NWAIGWE CHRIS CHUKWUEBUKA v. FEDERAL REPUBLIC OF NIGERIA
(2014) LCN/6994(CA)
RATIO
PRACTICE AND PROCEDURE: CONDITIONS WHERE BAIL MAY BE GRANTED OR REFUSED
The majority of cases I came across and some of the cases referred to by learned counsel for the Respondent where bail was refused at the lower court and appeals lodged were capital offences. See Suleman v. C.O.P. (2008) 8 NWLR (PT. 1089) 298; Ezenwafor v. COP (2009) LPELR-4004 (OA); Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Ikhazuagbe V. COP (2004) 7 NWLR (Pt 872)
Bail has also often been refused for felonies which are not punishable by death. By Section 115 (2) of the Administration of Criminal Justice Law of Lagos State 2011, a person charged with a felony other than one punishable with death may be granted bail if the court deems it fit. The decision whether or not to grant bail in such cases is a matter within the judicial discretion of the trial Judge. In the case of Ajuwa & Anor V. SPDC Nig Ltd (2011) LPELR-8243(SC), the Supreme Court per Munkata-Coomasie JSC had this to say of the phrase “Judicial discretion”: “Judicial Discretion in Black’s Law Dictionary 8th Edition, was defined as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.” Then in the new International Comprehensive Dictionary of the English Language – Encyclopaedia Edition page 365, the word “discretion” was defined as “The act or the liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without wilfulness or favour.” Both dictionaries referred to the word –
“Circumstances” which means the facts or peculiar nature of the case which a Judge exercising its discretion would consider. Thus, whichever way the appellants may put it, an appeal against the exercise of discretion by the lower court must involve the consideration of the ‘circumstances’ in order to determine whether the discretion was judiciously exercised….” Thus the judicial discretion must be exercised in accordance with the law and judiciously taking into consideration the facts of the particular case.
Where the exercise of discretion was capricious or there has been a miscarriage of justice or where there has been a violation of some principles of law, an appellate court can surely interfere with the exercise of discretion by the lower court. In determining whether the discretion was exercised judicially and judiciously in accordance with the law, we have to look critically at the affidavits filed by the parties. Per Chinwe Eugenia Iyizoba, J.C.A.
