The right to bail is one of those constitutional rights that inure an accused person under our criminal law. Bail although a constitutional right is only temporary, conditional and discretionary and can only be granted if the Applicant shows why such discretion should be exercised in his favour.
The whole concept of bail is not to set a defendant free, bail is generally about a surety or sureties taken by a person duly authorized for the appearance of a defendant at a certain day and place to answer charges levelled against him. The primary object of bail is to ensure that the defendant will attend Court to stand his trial
What is bail?
In the case of Onyebuchi v FRN & ORS (2007) LPELR- 4135 (CA)- Bail is the process by which an accused person is temporarily released from state custody to sureties on conditions given to ensure his attendance in Court whenever he is required until the determination of the case against him.
There are two major types of Bail namely, Police Bail and Court Bail.
- Police Bail: Police Bail is also known as administrative Bail. It is usually obtained by a person suspected of committing a crime, but the police or investigating agency are yet to obtain enough evidence to charge such person to court.
- Court Bail: This is a Bail granted by the court. It can either be Bail pending trial or Bail pending appeal.
Differences between bail pending trial and bail pending appeal
There are mainly two types of bail: a) bail pending trial; and b) bail pending appeal. In bail pending appeal, the convict who has lodged an appeal may be admitted to bail pending the determination of the appeal.
The circumstances for bail vary in both situations. This is largely due to the fact that before conviction there is a presumption of innocence. After conviction, the convict save under exceptional circumstances, has no right at all to bail.
Essence of the grant of bail
Now, the whole concept of bail is not to set a defendant free, bail is generally about a surety or sureties taken by a person duly authorized for the appearance of a defendant at a certain day and place to answer charges leveled against him. The primary object of bail is to ensure that the defendant will attend Court to stand his trial: NWUDE vs. FGN (2004) 41 WRN 124 at 145.
Nature of Bail Application in Nigeria
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 pre-trial freedom to an accused whose appearance in Court can be compelled by a 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. It stops on conviction of the accused. It also stops on acquittal of the accused.
Effect of granting bail
The contractual nature of bail is provided for in section 345 of the Criminal Procedure Code. The section 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 the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.-SULEMAN & ANOR v. COP PLATEAU STATE (2008) LPELR-3126(SC).
Once the Court grants bail to an accused person; it ought not in law revoke such bail, unless there is evidence of some changed circumstances placed before it. The Court in exercise of its discretion must only act on empirical facts or materials placed before it and not on extraneous or irrelevant matters: UNIVERSITY OF LAGOS v. AIGORO (1985) 1 SC 265 at 271.
An application for bail pending the determination of an appeal against a conviction is not a necessary or integral part of the appeal itself, but the jurisdiction to entertain it is derived solely from the fact that the appeal has been brought and we think the decision made on the application may be fairly regarded as a decision in the proceedings in which the appeal has been brought.
Factors to be considered in granting or refusing bail pending trial
The general criteria for granting bail at the trial court are as follows:
(a) The availability of the accused to stand trial.
(b) The nature and gravity of the offence.
(c) The likelihood of the accused committing offence while on bail.
(d) The criminal antecedents of the accused.
(e) The likelihood of the accused interfering with the course of justice.
(f) Interference with investigations.-DOKUBO-ASARI v. FRN (2007) LPELR-958(SC)
The above apart, the criteria for granting bail by the trial court include (a) Likelihood of further charge being made. (b) The probability of guilt. (c) Detention for the protection of the accused . (d) The necessity to procure medical or social report pending a final disposal of the case. The main function of bail is to ensure the presence of the accused at the trial.
Arising directly from the omnibus criterion 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 crystallised from the realisation 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.
Option available to an accused person where a Magistrate refuses to grant him bail
Where bail is refused, the right of the accused to approach a High Court for bail is usually available to him. The idea is that the judicial process of determining whether to allow the accused on bail or not has commenced.-LUFADEJU & ANOR v. JOHNSON (2007) LPELR-1795(SC)
Refusal of Bail Application
Our criminal justice system has its stipulations and safeguards for the prosecutor, the accused and the victim. In the proper operation of that system, it can be said that it is in the interest of the society, and within those safeguards, that if in an application for bail pending trial, there is good reason to believe or strongly suspect that the accused will jump bail thereby making himself unavailable to stand his trial and/or will interfere with witnesses thereby constituting an obstacle in the way of justice, the Court will be acting within its undoubted discretion to refuse bail. It may be added that in such a situation, it will be desirable, as far as reasonably practicable, to accelerate the trial.-BAMAIYI v. STATE & ORS (2001) LPELR-731(SC)
Whether bail can be granted in capital offences
It is not usual to grant bail in capital offences or where the applicant has been convicted and sentenced and his appeal is pending. This can only be done where exceptional circumstance is shown.-ABACHA v. STATE (2002) LPELR-15(SC)
What constitute special circumstances for granting bail
In the case of Anaekwe v. The Commissioner of Police (1996) 3 NWLR (Pt.436) 320 at page 332 and 333, the Court of Appeal held as follows: “Where the prosecution merely parades to the court the word ‘murder’ without tying it with the offence, a court of law is bound to grant bail. And the only way to intimate the court not to grant bail is to prefer an information and proof of evidence to show that there is prima facie evidence of commission of the offence.
Thus, although bail is not normally granted a person accused of murder, a situation where there is no material before the trial court to show that the appellant is facing a charge of murder, including proof of evidence certainly qualifies as a special circumstance in which the court can grant bail.-NWINYIMA v. COP, ANAMBRA STATE (2005) LPELR-11237(CA).
It is a settled principle of law that mere averments by the prosecution that an accused person will not appear for his trial in the absence of real concrete material to support such an allegation, should not warrant the denial of bail by a Court.
In ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (supra) the principle is stated that since the Court presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show in a given case, that an accused or applicant for bail is one that should be refused bail.
Whether ill health automatically qualifies an applicant for bail
Now, it has to be understood that the mere fact that a person who is in custody is ill does not entitle him to be released on bail unless there is a compelling reason for doing so. An obvious ground upon which bail would be granted for ill-health is when the continued stay of the detainee or convict poses a possibility of a real health hazard to others and there are no quarantine facilities of the authorities for the type of illness.
Duty of Court to vary stringent/excessive bail conditions
Trial Courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non – capital offences. They are thus to grant bail on favourable and affordable conditions. It has held that it is against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. See OBIOMA v. FEDERAL REPUBLIC OF NIGERIA SUPRA 165 AND 168 AND MADU v. THE STATE (2011) LPELR 3973. Where the conditions of bail are stringent, the trial Court or an appellate Court has a duty to vary the conditions.
Whether the police has the duty to provide bail and find a surety
Until and unless a surety for the bail of the applicant or detainee is provided as per Section 27 of the Police Act, there exist no breach of fundamental right of the applicants or detainee, it is in view of this that the Supreme Court held in EKPU VS. ATTORNEY-GENERAL OF THE FEDERATION (1998) 1 HRLRA: “The law is that the police should provide bail for a detained citizen but they are not further enjoined to help the citizen find the person to take him on bail.
Thus if the police offer an arrested person bail, there is no further obligation on them beyond the simple offer. They have no duty to help the person find a surety or meet the conditions of bail, and any further stay in detention by the person until he meets the conditions will not be unlawful. In this case, since the respondents offered bail to the applicants on April 10, 1994, then their continued detention after that date cannot be said to be unlawful.
Role of the prosecutor in an application for bail
A prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See ADAMS VS ATTORNEY GENERAL OF THE FEDERATION (2006).
Duty of an applicant for bail
An applicant for bail must place before the Court sufficient materials for consideration upon which the Court can exercise its discretion. It means therefore that the applicant must satisfy the Court the reason for challenging his detention and asking the Court to release him on bail. It is only after the applicant has discharged this onus that rests on him that the onus will shift to the prosecution to show cause why bail should not be granted.
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