Summary On The Nature of Bail Pending Trial in Nigeria -By Olorunmaiye Joshua

Olorunmaiye Joshua

Bail is a constitutional right which is entrenched in the fundamental rights of a Nigerian to fair hearing, personal liberty and freedom of movement as provided for in the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The right to bail by virtue of Section 35 (4) of the 1999 Constitution therefore flows from the rule of law that every person accused of committing a crime is at the first instance given the benefit of doubt and is thus assumed to be innocent until his/her guilt has been proven by the prosecution and upheld by a court of law. This is pursuant to Section 36 (5) of the 1999 Constitution.

Of what use then is bail in the seemingly interwoven concepts of fair hearing and the right to personal liberty?

In Onu v Obekpa [1980] 1 NCR 113, the Court held;

“(Bail) allows those who might be wrongly accused to escape punishment which any period of imprisonment would inflict while awaiting trial. The stay out of imprisonment guarantees easy accessibility to Counsel and witnesses and ensures unhampered opportunity for preparation of the defense. Of much further advantage in this regard is the fact that unless the right to bail or to freedom before conviction is reserved, protected and allowed, the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence would lose its meaning and force”.

Bail is therefore an allowance granted to a person whose liberty has hitherto been deprived by reason of an arrest to conditionally continue to enjoy the liberty guaranteed by the supreme force of the Constitution, up until the accusation or allegation brought against him is finally determined by a competent court of law.

As pointed out by his Lordship, Justice Ejembi Eko in his book, ‘The Law of Bail (2008)’, in a criminal trial the accused is conditionally allowed the privilege of attending his trial from outside the confines of the prison yard or place of incarceration.

While it has been stated earlier on that every accused person deserves a fair trial and is usually given a presumption of innocence by law, it would be naive to assume however, that every accused person charged with a crime may indeed be innocent. Although the presumption exists in favour of a general class of persons, it is however commonsensical to be wary of certain scrupulous persons in the society who may well be aware of their own guilt and therefore seek to escape from the legal consequences of same. Such persons; if allowed an unhindered freedom may indeed never allow the course of justice, whether for the State or their victims to prevail.

It is therefore in recognition of these issues that the law, while granting certain rights on one hand, presents certain reasonable circumstances wherein conditional limitations exist within the purview of the duty and function of law to preserve order in the society.

To this end, bail serves as a contract of insurance or security guaranteeing that an accused person who is granted his constitutional rights is yet bound by the law to respect and cooperate with the course of justice. Thus,  an accused person enters into a bail bond with the court through a third party surety or self-recognizance, staking an amount required by the court in the form of security such that the surety or the accused stands the risk of paying the amount staked for the bail. The absence of such expected cooperation, for instance, in the form of failure to appear in court when required; would lead to consequences such as a revocation of the bail order, arrest, fines or a forfeiture of the bail bond.

In applying for bail, the procedure is that after the charge against the accused has been read to him/her, the accused person makes an application to the court, and also notifies the prosecution of such an application. While the accused comes to court with the intention to show cause as to why he should be granted bail, the prosecution on the other hand may oppose such a grant by tendering reasons why such a person should be denied his/her constitutional right to personal liberty by means of the rejection of the bail application. Such an argument before the Court becomes necessary because although bail is a constitutional right, the grant or refusal of same is within the discretion of the court. Howbeit, such discretion is expected to be exercised judicially and judiciously and would usually depend on the circumstance of each case. (Ali v. State [2012] 10 NWLR part 1309 page 589.)

What then are the factors that the courts would usually consider in granting or denying a bail application? In Dokubo Asari v. FRN (2007)12 NWLR part 1048 pg. 320, the Supreme Court maintained thus;

“The main function of bail is to ensure the presence of the accused at the trial. This criterion is regarded as not only the omnibus one but also the most important of all the criteria for the granting of bail at the trial court. As a matter of fact, all other criteria are dependent on the omnibus criterion of availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the greater the incentive to jump bail although this is not invariably true. For instance, an accused charged with capital offence is likely to flee from the jurisdiction of the court than one charged with a misdemeanor, like affray…”

Thus, generally, and as stated in Dokubo Asari v. FRN (supra) and Chinemelu v COP (1995) 4 NWLR (Pt 390) p.467; the following are the criteria the court may consider before exercising its discretion in granting or refusing bail pending trial;

• 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’s interference with the witnesses or any evidence that may incriminate him.
• The likelihood of a further charge being brought against the accused.
• Detention for the protection of the accused.
• The probability of guilt.
• The necessity to procure medical or social report pending final disposal of the case.

It must be noted, finally, that although bail may be granted, an accused who feels that the terms of the court for the grant of the bail are excessive may apply to a higher court for a review of the terms of such bail. Also, in the situation whereby bail is refused, an appeal may be brought before a higher court by the accused.

*OLORUNMAIYE JOSHUA is a Legal Practitioner based in Lagos, Nigeria. He appears on Twitter, Instagram and Facebook as @joshgiantfeet