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BAIL PROCESS AND EXERCICE OF DISCRETION IN THE LOWER COURTS

BY
HON. JUSTICE MARSHAL UMUKORO
BEING A PAPER DELIVERED AT THE 2014 CONFERENCE OF ALL NIGERIA
JUDGES OF THE LOWER COURTS, NATIONAL JUDICIAL INSTITUTE, ABUJA
TUESDAY 18TH NOVEMBER, 2014

It is a great privilege to be called upon to be part of this intellectual convocation. I


owe profound gratitude to the National Judicial Institute which is presently
organized under a highly resourceful jurist and dedicated Judicial Administrator
The Hon. Chief Justice of Nigeria and Chairman, Board of Governors of the
Institute, Hon. Justice Aloma Mariam Mukhtar GCON FNJI for finding me worthy
to present this paper titled Bail Process and Exercise of Discretion in the Lower
Courts. To the Administrator of the Institute, Hon. Justice R.P.I. Bozimo, OFR, I
say thank you. I salute the Education Committee of the National Judicial Institute
led by Hon. Justice Mohammed JSC, CON.
May I quickly inform you that the term Lower Courts should not be discouraging
to the participants. You perform judicial functions for all intents and purposes.
You are obviously Judicial Officers under the Code of Conduct for Judicial
Officers of the Federal Republic of Nigeria. What we shall discuss in this paper
remains as important to you as to other Judicial Officers up to the Supreme Court
of Nigeria.1
By our adversary system a Judge goes into a case with an open mind and decides it
in accordance with the law and the rules of Court. In Criminal matters, he
presumes the accused person is innocent until the contrary is proved by the
prosecution.2 In Civil matters, he leaves his mind open and give judgment to the
party who in law is entitled to it on the evidence before him, based on the well
entrenched principles of proofs.3 If a Judge makes up his mind before he hears the
matter and gives judgment in accordance with his fixed mind, he is guilty of the
charge of bias.
On that eventful day in his life, the Judge swore to discharge his judicial duties and
perform his functions honestly to the best of his ability and to do right to all
manner of people without fear or favour, affection or ill.4 He must adhere strictly
to the oath and one way of doing this is not to show any bias in favour of one party
and against the other. The moment he does that, he has inflicted a serious injury to
the judicial oath and he will not be regarded any longer as a fit and proper person
to continue with the performance of his judicial functions.
So much is expected from a Judge because so much power is vested in him by the
law. He is therefore expected to perform his judicial functions clearly in the glare
of the public and for the consumption of the public. He should on no account
allow the public doubt his personal integrity and fidelity of purpose in whatever he
does within and outside the Court as his life relates to his judicial functions. The
law expects him to hold the balance between the parties, let the position of law be
his only Constituency and not the parties.5

With that preamble, we come to the topic before us Bail Process & Discretion In
The Lower Courts.
What is Bail? Why Bail at all? What are the types of Bail? What are the
conditions for Bail?
Bail pending trial and bail after trial and conviction.
Methods of applying for bail.
What is discretion in the grant or refusal of Bail? How should that discretion
be exercised? Is it fettered or unfettered? Practical experience and examples.

What is Bail?
The word Bail originates from the French Word Brailler meaning to deliver.
Bail means to set at liberty a person arrested or imprisoned on security being taken
for his appearance on a day and a date certain. The basic idea of bail seems to be
that the person granted bail should be under some kind of restraint from which the
Court, by giving him bail may release him. It is to release a person from the
custody of the officers of the law and is entrusted to custody of persons known as
his sureties who are bound to produce him to answer at a specified time and place,
the charge against him and who in default of doing so are liable to forfeit such
sums as is specified when bail is granted. In EMMANUEL NWUDE VS.
STATE,6 the Court of Appeal defined bail as follows:of bail generally is about surety or sureties taken by a person
duly authorized for the appearance of an accused person at a
certain day and place to answer charges levied against him and be
justified by law

The Court of Appeal relying on Kennys Outlines of Criminal laws stated:-6A


a contact whereby an accused person is delivered to his surety
or also the contract of the surety himself.

Why Bail at all?


In my approach to this segment of the paper, may I refer you to the decision of the
Court of Appeal in Olivia Vs. State7 (2005) 2 CLRN 26 where the Court of
Appeal held:In a Country such as ours where there is so much animosity and
hatred, the Court ought to be cautious in remanding accused
persons in custody unless there is some substantial evidence in
support of allegation of crime against them because it is so easy for
an enemy to make false allegation of murder or robbery against a
citizen in order to keep him out of circulation.

Then hear the Supreme Court in SULEMAN VS. C.O.P.8 that bail is a
Constitutional right and Contractual in nature and that the effect of granting bail is
not to set the accused free for all times in the criminal process but to release him
from custody of the law and entrust him to appear at his trial at a specific time and
place. That the freedom thus granted is temporary in the sense that it lasts only for
the period of the trial. It stops at conviction or acquittal of the accused.
In James Dambaba Vs. State9 it was held:-

My understanding of Section 35(4)10 of the Constitution is that


the intendment of this provision is that a suspect is entitled to early
bail or be released on bail. In a case where early trial cannot be
guaranteed the suspect should be released on bail.

May I add here that what is reasonable time within which a case shall be heard and
concluded is a question of fact to be determined from the nature of a case.11

What are the Types of Bail?


The three types of bail are:(1)

Police Bail or Pre-arraignment bail12 granted by the Police and law


enforcement agencies pending the arraignment of a suspect in Court.

(2)

Bail granted by the Court pending trial.

(3)
(4)

Bail granted by the Court after trial/conviction.


Anticipatory bail is bail granted to a person who is imminently about to be
arrested. It is a preventive bail. I do not think we practice that in this
country. It is in practice in India.13

Conditions of Bail Pending Trial


Ibrahim Tanko Mohammed JSC in Dokubo Asari Vs, F.R.N.14 held:The criteria which a Court shall consider in the exercise of its judicial
discretion to arrive at a decision to grant or refuse bail pending trial of an
accused by the trial Court include among others the following:(1)
(2)
(3)
(4)
(5)

the nature of the charge;


the strength of the evidence which supports the charge;
the gravity of the punishment in the event of conviction
the previous record of the accused if any;
the probability that the accused may not surrender
himself for trial;
(6) the likelihood of the accused interfering with witness
or may suppress any evidence that may incriminate

him;
(7) the likelihood of further charge being sought against
the accused;
(8) the probability of guilt;
(9) the detention for the protection of the accused and
(10 the necessity to procure medical or social report
pending final disposal of the case.

The Learned Justice of the Supreme Court continued:The criteria are not exhaustive. Other factors not mentioned may
be relevant to the determination of grant or refusal of bail to an
accused. They provide the required guidelines to a trial Court in
the exercise of its discretion or matters of bail pending trial.

In Bamaiyi Vs. State,15 Uwaifo JSC had this to say:-

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.
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 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.

The Learned Justice then concluded at page 967 thus:Nigerian criminal justice system has its stipulations and
safeguards for the prosecutor, the accused and the victim. In an
application for bail pending trial, if there is good reason to believe
or strongly suspect that the accused will jump bail, thereby making
himself unavailable to stand trial and or will interfere with
witnesses, thereby constituting an obstacle in the way of justice,
the court will be acting within its undoubted discretion to refuse
bail.

Application for bail in the Police Station is made in writing. Either the suspect or
his surety can make it. Where the surety makes the application, it is the practice
that the application should include the passport photograph of the surety. The
suspect may be admitted to bail with or without conditions. Where conditions for
bail are stipulated, the suspect must satisfy the stated condition before he is
released.
Any suspect who fails to satisfy the conditions set for his bail will remain in
custody because it is the accused persons duty to satisfy the bail condition, his
continued detention will not amount to a violation of his constitutional right.
When a person on police bail is charged to Court upon arraignment the police bail
lapses. The accused person therefore must apply for Court bail; otherwise he will
be remanded in custody unless the Court, on its own volition admit him to bail.
For the purpose of Court bail in the Magistrate`s Court and the High Courts Sections
118 (1) of the CPA & 341 (1) of the CPC both provide that a magistrate`s Court in Nigeria
cannot grant bail to a person charged with the commission of an offence punishable with death.
However in the Southern States by virtue of Section 18 (3) of the CPA a person charged with an
offence punishable with death may be granted bail by the High Court. In practice bail is rarely
granted except where there exist cogent and compelling reasons. It is very unusual for a person
accused of committing murder to be granted bail pending the determination of his case. Murder
charge being a very serious offence, it is not in the interest of the public that such a person
charged with murder be released on bail. It is usually done at the discretion of the Court. Under
Section 341 (1) of the CPC the High Courts in the Northern States appear to be prohibited from
admitting a person charged with a capital offence to bail. However Section 341 (1) of the CPL
provides that:
Not withstanding anything contained in subsection (1) and (2) if it
appears to the court that there are no reasonable grounds for
believing that a person accused has committed the offence, but that
there are sufficient grounds for further inquiry such a person may
pending such inquiry be released on bail. Therefore, despite the
outright prohibition contained in Section 341 (1) of the CPC the
High Courts in the Northern States can still admit a person charged
with a capital offence to bail. This is only on the condition
contained in Section 341 (3) of the CPC that:

If it appears to the Court that there are no


reasonable grounds for believing that a person
accused committed the offence

Both the CPC and the CPA provide for application for bail to be made to the High
Court where such application has been refused by the lower Court. Both Codes
did not make provision for the procedure to be adopted by such an application as
result there is a lacuna in the law in this regard.
In the Southern States where the CPA applies, section 363 of the C.P.A. provides
as follows:The procedure and practice for the time being in force of the High
Court of Justice in England in Criminal trials shall apply to trials in
the High Court in so far as this Act has not specifically made
provision therefore

Application for bail to the High court after the refusal of a magistrate`s Court to
grant bail is by way of summons to admit the accused person to bail, supported by
an affidavit, a Certified True Copy of the alleged charge sheet, a copy of the ruling
of the lower court refusing the first application must also accompany it, a written
address and any other document to be relied on e.g. Medical Report in case of ill
health. The summons with the accompanying processes are filed at the High Court
registry. The Bailiff of the Court serves the Respondent. The bailiff will swear to
an affidavit of service.
The CPC prescribes some conditions for bail but the C.P.A. does not. Before a
Court in the Northern State admits an accused person to bail it will consider the
following:(i)

Whether there are reasonable grounds for believing that a person accused has
committed the offence.

(ii)

That by reason of the granting of bail the proper investigation of the offence
would not be prejudiced and

(iii)

That no serious risk of the accused escaping from justice would be occasioned
and

(iv)

That no grounds exist for believing that the accused, if released would commit
an offence.

For the Southern States, Section 118 of the C.P.A. does not state the condition
which a court must consider in order to decide whether to grant or to withhold bail.
The conditions upon which a Court in Nigeria may grant or refuse bail are not
exhaustible. The likelihood of the accused person attending his trial is the main
consideration that determines the grant or refusal of bail. However, the following
factors are usually considered nationwide in the grant or refusal of bail:
1. The likelihood that the accused person, if admitted to bail will not interfere with police
investigation. When there is evidence before the Court that the accused person is likely
to or has already committed acts with the intention of interfering with further
investigation of the case or the conducts of the proceedings at his trial, bail may not be
granted. In Dantata Vs. I.G.P. of Police (1958) N.R.N.L.R. 3. The accused persons bail
was refused because it was found that he had already offered a bribe to the police. The
inducement was intended to facilitate the retrieval of incriminating evidence against him,
in the custody of the police. Consequently, the Court refused his application for bail.

2. The gravity of the offence and the severity of the penalty. The penalty prescribed and the
seriousness of the offence will greatly influence a Courts discretion to grant or withhold
bail. While every accused person is presumed innocent until proven guilty and therefore
ordinarily entitled to bail, the purpose of bail is to secure the attendance of an accused
person to his trial. This purpose may be defeated in the case of offences which attract
penalties such as life imprisonment or death if bail is not withheld. This is the main
reason why bail is rarely granted in capital offences. In considering the gravity of an
offence and the severity of penalty as a factor in the grant or refusal of bail, the charge
and the quality of evidence before the Court are decisive factors see the case of Dogo Vs.
C.O.P. (1980) 1 N.C.R. 14, State Vs. Felix (1974) L.R.N. 308. The accused person
committed an offence while he was on bail for an earlier charge. His application for bail
on the later offence was rejected. Also in the State Vs. Felix (Supra) the applicant was
charged with one Court charge of conspiracy to commit a felony, nine counts of stealing,
one of receiving, one of unlawful possession. Eleven of the charges were punishable
with imprisonment for seven years each. On application for bail the Court held that:(i)
(ii)

In view of the severity of the sanction for the offences charge.


The frequency of such offences in the State, and

3. The possibility of such offences being repeated if the application was granted. It was
inappropriate to allow the applicant to be at liberty pending the trial.
4. The criminal antecedents of the accused person. An accused persons criminal record is
of important consideration in the grant or refusal of bail. A first offender is more likely
to be admitted to bail than or habitual criminal (recidivist). The fact that a person has
never been charged or convicted for a crime is prima facie evidence of good character
until the contrary is proved such a person will readily be granted pending his trial.
In Eyu Vs. The State (1988) 2 NWLR (Pt 78) at page 510 Oguntade J.C.A. (as he then
was) emphasized the point that Another important factor to be borne in mind is the
criminal record of the accused and the likelihood of the repetition of the offence.
5. The prevalence of the offence.
A person charged with an offence may not be admitted to bail if the offence alleged is
prevalent in the District or State. While bail is intended to secure the attendance of an
accused person it is also necessary to discourage the commission of offences that have
attained high frequency of occurrence such as drug trafficking and obtaining by false
pretences. That was one of the factors that informed the refusal of bail viz State Vs. Felix
(Supra).
6. The health condition of the accused person.
The ill health of an accused person is a relevant factor in the consideration of his
application for bail. The mere allegation of ill health is not sufficient. There must be
proof before the Court that the accused person is not only ill but that it will be judicious
to grant him bail see Abacha Vs.The State (2002) 3 SC. 53 at page 56 in Fawehinmi
Vs.The State (1990) NWLR (Pt 127) 486 the Court of Appeal considered the ill health of
the accused person sufficient special circumstance to grant him bail. Other factors may
come under consideration as the circumstances of the criminal procedure dictate.

It is trite law that an application for bail should not be refused as a primitive
measure as was decided in Dogo Vs. C.O.P. (1980) INCR 14. The innocence of
the accused person is presumed at all times until guilt is established.
See 123 of the CPA provide that:
A judge of the High Court may, if he thinks fit, admit every person charge before a
Court in the State subject to the jurisdiction of the High Court to bail although the Court
before whom the charge is made has not thought fit to do so, similarly Section 342 (1) of
the CPC provides that:Where any person is accused for an offence, a single Judge of the High Court may,
subject to the provisions of Section 341 direct that such person e admitted to bail.

Bail After Trial/Conviction


Where an accused person in a criminal proceedings is convicted and sentenced to a
term of imprisonment or fine, he loses his freedom until the expiration of the term
of imprisonment or the payment of the fine. However, where the convicted person
has appealed against his conviction, the Court may admit him to bail.
The grant of bail to a convicted person pending the determination of his appeal is
at the discretion of the Court unlike bail pending trial, which is a right, secured by
Section 35 (4) and (5) of the 1999 Constitution, bail pending appeal is not as of
right, although the grant of bail to a convict pending appeal is often at the
discretion of the Court. Where the convicted person establishes special
circumstances, the Court is bound to grant him bail. See Adamu Muri v. IGP
(1957) NNL R.5 Under the CPC, there is provision for the grant of bail by the
High Court pending the determination of an appeal. Section 283 (4) of the CPC
provides that:
If the Appellant is in custody, he may at the discretion and on the order of a Magistrate
he release on bail on complying with the provision of this section as to security for
prosecuting the appeal and abiding the results thereof.

There is no specific condition of the grant of bail under Section 283 (4) of the
CPC. It is therefore presumed that the same condition for bail as stipulated in
Section 341 (2) of the CPC shall apply.
This is so because Section 342 (2) of the CPC that confers a similar power on the
High Courts to grant bail pending appeal makes the discretion of the Court subject
to the conditions contained in Section 341(2) of the CPC.
These conditions are:(i)

that by reason of the granting of bail, the proper investigation of the offence would
not be prejudiced, and

(ii)

that no serious risk of the accused escaping from justice would be occasioned and

(iii)

that no ground exist for believing that the accused, if released would commit an
offence.

In Lagos State, any person convicted by a Magistrate Court may be admitted to


bail. However, Section 58 (2) (a) of the Magistrates Court Law, Laws of Lagos
State 1994 stipulates three categories of convicted person who may not be granted
bail except at the discretion of the Court.
These are:
(i) Any Appellant who has previously served a sentence of not less than six months
imprisonment, or where there is evidence, arising from the offence for which the
Appellant was convicted or related to any previous conviction of the Appellant upon
which the Court may reasonably presume that if released from custody the Appellant is
likely:
(ii) To commit some further offence or
(iii)To evade or attempt to evade justice by absconding or otherwise disappearing. Once any
of these conditions applies to an Appellant, the Magistrates Court may only admit the
Appellant to bail at the Courts discretion.

An application for bail pending the determination of an appeal should be made by


motion supported with affidavit. See Kunnia Vs. A.G. (Anambra State) 7 SC 161
the affidavit should be sworn to by the accused person or someone who is
conversant with the facts of the case. Application for bail pending appeal must
first be made to the lower court before it is made to the High Court. See Offiong
Vs. C.O.P. (1966) NWLR 94.
However, before the Appeal or Supreme Court considers an application for bail
pending appeal, the applicant must have compiled with the following conditions:(i)

The applicant must have filed an appeal, which is pending.16

(ii)

The applicant must have complied with any condition of appeal imposed
by the Court and

(iii)

The applicant must not have abused the bail granted to him by the trial
Court (Jumped bail) and the conditions attached. See Jammal Vs. the
State (1996) 9 N.W.L.R. (Pt. 472) 352 at page 359.

(iv)

Special circumstances must be established and the burden is on the


applicant.17

(v)

In Mbegbu Vs. State (1978) IMSLR 289 the applicant may establish ill
health, likelihood of the applicant serving his prison sentence, prospect of
the appeal succeeding and likelihood of the applicant serving a greater
proportion of his term before the appeal.

(vi)

It would amount to exception of circumstances when the applicant for


bail after conviction is an ordinary citizen and the complaints are people
occupying high government offices. In Sadiq Vs. DPP (1980) 2 NCR 65,
the appellant was charged, tried and convicted for assault, malicious
damage to property and resisting lawful arrest. The appellant, a female
committed these offences against High Court Judge and his orderly. The
appellant was convicted to a sentenced for 18 months. She applied for
bail pending her appeal. It was held by Adeyemi J as follows:The result is that the conflict was between an officer of the
temple of Justice and the Police Officer on the other hand
and an ordinary citizen on the other hand. That is the
heavy weights versus the fly weight. In my humble and
considered view, a situation whereby the administration of
mighty to crush the weaker is an unusual and exceptional
circumstance to consider in this type of application.

On post conviction bail see Adamu Vs. FRN (2008) ALL FWLR (Pt. 425) 1769 at
1803, Bello Lafiaji and anor. Vs. FR CA/L) 864/2005 dated 15th December 2010,
Olamoly Vs. State (2007) ALL FWLR (Pt 485) 1800 at 1809 and Munir Vs. FRN
(2009) ALL FWLR (Pt. 500) 775 at 784 5, 787 8.

Method of applying for Bail in Court:


An applicant who is arraigned before the Court or in custody may apply for bail in
the following manner:(1)
(2)

Oral application.
By a written application.

(3)

By Summons for bail.

When an accused is arraigned before Most Magistrate and Area Customary Courts
in Delta State, if represented by a Counsel of their choice, an oral application is
usually made in case the offence is that within the jurisdiction of the trial Court.
Upon the submission of the defence Counsel, the trial Court invites the prosecutor
to response. A ruling is accordingly delivered depending on the facts and law
presented before this Court.
In cases where the offences are beyond the jurisdiction of the Magistrate or
President of an Area Court, an order of remand is made for the accused to be kept
in prison custody pursuance to Section 236(3) of the CPL. Cap. 22 Vol. 1, Laws of
Delta State 2006. In the ruling the accused is reminded of his right to apply to the
High Court for bail.
A party can apply to the Court of Appeal directly for bail pending appeal. See
unreported Suit No. FCA IK/86/77 per Ete JCA.
In the grant of bail, the Court may release the accused on self recognisance by
which the accused person is requested to enter a bond of certain sum of money
which may be forfeited in full in case he fails to turn up on a given date. For a
person to be granted bail on self recognisance, the court must be satisfied that the
applicant is resident within Jurisdiction and own properties therein. He must be
married or employed in any government department.
The practice is that a Court in granting bail will fix certain amount of money to be
forfeited by the surety in case the accused jumps bail and cannot be found to face
trial. The duty of providing a surety is upon the applicant. It is an applicant who
must produce surety because he is the person in need of bail so that it is his duty to
satisfy all condition attached to his gaining freedom. There is no qualification
required of a surety. However, day to day practice has produced certain
requirements of surety namely:
(1)

The surety must be financially capable of paying the money he is required to stand for in
the bond.

(2)

The surety must be a person of social standing in his community. His place of abode
must be known.

(3)

The surety must be a person of integrity.

A Surety can apply to a Court and have his bond discharged in part or discharged
in whole. In Mathias Onuigbo Vs. C.O.P. (1975) NNLR34 at 35, a court reduced
the deposit of money ordered to be deposited in court from N600.00 to N200.00.
When a bond is completely discharged, the surety becomes no longer bonded and
is in effect surety to no one. The person granted bail will either find a new surety
or he goes to prison in accordance with Section 134 of the CPA.
The death of a beneficiary bail has certain legal consequences. As bail was granted
to the deceased in respect of an allegation of a crime before the court, his death
abates the criminal allegations and charges against him. In that situation, the

surety may apply to the court to be formally discharged, the court may suo motu
discharged him from liability.
Where an accused jumps bail and the surety is unable to offer good reasons for his
non attendance in court, the process for the forfeiture of the bail bond may be
embarked upon.
The procedure for forfeiture must be strictly followed. The bail bond must be
tendered in court and admitted as an exhibit. The surety is then called upon to pay
the penalty or to show cause why it should not be forfeited. Where no satisfactory
reasons are given, the court shall then recover same from his estate in case the
surety is dead. Under Section 138 of the C.P.L. of Delta State 2006, the Court may
cancel or mitigate the forfeiture.

What is discretion in the bail process? How should that discretion be


exercised? Is it fettered or unfettered?
All what we have discussed so far will turn on the exercise of your discretion.
When applied to public functionaries, discretion means a power or right conferred
upon them by law of acting in certain circumstances, according to dictates of their
own judgment and conscience, uncontrolled by the judgment or conscience of
others. In criminal law, it means the capacity to distinguish between what is right
and wrong, lawful or unlawful, wise or foolish, sufficiently to render one amenable
and responsible for his acts. In Court, it refers to the discretionary action of a
Court and mean discretion bounded by the rules and principles of law and not
arbitrary capricious or unrestrained. It is not the indulgence of a judicial whim, but
the exercise of a judicial judgment, based on facts and guided by law or the
equitable decision of what is just and proper under the circumstances. It is a legal
discretion to be exercised in discerning the course prescribed by law and it is not to
give effect to the will of the Judge but to that of the law. See Blacks Law
Dictionary Centennial Edition at page 466-467.
The grant or refusal of bail pending trial or after trial and conviction is purely a
discretionary matter in the hands of the Court.
The sphere of judicial discretion includes all questions as to what is right, just,
equitable or reasonable so far as not pre-determined by authoritative rules of law
but committed to the liberium arbitrum of the court. A question of judicial
discretion pertains to the sphere of what is right in the circumstances as opposed to
that of fact in the strict sense. It is a question of what ought to be as opposed to
question of what is. Matters of facts are capable of proof and subject of evidence
adduced for that purpose. Matters of what is right and judicial discretion are not
subject of evidence and demonstration but of argument and are submitted to the
reason and conscience of the Court. In determining the question of fact the court is
seeking to ascertain the truth of the matter. In judicial discretion, it seeks to
discover the right on justice of the matter.18
In Griffiths Vs. J.P. Harrison (Watford) (1963) A.C. 1 at 19, Lord
Denning expressed it this way:-

Reasonable people on the same facts may reasonably come to


different conclusions and often do juries so do Judges. And are not
all reasonable men.

In UBN PLC Vs. A.B. (W.A.) Ltd. (2010) Vol. 180 LRCN 1 and 20, the Supreme
Court held:An exercise of discretion is an act or deed based on ones
personal judgment in accordance with ones conscience, free and
unfettered by any external influenceor suggestion. In short, an anti
thesis to the doctrine of stare decisis. There is no hard and fact
rule as to the exercise of a judicial discretion by a court for it that
happens, a discretion becomes unfettered.

In State Vs. Ozuzu (2010) 3 CMLR 105 at 122 the Court of Appeal, Port-Harcourt
Division held: A Judge in exercising a discretionary power is supposed to be
fair and guided by the rules and principle of law. It has been held
in a long chain of decided cases that when exercising judicial
discretion a judge must be cautious and exercise it judicially and
judiciously. The exercise of a judicial discretion is not at large. A
judge must when exercising his judicial discretion be guided by the
rules and princi0ple of law.

Is this discretion to grant or refuse bail unfettered? Hon. Justice Niti Tobi JSC in
Ideozu Vs. Ochoma (2006) ALL FWLR (Pt 308) 1183 at 1207 1208 held inter
alia: is it correct to say that a court of law has unfettered discretion
in respect of non-compliance with rules of court. It is a misnomer
or an aberration to invariably describe the exercise of the
discretionary power of a Court as unfettered. The moment a trial
Judge is called upon to exercise discretionary power, in accordance
with the enabling law or rule of Court, it is not correct to say that
he has unfettered discretion in the matter.

My Lord then defined the word unfettered to mean unchained, unchecked,


unrestrained or unhampered.
Let me at this stage leave you with the discretion to hold the opinion whether the
discretion to grant or refuse bail is unfettered or unfettered. For me it is fettered,
guided by the law, facts and what is just and proper in the circumstance of the case
for no two cases are the same.

Practical experience and examples:


Sitting as a Magistrate II on Grade Level 09 in the Magistrate Court II, Agbor in
the former Bendel State now Delta State in 1988, a man was arraigned before the
Court on a charge of unlawful assault occasioning harm. I observed that the Court
hall was filled. All the benches were occupied and I also noticed an over flow of
people around the court premises. Upon the plea of not guilty by the accused
person, the Defence Counsel called to the Bar in 1966 applied for bail. Even
though the offence of unlawful assault occasioning harm was a bailable one, the
number of persons in the court and outside the court that day caused me great
concern. In my ruling on the oral bail application, I ordered that the victim of the
alleged unlawful assault be in court on the next day to enable me properly exercise
my discretion. Behold, the victim of the alleged unlawful assault died that

evening. The Police was aware of the fatal injury; yet did not oppose bail. On the
next day, the charge was withdrawn and substituted with a charge of murder. I
quickly ordered that the accused be remanded in custody.
In another matter before me at the High Court of Justice, Oleh in Delta State, an
accused arraigned for murder applied for bail.18A Attached to the supporting
affidavit was a Medical Certificate issued by the Lagos State Teaching Hospital,
Ikeja, Lagos dated 14th May, 2010. Before filing a counter affidavit, the State
Counsel wrote to the Teaching Hospital to confirm the authenticity of the Medical
Report. In a letter dated 24th May, 2010, the Hospital stated:The medical report is not authentic.
Bail was refused on the ground of parading a false medical certificate.
There was another matter. This time at the High Court of Justice, Warri. A very
top oil magnate was charged for stealing over N300Million.19 An application for
bail was orally made. I refused and stated that it be by way of Summons for bail. I
ordered his remand to the prisons. After hearing argument on the Summons for
bail, the defence Counsel urged me to release him on self recognisance. I refused
contending that while persons who stole an okada worth N60,000.00 do not go on
bail on self recognizance while should someone who is alleged to have stolen such
staggering sum be granted bail on self recognizance. I imposed conditions. It took
him about another week to fulfill same. Meanwhile, he was in prison custody.
Just last month, sitting in Asaba High Court in an application for bail, the State
Counsel in a Counter Affidavit averred:That the accused may be induced to flee going by the strength of
the evidence against him if bail is granted.

In my ruling I stated:-20
While I am prepared to invoke the presumption of innocence in
favour of the accused/applicant until proved guilty of the alleged
offences, the accused/applicant ought to have reacted generously to
the above averment by eloquently pleading his residential address,
his occupation and standing in Iselegu Community such that he has
no place to run to at his age and stature. Declining to so react
leaves the court with no option but to accept the allegation of the
State.

The age of the accused/applicant was raised. He was aged 73 years and I opined:Let me quickly say that the age of an accused/applicant is not one
of the conditions to be considered for bail. However, I cannot run
away from the fact that age which is wise and responsible is
respected in our society.

In grant of bail do not be carried away or intimidated by the stature of the accused
person. In the People of the State of New York Vs. Dominique Strauss Kahn
12257821 May 16th 2011, the Managing Director of the International Monetary
Fund and Frances 2012 Presidential hopeful was charged for sexual assault
indicative of self-gratification, domination and abuse. He was granted bail and
because he was a flight risk, his passport was impounded with deposit of money,
together with wise tapping the accused as well as providing at the cost of the

accused security guards to ensure that he is available to face trial on 23rd August,
2011, application for the dismissal of the case was made and granted because the
prosecution felt victim made statements that would affect the issue of character
and it was considered that proof beyond reasonable doubt cannot be achieved.
As a Judge, you must be very alert to watch diligently over the employees of the
court who handle bail processes. You owe yourself a duty to impress upon them
that you are above aboard not just by words but by your direct and indirect actions.
If not some of them may take undue advantage of their closeness to you to derail
your career. Your relationship with members of the Bar should also be calibrated
to secure your independence and integrity.
At this stage, may I remind ourselves that the discussion so far would only be
meaningful if you act beyond suspicion. You must not only be honest, but also
appear to be so. You have the duty not only to render a fair and impartial decision
in the grant or refusal of bail, but also to render it in such a manner as to be free
from any suspicious as to its fairness and impartiality. Apart from your
proficiency in law in order to competently interpret and apply the law, it is equally
important that you act and behave in such a manner that the parties before the court
are confident in your impartiality, so that an accused person is not provided with
gratuitous escape route to freedom as stated by Irikefe JSC (as he then was) in
Echeazu Vs. COP (1974) NWLR 308 at 314 or be unduly held in detention.
I thank you for your patience. I rest my case.

HON. JUSTICE M. UMUKORO


High Court of Justice
Asaba
Delta State of Nigeria
marshalumukoro@ymail.com

REFERENCES
(1)

Judicial Ethics and Accountability by Hon. Justice IA. Umezulike


OFR, FCIA Chief Judge of Enugu State of Nigeria being a paper
presented at the 2010 Conference of All Nigeria Judges of the Lower
Court held at the National Judicial Institute, Abuja December, 2010.

(2)

See Obiode Vs. The State (1970) 1 ALL NLR 35, Lori Vs. State
(1980) 8 11 SC 81.

(3)

See generally Elias Vs. Disu (1962) 1 ALL NLR 214, Kate
Enterprises Limited Vs. Daewoo Nig. Limited (1985) 2 NWLR (Pt.
5) 116.

(4)

See the Judicial Oath in the 7th Schedule to the 1999 Constitution of
the Federal Republic of Nigeria.

(5)

The Biased Judge by Hon. Justice Niki Tobi JSC CON Chapter
Eleven in his book The law of Interim Injunction in Nigeria, 2006.

(6)

(2005) 1 NCC 196 at 206.

(6A)

(2005) 1 NCC 196

(7)

(2005) 2 CLRN 26.

(8)

3 NSC QLR 735 at 760.

(9)

(2000) 14 NWLR (Pt 687) 396 at 411.

(10)

Section 35(4) of the 1999 Constitution.

(11)

John Falade Vs. A.G. Lagos State (1981) 2 NCR 771 at 779.

(12)

Section 14, 17 and 30 of the C.P.A.

(13)

The Right of Bail by Hon. Justice Bwala 2013, pages 15 19.

(14)

(2007) ALL FWLR (Pt. 375) 558 at 572.

(15)

(2001) FWLR (Pt. 46) 956 at 965.

(16)

See Said Jamal Vs. State (1996) 9 NWLR (Pt. 472) 352.

(17)

See Numuoja vs. C.O.P. (1968) NMLR 84.

(18)

Salmonds Jurisprudence 10th Edition, at page 69.

(18A) Peter Uturu v. State HCO/2C/2010 dated 27/7/2010.


(19)
(20)
(21)
(22)
(23)

See also W/309C/2012: Fed. Republic of Nigeria vs. Partsmaster Oil


& Gas Ltd. & 3 ors.
Nwabenu v. State A/M/134C/2014 dated 20/11/2014
An Almanac of Contemporary and Comparative Judicial
Restatements, 2013 Edition.
National Judicial Institute Law Journal (2010) Volume 4
Nigerian Bail Application Report Volume I.