The article examines the concept of bail pending trial, its application in Nigeria, and the nuances of courts approach in respect thereof.
According to the Black’s Law Dictionary, to grant bail is to set at liberty a person arrested, charged to court or imprisoned, on security being taken for his appearance on a day and place certain. The threshold respecting this concept is that a person under arrest, or custody may be granted temporary release pending the determination of his trial, this is by means of bail. Bail is a basic right of every citizen of Nigeria who is charge with a criminal offence by virtue of section 35(1) and 36 (5)(6) CFRN 1999( As amended).
Thus a Nigerian citizen is entitled to his God’s given natural right, free from incarceration, save in accordance with all the fundamental laws of land. And in furtherance of that right, section 35(4) makes provision, pontificating that any person arrested or detained in accordance with subsection 1(c) of this section, must be brought before a court of law within a reasonable time. Reasonable time in this context means one day where there is a court of competent jurisdiction within a radius of 40 kilometers. see S. 35(5)(a); Where there is no such court, reasonable time means two days. See S. 35(5)(b). This provision does not however apply to persons suspected to have committed a capital offence. See S 35(7); see also ALAYA v STATE (2007) 16 NWLR (pt 1060) 487
I must observe that the right to bail application is a constitutional right and contractual in nature. It becomes contractual under S. 165(2) ACJA. The effect of bail is not only to set the defendant free in criminal process, but also 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 main function of bail pending trial is to ensure the presence of the defendant at the trial, this criterion is regarded, not only as the omnibus but also the most important of all criteria for granting bail at the trial court. Whether to grant bail or not is a discretionary matter for which the trial judged in the exercise of his jurisdiction most act judicially and judiciously, convincing reasons and not on its whims and fancies. He must therefore act only on the evidence placed before him, this discretion must be based on facts and not in vacuo. See OMODARA v STATE (2004)1 NWLR (pt 853)83; UWAZURIKE v AG FEDERATION (2008)19 NWLR (pt 1096) 450.
Where a person is charged to court, after making a plea, an application for bail is normally made orally from the bar where the prosecution in its turn also states its objection (if any) and the court thus determines the application upon the informal statements not on oath.
In ABIOLA v FEDERAL REPUBLIC OF NIGERIA (1998) HRLRA 383. The defence made an oral application under the provision of S. 341 of the criminal procedure code for release of the appellant on bail. The trial court refused bail on the ground, inter alia that the application for bail was made orally. On appeal to the Court of Appeal, it was held that the court was wrong in its conclusion that application for bail must be in writing supported by affidavit evidence. According to the court, application for bail pending trial can only be required to be by summons or written motion where the defendant has not been formally arraigned before a court.
Conditions for grant of Bail Application, Pending Trial.
The grounds for refusing bail application must be upon facts on record. The trial judge must not act on his instinct on which there is no evidence in support. In granting an application for bail to a suspect, the court will not overlook the seriousness of the offence as alleged by the prosecution as that will also determine the bail terms.
It is the law that conditions attached to grant of bail must not be suffocating, unbearable, unworkable and unduly burdensome. In other words where the conditions for bail imposed on a suspect by the court are stringent and onerous to the extreme, it is good as denying him bail except where a statute provides for such stringent terms and conditions see ABACHA v STATE (2002)5 (pt 761)
The law is that where the suspect is charged with a capital offence, he cannot be granted bail by the police or magistrate, it is only the High Court that can exercise such discretion in consideration of the following elements under S. 161 ACJA.
a) ill health of the applicant.
b) That by reasons of grant of bail, the proper investigation of the offence would not be prejudiced.
c) Any other circumstance that the judge may in the particular facts of the case consider exceptional.
The court shall exercise its discretion once the defendant has satisfied the conditions stipulated under S. 161 ACJA.,see also CHINEMEZU v C.O.P (1995)4 NWLR (Pt 370) 467.
In the case of an offence not ordinary bailable, it is the duty of the applicant to make an application with an affidavit stating the reasons why he should be granted bail. Hence once a trial court grants bail to a suspect, the court ought not in law to revoke such bail unless there is evidence of changed Circumstances placed before it. See SHAGARI v C.O.P (2007)5 NWLR (pt 1027) 283.
Most importantly on this concept is the decision(s) of the supreme Court In BAMAIYI v THE STATE & 4 Ors (2001)2 NWLR (Pt 698) 435 where the apex court in the present case listed the factors to be considered in granting or refusing bail pending trial as follows; the court must infact consider:
a) The evidence available against the defendant .
b) Availability of the defendant to stand trial
c) The nature and gravity of the offence
d) The likelihood of the defendant committing another offence while on bail.
e) The likelihood of the defendant interfering with the cause of justice
f) The criminal antecedent of the defendant
g) Thenecessity to procure medical or social report pending final disposal of the case.
These factors are not exhaustive by any trial court in granting or refusing bail pending trial. Much depends on the circumstance of every given case. Also it is not necessary that all or many of these factors must apply in any given case, one factor is enough to guide the court in its decision. See NWUDE v FGN (2014)17 NWLR (pt. 902) 308; OLATUNJI v FRN (2003) NWLR (Pt. 807)400.
As a threshold, the presumption of law is in favour of the defendant, as well as his innocence, and the burden is on the prosecution to show that the defendant is not one that should be released on bail with liberal conditions. See DANBABA v STATE (2000)14 NWLR (Pt. 687) 396.
About the author
- Alagor, Tochukwu Daniel is an avid Writer, Orator & a Researcher.
Faculty of Law
Abia State University
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For knowledge and Justice