessity to procure medical or social report pending final disposal of the case.

These factors are not exhaustive in guiding any trial court in granting or refusing bail pending trial. Also, it is not necessary that all or many of these factors must apply in any given case. Even one factor may be applied in a particular case to guide a trial court in granting or refusing bail in a case pending before it. See BAMAIYI v. STATE (2001) 8 NWLR (Pt.715) 270; NWUDE v. F.G.N (2004)17 NWLR (Pt.902) 306; OLATUNJI v. F.R.N (2003) 3 NWLR (Pt.807) 406; JIMOH v. C.O.P (2004) 17 NWLR (Pt.902) 389; LIKITA v. C.O.P (2002) 11 NWLR (Pt.777) 145; EKWENUGO v. F.R.N (2001) 6 NWLR (Pt.708) 171; OLUGBUSI v. C.O.P (1970) 2 ALL NLR 1; OZOUGWU v. STATE (2006) 9 NWLR (Pt.985) 243; UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (Pt.1) 143; DANTATA v. I.G.P (1958) NRNLR 3.

The presumption of law is in favour of the liberty of the accused as well as his innocence and the burden is on the prosecution to show that the accused is not one that should be released on bail with liberal conditions. See DANBABA v. STATE (2000) 14 NWLR (Pt. 687) 396.

Having regard to the presumption of innocence of a citizen until found guilty under the law and the paramouncy of the liberty of a citizen, the onus of showing that an applicant for bail does not deserve to be admitted to bail is on the prosecution.See EYU v. STATE (1988) 2 NWLR (Pt. 78) 602.

Where the conditions for bail imposed on an accused by the court are stringent and onerous to the extremes, it is as good as denying him bail. In the circumstance, the onus will be on the prosecution to show that the accused deserves such conditions of bail. Where a statute provides for stringent terms and conditions for a bailable offence, there is the presumption that the accused is guilty. See EYU v. STATE (1988) 2 NWLR (Pt.78) 602.

An accused person who jumps bail does so at his own peril. Hence, the risk or strong likelihood that an accused person may jump bail should not be used as a sole bulwark for denial of bail or basis for imposing suffocating bail conditions against such an accused person, until the occurrence of such an untoward development. Therefore, if an offence is readily bailable, it is both legal and logical that the conditions for bail attached thereto must be such as will engender positive utilization of the grant of the said bail to fullest extent whenever it is granted. See IBORI v. F.R.N (2009) 3 NWLR (Pt.1127) 96

GRANT OF BAIL ON GROUND OF ILL-HEALTH:

Although ill-health of an applicant for bail is a special circumstance for grant of an application for bail, a mere allegation of ill-health will not be sufficient justification for admitting a person to bail. See ABACHA v. STATE (2002) 5 NWLR (Pt.761) 638.

The fact that an applicant is a hypertensive patient who sees a specialist Cardiologist every other day for medical examination for the purpose of dosage control of the use of his prescribed drugs and that the medical equipment being used for his check-up are not normally movable is a special circumstance warranting the grant of his application for bail pending the determination of his suit. See CHUKWUNENYE v. C.O.P (1975) 5 ECSLR 44; FAWEHINMI v. STATE (1990) 1 NWLR (Pt.127) 488; CHINEMELU v. C.O.P (1995) 4 NWLR (Pt.390) 475.

In Nigerian criminal justice administration, the following guidelines are relevant in the consideration of an application for bail pending trial on account of ill-health. There are:

Everyone is entitled to be offered access to a good medical care whether he is being tried for a crime or has been convicted or is simply in detention and 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 governmental authorities;
Whatever the stage at which bail is applied for by an accused person; ill-health of the accused is a consideration weighty enough to be reckoned as special circumstance, although mere allegation of bad health will not be sufficient as special circumstance for the grant of bail;
The mere fact that a person in custody is ill does not entitle him to be released from custody or allowed bail unless there are really compelling grounds for doing so. See OFULUE v. F.G.N (2005) 3 NWLR (Pt.913) 577.

RELEVANT CONSIDERATIONS IN APPLICATION FOR BAIL ON GROUND OF ILL-HEALTH:

Where an accused relies on ill-health as a ground for bail; the following must be considered:

The ill-health must be such that will affect other inmates of the detention places;
There must be positive, cogent and convincing medical report issued by an expert in that field of medicine to which the accused person suffering the ill-health is referable;
The authorities have no access to such medical facilities as are required in treating the accused's ill-health. See ABACHA v. STATE (2002) 5 NWLR (Pt.761) 638; FAWEHINMI v. STATE (1990) 1 NWLR (Pt.127) 486; CHINEMELU v. C.O.P (1995) 4 NWLR (Pt.390) 467; GEORGE v. F.R.N (2010) 5 NWLR (Pt.1187)259; JAMMAL v. STATE (1996) 9 NWLR (Pt.472) 352.

WHETHER PROSECUTION CAN OPPOSE BAIL WHERE IT FAILS TO ARRAIGN ACCUSED PERSON BEFORE COMPETENT COURT FOR TRIAL:

It does not lie in the mouth of the prosecution to say that an accused person should not be released on bail because the offence is a serious offence when it failed to arraign the accused before a competent court for trial with proof of evidence. It is the seriousness of the offence that should spur the prosecution to do or perform its functions timeously and properly because the liberty of a citizen is at stake. It is when the prosecution has done what it is supposed to have done that it can properly object to the bail of the accused person. See ABACHA v. STATE (2002) 5 NWLR (Pt.761) 628.

GROUNDS FOR REFUSAL OF BAIL:

When the evidence of the prosecution against the accused are strong and direct, his chances of being set free are remote because the temptation of jumping bail and escaping justice is high. See OMODARA v. STATE (2004) 1 NWLR (Pt.853) 85

By virtue of section 341 (2) of the Criminal Procedure Code, a person charged with an offence which is punishable with imprisonment exceeding three years shall not normally be released on bail; but the court may, on an application, release such person on bail if it considers that by reason of the grant of bail; the proper investigation would not be prejudiced; or that there is no risk that the accused will commit a further offence or escape from justice. See DANTATA v. POLICE (1958) NRNLR 3.

The courts have tended, in cases where an accused is charged with serious offences which attract very severe punishments, considered the nature of the charges, the gravity of the offence, the evidence to be adduced, and the sentence to be imposed on conviction and refused granting an applicant bail. See NWUDE v. F.G.N (2004) 17 NWLR (Pt.902) 311; BAMAIYI v. STATE (2001) 8 NWLR (Pt.715) 270; F.R.N v. BULAMA (2005) 16 NWLR (Pt.951) 223; BULAMA v. F.R.N (2004) 12 NWLR (Pt.888) 498.

However, once a trial court grants bail to an accused person, the court ought not in law revoke such bail unless there is evidence of some changed circumstances placed before it. See SHAGARI v. C.O.P (2007) 5 NWLR (Pt.1027) 283.

WHETHER APPLICATION FOR BAIL CAN BE PRESENTED ON DIFFERENT OCCASSIONS WITHIN SAME CASE:

An application for bail can be presented several times within the same case, so long as there are changed circumstances, warranting the invitation of the court to exercise its discretion in a particular way. Thus, an applicant for bail can represent the application for bail despite initial refusal, when the circumstances are more favourable.

In other words, judges can take different positions on bail in situations where there are changed circumstances. The principle of estoppels, does not therefore apply in such circumstances. See ATIKU v. STATE (2002) 4 NWLR (Pt.757)265; OMODARA v. STATE (2004) 1 NWLR (Pt.853) 80; ABACHA v. STATE (2002) 5 NWLR (Pt.761) 638.

CONCLUSION:

The Nigerian legal system recognizes the presumption of innocence of an accused person as a constitutionally entrenched provision. Thus, no matter how seemingly serious, grave, heinous or unconscionable an alleged offence, or offences, committed by an accused person might look, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the constitution.

Therefore, in a criminal trial, an accused is entitled to protection under the constitutional provisions, which includes freedom of movement and presumption of innocence. See IBORI v. F.R.N (2009) 3 NWLR (Pt.1127) 97.

Originally published by 4 September, 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Nigeria: Attitude Of Nigerian Courts On Bail Application In Criminal Proceedings.