Bail: What You Should Know

The right to bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pretrial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary  in the sense that it lasts only for the period of the trial. It stops on the conviction or acquittal of the accused.

The contractual nature of bail is provided for in section 345 of the criminal procedure code, which provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the court on the condition that such a person must execute the same or another bond or other bonds containing conditions to the same effect.

In most cases, the court had discretion to admit an accused person to bail, but in the exercise of the discretion, the nature of the charge, the evidence by which it is supported, the sentence which by law may be passed in the event of conviction, the probability that the appellant will appear to take his trial, are the most important ingredients for the guidance of the court and where these are weighty, an appellate court will not interfere.

This decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case which must be done Judicially and Judiciously. According to Niki Tobi, JSC in Adamu Suleman and Another V. Commissioner of  Police, Plateau State “the most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail, the bail ability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case.

The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judicial  function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously. In exercising its discretion the court is bound to examine the evidence before it without considering any extraneous matters, the court cannot exercise its whims indiscriminately. Similarly, there is no room for the court to express its sentiment at, is a lhard malter of law fact and circumstance which the court considers without being emotional sensitive or sentiment.

Since there is presumption of innocence until found guilty under the law and the paramouncy of the liberty of the citizens, the onus of showing that an appellant does not deserve to be admitted to bail is on prosecution. Thus, an applicant for bail plending appeal is entitled to bail unless the prosecution shows to the contrary.

Bail after conviction, the constitutional right to presumption of innocence of the accused is lost and therefore the bail is no longer automatic, consequently, the burden of proof after the applicant has placed materials before the court shifts to the prosecution to show cause why the accused should not be granted bail.

Bail is a basic right for every citizen of Nigeria who is charged with a criminal offence by virtue of section 35 (1) of  the constitution of the Federal Republic of Nigeria 1999. Thus, every person is entitled to his personal liberty except as stipulated by the constitution and or statue. And in furtherance of that right, section 35 (4) of the constitution proides that any person who is arrested or detained in accordance with subsection (c) of the section must brought before the court of law within a reasonable time and if he is not tried within a period of (a) two months from date of his arrest to detention in the case of a person who has been released on bail. 

He shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for his trial at a later date. The section is however, excluded where a person is detained upon is reasonable suspicion of having committed a capital offence.

Court Acquits One Of Threat To Life

A Port Harcourt Chief Magistrate Court presided over by His Worship B. G. Macfarlance Esq. has discharged and acquitted one Lazarus Ononuju of the three-count charge preferred against him by the prosecution.

In his judgement, the learned magistrate stated, I hereby hold that the prosecution has failed to prove the charge against the accused person and he is accordingly discharged and acquitted.

He, however, ordered that the accused to enter into recognizance to be of good behaviour for a period of three months.

Earlier in his judgement, Chief Magistrate Macfarlance said that he had considered the evidence before the court and the contention of the learned defence counsel vide his written address and that it was his view that the charge would not succeed.

According to him, the charge as preferred by the prosecution failed to indicate which of the subsections (a) and (b) they were charging.

He pointed out that it was wrong to charge under section 86 of the criminal code simpliciter which provides for threatening violence.

Chief Magistrate Macfarlane explained that the admission of the prosecution that other people apart from the complaints witnessed what happened and their failure to call witnesses is fatal to the case of the prosecution as he had left the court with the word of the accused person who have denied the charge against those of the three complaints witnesses PW.1,PW2 and PW3.

He noted that the situation had created doubt in the mind of the court, which the law enjoined the court to resolve in the favour of the accused person.

It will be recalled that the accused person in case of commissioner of Police Vs. Lazarus Ononuju was charged with threat to life of three persons Ijeoma (PW1), One Obinna Stanley (PW2) and one Joshua Samuel (PW3).