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LAW AND PRACTICE RELATING TO BAIL IN NIGERIA



1.       Nature of Bail

By section 158 of the Administration of Criminal Justice Act 2015, when a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of the Administration of Criminal Justice Act 2015, be entitled to bail.

Bail may be granted:

(i)           Pending the conclusion of investigations; or
(ii)         Pending the determination of the case or trial; or
(iii)       Pending the determination of an appeal against conviction.

Accordingly, bail may be granted by the police or the Court. It may be granted by High Court or Court of Appeal.

Bail is a conditional constitutional right. This is because it is a direct offshoot of the constitutional right to personal liberty in section 35(1) of the 1999 Constitution of Nigeria (as amended); the right to freedom of movement under section 38 of the 1999 Constitution of Nigeria (as amended); right to presumption of innocence under section 36(5) of the 1999 Constitution of Nigeria (as amended); and right to be brought before a court of law within a reasonable time under section 35(4) and (5) of the 1999 Constitution of Nigeria (as amended).

Bail is important because of the following considerations.

(1)         It allows an innocent person to escape punishment before their trial.

(2)        It gives the accused person enough time to prepare for his defence.

2.       Types of Bail

Bail arises at three different stages of the criminal justice process. We have police bail of a suspect pending investigation; court bail of an accused person pending trial and bail of an appellant convict pending Appeal. We shall briefly explain these.

a.           Police Bail of a Suspect Pending Investigation:

Police bail will lapse once the suspect is arraigned in court. Police bail is not discretionary, except the offence is of a serious nature. For instance, Police cannot grant bail for an offence punishable with death. Bail by the police is effected by an officer in charge of the police station, like the DPO. See Section 17 of the Lagos State Administration of Criminal Justice (Repeal and Re-enactment) Law 2011.

In the case of Eda v. Commissioner of Police (1982) 3 NCLR 219, the phrase “as soon as practicable” in Section 17 of the Criminal Procedure Act was held to be inconsistent with sections 32(4) and (5) of the 1979 CFRN (now section 35(4) and (5) of the 1999 CFRN, as amended) and therefore null and void, the extent of the inconsistency.

Additionally, whereas section 17 of the Criminal Procedure Act (CPA) provides for police bail pending the trial of an accused person, and in such cases the accused is to appear in court; section 18 of the Criminal Procedure Act (CPA) provides for police bail pending further investigations of a suspect and in such cases, the suspect is to appear at the police station.

Sections 18 of the Criminal Procedure Act (CPA), section 129 of the Criminal Procedure Code (CPC), section 17 of the Lagos State Administration of Criminal Justice (Repeal and Re-enactment) Law 2011, section 30 & 31 of the Administration of Criminal Justice Act 2015 and section 27(b) of Police Act provide for bail by the police pending the investigation of the allegation against the person arrested.

Usually, a person is granted bail by the police upon his entering into a recognizance, with or without sureties, to appear at a police station or court on a subsequent date stated in the recognizance, and such recognizance (bond) is enforceable as a bond entered before a Magistrate. See section 27(b) of Police Act and Section 18 of the Criminal Procedure Act (CPA) and Section 17 of the Lagos State Administration of Criminal Justice (Repeal and Re-enactment) Law 2011.

Legal practitioners cannot stand as surety for detained persons. This is consistent with Rule 37(1) of the Rules of Professional Conduct. Also women can now stand as surety for detained persons in Lagos state and federal courts – See section 118(3) of the Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 and section 167 of the Administration of Criminal Justice Act 2015

As a matter of practice, application for bail at the police station is usually in writing by the suspect, his counsel or even the surety. Police bail lapses upon arraignment. Therefore, a fresh application has to be made to the court or else the accused will be remanded in prison custody. A person admitted to bail by the police is expected to turn up at the police station on a stated date.

What happens when bail has been refused by the Police at the Police Station?

Where the police refuse an application for bail, the suspect has the option of either filing a prerogative writ of habeas corpus or fundamental rights enforcement and obtain an order for the purposes of forcing the police to bring the accused to the court for trial.

Again, under section 32 of the ACJA 2015, where a suspect taken into custody in respect of a non-capital offence is not released on bail after twenty-four hours, a court having jurisdiction with respect to the offence may be notified by application on behalf of the suspect. The court shall order the production of the suspect detained and inquire into the circumstances constituting the grounds of the detention and where he deems fit, admit the suspect detained to bail. An application for bail under this section may be made orally or in writing.

A similar provision can be found in section 18 of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 where it is stated that where a person taken into custody is not released on bail, a Magistrate having jurisdiction with respect to the offence may be notified by application on behalf of the arrested person.  

b.           Court Bail of an Accused Person Pending Trial

This type of bail is the one sought after the accused person has been arraigned before a competent court for his trial. Bail by the court pending trial is discretionary depending on the nature of the offence. A suspect or an accused is entitled to bail by the court pending trial at the time of a court issued warrant of arrest and based upon an application for bail made during trial. In the case of the former, the warrant of arrest is usually endorsed with bail – See section 30 of the Criminal Procedure Act (CPA), section 57 of the Criminal Procedure Code and section 29 of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011; and for the latter, fair hearing must be given to the prosecution before such application is favoured and granted.

The power of a court to grant bail pending trial depends on the type of court and the nature of the offence in question. For this reason among others, offences are classified into three as discussed below.

i.             Magistrate Courts:

The power of a magistrate to grant bail depends on the nature of the offence. For this reason among others, offences are classified into three: Capital Offences; Felonies other than Capital Offences and Misdemeanours & Simple Offences.

A.          Capital Offences:

These are offences which carry death penalty upon conviction. A Magistrate Court cannot try capital offences and accordingly a Magistrate cannot grant bail for a capital offence. See section 118(1) of the Criminal Procedure Act (CPA); section 341(1) of the Criminal Procedure Code (CPC) and section 115 of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011. Moreover, by section 161(1) of the Administration of Criminal Justice Act 2015, 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.

In exercising discretion whether or not to grant bail to a person accused of a capital offence, section 161(2) of the Administration of Criminal Justice Act 2015, enumerates the ‘exceptional circumstances’ which will motivate the court to grant bail. These include:

(a)        Ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him;

(b)        Extra ordinary delay in 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.

B.           Felonies Other than Capital Offences:

These are offences punishable with three years imprisonment or more. In respect of this class of offences, the Magistrate may grant bail. This is by virtue of Section 118(2) of the Criminal Procedure Act (CPA); and section 115(2) of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 which provides that “the court” which includes a Magistrates court may admit to bail any person who commits any felony other than that punishable with death.

Under the Criminal Procedure Code (CPC), section 341(2) thereof, all that the application for bail needs to show in order for the accused person to be granted bail by the Magistrate seized of the matter is to satisfy the requirements of the said subsection (2) as follows:

i)            That by reason of the granting of bail, the proper investigation of the case would not be prejudiced; and
ii)           That no serious risk of the accused escaping from justice would be occasioned; and
iii)         That no grounds exist for believing that the accused if released, would commit an offence.

Note that the above conditions are cumulative and accordingly a court should not grant bail unless all the three conditions are established.

In similar vein, section 162 of the Administration of Criminal Justice Act 2015, provides that a defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the court, be released on bail except in any of the following circumstances:

(1)         Where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence;

(2)        Attempt to evade his trial;

(3)        Attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case;

(4)        Attempt to conceal or destroy evidence;

(5)        Prejudice the proper investigation of the offence; or

(6)        Undermine or jeopardize the objectives or the purposes or the functioning of the criminal justice administration, including the bail system.

According to section 163 of the Administration of Criminal Justice Act 2015, in any other circumstance other than those referred to above, the defendant shall be entitled to bail, unless the court sees reasons to the contrary.

C.           Misdemeanors and other Simple Offences:

These are offences that are punishable with less than three years imprisonment.  A Magistrate is mandated to grant bail for this class of offences, except there is “good reason to the contrary”: section 118(3) of the Criminal Procedure Act (CPA); and section 115(3) of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 or except –

i)            By reason of granting bail the proper investigation of the offence would be prejudiced, or
ii)           A serious risk of the accused escaping from justice is occasioned (section 340(1) of the Criminal Procedure Code)

ii.           High Courts:

Being a court of unlimited criminal jurisdiction, the High Court has power to grant bail in all criminal cases that come before it whether in the exercise of its original, supervisory or appellate jurisdiction. The power of the High Court in the North to grant bail in respect of capital offences is regulated by section 341(1) of the Criminal Procedure Code; but subject to section 341(3) thereof.


c.           Bail of an Appellant/Convict Pending Appeal

This is another aspect of court bail. Application for bail at appellate level may arise in any of the following circumstances:

a)           Where the applicant has made an application for bail at trial court pending his trial but same was refused and the trial is still pending and the applicant now applies to the appeal court;

b)          Where the applicant/appellant has been tried and convicted but he has appealed against the decision and is bringing the application for bail pending the determination of the appeal;

c)           Where the applicant makes the application pending appeal, but before conviction in cases where there was an application to quash the charge on grounds of lack of prima facie case.

Note that in (a) and (c) above, i.e. where the case is still pending before the trial court, the conditions for bail that we will discuss shortly deals with bail pending trial will still guide the appellate court in deciding whether to grant bail in a particular case and the mode of application is the same.

However, unlike pending-trial-bail, which is a right secured by sections 36(5) and 35(4) & (5) of the 1999 Constitution of the Federal Republic of Nigeria, bail pending appeal is not as of right. The right of appeal in an appellate court accrues from the need to avoid rendering the outcome of the appeal nugatory. Both the trial court and the appellate court have power to admit to bail a person convicted of an offence by the trial court pending his appeal. Accordingly, application for bail pending appeal must first be made to the lower court before it is made to the higher court, within 15 days of lower court’s refusal.

3.       Conditions of Bail and Conditions for Bail:

The conditions or terms of bail are the conditions which an accused person must comply with after he has been admitted to bail. On the other hand, conditions for bail are the factors which determine the grant or refusal of bail. Section 165(1) of the Administration of Criminal Justice Act 2015 states that the conditions for bail in any case shall be at the discretion of the court with due regard to the circumstances of the case and shall not be excessive.

Neither the Constitution nor the Criminal Procedure Act (CPA) has laid down the factors which the court should consider when granting or refusing bail. A fair attempt can be found in section 341(2) and (3) of the CPC where the following grounds where itemized:

i)            Whether by reason of the granting of bail the proper investigation of the case would not be prejudiced; and
ii)           Whether no serious risk of the accused escaping from justice would be occasioned; and
iii)         Whether no ground exist for believing that the accused if released, would commit an offence; or
iv)         Whether there are reasonable grounds for believing that the accused person committed the offence (para. (iv) is applicable in cases of Capital Offence): section 341(3) of the Criminal Procedure Code.

In similar vein, section 162 of the Administration of Criminal Justice Act 2015, provides that a defendant charged with an offence punishable with imprisonment for a term exceeding three years shall on application to the court, be released on bail except in any of the following circumstances:

(1)         Where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence;

(2)        Attempt to evade his trial;

(3)        Attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case;

(4)        Attempt to conceal or destroy evidence;

(5)        Prejudice the proper investigation of the offence; or

(6)        Undermine or jeopardize the objectives or the purposes or the functioning of the criminal justice administration, including the bail system.

Also, in exercising discretion whether or not to grant bail to a person accused of a capital offence, section 161(2) of the Administration of Criminal Justice Act 2015, enumerates the ‘exceptional circumstances’ which will motivate the court to grant bail. These include:

(a)        Ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him;

(b)        Extra ordinary delay in 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 foregoing apart, the proper, cardinal, key or main determinant factor for granting or refusing bail is the likelihood or the probability that the accused person will turn-up for his trial.

In Abacha v. State (2002) FWLR (Pt. 98) 863, it was held inter alia that the most proper test whether bail should be granted or refused is the probability that the accused will appear to take his trial. In that regard, the court further held that it is proper to consider the nature of the offence, the nature of the evidence in support of it and the severity of the punishment which the conviction will entail.
Indeed, all other factors/conditions for bail revolve around this important factor since the main function of the bail is to ensure the presence of the accused at the trial.

Generally, the following factors are statutorily and judicially recognized as the conditions for bail; though they are not exhaustive.

a)        The Nature of the Offence and the Prescribed Punishment:

Here, the fear is that, the higher the punishment that the conviction will entail, the less likely that the accused if granted bail will be available for his trial.

In considering the gravity of an offence and the severity of penalty as a factor in the grant or refusal of bail, the charge and the quality of evidence before the court are decisive factors: Dogo v. Cop (1980) 1 NCLR 4. Also relevant is Abacha v. State, where the Supreme Court while considering bail for the appellant opined that in the exercise of the discretion to grant bail to an applicant who has been charged with offences of conspiracy to murder and murder, the court has to consider the nature of the charge, the severity of the punishment and the character of the evidence.

Specifically, in capital offences, the court considers special circumstances like alibi, ill-health, and of course, if there is a strong prima facie case/evidence of commission of the offence – the latter was the position in Anaekwe v. Commissioner of Police (1996) 3 NWLR (Pt. 436) 320, where the court of Appeal upturned the order of a High Court refusing the appellant bail on the ground that the offence was a capital offence.

b)        The Nature, Character and Quality of Evidence Against the Accused:

The nature character and quality of evidence against the accused/applicant which prima facie shows probability of guilt may stand in the way of the accused person’s application for bail.

In Abacha v. State, the Supreme Court refused to grant bail because some key witnesses had expressed fears for their safety on account of threats received from various quarters in connection with the offence and the fact that some of the vital witnesses are in protective custody while some are not and the fact that the accused admitted in his own statement to the police that he gave 10,000 dollars to two proposed witnesses.

Also, in Bamaiyi v. The State, the court refused bail because evidence against the accused was weighty; these include the fact that the accused admitted to the existence of an assassination list, procurement of weapons used for committing some of the crimes, killing of a vital witness, etc.

c)        The Likelihood or Possibility of the Accused Interfering with further Investigation of the Case:

Bail may be denied based on the likelihood that the accused will interfere with police investigation and (or) the conduct of his case at the trial. In Bamaiyi v. State, the influential position of the applicant as a General in the Army and erstwhile Chief of Army Staff was a fact showing that the applicant was capable of interfering with the prosecution of the case; if he is released on bail.

Also, in Dantata v. IGP (1958) NRNLR 3, the accused person’s application for bail was refused because it was found that he has already offered bribe to the police as inducement to retrieve incriminating evidence in custody of the police.

d)        The Likelihood/Possibility of the Accused Person Committing an Offence While on Bail:

In R v. Jammal (1941) 16 NLR 54, bail was refused because the applicant committed the offence for which he was arraigned while he was on bail for another offence.

e)        The Criminal Record/Antecedents of the Accused:

A first offender is more likely to be admitted to bail than a habitual criminal. Here, the court also considers the applicants frequent involvement in criminal activities or pendency of many criminal cases against him/her – Ajudua v. Federal Republic of Nigeria.

f)        The Prevalence of the Offence:

The widespread nature of a particular offence or class of offences usually affects the attitude of the court in granting or refusing bail. In Bamaiyi v. State, the spate of assassinations in the country especially in Lagos was a factor in the denial of the applicants’ bail. Also in Ajudua v. Federal Republic of Nigeria, it was stated that if a particular offence was rampant, bail may be refused.

g)        Detention for the Protection of the Accused:

Protection of an accused has two sides of the same coin. It may be from self or from others. The need to protect the accused is pertinent in cases where revenge is suspected; example, drug cases, rape, etc. In such cases, the accused is kept in protective custody so as to prevent an aggrieved person from taking the law into his hands (example by committing suicide).

h)        National Security:

Asari’s case is instructive. Bail may be refused in order to protect the corporate existence of the country and peaceful co-existence of the citizens. Bail also may be refused in cases of Terrorism.

i)         The Health Condition of the Accused Person:

Although ill-health is a weighty condition for bail, mere allegation of ill-health will not be sufficient for the grant of bail. The applicant must by his affidavit show that –

a)           the ill-health is of such a nature as would affect other inmates of the detention place where the applicant is detained or is being held; (example Tuberculosis); or
b)          there is a positive, cogent and convincing medical report issued by an expert in that field of medicine of which the accused suffering ill-health is referable; or
c)           that the prison or the detention authorities have no access to such medical facilities as are required in treating the accused person’s ailment.

These are the factors that the courts consider in the judicious and judicial exercise of its discretion to grant or withhold bail. The factors are by no means exhaustive. The factors are relevant because they make-up the contents of the affidavit in support of the application for bail.

It must be noted that all the above factors need not be present in any particular case before bail can be granted. It is sufficient if any one of the factors or a combination of factors is present. In the case of police bail, the commitment, persistency, personality, etc of the accused/surety/counsel is a factor.

It is trite law that an application for bail should not be refused as a punitive measure/punishment: Dogo v. COP, since the innocence of the accused is presumed at all times until guilt is established.

Again, the fact that an accused person is –

i)            unable to produce credible sureties;
ii)           has no fixed address;
iii)         has been previously convicted;
iv)         has no visible means of livelihood;

are not relevant to the consideration of bail.

However, there are conditions subsequent to bail. Failure to fulfill subsequent bail conditions by an accused does not amount to breach of fundamental right; except of course, the terms are onerous.

4.           Application for Bail:

a.           Application for Police Bail:

This may be oral or in writing by the suspect, his surety or his lawyer.

b.           Application for Bail Pending Trial:

There is no provision in the Criminal Procedure Act, or the Criminal Procedure Code or even the Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 on the procedure for applying for bail whether in the magistrates court on in the High Court. As such, application for bail may be made orally. However, in practice, unless the prosecution indicates that it has no objection to the application for bail, bail is rarely granted upon an oral application except in cases of misdemeanors or simple offences and before Magistrate courts.

Also, where the accused person who is unrepresented by counsel fails to apply for bail, the court ought to draw his attention to the existence of that right – see section 124 of Criminal Procedure Act.

Moreover, the court cannot grant bail to an accused person without reference to the prosecutor if the latter is present in court or else fair hearing to the prosecution would have been breached.

Furthermore, where an application for bail is in writing, it is usually by Summons or by Motion, depending on the territorial jurisdiction of the court. Summons should be used as a method of application for bail at 1st instance, when the reason for detention is unknown; otherwise Motion should be used. The reason for this is that the prosecutor, who has been served with a Summons, must file a counter affidavit showing cause why the accused person should not be granted bail. The counter affidavit will reveal the offence.

The foregoing apart, in the south, application for bail pending trial is by summons, given the provisions of section 363 of the CPA and recourse to the English Rules of the Supreme Court (Criminal Proceedings) 1949. Application for bail by summons is usually made to the Judge in chambers, and it is for the state to show cause why the defendant should not be admitted to bail.

Again, before the application for bail can be entertained in the High Court, under section 123 of Criminal Procedure Act and section 342(1) of the Criminal Procedure Code, the accused must have made an application to the Magistrates’ court. This is applicable as a matter of practice, where the two courts have concurrent jurisdiction, except there are special reasons - like extreme urgency. It is only after the lower court has refused, neglected, failed to grant bail that an application can be made to the higher court: Dogo v. COP & Offiong v. Police.

Besides, section 119 of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011, states that a Judge may, if he thinks fit, admit any person charged before a Magistrate Court to bail although the court before whom the charge is made has not thought it fit to do so.

c.           Mode of Applying for Bail at the High Court after its Refusal by the Magistrate Court:

As in the case of an application coming to the High Court as a court of first instance, the Criminal Procedure Act, the Criminal Procedure Code and even the Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 are silent on the procedure to follow in applying to the High Court for bail after same has been refused by the Magistrate’s Court.

In view of this lacuna, the states operating the CPA (that is the south) have had recourse to section 363 of the CPA. Acting under that section the states in the south operating the CPA make such application by way of “summons” supported by an affidavit and accompanied by a certified copy of the alleged charge and the order of the lower court refusing the application for bail; as this is the practice and procedure in England. See the case of Simidele v. COP (1966) NMLR 116.

In the Northern States, the Criminal Procedure Code also does not provide for the procedure to be followed and section 35 of the High Court Laws of Northern Nigeria, expressly forbids the reception of and reliance on English rules of practice and procedure. Accordingly, in that area such applications may be made by “summons” and “motion’.

d.           Bail Pending Appeal: (usually by way of Notice of Motion)

As has already been stated, this is another aspect of court bail. Application for bail at appellate level may arise in any of the following circumstances:

(i)          Where the applicant has made an application for bail at trial court pending his trial but same was refused and the trial is still pending and the applicant now applies to the appeal court;
(ii)        Where the applicant/appellant has been tried and convicted but he has appealed against the decision and is bringing the application for bail pending the determination of the appeal.
(iii)       Where the applicant makes the application pending appeal, but before conviction in cases where there was an application to quash the charge on grounds of lack of prima facie case.

Note that in (a) and (c) above, that is where the case is still pending before the trial court, the factors that are have already discussed when we were dealing with bail pending trial will still guide the appellate court in deciding whether to grant bail in a particular case and the mode of application is the same.

However, unlike pending-trial-bail, which is a right secured by sections 36(5) and 35(4) & (5) of the 1999 Constitution of the Federal Republic of Nigeria; bail pending appeal is not as of right. The right of appeal in an appellate court accrues from the need to avoid rendering the outcome of the appeal nugatory.

Both the trial court and the appellate court have power to admit to bail a person convicted of an offence by the trial court pending his appeal. Accordingly, application for bail pending appeal must first be made to the lower court before it is made to the higher court, within 15 days of lower court’s refusal.

Again, application for bail pending appeal is done by Motion supported by an affidavit. The reason is that, unlike in the case of bail pending trial, the applicant in application for bail pending appeal is not calling on the state to show why he should not be granted bail. Rather, he is coming by way of prayer stating why he should be released on bail and that is why he should come by way of motion rather than summons.

Where several accused persons are charged together and they file a joint application for bail pending appeal by way of motion, the motion must be supported by separate affidavits sworn to by each accused person personally or by someone who is conversant with the facts of the case.

Further, there are certain conditions-precedent which an appellate court considers before examining any of the criteria for granting bail pending appeal; there are, namely:

a)           The applicant must have filed an appeal which is pending i.e. unheard:
b)          The applicant must have complied with any conditions of appeal imposed by the court
c)           The applicant must not have abused the bail granted during the trial or jumped bail.

The burden on the applicant at this stage is higher than one during the pendency of trial. In Adama Muri v. The Inspector General of Police (1957) NNLR 5, the court held that bail after conviction is usually granted upon the applicant showing some “unusual or exceptional circumstances”.

Similarly, in Jammal v. The State (1996) 9 NWLR (Pt. 472) 352 at 359, the court held that “generally, the grant of bail to a convict sentenced to term of imprisonment is not made as a matter of course. The principle of presumption of innocence no longer exist, because of his conviction, he must show special circumstances to be entitled to bail pending the determination of his appeal.”

What amounts to “special circumstances” is set out as follows:

a)           Where the ground of appeal shows that there is a high probability that the appeal will succeed. Example, where a sentence is manifestly contestable as to whether or not it is a sentence known to law, lack of jurisdiction, etc.  ‘Likelihood of the appeal to succeed’ can be found in the fact that the appeal raises an important point of law.

b)          Where the duration of the appeal will likely outlast the duration of the sentence or the convicted person may have served the sentence before his appeal is determined. In Obi v. The State (1992) 8 NWLR (Pt. 257) 76, the Court of Appeal Stated that the special or exceptional circumstances, which make the grant of bail pending appeal imperative or compelling might include: that the appellant is likely to serve the entire or a substantial part of the sentence before the appeal is heard.

In the same vein, in Olamolu v. Federal Republic of Nigeria (2009) All FWLR (Pt. 485) 1800 the applicant was convicted at Lagos High Court for various fraud related offences and sentenced to two years imprisonment. She appealed against her conviction. In her application for bail pending appeal, she depose in the affidavit in support that she had served eleven months left in prison since her conviction and had only about seven months left going by the prison calendar. The court of Appeal held that depositions was weighty enough to consider the bail application in her favour.

c)           Where the physical presence of the appellant is necessary for the preparation of the appeal such as where there is need for constant and close interaction and consultation between convict and counsel. Applies where the appeal is of an intricate and technical nature and involves a professional. 

d)          Where the applicant’s health is in serious jeopardy. Here the nature of the illness is relevant. Examples are hypertension, cardiopatly, bronchitis, etc. The seriousness, communicableness and persistence, of the ill health is relevant. There may also be need for the applicant to plead Doctor’s Report and lack of adequate medical facility in the detention centre or if there is, inaccessibility of same.

e)           Where the applicant is a first offender and (or) where the applicant (if granted bail during the trial) did not jump bail.

All in all, pending-appeal-bail is discretionary.

5.       Options Open to a Court When an Accused Person Jumps Bail

Where a person on police or court bail fails or refuses to attend the station/court on the date fixed on the bail bond, the court may:

a.      revoke his bail.
b.     issue a bench warrant for his arrest.
c.      order the forfeiture of the bail bond.
d.      order surety to pay the said sum.

6.       Revocation of Bail

The grounds for revoking bail granted are as follows:

(1)         If an accused who was granted bail by the Magistrate Court is also indicted for an offence at the High Court.

(2)        If the accused failed to appear for his trial with no reason

(3)        If the surety applies to be discharged. However, the court will not immediately revoke bail. The court will give the accused an opportunity to substitute the surety. It is only when the accused cannot procure a surety that is to the satisfaction of the Court will the Court revoke bail.

(4)        The accused granted bail is about to leave Nigeria and an information is given to the court.

(5)        If the grant was based on fraud.

7.       “Drafting Summons” and “Motion for Bail”

For motions, the following points will help:

·                    Must be headed in the court depending on the court where it is made ( for instance whether High Court or Court of Appeal)

·                    Must have “Case No” Or “Charge No” as the case may be with parties (complainant/Respondent and Accused Person/Applicant) as the case may be

·                    Must be brought pursuant to Section 341 of the Criminal Procedure Code (CPC) and (or) section 36(5), 35(4) & (5) of 1999 Constitution of the Federal Republic of Nigeria, for Northern states. Similarly, it must be brought pursuant to section 123/125 Criminal Procedure Act for southern states; section 115 of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011 and section 158 of the Administration of Criminal Justice Act 2015.

·                    Seeks an order admitting the accused person(s) applicants (name) to bail pending trial (HC) or appeal.

·                    Headed “Summons for Bail” or “Motion on Notice”.

·                    End with dated this day of………………… & addresses for service

·                    Attach affidavit deposed to by either applicant or someone close to him like brother/sisters/spouse

·                    Affidavit must have name, age, sex, religion, occupation, address and nationality of deponent.

·                    If not facts peculiarly within the knowledge of the deponent are deposed to, state time, date, place the fact was acquired.

·                    Attached and mark exhibits e.g. doctor’s report in the paragraph where it is pleaded in the affidavit.

NB: As applicable in the North, where an application for bail has been made at the Magistrate Court and same is refused. Same application can be made to the High Court in the Northern State even if the accused is not arraigned before the High Court. In such a case where an accused is before a Magistrate Court and bail application has been refused by the Magistrate, the application should be made by Motion on Notice brought pursuant to section 342(1) of the Criminal Procedure Act praying for an order of the High Court directing the Magistrate Court to admit the accused person to bail pending the determination of the case or (in the case of conviction) pending the determination of the appeal.


Again, by Section 123 of the Criminal Procedure Act – a Judge of the High Court may, if he thinks fit, admit any person charged before a court in the state subject to the jurisdiction of the High Court to bail although the court before whom the charge is made has not thought fit to do so – and also by section 125 of the Criminal Procedure Act, a Judge of the High Court may in any case direct that any person in custody in the state be admitted to bail or that bail required by a Magistrate’s court or police officer be reduced. Similar provisions can be found in sections 119 & 120 of the Lagos State Administration of Criminal Justice (Repeal & Re-enactment) Law 2011. Accordingly, in making such applications, use ‘Motion on Notice’ brought pursuant to the appropriate section(s).

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