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Consideration of Applications for Bail and No Case Submission in The Protocol I feel delighted and indeed, honoured to be invited as a resource person at this convocation of learned minds. My sincere thanks goes to the indefatigable, elegant and visionary Administrator of the National Judicial Institute, Hon. Justice R.P.I. Bozimo OFR, her management team and staff who have ensured that the standard of training offered by this Institute is maintained, in conformity with current trends in the legal profession and in the administration of justice in Nigeria. My thanks is also extended to my Chief Judge, Hon. Justice Iorhemen Hwande OFR who has graciously released me to function at this programme. Introduction The topic of my paper is ‘Consideration of Application for Bail and No Case Submission in the Magistrates’ Court.’ Without doubt, the topic has a ring of familiarity in the daily discharge of your magisterial duties at your various jurisdictions. Since it is a familiar topic, my job is made easier as I expect us to interact freely in discussing the topic and share your experiences in your various courts. As you can see, the topic addresses two different subjects in criminal law, namely: “Application for Bail” and “No Case Submission.” In this discourse I will address both subjects one after the other as they relate to practice and procedure in the Magistrates’ Court. The Meaning of “Bail” The word “Bail” according to Blacks Law Dictionary Eighth Edition is: “A security such as cash or bond, especially required by a court for the release of a prisoner who must appear at a future time.” (p. 150) The main purpose of bail therefore is to secure the presence of the accused person for his trial. It connotes the act of setting at liberty a person arrested or detained in custody on security for his production on a certain date and time by his surety, to enable him appear before the court to answer to an allegation or charge brought against him. If the surety defaults in his production, he becomes liable to forfeit the sums (bond) entered into with the court. See Ekwenugo v. FRN [2001] 6 NWLR (pt. 708) 171 at 187, FRN v. Dankama [1999] FHCLR 254 at 261. The Concept of Bail in the Magistrates’ Court The concept of bail in the Magistrates’ court is derived from the Constitution of the Federal Republic of Nigeria 1999 (as amended). By section 35(1) of the Constitution, every person is entitled to his personal liberty which he cannot be deprived of except for the purposes permitted by law. These purposes include among others the execution of a sentence or order of a court in respect of a criminal offence of which he has been found guilty, to compel him to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law. It also includes bringing him before a court upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. In the case of a person under the age of eighteen years, personal liberty may be deprived for his education or welfare. For persons suffering from contagious or infectious diseases, persons of unsound mind, persons addicted to drugs, etc. for their treatment or protection of the community and finally for purposes of preventing unlawful entry and removal of persons from Nigeria. The purpose of application for bail is therefore to ensure that a person charged with an offence or kept in lawful custody awaiting trial is not kept in detention longer than the maximum period of imprisonment prescribed for the offence. In the case of Chukwebuka v. FRN [2014] LPELR 22525 (CA) Augie, JCA quoting Niki Tobi, JCA in the case of Suleiman v. C.O.P. [2008] 8 NWLR (pt. 1089) 298 said the main criterion of bail is for production of the accused for his trial. According to his Lordship: “This criterion is the cynosure of all criteria. It is the center piece and is regarded as not only the omnibus ground for granting or refusing but the most important… It is a proper and useful test whether bail should be granted or refused, to consider the probability that the accused will appear to take his trial.” See also Dokubo Asari v. FRN [2007] 12 NWLR (pt. 1048) 320 LPELR 958 (CA), State v. Ibrahim [2014] LPELR 23468 (CA) For that reason, section 35 sub-section (4) provides that a person arrested and detained for the purpose of bringing him before a Court (Magistrate) on reasonable suspicion of his having committed an offence under sub- section 35(1)(c) must be arraigned in court within reasonable time. In this case, “reasonable time” is construed to mean- (a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail (b) Three months from the date of arrest and detention in the case of a person who has been released on bail. In the second category, such a person shall without prejudice to any further proceeding that may be brought against him be released on bail either conditionally or unconditionally or upon such conditions as are necessary to ensure that he appears for trial at a later date. See the case of Ali v. State [2012] 10 NWLR (pt. 1309) p. 589. Here the Constitution imposes a duty on the prosecution to produce a suspect accused of an offence before the court within 24 hours or 48 hours depending on the proximity of the Magistrate court to the place of his detention. Discretionary Powers of a Magistrate in an Application for Bail In all applications for bail in the Magistrates’ court, the decision whether to grant or refuse bail depends on the discretion of the Magistrate. As a public functionary, discretion to a Magistrate means a power or right conferred upon him by law of acting in certain circumstances according to the dictate of his judgment and conscience, uncontrolled by the judgment or conscience of others. In court, his discretion means the secret power inherent in him to decide cases one way or the other. It is the armour which he should employ judicially and judiciously to arrive at a just decision. This armour should not be left to the whims and caprices of the person appearing before him nor is it a licence which empowers him to do what he likes because he is minded to do so. At all times, in the exercise of his discretion, the Magistrate is expected to act in the overall interest of justice. In an application for bail therefore, the discretion of the Magistrate is said to be exercised judicially and judiciously when applied on sound principles of law based on sufficient facts and the consideration of each particular case as no two cases are the same. He must always make an equitable and sound decision of what is right, just and fair under the circumstances of the application placed before him. At all times, his duty is to give effect to the will of the law and not to his sentiment, whims or caprices. See the case of Amodu v. Commissioner of Police Lagos State & Another [2014] LPELR 23087 (CA). Conditions for Bail pending Trial In the exercise of this discretion for bail pending trial, many conditions or factors are considered by the Magistrate. These factors include the nature of the offence or the charge, the gravity of the punishment prescribed by law, the previous record of the accused person, the probability that the accused may or may not present himself for trial, the likelihood of the accused interfering with the investigation, the likelihood of the accused committing other offence or offences, whether there is a high prevalence of the offence within the community, whether the accused has reasonable sureties to take him on bail, the health of the accused and so on. In practice, these factors are not exhaustive but provide some guidelines which will help him in the exercise of his discretion. In the case of Bamaiyi v. State [2001] FWLR (pt. 16) 956 at 965, Uwaifo, JSC said concerning exercise of discretion in bail matters that: “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 and falls by the decisions of a Judge. In performing the function a Judge weilds discretionary powers 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 extraneous matters.” Application for Bail in Non-Capital Offences By virtue of section 35(1) of the 1999 Constitution, every person arraigned before a magistrate in Nigeria for a non-capital offence not punishable with death is entitled to bail depending on the nature or severity of the offence. The only reason why bail may be refused would be where the prosecution has furnished the court with facts tending to show that the justice of the case will be jeopardized if the accused is granted bail. In most jurisdictions in the South, once the offence is within the jurisdiction of the Magistrate, bail can be granted on oral or written application from the counsel representing the accused, especially where the prosecution has no objection to the application. Where however the court has no jurisdiction to try the offence for instance in Delta State, the accused is remanded in prison custody under section 236(3) of the CPL Cap.
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