– Conditions for grant of bail pending trial and when the appellate court will interfere with the decision of the trial court
It is trite that bail is a constitutional right of every citizen charged with a criminal offence because he is presumed to be innocent until the contrary is proved. The discretion to grant or refuse bail resides with the Judge seised of the application for bail which he must exercise judicially and judiciously, in accordance with the law and the Constitution. Once this is done, the appellate Court has no business, and cannot make practice of, interfering with the lower Court’s exercise of discretion. Anything short of judicial and judicious exercise of discretion will render such exercise of discretion to be perverse requiring the interference of the appellate Court. [1]
The factors to be considered in granting or refusing bail pending trial are listed in Bamaiyi v The State.[2]These include the following:
a) The evidence available against the accused;
b) The availability of the accused to stand trial;
c) The nature and gravity of the offence;
d) Likelihood of the accused committing another offence while on bail;
e) The likelihood of the accused interfering with the course of justice;
f) The criminal antecedents of the accused person;
g) The likelihood of further charge being brought against the accused;
h) The probability of the guilt;
i) Detention for the protection of the accused;
j) The necessity to procure medical or social report pending final disposal of the case.
It is also trite that the consideration of the above conditions upon which an Application for bail can be granted varies depending on the circumstances of each case.[3]
– Accused denied bail based on holding charge
Generally, a holding charge is a charge brought against an accused by the law enforcement authority before a court lacking jurisdiction to try the offence charged pending the receipt of legal advice from the DPP to recommend the accused’s trial in a competent court. The courts have however, consistently held that holding charge is unknown to Nigerian Law and that an accused person detained there under is entitled to be released on bail within a reasonable time before trial.[4] Where the applicant was denied bail and kept for many months on the ground that the DPP would soon give his legal advice on the prosecution of the applicant, the court was held not to have acted judicially and judiciously. In other words, if there is no formal charge and there is no proof of evidence before a Court seized of an application for bail, no interference of the commission of a crime can be drawn to warrant a refusal of bail.[5]
– Bail based on exceptional circumstance
S. 161 Administration Criminal Justice Act 2015 provides:
- A suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a Judge of the High court, under exceptional circumstances.
- For the purpose of exercise of discretion in subsection (1) of this section
“exceptional circumstance” includes:-
- ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government Hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him.
- extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or
- any other circumstances that the Judge may, in the particular facts of the case consider exceptional.
The onus of placing before the court material facts which constitute exceptional circumstances is on the Applicant. The onus then shifts to the prosecution to show why bail should not granted. [6]
-Bail based on extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year
Generally, even where there has been extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year, the court will still take into consideration other factors like factors relied upon in support of the charge,[7]the attitude (contributory fault) of the accused towards the delay amongst others.[8]
– Bail on the ground of ill- health
In Fawehinmi v The State,[9] it was held “that special serious health condition of the applicant amounts to a special circumstance.”Also, the special medical need of an accused person whose proven state of health needs special medical attention, which the authorities may not be able to provide is a factor that may be put before the court for consideration in the exercise of discretion to grant bail to the accused person.[10]
However, the mere fact that a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so.[11] An example of where bail would be granted for ill-health is when the continued stay of the detainee poses a possibility of a real health hazard to others, and there are no quarantine facilities of the Authorities for the type of illness.[12]
– Whether an accused in custody is entitled to be treated by a doctor of his own choice
Generally, an accused is entitled to be offered access to good medical care whether he is being tried for a crime or had been convicted or simply in detention. When in detention or custody, the responsibility of affording him access to proper medical facility rests with those in whose custody he is, invariably the Authorities. On the treatment by a doctor of his choice, in Abacha v The State, Ayoola JSC had this to say:
[W]ere it the law that an accused person remanded in custody to await trail is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any person remain in custody to await trial. There is no general principle of law affording that right to an accused person remanded in custody. The duty of the state to ensure that the medical needs of persons in custody are met does not create such extravagant right as claimed that a person in custody is entitled to be treated by a doctor of his own choice.[13]
– When will conditions for bail be unreasonable
The detention of the accused after demand of an excessively large sum for bail or difficult conditions for bail will be unreasonable and will amount to deprivation of liberty if a lesser sum or some affordable conditions would have achieved the same objective. [14]
-Bail in non-capital offences
Generally, in non- capital offences, trial Courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof. Bail ought to be granted on favourable and affordable conditions. It will be against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail.[15]Where the conditions of bail are stringent, the trial Court or an appellate Court has a duty to vary the conditions.[16]
– Whether source of livelihood of the Appellant is a criterion for granting bail
The source of livelihood of an accused is not one of the conditions for the consideration of his bail pending trial in respect of a bailable offence. The accused will generally be made to provide sureties to take up the pecuniary penalty in case of breach of conditions for bail. The accused stands to forfeit the bail if he breaches the conditions for bail.[17]
–On whether civil servants or public officers can be involved in bail of accused persons.
The court generally frowns at involving public officers in bail of people accused of criminal offences, and expecting public servants of certain grade level to owe property worth outreageous sum – N100, 000, 000.[18]
[1]Isamade v Oke(1998) 2 NWLR (PT.538) 455, 468; Ige v Adegbola (1998) 10 NWLR (Pt 571) 662; State v Ajie (2007) 7 SC (Pt 1) 24.
[2](2001) 8 NWLR (Pt 715) 270.
[3] Ezike v State (2019) LPELR-47711(CA) 22-23, Paras. D-E.
[4]Enwere v C.O.P. (1993) 6 NWLR (Pt 229) 333 at 341; Jimoh v COP (2004) LPELR-11262(CA) 10, paras.E-F.
[5] Muktar v Commissioner of Police(2018)LPELR-46314(CA) 30-36, Paras.D-B
[6]Eyu v The State 1998 2 NWLR (Pt 78) 602; Emordi v COP (2000) 19 NWLR (Pt 670) 46.
[7]Emenike Ezenwafor v Commissioner of Police (2009) LPELR 4004 (CA) 39 paras A- C.
[8]Salisu v C.O.P (2018) LPELR-46203(CA).
[9](1990) 1 NWLR (Pt 127) 486.
[10]Ogbonna v FRN (2019) LPELR-47672 (CA) 4-18 paras.D-C.
[11]Chinemelu v Commissioner of Police (1995) 4 NWLR (Pt 390) 467.
[12]Abacha v State (2002) LPELR-15(SC) 26-27 paras F-E
[13]2002 5 NWLR Pt 761 AT 638 (2002) LPELR – 15; 12 – 13 paras G- B.
[14]Bolakala v State (2006) 1 NWLR (Pt 962) 507; Okeahialam v Nwamara (2003) 12 NWLR (Pt 835) 597.
[15]Obioma v Federal Republic of Nigeria (2005) 13 WRN 154; Madu v the State (2011) LPELR 3973 .
[16]Onuigbo v Comissioner of Police (1975) 1 NMLR 44; Obioma v Federal Republic of Nigeria (2005) 13 WRN 154, 165; Uduesegbe v FRN (2014) LPELR-23191(CA) 11-12 paras F-B.
[17]Okomoda v FRN and others (2016) LPELR-40191(CA) 26-27 paras B-E.
[18] Dasuki v Director – General, SSS [2020] 10 NWLR pt 1731, 136 – 143.