Excessive bail conditions amount to refusal –Court Appeal

It is trite that the grant of bail and the conditions or terms of the same are within the discretion of the trial court. See Section, 120 AND 122 of the Criminal Procedure Act. Such a discretion is to be exercised judicially and judiciously in the sense that it should be dictated by rules of […]

It is trite that the grant of bail and the conditions or terms of the same are within the discretion of the trial court. See Section, 120 AND 122 of the Criminal Procedure Act. Such a discretion is to be exercised judicially and judiciously in the sense that it should be dictated by rules of law, sound judgment, common sense and fairness. It should not be exercised arbitrarily or be influenced by irrelevant considerations. See University of Lagos V. Aigoro (1985) 1 NWLR (1) 143, 148.
It should be added that where a trial court exercised its discretion properly, an appellate court will not interfere. An appellate court will only interfere where there was a wrongful exercise of the discretion as where the lower court acted under a misconception of the law or under a misapprehension of facts by giving weight to irrelevant or unproved matters or where it omitted to take into account matters that are relevant or based its discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere.
The essence of the grant of bail is to ensure the liberty of an accused person who is presumed innocent until proved guilty and also to ensure his attendance of his trial. See Section 36(5) of the Constitution.
However conditions are attached to bail in order to ensure that the accused person does not jump bail, interfere with investigation or commit further comes.
Trial courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non – capital offences. They are thus to grant bail on favourable and affordable conditions. It has been held that it is against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. See MADU V THE STATE (2011) LPELR 3973. Where the conditions of bail are stringent, the trial court or an appellate court has a duty to vary the conditions. In the instant case the appellant was, as earlier stated, granted bail in the sum of N500,000,000 with two sureties, each in the like sum, who must own landed properties within the Abuja Division of the lower court.
The properties must be worth the bail sum. In other words the appellant is to find two persons who own properties worth N500,000,000. This in my view is a difficult task, even for a former director in the Civil Service of the Federation as the appellant is said to be. Furthermore, it is my view that getting one person who can take the risk of forfeiting the sum of N500,000,000 is equally a herculean task.
It is no wonder that in paragraph 5.2 of the affidavit in support of the motion in notice for the variation of the bail conditions in the lower court, the deponent lamented that the appellant’s “relations and friends have made conscientious effort to meet or fulfill the bail conditions but to no avail”. The court below agreed with the deponent that unsuccessful efforts have been made by the appellant to satisfy the bail conditions. The lower court ought to have realized that the conditions of the bail granted by it were stringent. A proper exercise of discretion would have been shown by a grant of the application to vary the conditions. This is especially so since the appellant had earlier been granted bail before the charge before Bello J. was withdrawn and struck out and he did not jump bail.
The appellant has been in custody unable to fulfil the stringent conditions of bail since 12th day of July, 2013 when bail was granted and there is no indication that the trial has commenced.
I should state in passing that the trial court did remark that a surety recommended by appellant’s counsel furnished the lower court with forged land documents and letters purportedly emanating from government officials, the subject matter of a First Information Report before the Magistrate Court, FCT, Abuja. It is my view that commenting on or acting on this one way or the other will be pre-emptive of the First Information Report.
On the whole, it is my view, in answer to the lone issue for determination, that the lower court did not exercise its discretion judicially and judiciously in refusing to vary the conditions of bail granted to the appellant. It is in the interest of Justice to interfere in the exercise of the lower court’s discretion. The appeal therefore succeeds. I hereby vary the conditions of bail granted to the appellant by the lower court particularly conditions(1) and (2) as follows: That bail is granted to the first accused person in the sum of N100,000,000 (One Hundred Million Naira) with 1 (one) surety in the like sum.
The surety must be resident within the jurisdiction and own landed property within the Abuja Division of the lower court which must be worth the bail sum and must possess valid tax clearance certificate. All other conditions of bail granted by the lower court remain extant.
It is hereby directed that the substantive case shall be heard and determined by a Judge of the Federal High Court, Abuja Judicial Division, other than Hon. Justice A.F.A. Ademola.

Concluded