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An accused has a right to bail (2)

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By Usman Bukar Bwala

THE Administration of Criminal Justice Act 2015 is in line with the criminal justice in Nigeria and S.162 of the Act has spelt out conditions for granting bail in serious criminal cases in Salami Ibrahim vs FRN supra as “A defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the court, be released on bail except in any of the following circumstances: (a) where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence (b) attempt to evade his trial

(c) attempt to influence, interfere with, intimidate witnesses and or interfere in the investigation of the cases (d) attempt to conceal or destroy evidence (e) prejudice the proper investigation of the offence, or (f) undermine or jeopardise the objectives or the purpose or functioning of the criminal justice administration, including the bail system.” See also Bamaiyi vs The State 2001 8 NWLR (Pt 715) 270 at 291.

A court looks into the character and antecedent of an accused when considering the punishment to be inflicted upon him Re White House 1951 2 All E.R. 219 where it was held as follows “…obtain information as to his character and antecedent and then form an opinion that they are such that greater punishment should be inflicted.”

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Where a court lacks jurisdiction to entertain a criminal matter such a court would lack jurisdiction to entertain bail in respect of the case Ezekwe vs COP 1981 1 NCR 128 where it was held as follows: “As the court would not try the accused, it could not claim inherent jurisdiction to grant him bail either.”

In bail during trial certain factors are considered by a court The State vs Okafor 1964 8 ENLR 96 where it was held as follows: “(1) The cogency of the facts against the applicants (2) gravity of the offence charged (3) severity of the punishment to be meted to the accused (4) availability of the accused to stand trial should they be granted bail (5) the likelihood of the trial not being taken for a long time.”

The cogency of evidence against an accused has always been a relevant factor in granting or not granting bail R vs Stephen Butler 14 Cox 530 where it was held as follows “…The more cogent the evidence, the more serious the consequence of conviction, the greater the probability that they may not appear at the trial.”

An applicant who has good conduct stands a high chance of being granted bail Edward Chavranmuttu 1930 21 Cr Ap R 184. An applicant who has once jumped bail should not be granted bail R vs Abdullahi Jamal 16 NLR 54.

Where the trial of an accused will take a long time is a factor in considering the grant of a bail R vs Spilsbury 1898 2 Q.B. 615. Where there are no concrete reasons that an applicant would abscond if granted bail, it will be granted Ariyo vs COP 1989 1 CLRN 287. It is unconstitutional to hold somebody in custody on “holding charge” as holding charge is unknown to the law Akokhia vs COP unreported M/31/83 Lagos High Court.

In bail pending trial a court is not only enjoined to look at the affidavit evidence but also should look into the contents of the proof of evidence before it Salami Ibrahim vs FRN supra where it was held as follows: “In considering an application for bail, the courts are enjoined not to restrict itself to the affidavit evidence but its consideration should include the contents of the proof of evidence.”

In granting bail sureties are important and sureties must be persons of substance Ariyo vs COP 1989 CLR 28 where it was held as follows “There is assurance that the accused/applicant is in a position to produce men of substance who will ensure his appearance at his trial as surety.”

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Where an accused will jump bail, it will be refused Ogor vs COP 1983 1 NCR 342 where it was held as follows “bail can only be refused to such an accused if there is good reasons suggesting that bail should not be granted to him. Such good reason will… where an accused would likely jump bail to avoid being prosecuted for an offence said to have been committed by him.”

Bail is rarely granted on medical grounds R vs Gott 16 Cr. App. R 86 where it was held as follows “This is class of case in which bail is dangerous. We must follow E. Gordon 7 Cr. Ap.R 182: 1912. In fact, a fortiori if we granted this application, we would never consistently refuse bail.” This is because every criminal will claim medical grounds as his basis for his application for bail.

The medical condition of an applicant is a ground for granting bail. Where an applicant for bail requires specialist medical officer which is not available in a prison is a ground for granting bail Ajayi vs The State 1977 1FCA 1 at 3.

In Court Martial proceedings a High Court can grant bail to an applicant who has a long delay in his trial amounting to oppression R vs O/C Depot Battalion 1949 1 All ELR 242.

In all cases of bail pending trial, the onus is upon a prosecutor to show cause why an applicant should not be granted bail The State vs Kawo 1980 1 NCR 21 where it was held as follows: “…as against the position before conviction but during trial where the onus is on the authorities to show cause why the accused/applicant should not be released on bail.”

This is because an accused person is presumed innocent until proved guilty S.36 (5) of the constitution (as amended) as this presumption works in favour of an applicant.

Justice Bwala (retd) wrote from Lagos

Vanguardngr.com

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