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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