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. 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.
Definition of Bail
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.
In the case of Caleb Ojo v. Federal Republic of Nigeria2 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”
Black’s 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.”
Bail has also been defined 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”
Types of Bail There are three types of bail namely:
- Police Bail
- Court Bail
- Government Agency 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 offence5 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.
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.
There are two instances under which a court can be called upon to grant bail to an accused person and they are as follows:
- Bail Pending Trial of the Accused
- Bail Pending Appeal.
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.
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.
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:
- Whether the proper investigation of the offence would be prejudiced if the accused person is granted bail10;
- Whether there is a serious risk of the accused person jumping bail;
- The nature of the offence which the accused person is being tried for;
- The strength of the prosecutor’s evidence against the accused person
- The possibility of the accused person interfering with the prosecution of the case. 1
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.N14 , 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,:
- The nature of the charge
- The strength of the evidence which supports the charge
- The gravity of the punishment in the event of conviction,
- The previous criminal record of the accused, if any,
- The probability that the accused may not surrender himself for trial.
- The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
- The likelihood of further charge being brought against the accused.
- The probability of guilt.
- Detention for the protection of the accused,
- 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.”
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 Respondent’s only opposition to the Appellant’s 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.
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 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 applicant’s innocence no longer exists, because of his conviction, he must show special circumstances to be entitled to bail pending determination of his appeal
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 . 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:
- Muri v. I.G.P (1957) NCLR 3
- Dogo v. C.O.P (1980) 1 NCR 14
- R v. Tunwashe (1935) 2 WACA 236.
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:
- Instances where a refusal of the bail application will put the Applicant’s health in serious jeopardy.
- 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.
- Instances where the Applicant would have served the whole or a substantial part of his sentence before his appeal is heard.
- Instances where the Applicant’s presence will be needed for the preparation of his appeal and consultation with his counsel.
Instances where a refusal of the bail application will put the Applicant’s health in serious jeopardy.
The Appellate Courts in Nigeria have held in several cases that an accused person who has been convicted by a trial court would be granted bail if a refusal of the accused person’s bail application will put his health in serious jeopardy.
However, for an accused person to be able to get bail on this ground, he must be able to show that he is suffering from a severe health condition and that the facilities at the prison’s hospital cannot take care of his health condition. Also, the medical report which would be presented by the accused person must have been prepared by a specialist in the field of health which the accused person claims he is suffering from otherwise; the Court of Appeal would not admit him to bail. 22 For example, if an accused person says his is suffering from cancer of the blood; his medical certificate must have been issued by a Medical Doctor who is a specialist in the field of Cancer of the Blood.
Thus, the mere fact that an accused person who has been convicted by the lower court is suffering from an ordinary ailment will not be enough ground for the Court of Appeal to admit him to bail. Also, the mere fact that a General Practitioner presents a medical report showing that the accused person is suffering from a certain ailment will not be enough ground to admit the accused person to bail.
In the case of Mohammed Sanni Abacha v. State23 the Supreme Court held that the mere production of a medical report on an accused person will not be a ground for admitting him to bail. The Court further held that the only time bail would be granted on the basis of ill-health is if an expert in the particular field of medicine which the accused person complains of produces a medical report supporting the ill-health of the accused.
In Fawehinmi v. State24 it was held that bail can be granted if the accused person needs to be on regular medical observation by the use of special equipments which are not available in the prison clinic and which are not easily moveable. The Court also went further to hold that an accused person would be granted bail pending appeal on health ground where his health condition constitutes a health hazard to other prison inmates and there are no quarantine facilities to protect other inmates from contracting the disease.
Also, in Jammal v. The State , the Court granted bail to the accused person based on the fact that adequate evidence was placed before the court to depict the poor condition of the prison hospitals.
In the fairly recent case of Olabode George v. Federal Republic of Nigeria26 the Appellants applied for bail pending appeal based on ill health and on the ground that the Appellants would have spent their jail terms in prison before the hearing of their appeal; but the Court of Appeal refused to grant the Appellants’ bail pending appeal on the ground that the Appellants did not adduce any evidence to show that the prison hospital does not have the facilities to manage their health conditions. The Court further held that the mere fact that an Applicant has an ailment is not enough ground to warrant granting bail in his favour. The Court of Appeal per Dungba-Mensem held thus:
“Every bodily ailment which is not well managed can develop into a serious health and life threatening situation. The key is identification and proper management. We have not been told that the health conditions of the applicants cannot be managed by the prison authorities. Each of the reports clearly displays a well diagnosed medical condition. There is no report from the prison nor any deposition from the applicants to say that the prison medical personnel and facilities are incapable of addressing the health conditions of the applicants. None of the applicant suffers from any strange and unknown disease. The fact that a convict is ill or has some medical condition simpliciter does not constitute an exceptional circumstance. If we accept such reason, then no person should be in prison; every living human has one bodily ailment or the other but that does not stop us from carrying out our daily duties and responsibilities.” 27 (Emphasis supplied)
Instances where the sentence and conviction of the Applicant is contestable on the basis that the grounds of appeal are substantial with a possibility of success.
The Appellate Courts usually grants bail pending appeal to applicants who are able to show that they have grounds of appeal which have a possibility of success and which can be regarded as substantial.
In the case of Chief Gani Fawehinmi v. The State28 where the Applicant was sentenced to twelve months in prison for contempt, the Court of Appeal granted bail pending appeal to the Applicant on the ground that the Applicant’s grounds of appeal raises a special circumstance. The Court of Appeal classified the Applicant’s ground of appeal as raising a special circumstance because it considered the Applicant’s conviction and sentence to be excessive and strange. Awogu, JCA held as follows:
““It is my view, however that where a sentence is manifestly contestable as to whether or not it is a sentence known to law, it constitutes special circumstance for which bail should be granted to an applicant pending the determination of the issue on appeal.”
On the otherhand, in Olabode George v. Federal Republic of Nigeria30 one of the grounds upon which the Appellants brought an application for bail pending appeal was that their grounds of appeal were substantial; but the Court of Appeal rejected this contention on the ground that the grounds of appeal did not show any feature of fundamental error in the decision of the lower court. Dongban-Mensem, J.C.A held thus:
“A notice of appeal which has been duly filed is an indication of an intention to challenge a valid and subsisting decision of a court of competent jurisdiction. Grounds of appeal which will qualify as substantial and make this court suspend a valid decision of the trial court must exhibit features of fundamental error ex-facie. Such obvious errors are the lack of jurisdiction, a conviction on some weird and undefined offences or a clearly perverse interpretation or wrong application of an unclear statutory provision. These among others, constitute recondite points of law to be addressed on appeal.”
Also, in Alhaji Bello Usman Buwai v. The State32 where the Appellants brought an application for bail pending appeal on the ground that their grounds of appeal raises substantial questions of law and on the ground that the Appellant’s were first time offenders, the Court Appeal rejected this argument and dismissed the Appellant’s application for bail on the ground that it did not raise any special circumstance warranting the need for bail. The Court consequently ordered an accelerated hearing for the appeal.
In sum, it is clear from the cases cited above that the Court of Appeal would only grant an application for bail pending appeal based on the fact that the grounds of appeal raises substantial questions if it is clear on the face of the grounds of appeal that there is a manifest error in the judgment of the trial court. Thus, the mere fact that an applicant for bail pending appeal deposes in his affidavit that his Notice of Appeal raises substantial question of law would not necessarily mean that the Court of Appeal would grant him bail pending appeal on this ground.
Instances where the Applicant would have served the whole or a substantial part of his sentence before his appeal is heard.
The Appellate Courts have on several occasions in the past granted bail pending appeal to Applicants who are able to show that the possibility of them serving the term of their sentence before the hearing of their appeal is very high. This is because the courts usually like to avoid a situation where an accused person would have served the entire term of his sentence in prison only for the Court of Appeal to decide the appeal in the accused person’s favour by setting aside the judgment of the trial court which convicted him.
In the case of Ogundimu Munir v. Federal Republic of Nigeria33 the Applicant was convicted for fraud and sentenced to three years imprisonment by the trial court. He appealed against this decision and brought an application for bail pending appeal before the Court of Appeal. The Court of Appeal granted him bail pending appeal based on the ground that the counsel to the Respondent deposed to a counter affidavit stating that it would take a minimum of two years for the Appellant’s appeal to be heard.
In Olamolu v. The State34 the Court of Appeal granted the Applicant’s application for bail pending appeal on the ground that since it took eleven months for her application for bail pending appeal to be heard it was very likely that she would have spent a substantial part of her sentence in prison before her appeal would be heard by the Court of Appeal.
Also, in Okoroji v. The State35 the Court of Appeal granted the Applicant’s application for bail pending appeal on the ground that since it took the Registrar of the trial Court four years to compile the records of the appeal, the Applicant would have probably completed his jail term before the hearing of his appeal. Kolawole, J.C.A held thus:
“It does not appear to me therefore, upon the letter of the Senior Registrar that the position has improved as at the time of this application. It seems clear to me that this is a proper application in which the applicant should be admitted to bail pending the hearing of his appeal owing to the fact that if it would take about four years for the record of appeal to get to the Court in CA/I/51/86, the applicant’s appeal would probably not be heard until the end or after the expiration of the Three (3) years sentence. Furthermore, the applicant’s appeal will of necessity be unduly delayed. In my judgment these are exceptional and unusual reasons…I am of the view that this is a fit and proper application in which the applicant should be admitted to bail having regard to the materials placed before the court.”
In Emeka Ani v. The State37 the Applicant was sentenced to 5 years imprisonment for the manslaughter of his wife by the Ikeja High Court and upon his appeal to the Court of Appeal, he was granted bail pending appeal based on the ground that at the time his application for bail pending appeal was heard, the records of appeal was yet to be compiled and the Court wanted to avoid a situation where he would spend a substantial part of his sentence in prison due to the failure of the Registrar of the High Court to compile the records of appeal.
It should be noted that the cases cited above were decided based on the old Court of Appeal rules38 which did not have any provision permitting an appellant to compile the records of appeal if the Registrar fails to compile the records. This was the major reason why a lot of appellants’ appeal was not being heard in good time because the Registrars of the lower Courts were not usually diligent in the compilation of the records of appeal.
However, with the introduction of the new Court of Appeal Rules 2011, the issue of the failure of the Registrar of the Lower Court to compile the records of appeal will no longer arise because Order 8 Rule 4 of the Court of Appeal Rules 2011 now allows an Appellant to compile the records of appeal within 30 days if the Registrar of the lower court fails to compile it within 60 days from the date when the Notice of Appeal was filed.
Thus, based on the provision of the new Court of Appeal Rules 2011, it would almost be impossible for an Applicant who has been convicted by the trial court to obtain bail pending appeal on the ground that he is likely to have completed his sentence before his appeal would be heard by the Court of Appeal.
We are fortified in this position by the decision of the Court of Appeal in the case of Olabode George v. Federal Republic of Nigeria40 where the Appellants’ applied for bail pending appeal on the ground that they were likely to have served their jail term before the hearing of their appeal due to the delays in the hearing of appeals at the Court of Appeal; but the Court of Appeal rejected this argument on the ground that the provision of Order 8 Rule 4 of the Court of Appeal Rules 200741 which was recently introduced at the time has helped to reduce the delays in the hearing of appeals since Appellants were now permitted to compile the records of appeal if the Registrar of the Court below fails to compile the records.
Instances where the Applicant’s presence will be needed for the preparation of his appeal and consultation with his counsel.
The Appellate Courts would usually grant an applicant bail pending appeal in instances involving complex appeals where the presence of the applicant is needed in order to consult with his counsel and prepare for the appeal.
In the case of Enebeli v. Chief of Naval Staff & 2 ORS43 the Appellant was arrested aboard a Naval Warship for being in possession of Indian Hemp and he was sentenced to 19 years in prison by a General Court Martial. He brought an application for bail pending appeal at the Court of Appeal and one of the grounds upon which the application was premised was that his presence was needed by his counsel in the preparation of his appeal since he was the only one who could give details of what transpired at his trial at the Court Martial and since the relevant documents needed for his appeal were in his custody. The Court of Appeal in granting him bail pending appeal held as follows:
“It is clear from the circumstances of this case that it is highly necessary for the applicant prisoner to be free in order to consult with his counsel to further pursue his appeal. Depositions in paras 1-22 clearly show the frustration, lack of understanding and nonchallant attitude displayed by the 1st and 2nd respondents who were only interested in dumping him in prison.”
Government Agency Bail
Although the most common forms of bail are Police Bail and Bail by the Court, it is important to note that a third category of bail exists, and this category comprises of bail by Government agencies such as Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices Commission (ICPC), National Drug Law Enforcement Agency (NDLEA) and so on.
The EFCC has the powers to investigate and arrest perpetrators of economic and financial crimes under the EFCC Act45 and this same power presupposes that the EFCC can grant administrative bail to individuals who are under investigation pending the time such individuals would be charged to court for the commission of an offence
Section 42 (2) of the Corrupt Practices and Other Related Offences Act, CAP. C31 Laws of the Federation 2004 also gives the ICPC the power to grant administrative bail to a suspect who has been arrested for committing any form of corrupt practices.
In sum, an accused person who has been arrested by any of agencies mentioned above has the right to apply for administrative bail to the said agencies if he is not charged to court within the time prescribed by the Constitution of the Federal Republic of Nigeria and such an accused person can also apply to court for the enforcement of his fundamental human rights if his application for bail is refused by the agency of government which arrested him.
Effect of An Accused Who Jumps Bail
Where an accused person who has been granted bail by the Court jumps bail, his sureties would forfeit the recognizance . The courts however have the power to arrest a surety where he refuses to pay the recognizance47 to the court after the accused person must have jumped bail.
Thus, where an accused person is granted bail by the court in the sum of 2 Million Naira and one surety, the surety would have to pay the sum of 2 Million Naira to the Court if the accused person jumps bail and failure to pay this sum would be a valid ground for his arrest.
Section 132 of the Administration of Criminal Justice Law of Lagos State 2011 provides thus:
- “Where it is proved to the satisfaction of a Court that a recognizance entered into under this Law has been forfeited, the Court shall record the facts and by order declare the recognizance to be forfeited, the Court shall record the grounds of such proof and may call upon any person bound by the recognizance to pay the penalty or show cause why it should not be paid.
- If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same from any person bound or from his estate if he is dead in the manner laid down in the Law for the recovery of fines.”
Section 140 of the Criminal Procedure Act also provides thus:
“Where any recognizance is declared or adjudged to be forfeited, the court having jurisdiction over the matter of the complaint may, forthwith or at any time after such declaration, issue a warrant of commitment against any person liable, whether as principal or surety under such recognizance, for any term not exceeding the term prescribed in respect of a like sum in the scale of imprisonment set forth in section 390 of this Act, with or without hard labour, unless the amount due under such recognizance is sooner paid.”
The only time a surety would not be allowed to forfeit the recognizance where an accused person jumps bail is if he is able to show cause why the recognizance should not be forfeited. This simply means that the surety must provide satisfactory evidence to the court that he is not to be blamed for the accused person’s disappearance.
In the case of Board of Customs and Excise v. Fatima Badru49 where Fatima Badru was granted bail and the Court requested the Customs Officer in charge of her case to stand as surety for her since she had suckling sick baby. Fatima Badru jumped bail and when the surety travelled to Benin Republic to invite her to attend court proceedings in Nigeria; he was beaten up by her relatives. The Court found that the surety could not be held liable for the act of the accused person in jumping bail and the court remitted the recognizance to the surety. The Court further held that the fact that the surety made efforts to ensure the presence of the accused person in court was enough ground for the surety’s recognizance not to be estreated.
Also, in the english case of R v. Southampton Justices50 the accused person, Harry Rodney Green was arrested and charged for the unlawful importation of cannabis under the Customs and Excise Act 1952 and his wife stood as surety for him in the sum of £3,000. The accused person jumped bail and the Court held that his wife’s recognisance of £3,000 must be forfeited to the court. She appealed against this decision and the appellate Court held that she ought not to forfeit her recognizance of £3,000 since she was able to provide adequate affidavit evidence showing that she did not aid her husband in jumping bail and she was not aware that he was going to jump bail. Lord Denning MR held as follows:
“By what principles are the justices to be guided? They ought, I think to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely.”
Is an Accused Person Who is Being Tried for Treason Entitled to Bail?
Ordinarily, the Courts are usually wary of granting bail to an accused person who is being tried for serious offences such as treason because such an accused person is usually considered as a threat to National Security.
In Asari Dokubo v. Federal Republic of Nigeria52 the High Court, Court of Appeal and Supreme Court refused to the grant bail to the Appellant who was being tried for treason on the ground that the proof evidence which was presented against him shows that he would constitute a threat to the National Security of Nigeria if he is granted bail. Ibrahim Tanko Muhammad, J.S.C whilst reading the leading judgment in this case held as follows:
“The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and idisssoluble sovereign nation is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist. 53 ” (Emphasis supplied)
It should however be noted that where an accused person who is being tried for any serious offence such as treason is able to show the existence of special circumstances which warrants the grant of bail, the court would grant such an accused person bail regardless of the fact that he is being tried for treason54 . There is no exhaustive list of what amounts to special circumstances as this is usually determined by the court based on the peculiar facts of each case.
In Uwazurike v. A.G., Federation55 the Appellant was tried for treason at the Federal High Court and his application for bail was refused by the Court. On appeal to the Court of Appeal, the decision of the Federal High was set aside and the Court of Appeal granted the Appellant bail on the ground that the Appellant was entitled to be granted bail as of right since the Prosecution did not present any proof of evidence at the Federal High Court linking the Appellant with the offence of treason. Bada, J.C.A held as follows:
“Therefore, in view of the clear constitutional provisions enunciated earlier in the judgment, it is my humble view that the lower court ought to have granted bail to the appellants as soon as it became clear that proof of evidence did not accompany the charge against them…A situation as in this case where there was no proof of evidence in a charge of treason certainly qualifies as a special circumstance in which this court can grant bail.”
Thus, the mere fact that an accused person is being tried for treason or anyother serious offence does not necessarily mean that such an accused person will not be entitled to bail pending trial. What matters most is that the accused person is able to establish that special circumstances exist which warrants the granting of bail to him by the court. If the accused person is however unable to establish the existence of special circumstances warranting the grant of bail to him, such an accused person will find it extremely difficult to secure bail from the court.
Bail Terms Are Not Meant to Be Excessive
Section 120 of the Criminal Procedure Act provides thus:
“The amount of bail to be taken in any case shall be in the discretion of the court by whom the order for the taking of such bail is made, shall be fixed with due regard to the circumstances of the case and shall not be excessive”.
Notwithstanding the provision of Section 120 of the Criminal Procedure Act cited above, it is now commonplace in Nigeria to see Judges giving orders mandating accused persons who are granted bail pending trial or pending appeal to provide two sureties with landed properties in choice locations in Nigeria and to also produce huge sums of money sometimes running into hundreds of millions! 57 In some cases, some Judges request that the sureties who are to be presented must either be first class traditional rulers or Senior Federal Civil Servants!
In Ignatius Udeh v. The Federal Republic of Nigeria (2001) 5 NWLR (Pt. 706) 312 the Appellant was charged for fraudulently receiving the sum of $78,950 from a company and upon the filing of his application for bail, the High Court granted him bail on the following terms:
- “The applicant deposits with the court the equivalent of one quarter of $78,950 namely $19,737.50 in naira being N1, 973,750
- The applicant provides a surety or sureties who shall deposit security for the balance of $59,212.50 being N5,912,250
- The applicant shall also deposit his passport with the Registrar of the court”
The Appellant was dissatisfied with these onerous terms and he appealed to the Court of Appeal seeking an order granting him bail on liberal terms but the Court of Appeal dismissed his appeal for lacking merit.
It is important to note that Section 16 (1) of the Advance Fee Fraud and Other Related Offences Act, 199559 also contains a provision which permits the Courts to grant bail on excessive terms to wit:
- “The payment of one-quarter of the amount of money involved in the offence;
- The provision of a surety or such number of sureties who shall deposit adequate security for the balance of the amount involved in the offence; and
- The handing over of his Passport to the High Court of the State concerned for the duration of the bail.”
However, the Advance Fee Fraud and Other Related Offences Act, 1995 has been repealed and replaced with the Advance fee Fraud and Other Fraud Related Offences Act, 2006 No. 14 A.403 which does not contain any onerous provision like Section 16 of the old Act. Section 19 of the Advance Fee Fraud and Other Related Offences Act, 2006 which replaced Section 16 of the old Act provides thus:
“The courts shall have power to grant bail to an accused person charged with an offence under this Act or any other law triable by the courts upon such terms and conditions as the court may deem fit.”
In conclusion, is submitted that the judicial attitude of granting bail with excessive terms which most accused persons cannot fulfill is contrary to the provisions of Constitution of the Federal Republic of Nigeria which makes bail pending trial a constitutional right. This is because the main essence of bail is to ensure that the accused person presents himself at his trial and if an accused person is granted bail with excessive conditions, this would amount to an indirect way of denying such an accused person his right to bail since such an accused person will not be able to fulfill the excessive conditions of his bail.
Thus, High Court Judges and Magistrates are respectfully implored to comply with the provisions of Section 120 of the Criminal Procedure Act which requires that the terms and conditions of bail must not be excessive.
The fact that under the 1999 Constitution of the Federal Republic of Nigeria an accused person is considered innocent until proven guilty makes it imperative for the police, government agencies and the courts to grant accused persons bail on liberal terms so long as such accused persons have been able to adduce evidence showing that they are entitled to be admitted to bail.
Thus, the courts should only refuse to grant bail to accused persons if the prosecution is able to adduce evidence showing that the accused persons are not entitled to bail.
This admonition was also recently reechoed by the Administrator of the National Judicial Institute (NJI), Justice Umaru Eri60 where he stated as follows:
- “From statistics and my practical knowledge of the prisons, 50 percent of the warrants of those awaiting trials are signed by Judges of the Lower Courts, that is to say Magistrates, Area Court and Customary Court Judges. Why do we send suspect accused of overnight cases like minor theft, wandering, petty quarrels, perhaps at Club Houses, assault and improper dressing, to mention but a few, on remand?
- Why do courts give in to requests for remand on mere presentation of First Information Report by Police? In most cases, these young persons plead not guilty and our lower courts proceed to grant them bail pending trial. They find themselves in prison because they have no sureties.
- These are cases that require caution and discharge…And so also we have had politicians ensuring detention of their opponents in prison until after the elections are over. I therefore call on the various Judicial Service Commissions in the states to out rightly discipline any Judge of lower court found to abuse his powers. Bail in all these cases should be automatic with no conditions attached.” 61 (Emphasis supplied)
In conclusion, the prompt granting of bail to accused persons would greatly help to decongest Nigerian prisons since majority of the prison inmates in Nigeria are those who are awaiting trial.