By Usman Bukar Bwala
When an accused is charged to court he can apply to be released on bail. This is sometimes referred to as bail pending trial. At this stage an accused has been charged to a trial court for specific criminal acts. An accused is at this stage presumed to be innocent in compliance with S.36 (5) 1999 constitution as amended Adamu Muri Vs COP IGP 1957 NNLR. Bail at this stage is a basic right Paul Ochedo vs The State 1981 BNSLR 5. Section 36 (5) of the amended constitution reads: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” This presumption of innocence in favour of an accused works in his favour while considering his application for bail. As an accused is presumed to be innocent he should therefore be released on bail pending the determination of his case.
Any time an accused is charged to court, courts are seized of the power to look into the issue of granting bail to him Exparte Malic 1981 1 ALL E.L.R. 249. Bail is not ordinarily granted to a person charged with murder as it is not in the interest of the public to release such a person Oladele Vs The State 1993 1 NWLR (Pt 269) 294 at 308. Bail will be denied an accused when he is charged with aggravated crime and it is in the overall interest of society to have such a person incarcerated COP vs Amalu 1982 2 NCR 299. An accused charged with murder may be granted bail where there are grounds to believe that the accused did not commit the crime and there are grounds for further inquiry Olatunde vs COP supra.
In considering bail matters the court presumes in favour of the liberty of subjects and his innocence Adams vs AGF 2006 11 NWLR (Pt 991) 341 at 361 where it was held as follows: “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.” See also Salami Ibrahim vs FRN 2017 NWLR (Pt 1589) 499.
All superior courts have inherent jurisdiction to grant bail to an accused pending his trial and this power continues unless it is specifically taken away by law R V Augustino 1950 1 WWR 1075. The fact that an accused is likely to commit further crime if released on bail is a ground to deny bail The State vs Gagafari 1979 13 CCHCJ 239. In recognition of S.36 of the constitution, the presumption in favour of an accused continues until the prosecution proves otherwise, that is, the accused is proved guilty The State vs Godfrey Okafor 1964 8 ENLR 96 at 97.
As we have seen bail is recognised under S.36 (5) of the Constitution as amended, Administration of Criminal Justice Act 2015 and sections 118-142 of the Criminal Procedure Act (CPA) for the South and sections 340 – 355 of the Criminal Procedure Code for the North (CPC). Section 341 (2) CPC was considered in Tarka Vs DPP 1961 NNLR 80 and held that all conditions stated in the section must be satisfied before bail can be granted an accused.
Any accused charged with an offence where imprisonment does not exceed 3 years shall be released on bail unless an accused person may jump bail if released Ariyo vs COP 1989 1 CLRN 287 at 97. Under S.34 CPC 1989 1 an accused is entitled to bail as a right Police Vs Ukaegbi 1987 NNLR 80. The onus of showing why bail should not be granted to an accused charged with offence carrying punishment of imprisonment of less than 3 years is upon the prosecution Okeke vs COP 2001 FWLR (Pt 81) 1715 at 1724, Ochedo Vs The State supra.
Even where the conditions in the CPA and CPC in respect of bail are satisfied, a court can for sufficient reason decline to grant bail but the court must state his reasons for so declining Calabar vs COP 1971 1 UILR 59 where it was held “That the magistrate in refusing to release the accused from custody must give reasons for such refusal which he failed to do so.” In Okeke vs COP supra it was held: “if the applicant is charged with a felony the onus will be on him to show that the magistrate wrongly exercised his discretion under section 118(2) of the Criminal Procedure Ordinance, but in the case of any other offence the onus will be on the prosecutor to show cause why the applicant should not be admitted to bail.” Though in considering bail during trial it is discretionary of court to grant it, such discretion must be exercised judicially and judiciously Salami Ibrahim vs FRN 2017 NWLR (Pt 1589) 499 at 412.
In practice before bail is granted to an accused the accused must place evidence or facts upon which the court can look into so as to enable the court exercise his direction to grant or not to grant bail Emeka Ani vs The State 1970 All NLR 338. The onus is always upon the prosecution to show cause why bail was not granted an accused and the onus is discharged on balance of probability and not beyond reasonable doubt Emeka Ani vs The State supra.
An offence which carries imprisonment of less than 3 years is considered a minor offence and an accused is not likely to jump bail if released on bail Ochedo vs The State supra. In offences carrying imprisonment of less than 3 years an accused must be released on bail unless there are good reasons to the contrary this is because section 118(3) CPA and S.340 CPC uses the phrase “such person shall be released on bail.” “Shall in law means mandatory Salihu Mohammed vs The State 1982 3 NCLR 3121, Nwude vs The State 2005 1 NCC 196 at 206.
Where a crime is of high magnitude and carries long term imprisonment bail shall not be granted Olugbisi vs COP 1970 All NLR 338. In homicide and other serious offences carrying long imprisonment term bail is rarely granted R v Jamal 16 NLR 154, S.341(1) CPC, S.118 (1) CPA. Section 341 (1) CPC for the North reads as follows “Persons accused of an offence punishable with death shall not be released on bail.” S.341(2) CPC reads “Persons accused of an offence with imprisonment for a term exceeding three years shall not ordinarily be released on bail…,” section 118(1) CPA for the South reads “A person charged with any offence punishable with death shall not be admitted to bail, except by a judge of the High Court. (2) Where a person is charged with any felony other than a felony punishable with death, they may, if it thinks fit admit him to bail.” It was clearly held in Exparte Barronet 1962 2 QB 202 as follows: “The principle has been fully laid down already that where a crime is of the highest magnitude, the evidence in support of the charge strong and the punishment the highest known to the law, the court will not admit to bail. Where either of these ingredients is wanting the court has discretion.”
The Administration of Criminal Justice Act 2015 is in line with the criminal justice in Nigeria and S.162 of the Act has spelt out conditions for granting bail in serious criminal cases in Salami Ibrahim vs FRN supra as “A defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the court, be released on bail except in any of the following circumstances: (a) where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence (b) attempt to evade his trial (c) attempt to influence, interfere with, intimidate witnesses and or interfere in the investigation of the cases (d) attempt to conceal or destroy evidence (e) prejudice the proper investigation of the offence, or (f) undermine or jeopardise the objectives or the purpose or functioning of the criminal justice administration, including the bail system.” See also Bamaiyi vs The State 2001 8 NWLR (Pt 715) 270 at 291.
A court looks into the character and antecedent of an accused when considering the punishment to be inflicted upon him Re White House 1951 2 All E.R. 219 where it was held as follows “……obtain information as to his character and antecedent and then form an opinion that they are such that greater punishment should be inflicted.” Where a court lacks jurisdiction to entertain a criminal matter such a court would lack jurisdiction to entertain bail in respect of the case Ezekwe vs COP 1981 1 NCR 128 where it was held as follows: “As the court would not try the accused, it could not claim inherent jurisdiction to grant him bail either.”
In bail during trial certain factors are considered by a court The State vs Okafor 1964 8 ENLR 96 where it was held as follows: “(1) The cogency of the facts against the applicants (2) gravity of the offence charged (3) severity of the punishment to be meted to the accused (4) availability of the accused to stand trial should they be granted bail (5) the likelihood of the trial not being taken for a long time.” The cogency of evidence against an accused has always been a relevant factor in granting or not granting bail R vs Stephen Butler 14 Cox 530 where it was held as follows “…The more cogent the evidence, the more serious the consequence of conviction, the greater the probability that they may not appear at the trial.”
An applicant who has good conduct stands a high chance of being granted bail Edward Chavranmuttu 1930 21 Cr Ap R 184. An applicant who has once jumped bail should not be granted bail R vs Abdullahi Jamal 16 NLR 54. Where the trial of an accused will take a long time is a factor in considering the grant of a bail R vs Spilsbury 1898 2 Q.B. 615. Where there are no concrete reasons that an applicant would abscond if granted bail, bail will be granted Ariyo vs COP 1989 1 CLRN 287. It is unconstitutional to hold somebody in custody on “holding charge” as holding charge is unknown to the law Akokhia vs COP unreported M/31/83 Lagos High Court.
In bail pending trial a court is not only enjoined to look at the affidavit evidence but also should look into the contents of the proof of evidence before it Salami Ibrahim vs FRN supra where it was held as follows: “In considering an application for bail, the courts are enjoined not to restrict itself to the affidavit evidence but its consideration should include the contents of the proof of evidence.”
In granting bail sureties are important and sureties must be persons of substance Ariyo vs COP 1989 CLR 28 where it was held as follows “There is assurance that the accused/applicant is in a position to produce men of substance who will ensure his appearance at his trial as surety.” Where an accused will jump bail, bail will be refused Ogor vs COP 1983 1 NCR 342 where it was held as follows “bail can only be refused to such an accused if there is good reasons suggesting that bail should not be granted to him. Such good reason will… where an accused would likely jump bail to avoid being prosecuted for an offence said to have been committed by him.” Bail is rarely granted on medical grounds R vs Gott 16 Cr. App. R 86 where it was held as follows “This is class of case in which bail is dangerous. We must follow E. Gordon 7 Cr. Ap.R 182: 1912. In fact, a fortiori if we granted this application, we would never consistently refuse bail.” This is because every criminal will claim medical grounds as his basis for his application for bail. The medical condition of an applicant is a ground for granting bail. Where an applicant for bail requires specialist medical officer which is not available in a prison is a ground for granting bail Ajayi vs The State 1977 1FCA 1 at 3.
In Court Martial proceedings a High Court can grant bail to an applicant who has a long delay in his trial amounting to oppression R vs O/C Depot Battalion 1949 1 All ELR 242.
In all cases of bail pending trial the onus is upon a prosecutor to show cause why an applicant should not be granted bail The State vs Kawo 1980 1 NCR 21 where it was held as follows: “…as against the position before conviction but during trial where the onus is on the authorities to show cause why the accused/applicant should not be released on bail.” This is because an accused person is presumed innocent until proved guilty S.36 (5) of the constitution (as amended) as this presumption works in favour of an applicant.
Hon. Justice Usman Bukar Bwala retired as a Judge of the High Court of Borno State
Photo Credit: Naija Legal Talk
