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WHEN APPELLATE COURT WILL NOT INTERFERE WITH TRIAL COURT’S DISCRETION NOT TO GRANT BAIL

Dictum

By the judicial interpretation of the provisions of Sections 340 and 341 of the Criminal Procedure Code, it appears settled law that the power to grant or not to grant bail is entirely at the discretion of the Judge, and when a judge is considering whether to release an applicant to bail pending trial, the following are paramount, viz:- a) The nature of the charge; b) The evidence by which it is supported; c) The sentence which by law may be passed in the event of a conviction and; d) The probability that the accused will appear to take his trial. Where these are weighty, an Appellate Court will not interfere with exercise of discretion by the trial Court not to grant bail, see MAMUPA DANTATA VS IGP (1958) NNLR 3, see BAMAIYI VS THE STATE (2001) 8 NWLR (PT.715) 270, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145; and ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT.890) 267. The relevant considerations for a decision in respect of the above requirements can be listed as:- a) The evidence available against the accused; b) Availability of the accused to stand trial; c) The nature and gravity of the offence; d) The likelihood of the accused committing another offence while on bail; e) The likelihood of the accused interfering with the course of justice; f) The criminal antecedents of the accused person; g) The likelihood of further charge being brought against the accused; h) The probability of guilt; i) The detention for the prosecution of the accused j) The necessity to procure medical or social report pending final disposal of the case. These factors may not be relevant in all bail application cases and they are not also exhaustive. It may well be that any one or other may be applied to determine the question of bail in a particular case.

— U.M.A. Aji, JCA. Rajab v State (CA/A/128C/2009, 11th day of March, 2010)

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APPLICATION TO ENFORCE BAIL BOND IS INTERLOCUTORY

The application to enforce bail bond or recognisance is ordinarily interlocutory. Of course, an interlocutory application is an application or motion for an equitable or legal relief sought before a final decision. The appropriate time to bring such application, ordinarily, is during the pendency or subsistence of the substantive criminal proceedings; an interlocutory application being one for interim or temporary relief. I have read Sections 137 and 140 of the Criminal Procedure Act, and I am of the firm view that the interlocutory application for the forfeiture of recognisance or bail bond must be made during the pendency of the matter and at the time the trial Court has “jurisdiction over the matter”. Once the trial Court becomes functus officio in the matter of the criminal proceedings it ceases thenceforth to have jurisdiction over the matter.

— E. Eko, JSC. FRN v Maishanu (2019) – SC.51/2015

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AN ACCUSED PERSON PRESUMED GUILTY SHOULD NOT BE UNNECESSARILY REMANDED IN CUSTODY

An accused person is not in jurisprudence a person presumed guilty but is given the benefit of being innocent until the contrary is proved. This pre-supposes that he is not to be bounded or be punished or remanded in custody for an unnecessarily long time without a reasonable cause to defeat the course of justice. In other words, he has to be treated humanely and given all the constitutional rights that are allowed to a citizen.

— Pats-Acholonu JCA. Vincent Ogueri v. The State (12th July 2000)

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IN OUR COUNTRY, COURTS SHOULD BE CAUTIOUS IN REMANDING ACCUSED

In a country such as ours where there is so much inter-ethnic animosity and hatred, the court ought to be cautious in remanding accused persons in custody unless there is some substantial evidence in support of allegations of crime against them because it is so easy for an enemy to make a false allegation of murder or robbery against a citizen to keep him out of circulation.

— J.O. Ogebe JCA. Vincent Ogueri v. The State (12th July 2000)

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MURDER AND BAIL; IT MAY NOT BE PROPER TO KEEP ACCUSED IN CUSTODY JUST BECAUSE MURDER IS ALLEGED AGAINST HIM

In the case of Christian Diogu v. The Commissioner of Police (2000) 1 K.L.R. (Pt. 94) 195 the appellant was charged for conspiracy and murder before the Chief Magistrate’s Court, Onitsha. The Chief Magistrate remanded the appellant in custody. He applied to the High Court for a bail. The High Court dismissed his application on the ground that it would not be in public interest to admit the applicant to bail. The applicant then appealed to the Court of Appeal, Enugu Division. The Court of Appeal in granting bail was of the view that it would be dangerous to merely arrest citizens of this country on allegation of murder without substantial facts in support and keep them in custody merely because they are being accused of murder. From the facts of that case the prosecution did not even provide the court with proof of evidence to show that there was a prima facie case of murder against the appellant.

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FACTORS TAKEN INTO CONSIDERATION FOR BAIL

The learned trial Judge listed out a number of factors or criteria that may be taken into consideration by a Judge in granting or refusing bail pending trial. These include (1) the evidence available against the accused; (2) availability of the accused to stand trial; (3) the nature and gravity of the offence; (4) the likelihood of the accused committing another offence while on bail; (5) the likelihood of the accused interfering with the course of justice; (6) the criminal antecedents of the accused person; (7) the likelihood of further charge being brought against the accused; (8) the probability of guilt; (9) detention for the protection of the accused; (10) the necessity to procure medical or social report pending final disposal of the case. Generally, these are some of the factors that may be taken into consideration. It is by no means expected that all will be relevant in every case. I do not also think they are exhaustive. It may well be any one or others may be applied to determine the question of bail in a particular case. The learned trial Judge realised this when he said:- “The bailability of an accused depends largely upon the weight a Judge attached to one or several of the criteria open to him in any given case”. This is eminently a correct view. The learned trial Judge said further:- “The determination of the criteria is very important because the liberty of the individual stands or falls by the decision of a Judge in performing the function. A Judge wields discretionary power which, like all other discretionary powers, must be exercised judiciously and judicially. In exercising the discretion, a Judge is bound to examine the evidence before him without considering any extraneous matter”. This is also correct.

— Uwaifo, JSC. Bamaiyi v State (SC 292/2000, Supreme Court, 6th April 2001)

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APPLICATION FOR FORFEITURE OF BAIL BOND BROUGHT AFTER JUDGEMENT IS UNKNOWN TO LAW

Further, by the combined effect of Sections 119, 120, 122, 127, 128, 137, 141 and 143 of the Criminal Procedure Act, forfeiture of bail bond is contemplated during criminal trial and not after the discharge and acquittal of the accused person as in the instant case. Once judgment is delivered, resulting in conviction or discharge and acquittal of the accused person, the obligation of the surety terminates. Thus, an application for forfeiture, brought after judgment has been delivered with the accused person discharged and acquitted, is with respect, unknown to law.

— I.T. Muhammad, JSC. FRN v Maishanu (2019) – SC.51/2015

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