The Right To Be Granted Bail By O. G. Ogbom, Esq – TheNigerialawyer

The right to be granted bail is a constitutionally guaranteed
right and it is a fundamental right. There are numerous reasons for
granting bail to a person accused of an offence, however, one of
the major reasons behind granting bail to any person so accused is
based on the presumption of innocence in law of any person accused
of, or charged with an offence until the contrary is proved as long
as the court is satisfied of the conditions for bail as mentioned
above. Section 36 (5) of 1999 cfrn. It is an age-long principle
established by William Blackstone as far back as 1765 in his
Commentaries on the Laws of England and also re-echoed by the old
English court in the case of Woolminghton vs DPP, (1935), when the
court held that:

“It is better that ten guilty persons escape than that one
innocent suffers”. In other words, it is better to let the crime of
a guilty person go unpunished than to condemn the innocent. The
right of an accused to be granted bail will not only give the
accused person adequate time and liberty and space to prepare his
defence.

Bail is the process through which an accused person who is
arrested on the allegation of committing an offence is released by
a constituted authority upon the provision of security guaranteeing
that the accused person would report at the police station or in
court for his trial whenever his presence is required. See PART 19,
sections 158 and 164 of the Administration of Criminal Justice Act,
2015.

A Magistrate Court and a High Court both have the powers to
grant bail to an accused person and this power must be exercised
judicially and judiciously. This simply means that the Court must
consider the facts of every case and the materials which have been
placed before it by the accused before deciding whether or not to
grant the accused person bail.

It is trite principle of law that the discretion of court cannot
be regarded as judicially and judiciously exercised where the facts
relevant were not there or were not fully disclosed. In order to
exercise a just and proper discretion, facts of a case must be
available and be reasonably appreciated. An exercise of discretion
is an act or deed based on ones personal judgment in accordance
with one’s conscience, free and unfettered by any external
influence or suggestions. A judicial discretion means the power
exercised in an official capacity in a manner which appears to be
JUST and PROPER (emphasis mine) under a given situation. It must
not flow from or be bound by a previous decision of another court
in which a discretion was exercised. It is in short an antithesis
to the doctrine of stare decisis. There is no hard and fast rule as
to the exercise of a judicial discretion by a court for if that
happens, a discretion becomes fettered. See the cases of Odusote v
. Odusote (1971) 1 ALL NLR 219 on page 222, Anyah v. African
Newspapers of Nigeria Ltd. (1992) 6 NWLR (pt.247) pg. 317.

Issues fall within a judge’s discretion if being governed by no
rule of law, its resolution depends on the individual judge’s
assessment of what is fair and just to do in a particular case.
Where the situation is governed by a rule of law, where the
interpretation of the provision of a statute is in question, any
direction exercised must be exercised in accordance with the
provision of the Statute.

When exercise of discretion becomes unjust and improper.

Recently, the publisher and former Presidential candidate of
AAC, detained by the DSS was arraigned and granted bail by a
federal court sitting in Abuja. Some of the conditions are that; he
must not travel out of Abuja, the Nation’s capital and N100 million
and two sureties. One of the sureties must own landed property and
a deposit of N50 million.

The conditions are not only unrealistic but it makes mockery of
the system; the idea behind the amount to be paid by the surety is
just in case the defendant happens to jump bail or something else
happens. Now, you give bail option in millions of naira and you say
a surety must deposit N50 million. Does this not raise a question
where the surety is supposed to get that amount of money from? Does
it not make it impossible for people to stand as sureties to the
defendants because of fear? What is just and proper in the exercise
of the discretion? Does it demonstrate a grant of bail that is
constitutionally guaranteed according to section 36 (5) of the
1999cfrn? Can it be said that the discretion of the court was
judicially and judiciously exercised? Does it suggest that it’s
free and unfettered by any external influence? The questions are
endless.

Bail, by its definition, is simply a process designed to ensure
the attendance of the defendant to court to answer charges against
him or her. It is not designed to false imprison defendants, limit
their right of freedom of expression as enshrined in the
constitution. The law is very clear, that an accused is presumed
innocent until proven guilty. Bail is not meant to be punitive or
to punish defendants. When it becomes punitive like the instant
case, the result is that people will become unwilling to come
forward to stand as sureties for some accused persons out of fear
of victimization or investigation. This is especially so in this
era when there appears to be a selective fight against
corruption.

While the law does not make specific provisions as to what
bail conditions should be like. There are three different
circumstances considered in the grant of bail. Firstly, in simple
misdemeanor offences, the defendants are entitled to bail outside
of the discretion of the court. In simple felony offences, the
defendants are entitled to bail subject to the conditions set by
the court. Thirdly, in serious offences like murder and armed
robbery, the defendant is not entitled to bail except on serious
circumstances.

However, given the nature of the offences Sowere was charged
with, one can safely make some assumptions as to what kind of
conditions should be given and not the unjust and improper
conditions given by the court.

The imposition of stringent terms of bail on the defendants
practically amounts to a refusal of bail, which could be seen as a
ploy to keep the defendants perpetually in custody. Stringent bail
conditions, especially denial of freedom of expression, represent
an infringement and are, to that extent, inconsistent with the
fundamental principle of the presumption of innocence.

O. G. Ogbom, Esq., LL.B., LL.M., is a Port
Harcourt based legal practitioner, [email protected]^[1]

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