May 22, 2016

Adenike Adetifa: Bail in Nigeria (3): A Matter Of Right or Not

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“If a person accused of felony talk less of a capital offence, can hide under the canopy of Section 35 of the Constitution to escape lawful detention, then, a flood gate of escape routes to freedom is easily made available to suspected felons and capital offenders which will not augur well for the peace, tranquility and progress of society”. 
  • His Lordship IRIKEFE JSC in ECHEAZU V C.O.P. (1974) NMLR 308 PG.314
The principle upon which an accused person standing trial in Nigeria can be granted bail is laid out by the 1999 Constitution (as amended), statutory laws such as the Criminal Procedure Act (“CPA”), Criminal Procedure Code (“CPC”), the Administration of Criminal Justice Act 2015 (applicable in the Federal Capital Territory and Federal High Court of Nigeria) which have been judicially interpreted widely in numerous case laws, serving as a guide to Judges in the granting of applications for bail .

The statutory provisions of CPA, CPC & ACJA cumulatively provides that a person charged with an offence other than capital offence which is punishable with death is entitled to be admitted to bail. Where the offence is a capital offence, the accused is not entitled to and would not be released on bail except by a Judge of the High Court in certain circumstance. See Sections 340 (1), 341 (1-3) CPC; Sections 118, 119 CPA; and Sections 158 ACJA.

A person’s right to personal liberty will be deprived where for example he has been charged with an offence and lawfully detained in custody and is brought before a court upon reasonable suspicion of his having committed a criminal offence; or to such extent as may be reasonably necessary to prevent his committing a criminal offence. It is imperative to note that the limit on such an accused person’s right to personal liberty must be within a reasonable time and he must not be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence he is being charged with. This is a constitution guaranteed protection. This guarantee can however be curtailed if such accused person is arrested or detained upon reasonable suspicion of having committed a capital offence. See Section 35(7) of the 1999 Constitution (as amended).

As stated earlier, though bail is a constitutional right, it is trite law that the grant or refusal of bail is at the unfettered discretion of the court and such discretion must be exercised judicially and judiciously. A person charged with a capital offence in Nigeria punishable with death will not ordinarily be entitled to bail except he places materials before the court to persuade the court to the exercise of its discretion in his favour. Sections 35 (1) (c ) and 35(7) of the 1999 Constitution (as amended) clearly intended to make the provision of the Constitution on the right to liberty of a citizen not absolute. Notwithstanding this provision, a court can exercise its discretionary powers to grant bail even in capital offenses where certain laid down criteria are met by the accused. Some of the criteria the court could consider include:
  • The prejudice of the proper investigation of the offence if granted bail;
  • The serious risk of the accused escaping from justice;
  • That no grounds exist for believing that the accused if released would commit an offence;
  • The nature of the charge;
  • The strength of the exhibit which supports the charge;
  • The gravity of the offense allegedly committed by the accused;
  • 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;
  • The prevalence of the alleged offence;
  • The presence of special circumstance such as prosecution’s delay; failure to prepare the proof of service; failure to file information against the accused for the alleged offence
  • The accused suffering from serious health disability which may occasion health hazard, calamity or even death if no proper medical attention is given etc.
All these are likely special circumstances in which may exist to warrant the grant of bail pending trial for a capital offense. In an application for bail, mere denial of the commission of the offence without more is not helpful to such application. There must be convincing facts in the application for bail sufficient to sway the court’s mind to granting the application.

What invariably guides the courts in granting or refusing an accused person bail is the potency or otherwise of the proof of evidence. Surely, it is the proof of evidence, that a court will be persuaded or dissuaded with regard to whether or not to grant or refuse bail to an accused person; that is to see whether or not there is prima facie evidence against the accused. In the absence of proof of evidence being place before a court of competent jurisdiction, which will prima facie disclose the level of culpability or otherwise of the accused person in the alleged offence be it conspiracy and culpable homicide, such accused will most likely be granted bail.
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.
  • UGBEDE ALI V. THE STATE (2012) 10 NWLR PART 1309 P.589
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