Bail is a concept of liberty in criminal justice administration. It follows the constitutional presumption of innocence enshrined under section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Bail is basic, common place and do not require scholarly definition. However, in order to drive home the point, it is important to allude to the pronouncement of the Court of Appeal in the case of Ojo v. F.R.N. (2006) 9 NWLR (Pt. 984) 103, where it was stated that:

Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though they may free themselves from further responsibility if they surrender him to the court before the date assigned. (Pg 115, paras. E-F)
Bail is mainly of two types- bail pending trial and bail pending appeal. The two types of bail have been aptly described by the court as follows: “In bail pending trial, a court of trial, pursuant to provisions made by the enabling law or other statutes which create the offence(s) charged, may admit to bail any person to be tried before it, while he is awaiting trial or during his trial. In bail pending appeal, the convict who has lodged an appeal may be admitted to bail pending the determination of the appeal. The circumstances for bail vary in both situations. This is largely due to the fact that before conviction there is a presumption of innocence. After conviction, the convict, save under exceptional circumstances, has no right at all to bail.” (see Ojo v. F.R.N. (supra) Pp. 115-116, paras. F-A)

Bail and Judicial discretion
It is imperative to state that bail pending trial is mostly as of right which is often granted at the discretion of the Court; the discretion must be exercised judicially and judiciously. There are three circumstances under which the Court may consider bail pending trial. These are adequately captured by sections 161, 162 and 163 of the Administration of Criminal Justice Act (ACJA), 2015. The first circumstance is provided under Section 161 of the ACJA and it deals with bail when the defendant is charged with an offence punishable with death. In this case, bail will only be granted under exceptional circumstances which include ill health, extraordinary delay in investigation or prosecution or any other circumstances the judge may consider exceptional (see sections 161 (1) and (2) of the ACJA).
Another circumstance for granting bail pending trial is where the offence is punishable with imprisonment for a term exceeding three years. This is provided under Section 162 of the ACJA. Here, the defendant will be released on bail as of right except where there is evidence that the defendant if released on bail will:
a. commit another offence;
b. attempt to evade trial;
c. attempt to interfere with witness or investigation;
d. attempt to conceal or destroy evidence;
e. prejudice proper investigation; or
f. undermine or jeopardize the objective of criminal justice administration.

From the foregoing, it is clear that the duty is on the prosecution to show that the defendant will do any of the above before the court will deny bail; otherwise, the court will grant bail the moment it is satisfied that the defendant has shown reasons to be granted bail. In Ibrahim v. F.R.N (2017) 15 NWLR (Pt. 1589) 499, Okoronkwo, J. C. A. clearly explained this position when he held as follows:
Section 162 of the Criminal Justice Administration Act did not merely codify principles relating to bail as learned counsel for the respondent argued in 4.08 and 4.09 of his brief. The section i.e. 162 ACJA properly placed the burden of proof where it customarily should be – on the prosecution. (See page 516 paras F – G)
Further to the above stated two sections of the ACJA, Section 163 also states: “In any other circumstances other than those referred to in section 161 and 162 of this Act, the defendant shall be entitled to bail, unless the court sees reasons to the contrary”. This simply implies that where the offence is not punishable with death and does not attract terms of imprisonment exceeding three years, the court would ordinarily grant bail. The conditions for bail under this provision, although discretionary, are mostly simple and very liberal.

Bail Pending Appeal
Bail pending appeal is governed by the Court of Appeal Act, the Supreme Court Act, Court of Appeal Rules, 2021 and the Supreme Court Rules. For instance, section 28(1) of the Court of Appeal Act provides: “The Court of Appeal may if it thinks fit on the application of an appellant admit the appellant to bail pending the determination of the appeal”.
The clear text of the section shows that the constitutional right to bail is lost at the moment of conviction. The Court of Appeal can only grant bail where the applicant applies and the Court “thinks fit”. Therefore, the appellant must show exceptional circumstances which will entitle him to bail. Those circumstances are not exhaustive but have been alluded to in many judicial pronouncements. For instance, it was held in George v. F.R.N. (2010) 11 NWLR (Pt. 1206) 531:
The Court of Appeal will not as a rule grant bail to a prisoner pending the determination of his appeal unless there are exceptional and unusual reasons why bail ought to be granted to him. It is the duty of every applicant for bail to present the necessary materials before the court in support of his application to enable the court exercise its discretion in his favour. The exercise of the discretion must be judicial and judicious. (P. 555, paras. E-G)

Bail and Terrorism Charges
From the foregoing, it is clear that bail pending trial has a lot to do with the nature of the offence and its gravity will come to play in considering application for bail by the defendant at that stage. However, bail pending appeal does not necessarily consider the nature of the charge, although it may come to play in considering the exceptional or unusual circumstances to warrant bail or deny same.
Offences of terrorism in the last decade have become common in Nigeria with attendant threats to corporate existence and survival of the country. For a long time, what constitute offences of terrorism was not poignantly defined by Nigerian laws save sparring reference made to it by the Economic and Financial Crimes Commission (EFCC) Act. Nevertheless with the enactment of a law on Terrorism in 2011 the offences became codified in our laws. (Note that the 2011 Act was amended in 2013 and re-enacted in 2022)
Section 2(1) of the Terrorism (Prevention and Prohibition) Act, 2022 prohibits all acts of terrorism and terrorism financing while subsection (3) of the same section gives elaborate definition of what an act of terrorism means. Punishments for different categories of acts of terrorism ranging from death sentence to different terms of imprisonment including life imprisonment are well outlined under the Act. Offence of terrorism is one of the most serious and heinous crimes in Nigeria. This was alluded to by the Supreme Court in the case of Ogwuche v. F.R.N. [2021] 6 NWLR (Pt.1773) 545 – 547. The Apex Court stated in the case that:
The offence of terrorism which creates intense fear and anxiety both physically and psychologically in the minds of members of the public and which in most cases leads to the death of innocent persons should not be trivialized. It must be given the weight it deserves.
In view of the above, courts are usually circumspect when faced with bail application either pending trial or pending appeal in offences bordering on terrorism. This is not unconnected with the seriousness of the offences, the punishments attached to the offences and the national security consequence of the offences. In Dokubo-Asari v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320; the Supreme Court stated it clearly that where national security is threatened, individual liberty is secondary. Taking a cue from the above, it is not surprising that the Courts are weary of granting bail in terrorism related cases. In fact, section 66 of the Terrorism (Prevention and Prohibition) Act, 2022 empowers the Court upon application ex parte to order detention of a suspect for terrorism related offences for 60 days pending investigation. The detention order is renewable for a similar period where there is a justification to so do. This provision, which is in pari materia with the provision of section 27 of the Terrorism (Prevention and Prohibition) Act, 2011 as amended has been held to be a valid derogation from right to personal liberty and it is not contrary to section 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. In the case of Ogwuche v. F.R.N. [supra], the Supreme Court held that:
The provision in section 27(1) of the Terrorism(Prevention) (Amendment) Act 2013, which empowers the trial court to remand a person reasonably suspected of committing terrorist offences pending conclusion of prosecution or trial of the case is not contrary to section 35(4) of the1999 Constitution (as amended). Section 27(1) of the Terrorism (Prevention) (Amendment) Act, 2013 is empowered by section 35(7)(a) of the Constitution. (P. 560, paras. G-H)
In determining whether a defendant facing trial for offences of terrorism is entitled to bail as envisaged under section 35(4) of the Constitution, the Supreme Court stated clearly that the defendant is not entitled to bail especially where the punishment for the offence is death. In the words of the Supreme Court; “… by virtue of section 35(7)(a) of the Constitution, section 35(4) of the Constitution could not apply to the case of the appellant who was arrested and detained upon reasonable suspicion of having committed an act of terrorism, a(b)capital offence”. (Ogwuche v. F.R.N. [supra] P. 560, paras. A-G)
On bail pending appeal in terrorism cases, the Court of Appeal, towing the line of the Apex Court’s decisions held in ACHEM v. FRN (2014) LPELR-23202 (CA), that:
It should be mentioned that the applicant was convicted and sentenced for offences relating to terrorism, which in recent times have grown in intensity and magnitude and have become a threat to our national security. Courts should therefore be very circumspect in granting bail pending appeal to a person convicted for any offence relating thereto. See also Mohammed v. State (2015) 10 NWLR (pt. 1468) 496 at 512

The summation from the above decisions of both the Court of Appeal and Supreme Court is that despite the provision of right to bail in some circumstances, the right does not inure in a defendant charged with offences of terrorism. The seriousness of the offence and the punishments attached thereto take the right to bail away from the defendant either pending trial or subsequent to conviction. It is however important to emphasise that it is not within the powers of the state to detain indefinitely. Save as provided under section 66 of the Terrorism (Prevention and Prohibition) Act, 2022 which provides for remand protocol in terrorism cases and allows the detention of a suspect for 60 days, renewable for the same period, the state must present a suspect before a competent court of law for prosecution after the exhaustion of the remand period. The tendency of the security apparatus of state to abuse this window is rife. The Courts are therefore, called upon to stand as the bulwark against executive terrorism by granting bail where there are justifiable reasons to do so in line with their powers under section 6 and Chapter IV of the 1999 Constitution as amended notwithstanding the charge of terrorism.


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