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UNDERSTANDING THE CONCEPT OF BAIL IN NIGERIA

19.November.2014

1.    INTRODUCTION

The concept of bail is very important in the administration of justice in any legal system and this is because the law is well settled that an accused person is considered innocent until he has been proven guilty in a court of law[1]. Thus, where an accused person is arrested on the suspicion/allegation that he has committed a crime, the law provides that such an accused person must not be unduly detained in police custody as a form of punishment because the mere fact that a person has been alleged to have committed an offence does not necessarily mean that he is guilty of the offence.

 

Section 35 (1) of the 1999 Constitution of Nigeria guarantees the right to personal liberty of all Nigerians and Section 35 (5) of the 1999 Constitution of Nigeria provides that an accused person who has been arrested on the allegation of having committed an offence must be charged to court within 24 hours where a court of competent jurisdiction is located within a radius of forty kilometers from the police station; and where a court is located within a radius above forty kilometers from the police station, the accused person must be charged to court within 48 hours or such longer period as a court might consider reasonable.

 

Bail is therefore a right of every accused person although several factors are usually taken into consideration before an accused person can be granted bail.

 

It is important to point out that the concept of bail is largely misunderstood in Nigeria and this is because a lot of Nigerians believe that once an accused person who is being tried or investigated for an offence is released on bail this automatically signifies the end of the matter. These set of Nigerians therefore feel that bail applications must be always be opposed whenever an accused person makes an application for bail.

 

This paper will therefore fully explain the concept of bail, the types of bail, the laws governing the granting of bail in Nigeria and judicial attitude of the courts in Nigeria towards the concept of bail.   

 

2.    DEFINITION OF BAIL

2.1.        Bail can be defined as the process through which an accused person who is arrested on the allegation of committing an offence is released by a constituted authority upon the provision of adequate security guaranteeing that the accused person would report at the police station or in court for his trail whenever his presence is required.

 

2.2.        In the case of Caleb Ojo v. Federal Republic of Nigeria[2] bail was defined thus:

 

Bail, generally, 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, if they will surrender him to the court before the date assigned and free themselves from further responsibility[3]

 

2.3.        Blacks Law Dictionary (Sixth Edition) defines bail at page 140 as follows:

To procure release of one charged with an offense by insuring his future attendance in court and compelling him to remain within jurisdiction of court.

 

2.4.        Bail has also been defined[4] as:

The right to be released from custody granted to a person charged with an offence, on the condition that he or she undertakes to return to the court at some specified time, and any other conditions that the court may impose

 

3.    TYPES OF BAIL

3.1.        There are three types of bail namely:

(a) Police Bail

(b) Court Bail.

(c) Government Agency Bail

 

(a) Police Bail

Section 17 (1) of the Administration of Criminal Justice Law of Lagos State 2011 provides thus:

When a person has been taken into police custody without a warrant for an offence other than an offence other than an offence punishable with death, an officer in charge of a police station shall release the person arrested on bail subject to subsection (2) of this section if it will not be practicable to bring the person before a court having jurisdiction with respect to the offence alleged within twenty-four (24) hours after his arrest.(Emphasis supplied)

 

Section 17 of the Criminal Procedure Act, Cap. C41 LFN 2004 and Section 27 of the Police Act also endows the Police with the power to grant bail to an accused who has been arrested pending the trial of such an accused person except in cases involving a capital offence[5] as this power can only be exercised by the High Court.

 

Thus, where an accused person has been arrested by the police for an offence other than a capital offence, such an accused person is expected to be granted bail by the police within 48 hours. Unfortunately, this is not usually the case as the police are very notorious for keeping suspects in custody for well over 48 hours on the ground that they are yet to conclude their investigation[6].

 

It is submitted that this practice of keeping suspects in custody for over 48 hours without charging them to a court of competent jurisdiction is unconstitutional because it goes contrary to the provision of Section 35 (4) of the Constitution which provides that suspects must be charged to court by the police within 24 or 48 hours.

 

In the case of Fajana Eddi v. C.O.P[7] the Court of Appeal held that it was unconstitutional and contrary to the provisions of Section 35 (4) of the 1999 Constitution for the police authorities to have detained the Accused person and kept him in custody for two years without a formal charge being proffered against him at the High Court. In this case, the Accused person was a final year Higher National Diploma (HND) Student of the Federal Polytechnic Offa, Kwara State and he was arrested in the course of writing his examination at the Polytechnic on the allegation of being a member of a secret cult contrary to Section 17 (1) of the Secret Cult and Secret Societies in Educational Institutions (Prohibition) Law, 2004 of Kwara State.

 

Further, bail by the police is expected to be free, but in practice, police officers usually demand for money from suspects before they are released on bail.

 

(b) Court Bail

There are two instances under which a court can be called upon to grant bail to an accused person and they are as follows:

i.              Bail Pending Trial of the Accused

ii.            Bail Pending Appeal.

 

i.      Bail Pending Trial of the Accused

A Magistrate Court and a High Court both have the powers to grant bail to an Accused person and this power must be exercised judicially and judiciously. This simply means that the Court must consider the facts of every case and the materials which have been placed before it by the Accused before deciding whether or not to grant the accused person bail.

 

Section 118 (1) of the Criminal Procedure Act, Cap. C41 Laws of the Federation 2004 provides that a person charged with any offence punishable with death shall not be admitted to bail except by a Judge of the High Court. Section 118 (2) of the Criminal Procedure Act provides that if a person is charged with any felony other than a felony punishable with death, the Court may, if it thinks fit admit such a person to bail; whilst Section 118 (3) of the Criminal Procedure Act makes it mandatory for the Court to admit a person who has been charged with a misdemeanor or any other simple offence to bail unless the Court sees any good reason to the contrary.

 

The implication of Section 118 of the Criminal Procedure Act is that offences have been classified into three categories for the purpose of bail and different rules apply to the three categories.

 

The first category of offences are Capital Offences and bails in this instance can only be granted by a High Court Judge based on strict rules which will be discussed shortly. The Second category of offences are felonies other than felonies punishable with death and both the Magistrate Court and the High Court Judge have the powers to grant bail in cases involving this category of offences. The third category of offences is misdemeanor and other simple offences and both the Magistrate Court and High Court also have the powers to grant bail to an accused person who has been charged for an offence in this category. Bail must always be granted to an accused person who is charged for an offence under the third category unless the court sees any good reason not to grant bail to the accused person.[8]

 

3.2.        Conditions for the Grant of Bail Pending Trial

The law is well settled that a person who has not been tried and convicted has a constitutional right to be admitted to bail unless the Court sees good reasons not to admit such a person to bail.

 

Thus, the burden is on the prosecution to prove that the facts which have been supplied by an applicant for bail does not warrant the granting of an application for bail. This is because an individual is presumed innocent until proven guilty[9].

 

Although the granting or refusal of an application for bail is exercised based on the discretion of the court, the court must consider the following factors before deciding whether or not to grant an application for bail:

1.    Whether the proper investigation of the offence would be prejudiced if the accused person is granted bail[10];

2.    Whether there is a serious risk of the accused person jumping bail;

3.    The nature of the offence which the accused person is being tried for[11];

4.    The strength of the prosecutors evidence against the accused person[12]

5.    The possibility of the accused person interfering with the prosecution of the case.[13]

 

It should be noted that the list of what the courts would consider before deciding on whether or not to grant an accused person bail is not exhaustive as the courts usually consider other extraneous factors based on the peculiar facts of each case.

 

In the recent case of Ogbuawa v. F.R.N[14], Tsamiya, J.C.A held thus:

 

When it comes to the issue of whether to grant or refuse bail pending trial of an accused person by the trial court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. The criteria have been stated in several decisions of this court and the apex court. Such criteria include, inter-alia, the following,:

1.            The nature of the charge

2.            The strength of the evidence which supports the charge

3.            The gravity of the punishment in the event of conviction,

4.            The previous criminal record of the accused, if any,

5.            The probability that the accused may not surrender himself for trial.

6.            The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.

7.            The likelihood of further charge being brought against the accused.

8.            The probability of guilt

9.            Detention for the protection of the accused,

10.         The necessity to procure medical or social report pending final disposal of the case

 

I wish to point out that the above criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide the required guidelines to trial courts in the exercise of their discretion on matters of bail pending trial.[15]

 

It is important to note that all the factors mentioned above need not be present in a case before the court would grant an accused person bail. Thus, a court of competent jurisdiction can admit an accused person to bail based on the existence of one of the factors stated above.

 

In the case of Alhaji Toyin Jimoh v. C.O.P[16] the appellant was arrested and arraigned at the Chief Magistrates Court for culpable homicide. He applied for bail and his application was denied by both the Chief Magistrates Court and the High Court. On an appeal to the Court of Appeal, the Court of Appeal set aside the decision of the High Court and granted him bail based on the ground that there was no information or charge which was preferred against him and there was no proof of evidence from which the lower could have decided whether or not to grant the appellant bail.

 

In Felix Ikhazuagbe v. C.O.P[17], the Appellant was arrested on the allegation of conspiracy to commit murder. His application for bail at the High Court was refused and when he appealed to the Court of Appeal, the court held that he was entitled to be granted bail because the law presumes that he is innocent until proven guilty and a denial of his bail application would amount to punishing him for an offence which he is yet to be convicted for. In this case, the Respondents only opposition to the Appellants bail application was that the Appellant would escape if he is granted bail but the Court held that the Respondent was not able adduce evidence to show that the Appellant would jump bail.

 

In sum, an applicant for bail has a duty to adduce evidence showing that he has fulfilled all the requirements for the grant of bail and once he has been able to fulfill this requirement, it is the duty of the trial court to admit him to bail.

 

ii.            Bail Pending Appeal

It is easier to obtain bail pending or during trial than it is to obtain bail after a conviction or pending appeal. This is because bail pending trial is a constitutional right and the burden lies on the prosecution who opposes an application for bail to prove that the facts which an applicant for bail relies upon do not justify the granting of bail[18]. Whilst in the case of bail pending appeal, the burden lies squarely on the applicant for bail to show that he is entitled to bail because he is no longer presumed to be innocent under the constitution since he would have been convicted by the trial court.

 

In Jammal v. The State[19] the Court held thus:

Generally, the grant of bail to a convict sentenced to a term of imprisonment is not made as a matter of course. The principle of presumption of applicants innocence no longer exists, because of his conviction, he must show special circumstances to be entitled to bail pending determination of his appeal.[20]

 

It should be noted that an accused person who has been convicted by the trial court must be able to show that he has a pending appeal before he can properly file an application for bail pending appeal; and if he was granted bail before or during trial at the lower court, he must also adduce evidence to show that he did not jump bail at the lower court[21].  Failure to establish any of these facts will simply mean that the accused person cannot file an application for bail pending appeal.

 

Section 28(1) of the Court of Appeal Act endows the Court of Appeal with the power to grant bail pending appeal but this power is however discretionary and must be exercised upon the existence of special or exceptional circumstances. See the following cases:

 

a.    Muri v. I.G.P (1957) NCLR 3

b.    Dogo v. C.O.P (1980) 1 NCR 14

c.    R v. Tunwashe (1935) 2 WACA 236.

 

3.3.        What Constitutes Special or Exceptional Circumstances?

 Although the courts have not been able to come up with an exhaustive list of what constitutes special or exceptional circumstances which would warrant the grant of bail pending appeal, it is pertinent to state that the courts have at various times identified some issues which can be classified as a special or exceptional circumstance. Some of these issues are as follows:

a.    Instances where a refusal of the bail application will put the Applicants health in serious jeopardy.

 

b.    Instances where sentence and conviction of the Applicant is contestable on the basis that the grounds of appeal are substantial with a possibility of success.

 

c.    Instances where the Applicant would have served the whole or a substantial part of his sentence before his appeal is heard.

 

d.    Instances where the Applicants presence wi

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UNDERSTANDING THE CONCEPT OF BAIL IN NIGERIA: The concept of bail is very important in the administration of justice in any legal system and this is because the law is well settled that an accused person is considered innocent until he has been proven guilty in a court of law .
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