Month: June 2022

Last week, we learned about the principle of law which states that there can’t be a lesser penalty for capital offences in Nigeria. Today, as a necessary corollary, we would discuss whether an accused who is standing trial for a capital offence can be granted bail? 

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. Ojo v FRN (2006) 9 NWLR (Pt. 984) 103. 

Basically, they are, mainly, two types of bail: bail pending trial, and bail pending appeal. The third one is bail pending investigation which is usually granted by the Police. And of course, it is not free as they have otherwise claimed. 

Today’s legal analysis centers around bail pending trial. Before trial commences and upon the arraignment of the accused, the defense counsel would seek a temporary release of the accused from the court, this is called Bail Pending Trial. It is the temporary release of an accused (if charged to Court) or suspect (if in Police custody) from prison or custody pending the determination of the case on the condition that he would attend Court for his trial. 

The general principle of law is that persons accused of a capital offence(s) shall not be released on bail. Section 341(1) of the Criminal Procedure Code provides that persons accused of an offence punishable with death shall not be released on bail. In Oladele v State (1993) 1 NWLR (Pt. 269) 294, the Court held that “it is very unusual for a person accused of murder to be on bail pending the trial. Murder being a very serious offence, it is not in the interest of the public that a person charged with murder should be released on bail.”

This prohibition is, however, not absolute. By virtue of sub-section (3) of section 341, if it appears to the Court that there are no reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for inquiry, such persons may, pending such inquiry be released on bail”. In GANI ADAMS V. A.G. OF THE FEDERATION (2006)LCN/2031(CA), it was held per Mary Peter Odili JCA (as he then was) that:- “an accused who stands trial for the offence of murder is not ordinarily entitled to bail. The reason for this is clear. Murder is regarded as the highest crime under the law which attracts the most severe punishment. Despite this, however, the courts have striven to uphold the constitutional presumption of innocence by creating case laws which have provided some conditions under which an accused standing trial for murder may be admitted to bail pending his trial“

The special circumstances where an application for bail pending trial can be granted are:

• On the ground of ill- Health: whatever the stage at which bail is sought by an accused person, the ill-health of the accused is, a consideration weighty enough to be reckoned as a special circumstance. However, a mere allegation of bad health will not be sufficient as a special circumstance for the grant of bail. Abacha v State (2002) 5 NWLR (Pt. 761) 638. In that case, the Applicant complained that he suffered from some kidney diseases which needed intensive medical attention from his doctor. There was no expert evidence to the effect that his kidney disease was a life-threatening ailment that cannot be treated and managed while he was in detention pending his trial. Hence, his bail application was refused.
• When the proof of evidence does not link the accused person with the crime: a situation where there was no material before the trial court to show that the appellant is standing trial on a charge of murder, including proof of evidence, certainly qualifies as a special case to grant bail. In Musa &Ors v Commissioner of Police (2003) LPELR-7202(CA), the court granted the bail of the appellants who had been in detention for over 22months since their arrest with no evidence linking them to the murder charge. 
• When the defence of Alibi has been properly investigated.

It is pertinent to state that only the High Court has the power to grant bail applications in capital offences. This discretionary power is not available to Magistrate courts as held in Ukatu v C.O.P (2001) 6 NWLR (Pt. 710) 773

In conclusion, case laws, over the years, have established that Courts of Law have the discretion to grant bail applications pending trial in any of those special circumstances. 

Thank you for reading. See you next week.

As a way of introduction, a sentence is a punishment for a crime ordered by a trial court after conviction in a criminal proceeding. There are different types of punishment depending on the nature of the offence convicted.

By virtue of Section 3 of the Criminal Code, offences in Nigeria can be classified into three. To wit: felony, misdemeanor, and simple offences. A felony is an offence punishable without previous conviction, with death, or with imprisonment of three years or more. A misdemeanour is punishable by imprisonment for 6 months but less than 3 years. Simple offences are others apart from felonies and misdemeanours and are usually punishable by a mere fine, caution, and very rarely, imprisonment not exceeding 6 months.

In Nigeria, the offence of murder, as well as armed robbery, carries the maximum capital punishment. Section 402 of the Criminal Code prescribes death penalty for the offence of Armed Robbery. Today’s legal question is whether a court can impose a lesser sentence where a mandatory death sentence is prescribed by law?

The answer is no. This answer has received judicial authority in a plethora of cases. In a 2021 supreme court case of Akpakpan v State (2021) LPELR-56220(SC), the court per Kudirat Kekere-Ekun, JSC (Pp 39 – 39 Paras E – G) held that: “there is no discretion in sentencing where the law has made specific provisions for the sentence to be imposed, as in a capital offence. The only sentence pronounceable, where all the ingredients have been established, is death. In that case, the appellant was charged with the offence of murder.”

Furthermore, in DANSO v. FRN (2013) LPELR-20165(CA), the court held that: “the law is firmly settled that where an accused is convicted for a capital offence, one carrying the highest magnitude of punishment of death sentence, a court has no discretion than to sentence him to that death penalty allocated to it”.  Also, in Sunday v State (2013) LPELR-22889(CA), the court held that: “in a capital offence, where the law prescribes a mandatory Death penalty, the court cannot impose a lesser sentence…. this is such that neither life imprisonment nor a sentence of ten years can be regarded as sufficient punishment for murder, notwithstanding the fact that the accused had remained in prison custody for ten years awaiting trial.” Other cases which reinforced this principle are Balogun V. A-G, Ogun State (2002) 6 NWLR (Pt.1029), Amoshima v State (2008) LPELR-4369(CA), etc. 

However, it is pertinent to state that where the offence is not a capital offence, a Court is at liberty to impose a punishment lesser than the one allotted for that offence. 

In conclusion, the courts cannot exercise their discretionary power to impose a lesser penalty for capital offences. Inasmuch as there are growing activisms around the world towards the abolishment of death penalty, the punishment is still constitutionally recognized in Nigeria. See the powerful erudition of IGUH JSC in Kalu v State (1998) 13 NWLR (Pt.583) 531. 

Thank you for reading. See you next week.🙏

The legal question, which serves as the crux of today’s article, is whether evidence of previous sexual intercourse or the existence of sexual partnership between parties will negate the offence of rape.

The landmark principle of law is that In the offence of rape, consent is a complete defence. As such, if the victim of rape freely consented to sex and such consent was not obtained with force, duress, or intimidation, (he) or she cannot thereafter complain of being raped. Ogunbayo v State(2007) 8 NWLR (Pt. 1035) 157. 

In as much as this is true, the questions then are: does consent exist in perpetuity? Is one consent; forever consent? Can an active sexual partner still be raped?

The case which gave rise to these questions is the 2013 Court of Appeal case of Okoh v Nigerian Army (2013) 1 NWLR (Pt. 1334) 16 CA. In that case, the appellant was – at all times material – military personnel attached to the 81 Division of the Nigerian Army and was a guard commander detailed to guard a house at No. 23 Cooper Road, Ikoyi, Lagos. The victim, Miss Member Joy Agagu, was a youth corper who at the time was doing her national service at 81 Division Education Of the Nigerian Army. 

She approached one Sgt. Ores about her accommodation problem. Ores in turn took her to the appellant for help with accommodation on the said premises at No. 23, Cooper Road Ikoyi, Lagos. The appellant sought and obtained permission following which the victim then moved into the premises. About four or five days after she moved into the house, there was sexual intercourse between the appellant and victim, and the latter contracted HIV. While the appellant claimed that the sexual intercourse was done with the consent of the victim, the victim alleged that the appellant forcefully had carnal knowledge of her without her consent.

In his defence, the appellant alleged that there was an active sexual activity between them which could be construed as consent. Rejecting this argument, the court held that: “Rape is rape, once proved. The fact of previous intercourse or the existence of or presumed suspected active sexual partnership, will not negate the offence of rape by imputing consent where the contrary has been proved. In the instant case, even if the prosecutrix and the appellant were hitherto consensual lovers who were having sexual intercourse, the occasion of the fateful sex in the circumstances found at the trial court constituted the offence of rape nonetheless.“

At the end of the trial, the conviction and sentence of the appellant by the military court martial and the subsequent confirmation of the same by the Chief of Army Staff on 5th September 2007 was upheld. The 14 years imprisonment was affirmed. 

By extension, this principle in Okoh’s case brings to the fore that a sex worker can be raped. It is immaterial that she had consented to sex in the past or that by virtue of her profession, she would always be available for sexual intercourse.

In conclusion, the principle of law is that previous sexual intercourse between parties would not negate the offence of rape where consent has not been freely given. It is pertinent to state that this principle does not apply to husband and wife since, under Nigerian criminal law, a husband cannot rape his wife. We already analyzed that. Do you remember?

Thank you for reading🙏. See you next week.