UNIT 7

BAIL PENDING TRIAL

Bail pending trial is a critical aspect of criminal litigation in Nigeria. It refers to the temporary release of an accused person from custody while awaiting trial, on the condition that they will return for their trial. The essence of bail is to ensure that an accused person is not unduly deprived of their liberty while the trial is pending, given the presumption of innocence until proven guilty. The conditions and circumstances under which bail is granted are governed by various statutes and case laws in Nigeria.

LEGAL FRAMEWORK FOR BAIL IN NIGERIA

The primary legislation governing bail in Nigeria includes the constitution of the federal republic of Nigeria 1999 (as amended), the administration of criminal justice act (ACJA) 2015, and the criminal procedure act (CPA) for southern Nigeria, and the criminal procedure code (CPC) for northern Nigeria.

1. Constitution of the federal republic of Nigeria 1999 (as amended): See section 35(4) of the Constitution which provides that any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time and if they are not tried within a reasonable time, they shall be released either unconditionally or upon such conditions as are reasonably necessary to ensure their appearance for trial.
2. Administration of criminal justice act (ACJA) 2015: The ACJA is the principal legislation for the administration of criminal justice in federal courts and is also widely adopted by various states in Nigeria. See sections 158-164 of the ACJA which outline the provisions for bail pending trial and section 158 which affirms that bail is a right of the accused, except in circumstances where it is likely that the accused will evade justice, commit another offense, or interfere with investigation.
3. Criminal procedure act (CPA) & criminal procedure code (CPC): The CPA applies in southern Nigeria, while the CPC applies in northern Nigeria. Both laws provide guidelines on when bail may be granted and the conditions under which it may be denied.

TYPES OF OFFENSES AND BAIL CONSIDERATIONS

Bail considerations vary depending on whether the offense is bailable or non-bailable. It includes the following;

1. Bailable offenses: Generally, offenses punishable with less than three years’ imprisonment are considered bailable. For such offenses, bail is typically granted as a matter of course.
2. Non-bailable offenses: Offenses punishable with death or life imprisonment, such as murder, armed robbery, and treason, are non-bailable offenses. However, bail can still be granted in exceptional circumstances, such as ill health of the accused or inordinate delay in the prosecution of the case. See the case of Ibori v. FRN (2009) 3 NWLR (Pt. 1127) 94 where the court emphasized that bail is a constitutional right and should be granted unless there are compelling reasons to deny it. The court also noted that the seriousness of the offense alone is not sufficient ground to deny bail.

CONDITIONS FOR GRANTING BAIL

The court, when considering whether to grant bail, typically evaluates several factors which includes the following:

1. The nature and gravity of the offense: The more serious the offense, the less likely bail will be granted. However, the court must also consider the likelihood of the accused attending trial.
2. The strength of the evidence against the accused: If the evidence against the accused is strong, the court might be more inclined to deny bail to prevent the accused from fleeing.
3. The likelihood of the accused committing another offense while on bail: If there is a risk that the accused might commit another crime, bail may be denied.
4. The likelihood of the accused interfering with witnesses or evidence: Bail can be denied if there is a possibility that the accused will tamper with evidence or influence witnesses.
5. The health of the accused: Poor health may be a valid ground for granting bail, especially if the medical condition cannot be adequately managed while the accused is in custody. See the case of Abacha v. State (2002) 11 NWLR (Pt. 779) 437 where the Supreme Court considered the health condition of the accused as a significant factor in granting bail. The court held that the accused should not be kept in custody if their health condition could worsen or if the detention facilities could not provide the necessary medical care.

PROCEDURE FOR APPLYING FOR BAIL

An application for bail pending trial can be made orally or in writing. The application is typically made to the court where the trial is to take place. The accused person, through their counsel, may also apply for bail at the high court if it is denied at the magistrate court.

1. Bail application at the magistrate court: Bail applications are often made at the magistrate court during arraignment. The magistrate may grant bail, taking into account the factors discussed above.
2. Bail application at the high court: If the magistrate court refuses bail, the accused person may apply to the high court for bail. The high court has the discretion to grant bail even in cases involving serious offenses. See the case of Eyu v. State (1988) 2 NWLR (Pt. 78) 602 where the court emphasized that bail should not be refused merely because the offense is serious. The court must balance the interest of justice with the right to personal liberty.

CONDITIONS ATTACHED TO BAIL

When granting bail, the court may impose conditions to ensure that the accused returns for trial. See the case of Dokubo-Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320 where the Supreme Court outlined conditions under which bail could be granted, emphasizing that the conditions must be reasonable and not punitive. These conditions may include the following:

1. Surety: The court may require one or more sureties who will guarantee that the accused will attend court sessions.
2. Monetary bond: The accused may be required to pay a sum of money as a bond for their release.
3. Travel restrictions: The accused may be required to surrender their passport or be restricted from traveling outside a specific jurisdiction.
4. Regular reporting to the police: The accused may be required to report to a police station regularly.

REVOCATION OF BAIL

Bail can be revoked if the accused violates the conditions of bail or if new evidence comes to light that justifies the revocation. The prosecution may apply to the court for the revocation of bail if there is a valid reason. See the case of Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 where the court held that bail could be revoked if the accused failed to comply with the bail conditions or engaged in activities that could obstruct justice.

CONCLUSION

Bail pending trial is a fundamental aspect of the Nigerian criminal justice system, balancing the right of the accused to liberty with the need to ensure justice. Courts are guided by statutory provisions and case law in making decisions on bail applications, with the overriding consideration being the interest of justice.