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, but will also ensure the attendance of the accused to court to answer charges against him or her.
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 at 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.
ogbomgoodluck@gmail.com.