May 22, 2016

Adenike Adetifa - Bail in Nigeria (1): Discretionary Power Of The Court, How Exercised

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Courts are recognized and renowned as the hallowed chambers of justice, where even-handed justice is meted out to all and sundry, without sentiment, emotion, favoritism or being unnecessarily embroiled in crass legalism. Additionally, constitutional and statutory provisions which pertained to presumption of innocence and liberty of citizens are meant to be applied and not treated as totem poles, left untouched in sanctified and sacred deification”.
  • His Lordship Oredola JCA in AHMED V. C.O.P., BAUCHI STATE (2012) 9 NWLR PT. 1304 P. 133 PARA A-B
Basically, Bail pending trial is a constitutional right enshrined under the 1999 Constitution of the Federal Republic of Nigeria (As Amended) to every individual. Section 35 (1) of the Constitution provides that “ Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law…(quotation continues)”.

The issue of whether or not to grant bail to an applicant applying for bail in a court in Nigeria is entirely a discretionary one, depending on the court hearing the application and with due considerations being given to the materials placed before it either in the affidavit evidence in support of the application or in opposition thereto. Notwithstanding that the grant of bail is at the unfettered discretion of the court, it is trite law that such discretion must however be exercise judicially and judiciously. The term “judicially and judiciously” will be better explained in a subsequent post but let me explain what the discretionary power of the court means as a better understanding of same may assist an applicant in understanding how the mind of the court works and what to expect in a his/her given case.

The discretionary power of the court means: a) the exercise of the judgment by a judge or a court based on what is fair under the circumstance and guided by the rules and principles of law; (b) a court’s power to act or not to act when a litigant is not entitled to demand for the act as a matter of right. A judicial and judicious discretion is one which is dictated on sound judgment, honesty, pure reason, surrounding circumstances of the case and good conscience of the judge based on facts and guided by the law or equitable decisions.

It is therefore safe to say that a discretion which is not exercised judicially and judiciously is a discretion exercised subject to the whims and caprices of the judge; based on sentiments and extraneous conditions; fettered by the dictates of others which an applicant can appeal against at a court of superior jurisdiction.

Let me point this out that normally in Nigeria, where a court has exercised its discretion, an appellate court as a matter of practice will not peremptorily or readily intervene or interfere with the decision of the lower court, not even if it would have exercised it discretion differently or come to a direct conclusion than the trial court. An appellate court will only interfere with the exercise of the discretion of the court in certain stringent circumstances which are:

1.To inquire whether or not such discretion was exercised in accordance with the Law, the rules and existing binding precedents on the subject matter.

2.Where such discretion was exercised wrongly or wrongfully, to the extent that the trial court acted under a misconception or misapprehension of law or fact by attaching weight to irrelevant and unapproved facts;

3.Where the court omitted to take into account factors relevant or where the discretion was exercised or not exercised based on wrong and insufficient materials and thereby occasioned miscarriage of justice;

4. In all other circumstances where such exercise would have occasioned a miscarriage of justice.

Simply put, if as an applicant, you have reasons to believe a judge failed to exercise this discretion judicially and judiciously, such decision can be appealed against for setting aside.  The principle of law is that court must always maintain its prime position as an impartial umpire and should not descend into the arena for whatever reason, so as to favour or make a case for one of the parties before it. It is not the function of the court to act on speculation or dabble into the realm of conjecture.

I hope this write up was beneficial to you. You are welcomed to leave your questions, comments, constructive criticism, suggestions, new ideas, contributions etc in the comment section or my email address which is I look forward to reading from your comments.

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