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Post Conviction Bail At The Court Of Appeal By Pelumi Olajengbesi Esq.

September 27, 2022

This conception is statutorily rooted in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (FRN), which guarantees any person charged with an offence the presumption of innocence, until proven otherwise, hence the fulcrum for the grant of bail for an accused in a criminal trial. 

At the forefront of the administration of criminal justice in Nigeria is the conception that every individual is presumed innocent until proven guilty by a duly constituted and competent Court of Law. This forms the legal foundation upon which the grant of bail is founded to ensure the liberty of an accused pending trial. 

This conception is statutorily rooted in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (FRN), which guarantees any person charged with an offence the presumption of innocence, until proven otherwise, hence the fulcrum for the grant of bail for an accused in a criminal trial. 

A critical appraisal of the Constitution shows that bail has footing with three (3) major rights under the constitution, to wit: right to freedom of movement;  right to personal liberty; and the right to dignity of the human person. Consequently, in order to safeguard the rights of a defendant standing trial as guaranteed under the constitution, it behoves on the Court to entertain application for bail on behalf of the defendant, while judicially and judiciously exercising his discretion to grant bail under necessary circumstances and at most times on liberal terms. 

It is essential to state that bail may be granted at different levels. It maybe granted by the administrative body during the investigation and may also be granted by the Court during the pendency of criminal trial. When granted by the Court, bail may also be categorized into two parts depending on the stages in a criminal proceeding; that is bail pending trial and post-conviction bail otherwise known as bail pending appeal. The aim of this discourse is to proffer adequate illumination on the circumstances that may warrant the grant of post-conviction bail.

Post-conviction bail is defined as the temporary release of a convict or an appellant after the conclusion of a trial and pending the determination of an appeal. Because of the nature of this bail involving a convict who has been sentenced by a court, the Court rarely grants post-conviction bail unless in the exceptional circumstances discussed hereunder. In order to do justice to the subject matter, the relevant laws including The Court of Appeal Act, Court of Appeal Rules, Supreme Court Act and Supreme Court Rules shall be examined critically to determine the grant of same both at the Court of Appeal and Supreme Court respectively. 

Post-conviction Bail in the Court of Appeal

It should be noted that an accused person who has been convicted by the trial court has lost the benefits enriched in the principle of the presumption of innocence and must be able to show that he has a pending appeal before he can properly file an application for a post-conviction bail; and if he was granted bail during trial, 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 convicted person cannot successfully pursue an application for bail pending appeal.


The Court of Appeal by virtue of section 28 of the Court of Appeal Act is endowed with the power to grant bail. For ease of reference, section 28 is hereby reproduced below:

28(1) The Court of Appeal may if it thinks fit on the application of an appellant admit the appellant to bail pending the determination of the appeal. 

(2) the time during which an appellant pending the determination of his appeal is admitted to bail shall not count as part of any term of imprisonment under his sentence and any imprisonment under the sentence of appellant, whether it is the sentence passes by the trial court or the sentence passed by the Court below on appeal or the sentence of the Court of Appeal, shall subject to any direction which may be given by the court of appeal be deemed to be resumed or to begin to run, as the case requires, from the day on which he is received into prison under the sentence. 

The salient points deduced from the foregoing section are first and foremost that, the grant of  bail at the court of appeal is purely at the discretion of the Court. This explains the use of the words "as it thinks fit" in subsection (1) above.  By virtue of sub section (2), where the Court of Appeal grants bail to a convict pending the determination of the appeal, the period of his imprisonment is suspended for the time being and where his conviction is affirmed and he's sent back to prison to serve the remaining term. The period of time during which the Appellant/convict  was out of prison on bail will not be reckoned with in the calculation of the remaining period of his imprisonment. 

In addition, the Court of Appeal Rules (2021) also recognizes the power of the court of appeal to grant bail to a convict pursuant to Order 17 rule 12.  At any time where an appellant has been admitted to bail or where the appellant was released on bail by the Court below, the Court may if satisfied that it is in the interest of justice to so do, revoke the order admitting to bail by virtue of Order 6 Rule 3 which deals with applications refused by lower Courts 

In making an application before the Court of Appeal, the appellant must show cogent and sufficient grounds persuasive enough to merit the grant of bail to the appellant because the discretion of the Court is only exercisable based on cogent, sufficient and verifiable facts and materials placed before the Court. 

An application after conviction can be made first to the trial Court  to grant bail pending the appeal, if the application is refused, a similar application can be made to the Court of Appeal for the grant of bail upon satisfying two conditions; that an appeal must have been filed before the Court of Appeal and the application for the grant of the bail  to the convict upon refusal by the trial court must be done within fifteen days from the date of the refusal. It is not compulsory to make the application at the trial Court. 

Conditions for Grant of Bail at the Court of Appeal

It is trite principle that upon conviction, the status of the  Defendant/Appellant changes from a Defendant/Appellant  whom the law seeks to protect, to a convict whom the law protected but for the bulk of ample evidence proving the guilt of the Defendant/Applicant beyond reasonable doubt. With this change in status, the imperative question to ask at this point is whether bail post-conviction is granted as a matter of right and the circumstances upon which the court may be moved to grant same? 

Once a person is convicted, bail cannot be granted as a matter of course or as of right. It can only be granted on special and exceptional circumstances.  See Jamal v. State (1996) 6 NWLR (Pt. 472) 352 at 366.

In Rex v. Theophilus Adenuga Tunwashe (1935) 2 WACA 236, it was held that:

"The principles upon which an Applicant will be admitted to bail pending his appeal have been well settled. In order to adjudicate on the question of bail, it is useful to see if there is any prospect of success of the appeal. It has frequently been laid down that the Court will not grant an application unless there are exceptional and unusual reasons". The court cited Fawehinmi v. The State (1990) 1 NWLR (Pt.127) 486 at 494

In Tunwashe's case (supra), the West African Court of Appeal (WACA) came to  the conclusion after a careful consideration of reported cases that:

1. Bail will not be granted pending appeal save in exceptional circumstances or;

2. Where the hearing of the appeal is likely to be delayed;

3. In dealing with the latter class of the case, the court will have regard not only to the length of time which must elapse before the appeal can be heard, but also to the length of sentence to be appealed from and further that the two matters will be considered in relation to one another.


In order words, in the absence of special circumstances bail will not be granted unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.  In the case of post conviction bail, the burden is on the applicant to prove why he should be granted bail and not on the prosecution as in the case of an application before conviction. It is thus squarely on the applicant to show that he is entitled to bail post conviction given the right of the presumption of innocence no longer avails he or she. 


What Constitutes Exceptional Circumstances

In the case of Ogindimu Munir v. Federal Republic of Nigeria (2009) ALL FWLR (Pt.500) 775 per Jauro JCA the court held among other things that:

"... in the determining exceptional or special circumstances the Court will take into consideration the following:

1. If the applicant being a first time offender had previously been of good behaviour;

2. If substantial grounds of law are involved in the appeal, it is  useful to see if there is any prospect of success on appeal or where a sentence is manifestly contestable as to whether or not it is a sentence known to law, bail should be granted; Obi v. The State (1992) 8 NWLR (Pt. 227)

3  Where having regard to the very heavy congestion of appeals pending in the Courts, a refusal of bail to the Appellant will have the result of the whole or a considerable potion of the sentence imposed on the Appellant being  served before the Applicant’s appeal is heard...

4. Where the Applicant will be of assistance for the preparation of his appeal and where the appeal is so complex that there is obvious need for close consultation between the Applicant and his counsel. In determining the complex nature of the appeal, regards must also be had to the nature of the offence, number of witnesses taken and the quantum of documents admitted in the course of trial...

5. Where the application is based on ill health and the Applicant cannot get the necessary treatment in prison or where the machine used in treating the applicant is not moveable thus cannot be moved to the prison, in such circumstances and in order not to put the  applicant's health in serious jeorpardy bail will be granted: Fawehinmi v. The state (supra)"

What constitute special exceptional  circumstances in bail application depends on the peculiar facts and circumstances of each and every application.


Whether the fact that appellant intends to represent himself constitutes special circumstances

Looking at the case of Fawehinmi v. The State (supra) in perspective, the defendant was convicted of contempt and sentenced to twelve (12) months imprisonment. He appealed against his conviction and filed an application for bail pending the determination of his appeal. Counsel to the Appellant/Applicant submitted that bail should be granted to the applicant for the following reasons. Firstly, that the Applicant was convicted for contempt of court during a judicial proceeding contrary to s. 133(4) of the Criminal Code which carries a maximum punishment of three (3) months imprisonment while the Applicant was sentenced to twelve (12) months imprisonment by the trial Court. Secondly, that the applicant wished to represent himself in person at the hearing of the appeal. Finally, that the applicant was a hypertensive patient who needed to see his doctor every other day and that the machine used for the examination of the appellant/applicant was normally immoveable. 

The Court of Appeal held that the first and second grounds do not qualify as special or exceptional circumstances to warrant the exercise of the Court's discretion to grant bail in favour of the Appellant. Kalgo JCA specifically held that the trial Court stated that the accused was being tried for contempt in the face of the Court under section 6 of the Criminal Code therefore the argument of counsel to the applicant that the applicant would have served a considerable potion of his sentence if bail was withheld was held to be irrelevant. The court also rejected the argument based on the fact that the applicant wished to represent himself and held that the offence of contempt not being a complicated offence there was no justification for granting bail on that ground. 

It suffices to say that based on the decision of the Court of Appeal above, where the offence is not a serious one as in the case of contempt, the fact that the applicant wishes to represent himself may not be enough ground to constitute special circumstances for the grant of post conviction bail.


Application for Post-Conviction Bail at the Supreme Court

By virtue of section 31 of the Supreme Court Act, 2004, the Supreme Court has the power to grant bail. The section provides that the supreme court may if it thinks fit on the application of an appellant admit the appellant to bail pending the determination of his appeal and the time during which an appellant, pending the determination. The same rule that applies for the grant of bail at the Court of Appeal also applies for grant of post conviction bail at the Supreme Court. In furtherance of Section 31 of the Supreme Court Act, Order 9 of the Supreme Court Rules (as amended) 2014 also recognises the power of the Supreme Court to grant bail. 



In as much as granting bail is important to the defendant, it becomes a subject of concern when the interest and safety of the state is brought to bear necessitating the need for considering several factors and special circumstances being the only ground for the grant of post-conviction bail. 

Pelumi Olajengbesi Esq., is a Legal Practitioner and Managing Partner at Law Corridor, Abuja. 
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