POWERS OF A MAGISTRATE TO GRANT BAIL ON CAPITAL OFFENCES IN NIGERIA


The issue of whether a Magistrate can grant Bail on criminal charges punishable with death has garnered so much dust as there seem to be different views to it. In this article we shall try to analyze the various provisions of the law.

Section 341(2) CPCL confers power on the court before which a person is accused of an offence to grant bail to such a person, thus the jurisdiction of the court to grant bail pending trial can only be invoked if a person is accused of an offence. By a community reading of the provisions of sections 167, 169, 183, and 341(3) CPCL, it appears that a Magistrate under Preliminary Inquiry system remains in full control of the P.I trial proceedings in respect of the offence he ordinarily does not have jurisdiction or power to try. The Magistrate is by S.169 CPCL empowered to discharge the accused if, from the P.I, he finds that there are not sufficient grounds for committing the accused to trial. The Magistrate from taking cognizance of the offence and until the High Court takes over the trial has complete custodial powers over the body of the accused by virtue of s.183 CPCL; this means that notwithstanding his lack of jurisdiction to try the offence, he has inherent powers to remand or release on bail persons accused of such offence, see S.183 and 341(3) CPCL.

However, by S.161(1) of ACJA which provides thus, a suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a Judge of the High Court, under exceptional circumstances. The same section goes on to provide in sub (2) that for the purpose of exercise of discretion in subsection (1) of this section, “exceptional circumstance” include:
(a) Ill health of the applicant which shall be confirmed and certified by a qualified medical Practitioner employed in a Government hospital;
(b)Extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or
(c) Any other circumstances that the Judge may, in the particular facts of the case, consider  exceptional.

The same provision above is supported by s. 35(7)(a) of the 1999 constitution. OLADELE VS THE STATE. Also, in the case of IHOM JIME & 3ORS V. COP, the court held that a Chief Magistrate by provisions of section 12(1) of CPCL read together with Appendix A, has no power to try a case of culpable homicide punishable with death.
His duty starts and stops in taking cognizance of the offence and remanding the accused in custody pending trial in the appropriate High Court. At this juncture I believe it is equally correct to state categorically that by S.341(1) CPCL a person accused of an offence punishable with death shall not be released on bail except as provided under sub (3) of the same section there is need for ‘further inquiries’ . Contrast the position with the decision of the Court of Appeal in CHINEMELU V. COP (1995) 4 NWLR (pt. 390) 467 @ p. 485 per Achike, JCA where upon the learned justice stated that once a remand magistrate is guided by the statute or in consonance with the provisions of the law, it is lawful even though the learned magistrate lacks jurisdiction to entertain the offence alleged. The issue of bail is not dependent on the powers to entertain the offence alleged, if the law permits the magistrate to remand an accused person pending his trial or release him on bail pending his trial.

Notwithstanding the submissions above, it is note worthy to categorically state that a Magistrate does not have jurisdiction to grant bail in respect of capital offences, and by extension offences punishable with life imprisonment, and offences whose punishment exceeds 14 years imprisonment. See OLUGBUI V COP (1970) ALL NLR 1. However, in the case of STATE V OZUZU (2009) ALL FWLR (pt 454) 1581, wherein the Magistrate granted bail to the accused persons after admitting that nonetheless, he had no jurisdiction to entertain the case. At the arraignment of the accused before the High Court of Imo state for trial, the High Court suo motu granted bail to all accused persons, thereafter the prosecution appealed to the Court of Appeal who allowed the appeal but the prosecution did not raise the issue of bail granted by the magistrate in the first instance, neither did the Court of Appeal comment on the propriety or otherwise of the exercise of the power by the magistrate. It would appear therefore that the court of Appeal endorsed the magistrate’s action.

Despite the presumptions raised in the ACJA that a magistrate may grant bail even in cases it has no jurisdiction to try, the position is incorrect as S.295 ACJA equally makes provision for a reference to Sections 158-188 of ACJA as the guiding principle when a magistrate is acting under S.295. Nevertheless, the presumption is rebuttable as S.161(1) ACJA states the crystal position of the law when it provided that “ a suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a judge of the High Court under exceptional circumstances”.

At this juncture, it will be safe to conclusively submit that by the vibrancy of the law, a magistrate cannot grant bail in capital offences. The magistrate though has the power to take cognizance of offences that are beyond their jurisdiction until the trial of the accused before the competent court commences, the magistrate cannot grant bail over such offences as they can not try same. The Court of Appeal in MAMMAN V. STATE (2012) ALL FWLR (pt. 1542) @ p. 1558, paras. C-E reiterated this position when it said that a person accused of an offence punishable with death shall not be released on bail, though courts are given discretion in the matter.

Thus, where a crime is of the highest magnitude and the evidence in support of the charge is so strong and the punishment is the highest known to law, the court will not interfere to admit to bail. In the circumstances of the above, where the High Courts must guide itself properly when entertaining bail application on offences punishable with death, it then becomes pertinent to state that a magistrate who ordinarily lacks jurisdiction in respect of capital offences can not grant bail on same as that may not only amount to ultra-vires but usurpation and a total reckless exercise of judicial powers.

QUERY: ARE THERE REMEDIES WHEN A MAGISTRATE GRANTS BAIL IN EXCESS OF ITS JURISDICTION? CAN IT BE REVOKED OR QUASHED?

Generally, once a court grants bail to an accused person, the court ought not in law revoke same except there appears to be evidence to the contrary of some changed circumstances. This means that a court can vary or vacate a bail and order remand upon a ‘good cause’ being shown and in doing so state out its reason(s) for such variation. S. 168 ACJA empowers a Judge of High Court to vary bail fixed by magistrate or police. Equally, by S.169 ACJA, where it is in the opinion of the A.G that there exist circumstances that would justify the court in cancelling the bail or requiring a greater amount, a court may, on application being made by the A.G issue a warrant for arrest of the defendant and, after giving the defendant an opportunity of being heard, may commit him to prison to await trial or admit him to bail for the same or an increased amount. This is also as provided for under S.350 CPCL.
Hence, it can be said that although bail can be revoked only on grounds of misrepresentation, fraud or illegality, a bail can in the same vein not withstanding anything to the contrary be reconsidered on an application made by the A.G.

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