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“Courts are recognized and renowned
as the hallowed chambers of justice, where even-handed justice is meted out to
all and sundry, without sentiment, emotion, favoritism or being unnecessarily
embroiled in crass legalism. Additionally, constitutional and statutory
provisions which pertained to presumption of innocence and liberty of citizens
are meant to be applied and not treated as totem poles, left untouched in
sanctified and sacred deification”.
- His
Lordship Oredola JCA in AHMED V. C.O.P., BAUCHI STATE (2012) 9 NWLR PT.
1304 P. 133 PARA A-B
Basically, Bail pending trial is a
constitutional right enshrined under the 1999 Constitution of the Federal
Republic of Nigeria (As Amended) to every individual. Section 35 (1) of the
Constitution provides that “ Every person shall be entitled to his personal
liberty and no person shall be deprived of such liberty save in the following
cases and in accordance with the procedure permitted by law…(quotation
continues)”.
constitutional right enshrined under the 1999 Constitution of the Federal
Republic of Nigeria (As Amended) to every individual. Section 35 (1) of the
Constitution provides that “ Every person shall be entitled to his personal
liberty and no person shall be deprived of such liberty save in the following
cases and in accordance with the procedure permitted by law…(quotation
continues)”.
The issue of whether or not to grant
bail to an applicant applying for bail in a court in Nigeria is entirely a
discretionary one, depending on the court hearing the application and with due
considerations being given to the materials placed before it either in the
affidavit evidence in support of the application or in opposition thereto.
Notwithstanding that the grant of bail is at the unfettered discretion of the
court, it is trite law that such discretion must however be exercise judicially
and judiciously. The term “judicially and judiciously” will be better explained
in a subsequent post but let me explain what the discretionary power of the
court means as a better understanding of same may assist an applicant in
understanding how the mind of the court works and what to expect in a his/her
given case.
bail to an applicant applying for bail in a court in Nigeria is entirely a
discretionary one, depending on the court hearing the application and with due
considerations being given to the materials placed before it either in the
affidavit evidence in support of the application or in opposition thereto.
Notwithstanding that the grant of bail is at the unfettered discretion of the
court, it is trite law that such discretion must however be exercise judicially
and judiciously. The term “judicially and judiciously” will be better explained
in a subsequent post but let me explain what the discretionary power of the
court means as a better understanding of same may assist an applicant in
understanding how the mind of the court works and what to expect in a his/her
given case.
The discretionary power of the court
means: a) the exercise of the judgment by a judge or a court based on what is
fair under the circumstance and guided by the rules and principles of law; (b)
a court’s power to act or not to act when a litigant is not entitled to demand
for the act as a matter of right. A judicial and judicious discretion is one
which is dictated on sound judgment, honesty, pure reason, surrounding
circumstances of the case and good conscience of the judge based on facts and
guided by the law or equitable decisions.
means: a) the exercise of the judgment by a judge or a court based on what is
fair under the circumstance and guided by the rules and principles of law; (b)
a court’s power to act or not to act when a litigant is not entitled to demand
for the act as a matter of right. A judicial and judicious discretion is one
which is dictated on sound judgment, honesty, pure reason, surrounding
circumstances of the case and good conscience of the judge based on facts and
guided by the law or equitable decisions.
It is therefore safe to say that a
discretion which is not exercised judicially and judiciously is a discretion
exercised subject to the whims and caprices of the judge; based on sentiments
and extraneous conditions; fettered by the dictates of others which an
applicant can appeal against at a court of superior jurisdiction.
discretion which is not exercised judicially and judiciously is a discretion
exercised subject to the whims and caprices of the judge; based on sentiments
and extraneous conditions; fettered by the dictates of others which an
applicant can appeal against at a court of superior jurisdiction.
Let me point this out that normally in
Nigeria, where a court has exercised its discretion, an appellate court as a
matter of practice will not peremptorily or readily intervene or interfere with
the decision of the lower court, not even if it would have exercised it
discretion differently or come to a direct conclusion than the trial court. An
appellate court will only interfere with the exercise of the discretion of the
court in certain stringent circumstances which are:
Nigeria, where a court has exercised its discretion, an appellate court as a
matter of practice will not peremptorily or readily intervene or interfere with
the decision of the lower court, not even if it would have exercised it
discretion differently or come to a direct conclusion than the trial court. An
appellate court will only interfere with the exercise of the discretion of the
court in certain stringent circumstances which are:
1.To inquire whether or
not such discretion was exercised in accordance with the Law, the rules and
existing binding precedents on the subject matter.
not such discretion was exercised in accordance with the Law, the rules and
existing binding precedents on the subject matter.
2.Where such discretion
was exercised wrongly or wrongfully, to the extent that the trial court acted
under a misconception or misapprehension of law or fact by attaching weight to
irrelevant and unapproved facts;
was exercised wrongly or wrongfully, to the extent that the trial court acted
under a misconception or misapprehension of law or fact by attaching weight to
irrelevant and unapproved facts;
3.Where the court
omitted to take into account factors relevant or where the discretion was
exercised or not exercised based on wrong and insufficient materials and
thereby occasioned miscarriage of justice;
omitted to take into account factors relevant or where the discretion was
exercised or not exercised based on wrong and insufficient materials and
thereby occasioned miscarriage of justice;
4. In all other
circumstances where such exercise would have occasioned a miscarriage of
justice.
circumstances where such exercise would have occasioned a miscarriage of
justice.
Simply put, if as an applicant, you
have reasons to believe a judge failed to exercise this discretion judicially
and judiciously, such decision can be appealed against for setting aside.
The principle of law is that court must always maintain its prime position as
an impartial umpire and should not descend into the arena for whatever reason,
so as to favour or make a case for one of the parties before it. It is not the
function of the court to act on speculation or dabble into the realm of
conjecture.
have reasons to believe a judge failed to exercise this discretion judicially
and judiciously, such decision can be appealed against for setting aside.
The principle of law is that court must always maintain its prime position as
an impartial umpire and should not descend into the arena for whatever reason,
so as to favour or make a case for one of the parties before it. It is not the
function of the court to act on speculation or dabble into the realm of
conjecture.
I hope this write up was beneficial to
you. You are welcomed to leave your questions, comments, constructive
criticism, suggestions, new ideas, contributions etc in the comment section or
my email address which is thelawdenike@gmail.com I look forward to reading
from your comments.
you. You are welcomed to leave your questions, comments, constructive
criticism, suggestions, new ideas, contributions etc in the comment section or
my email address which is thelawdenike@gmail.com I look forward to reading
from your comments.
DISCLAIMER NOTICE: This blog is a free
education material, for your general information and enlightenment purposes
ONLY. This write up, by itself does not create a Client/Attorney relationship
between yourself and the author of this blog. Readers are therefore advised to
seek professional legal counseling to their specific situation when they do
arise. This blog is protected by Intellectual Property Law and Regulations. It
may however be shared with others parties or persons provided the writer’s
Authorship is always acknowledged and this disclaimer notice attached.
Ed’s Note: This article was published by the author via thelawdenike.wordpress.com
education material, for your general information and enlightenment purposes
ONLY. This write up, by itself does not create a Client/Attorney relationship
between yourself and the author of this blog. Readers are therefore advised to
seek professional legal counseling to their specific situation when they do
arise. This blog is protected by Intellectual Property Law and Regulations. It
may however be shared with others parties or persons provided the writer’s
Authorship is always acknowledged and this disclaimer notice attached.
Ed’s Note: This article was published by the author via thelawdenike.wordpress.com