Thus, from the cumulative effect of the above provisions of the Act and of course, the Criminal Procedure Act, in exercising the discretion to grant bail to an applicant, the Court has a duty to consider the nature of the charge, the severity of the punishment, the character of the evidence, the applicant's criminal record as well as the likelihood of him repeating the offence and including all the elements mentioned in Section 162 of the Act as stated supra. The trite position of the law is that in exercising the discretion to grant or refuse bail, a trial Court must consider the weight of facts deposed to in an affidavit evidence placed before it and all other requirements as highlighted supra.
It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
"In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case."
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. I must say that, it is a hard matter of law, facts and circumstances which the Court considers without being emotional sensitive or sentimental.
See ADAMU SULEIMAN & ANOR VS C.O.P. PLATEAU STATE, 33 NSCQR (Pt. 2) 735 at pp. 758 -759.
In EKWENUGO VS F.R.N. Supra the Court held that:
"The issue of grant of bail by a trial Court calls for due exercise of discretion which entails the application of common sense based on a given set of facts and attendant circumstances in accordance with justice. The discretion must be exercised not only judicially, but judiciously as well."
See also UNIVERSITY OF LAGOS VS OLANIYAN (1985) 1 NWLR (Pt. 1) 156 SAFFIDINE vs C.O.P. (1965) 1 All NLR 54 UGBOMA VS OLISE (1971) All NLR 8 and ODUSOTE VS ODUSOTE (1971) All NCR 219.
On the part of this Court, Section 118(2) of the Criminal Procedure Act, in my view makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in an affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously. See BAMAIYI VS THE STATE (2001) 8 NWLR (Pt. 715) 270 EKWENUGO vs F.R.N. (2001) 6 NWLR (Pt. 708) 171 DANTATA VS POLICE (1958) NRNLR 3.
The revocation of the bail the accused person was enjoying without blemish is an exercise of judicial discretion, which discretion has to be exercised judicially and judiciously. The reason for the exercise of the discretion must be given: CEEKAY TRADERS LTD V. GENERAL MOTORS CO. LTD (1992) 2 NWLR (Pt.222) 132 (SC).
Thus, from the cumulative effect of the above provisions of the Act and of course, the Criminal Procedure Act, in exercising the discretion to grant bail to an applicant, the Court has a duty to consider the nature of the charge, the severity of the punishment, the character of the evidence, the applicant's criminal record as well as the likelihood of him repeating the offence and including all the elements mentioned in Section 162 of the Act as stated supra. The trite position of the law is that in exercising the discretion to grant or refuse bail, a trial Court must consider the weight of facts deposed to in an affidavit evidence placed before it and all other requirements as highlighted supra.
It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
"In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case."
On the part of this Court, Section 118(2) of the Criminal Procedure Act, in my view makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in an affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously.
See BAMAIYI VS THE STATE (2001) 8 NWLR (Pt. 715) 270 EKWENUGO vs F.R.N. (2001) 6 NWLR (Pt. 708) 171 DANTATA VS POLICE (1958) NRNLR 3.
The main function of bail is to ensure the presence of the accused at the trial. See R. v. Jammal 16 NLR 54; State v. Okafor(1964) ENLR 96; R. v. Rose (1898) 18 Cox C.C. 717; R. v. Robinson (1854) 23 LJ QB 286; Ex parte Milburn 34 US 704 (1835); US v. Ryder 110 US 729; Stack v. Boyle 342 US 1 (1951). Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) K
The main function of bail is to ensure the presence of the accused at the trial. See R. v. Jammal 16 NLR 54; State v. Okafor(1964) ENLR 96; R. v. Rose (1898) 18 Cox C.C. 717; R. v. Robinson (1854) 23 LJ QB 286; Ex parte Milburn 34 US 704 (1835); US v. Ryder 110 US 729; Stack v. Boyle 342 US 1 (1951). Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) K
Personal liberty of an individual within the contemplation of section 35(1) of the Constitution is a qualified right in the context of this particular case and by virtue of subsection (1)(c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, lightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person's liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of section 35 of the Constitution to escape lawful detention then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquility of the society.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) J
The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen's liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual's liberty or right may not even exist.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) I
The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail the trial Judge is bound to consider the weight of facts pleaded to in an affidavit evidence placed before him.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) H
No discretion in one case can be a precedent to another
Dokubo-Asari v. F.R.N, LGC(8/6/2007) SC (E)
It is worthy of note as well, that on a question of exercise of discretion, authorities are not of much value. No two cases are exactly similar and even if they are, the court cannot be bound by a previous decision to exercise its way because that would be putting an end to discretion.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
"The proper role of a Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the appellate court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the Appeal Court."
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
It is a settled principle of law that except where a miscarriage of justice has been established or that there is a violation of some principles of law or procedure; or that the discretion is known to have been wrongly exercised, or where the exercise was tainted with some illegality or substantial irregularity, an appeal court seldom interferes with the learned trial Judge's exercise of discretion.This is because discretion is of the trial Court and not of the appellate court hence it cannot substitute its own discretion
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
Furthermore, where an offence carries a sentence of imprisonment for a period of three years or more, grant of bail is not a mere matter of course
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial Court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include, among others, the following:
(i) the nature of the charge;
(ii) the strength of the evidence which supports the charge;
(iii) the gravity of the punishment in the event of conviction;
(iv) the previous criminal record of the accused if any;
(v) the probability that the accused may not surrender himself for trial; the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
(vii) the likelihood of further charge being brought against the accused;
(viii) the probability of guilt;
(ix) detention for the protection of the accused;
(x) the necessity to procure medical or social report pending final disposal of the case.
Dokubo-Asari v. F.R.N, LGC(8/6/2007) C
Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.
The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.
The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” PER SENCHI, J.C.A.
Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.
The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.
The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” PER SENCHI, J.C.A.