Generally bail is a procedure by which a person arrested or detained in connection with a crime may be released upon security being taken for his appearance on a day and place as may be determined by the person or authority effecting the release. In the case of CALEB OJO V. FEDERAL REPUBLIC OF NIGERIA [1] bail was defined thus:

Bail, generally, 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. he accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though, they may, if they will surrender him to the court before the date assigned and free themselves from further responsibility”

Blacks Law Dictionary [2] defines bail as follows:

“To procure release of one charged with an offense by insuring his future attendance in court and compelling him to remain within jurisdiction of court.”

The concept of bail is very important in the administration of justice in any legal system and this is because the law is well settled that an accused person is considered innocent until he has been proven guilty in a court of law[3]. Thus, where an accused person is arrested on the suspicion/allegation that he has committed a crime, the law provides that such an accused person must not be unduly detained as a form of punishment because the mere fact that a person has been alleged to have committed an offence does not necessarily mean that he is guilty of the offence.

Section 35 (1) of the Constitution[4]  provides the right to personal liberty of all Nigerians. Bail is therefore a right of every accused person although several factors are usually taken into consideration before an accused person can be granted bail.

It is pertinent to mention briefly some types of bail. There are three major types of bail which are

  1. Police Bail
  2. Court Bail which can be further divided into
  3. Bail pending Trial
  4. Bail after Trial/ Bail pending Appeal. Our emphasis will however be on this.

Succinctly, police bail is the type that is obtained by someone who was arrested by the police in connection to commission of a crime. At this point in time the police or the government agency investigating the matter has not yet obtained enough evidence to charge the suspect to court.

The Sec 35 (5) of the Constitution[5] provides that that an accused person who has been arrested on the allegation of having committed an offence must be charged to court within 24 hours where a court of competent jurisdiction is located within a radius of forty kilometers from the police station; and where a court is located within a radius above forty kilometers from the police station, the accused person must be charged to court within 48 hours or such longer period as a court might consider reasonable.

Therefore it is illegal and unconstitutional for a suspect to be detained for more than 48 hours by the police (or government agency) without bail or without charging the individual to court. Government agencies include agencies such as the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices Commission (ICPC), National Drug Law Enforcement Agency (NDLEA) etc.


Court bail, as the name implies, is granted by a court of law. Court bail can be granted in 2 scenarios – bail pending trial of the accused person, or bail after trial or pending the appeal of the accused.

Bail pending trial is when the case against the accused person is still on-going, but the accused person is allowed to leave detention, until the end of the trial. This is founded on the principle of ‘presumption of innocence’. This is because an individual is presumed innocent until proven guilty by a court of law. In deciding whether or not to grant bail, the court looks at things like whether the proper investigation of the offence would be prejudiced if the accused person is granted bail, or whether the accused person is a flight risk, the health of the accused and whether he/she can get adequate medical treatment in custody etc.

The right of bail is an adjunct or direct offshoot of the constitutional right to liberty guaranteed under Section 35 (1) and the right to freedom of movement under Section 38 of the Constitution. It is also not unconnected with right to presumption of innocence as well as the right to fair trial guaranteed by the same Constitution. Thus, the power of a court to grant bail is not inherent as such. It has constitutional as well as statutory foundation. Thus, in Ikotun v. FRN & Anor[6] the Court per Nimpar J.C.A said:

“Bail pending trial generally is of right to a person accused of committing a crime. This is informed by the presumption of innocence that the accused enjoys under the Constitution of the Federal Republic of Nigeria.”


The focus of this discourse is on bail after trial. It is easier to obtain bail pending or during trial than it is to obtain bail after a conviction or pending appeal. This is because bail pending trial is a constitutional right and the burden lies on the prosecution who opposes an application for bail to prove that the facts which an applicant for bail relies upon do not justify the granting of bail. Whilst in the case of bail pending appeal, the burden lies squarely on the applicant for bail to show that he is entitled to bail because he is no longer presumed to be innocent under the constitution since he would have been convicted by the trial court.

In JAMMAL V. THE STATE [7] the Court held thus:

Generally, the grant of bail to a convict sentenced to a term of imprisonment is not made as a matter of course. The principle of presumption of applicant’s innocence no longer exists, because of his conviction, he must show special circumstances to be entitled to bail pending determination of his appeal.”

Generally, an accused person who has been convicted by the trial court must be able to show that he has a pending appeal before he can properly file an application for bail pending appeal; and if he was granted bail before or during trial at the lower court, he must also adduce evidence to show that he did not jump bail at the lower court.  Failure to establish any of these facts will simply mean that the accused person cannot file an application for bail pending appeal.

Section 28(1) of the Court of Appeal Act endows the Court of Appeal with the power to grant bail pending appeal but this power is however discretionary and must be exercised upon the existence of special or exceptional circumstances. This has received judicial pronouncement in the cases of Muri v. I.G.P [8]Dogo v. C.O.P [9] as well as R v. Tunwashe[10]


Although the courts have not been able to come up with an exhaustive list of what constitutes special or exceptional circumstances which would warrant the grant of bail pending appeal, the primary consideration is that there must be a special circumstance clearly disclosed in the affidavit in support. It is pertinent to state that the courts have at various times identified some issues which can be classified as a special or exceptional circumstance.

Some of these issues are as follows:

  1. Instances where a refusal of the bail application will put the Applicant’s health in serious jeopardy.
  2. Instances where sentence and conviction of the Applicant is contestable on the basis that the grounds of appeal are substantial with a possibility of success.
  3. Instances where the Applicant would have served the whole or a substantial part of his sentence before his appeal is heard.

Notably, Section 161(1&2) of Administration of Criminal Justice Act (ACJA) provides for exceptional circumstances highlighted above. These exceptional circumstances constitute ground for further bail application to the same court in the same criminal trial after one or two or more failed attempts.

One of those circumstances listed in Section 162(2a&b) is ill health which can occur at any time- more so, it’s only a living person that can be put to trial.

Another circumstance is extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year. In other words, where a trial continues for more than a year even, a day beyond a year, further application may be brought by the defendant for the court to release him on bail relying on this provision of ACJA, even in a capital offence case.

The last circumstance under ACJA is left at the discretion and consideration of the judge, in the particular facts of the case, considering any other exceptional circumstance that might be made as a ground for bringing the application by the defendant. So the ground upon which further applications for bail after trial may be made is exceptional circumstances surrounding the particular facts of the case. This received judicial pronouncement in the case of OKOROJI V THE STATE [11]

Other conditions necessary for the Court to consider before granting bail pending appeal are:

  1. That the applicant has indeed, infact lodged an appeal to the Court of Appeal which is pending.
  2. That he has complied with conditions of bail imposed, as this will show seriousness of his application;
  3. If he was granted bail during the trial, that he has not attempted or tried to jump during trial. See JAMMAL V STATE Supra [12]

Section 28 (1) of the Court of Appeal Act as mentioned earlier, which empowers the Court to admit the Applicant to bail pending the determination of his appeal is further reinforced by Order 17 Rule 13 of the Rules of the Court of Appeal  See MOHAMMED v OLAWUNMI[13]; ABACHA v THE STATE[14] and OJO v FEDERAL v REPUBLIC OF NIGERIA [15]

The provision of the statutory powers implies that the exercise of discretion is to be exercised on the material presented in support of the application and which must be judicially and judiciously exercised.

In exercising judicious discretion, the court will have to look at the weight of Evidence against the accused. In ANAEKWE v. COP[16] Hon. Justice Tobi JCA (as he then was) said.

“A person cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail.”

In DOKUBO ASARI .V. FRN [17]the court held that on a question of exercise of discretion, authorities are not of much value. No two cases are exactly similar and even if they are, the court cannot be bound by a previous decision to exercise its way because that would be putting an end to discretion. No discretion in one case can be a precedent to another. The Court of Appeal relied on Jekins .v. Bushly (1891) 1 Ch. 484, at Pg 485; Kundoro .v. Alaka (1956) 1FSC. 82 at Pg 383, Solanke .v. Ajibola (1968) 1 ALL NLR 46 at Page 51.

It therefore goes without saying that courts exercise of judicious discretion in granting a bail after trial/ pending appeal is dependent on the peculiar facts and circumstance of the case.


It is trite that medical ground or condition of ill health is a special circumstance that often sways the Court into granting an application for bail pending appeal particularly when the available medical facility where the Applicant is detained cannot handle the medical condition. In the case of ABACHA v STATE Supra, Honourable Justice Ayoola held:

“The special medical need of an accused person whose proven state of   health needs medical attention which the authorities may not be able to provide, is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to the accused person. Such need is not brought before the Court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.”

Furthermore, where the ailment is a contagious one to avoid exposing other inmates from contacting the disease, the Court ought to grant an application for bail, the special circumstance must be disclosed by the supporting affidavit and affidavit of urgency and the annexure attached is on medical ground or ill health.  In ABACHA v STATE   supra, The Applicant presented  the medical report stating that he suffers from multiple illnesses primary amongst which is tuberculosis with pneumonia; hypertension and dyslipidemia. The court in granting bail pending appeal stated that:

‘Pulmonary Tuberculosis is a highly contagious disease; it can spread by merely breathing in the air droplets from a cough or mere sneeze of an infected person. It is common knowledge that detention facilities in this country are congested with inmates thereby making the Applicant a serious health risk to other inmates.’

Notably, in the case of IFEANYI MARTINS AMADIKWA v THE STATE [18] the Court appeal held that for bail pending appeal to be granted on health grounds, the ailment must be grave and virulent and dangerous to public health and/or be one that is capable of transmission to other human beings.

In considering whether or not to admit a person to bail after trial and pending appeal, it is of utmost importance to bear in mind that whenever the health of a person is going to be in jeopardy by reason of his incarceration pending his trial, it would constitute special circumstances for the Court to intervene, if so called upon, to admit such a person to bail, notwithstanding the nature of the offence alleged against the person including even the highest of offences in the land which are ordinarily not bailable except on proof of special circumstances.

It is note worthy to mention that when a person is granted bail after trial, some of the conditions for the grant of the bail may include:

  • To appear in court at a certain date
  • Not contacting certain people and deposit of his/her international passport with court
  • Getting a surety (in Nigeria the courts prefer sureties with landed property in certain locations and who may or may not be civil servants on a certain level)
  • That the surety undertakes to forfeit a certain amount of money in the event that the accused does not attend Court as required (recognizance)

If the accused person for some reason breaks the conditions, he may be arrested and have the bail revoked. If he jumps bail and there is a surety, then the surety would forfeit the recognizance, and the courts have the power to arrest a surety who refuses to pay the recognizance, unless the surety can show cause provide satisfactory evidence to the court that he is not to be blamed for the accused person jumping bail, and did everything in his power to prevent this from happening.


It is apparently clear that, the totality of decided cases as well as the provision of Administration of Criminal Justice Act is to the effect that, before there can be a bail after trial  of an accused, exceptional circumstances warranting same with supporting evidence, as discussed above must be presented to the court by the accused  counsel. Once that is done, the duty shifts to the court to determine whether the evidence before it constitutes exceptional circumstance warranting bail after trial and whether, from the totality of the surrounding circumstance and peculiarity of the case, the accused is entitled to the favourable exercise of court’s discretion.

[1] (2006) 9 NWLR (PT 984)p 103 @115

[2] (Sixth Edition) @ P 140

[3] Understanding the Concept of Bail in Nigeria, Abdul Salaam, Abbas and Co; Nov, 2014

[4]  1999 Constitution of the Federal Republic of Nigeria  CAP C23, LFN 2004

[5]  Ibid.

[6] (2015) LPELR -24684 (CA)

[7]  (1996 ) 9 NWLR (PT.472) 352 @360

[8] (1957) NCLR 3

[9] 1980) 1 NCR 14

[10] (1935) 2 WACA 236.

[11] (1990) 6 NWLR (PT.157) 509.

[12] Op.cit

[13] (1993) 5 SCNJ 126

[14] (2002) 5 NWLR (761) 638

[15] (2006) 9 NWLR (PT. 984) 103.

[16] (1996) 3 NWLR (Pt 436) at Page 332

[17] (2008) Vol 6. LRCNCC Pg 1 at 6 part @ Pgs 20 – 21, Paras JJ-A

[18]  (2015) LPELR-24569

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