CRIMINAL LITIGATION WEEK 10 (BAIL)
WEEK 10
BAIL
Bail is the temporary/conditional release of an accused or suspect from custody pending his arraignment in court or pending the determination of his case or pending appeal. Bail is granted to prevent unlawful detention of the accused (who has the right to be presumed innocent) beyond a reasonable time–Section 35 and 36 CFRN[1].
Bail may be granted by the police or judge[2]. E.g. 27 Police Act, 17 CPL & ACJL, 31 ACJA.
– BAIL BY THE POLICE: Section 27 PA empowers the police to grant bail to arrested persons (except in capital offence) pending conclusion of investigation or formal arraignment[3]. No statutory procedure but is usually in writing, signed by suspect or lawyer or surety (with or without bond). Bail should be free (although in practice administrative fees are paid). Eda v COP.
– BAIL BY THE COURT PENDING TRIAL: At the discretion of the court. Bail is usually refused in capital offences except in special circumstances (like ill health, there would be extra ordinary delay exceeding one year or no reasonable ground for believing that the accused committed the offence but it is still desirable that a trial be conducted-Section 161 ACJA.
– BAIL BY THE COURT PENDING APPEAL: because of conviction at the lower court, he is no longer presumed innocent therefore his application (by motion on notice supported with affidavit) must show special circumstances-(Fawehinmi v The State, Bode George v FRN) for example: – That his assistance would be needed for the preparation of the case for appeal; – suffering serious communicable health issues which prison facilities cannot contain; – Sentence is manifestly contestable/appeal has substantial grounds; – first time offender; -length of trial and prediction of its conclusion viz a viz the length of sentence appealed against. Here, two or more accused must apply for bail separately whether or not represented by one counsel or jointly accused unlike in police bail where they could apply together through one counsel.
:: HOW TO APPLY FOR BAIL TO THE HIGH COURT AND HOW TO APPLY TO THE HIGH COURT AFTER REFUSAL BY THE MAGISTRATE:
Apply to HC after refusal by MC (by summons in south, motion on notice in the North, either, in FHC) (supported with affidavit and written address). Affidavit should contain CTC of Charge Sheet and Lower Courts ruling refusing the bail application. It appears in Lagos lower court’s ruling is not so essential.
:: FACTORS THAT GOVERN THE GRANT OF BAIL BY THE COURT: As noted in Dokubo-Asari v FRN, Abacha v State, Felix v The State. 162 ACJA, Gani Adams v AG Federation.
– The paramount factor is whether the accused will attend his trial if granted bail. If it appears that he would abscond, bail may be refused.
– The next important factor is the gravity of the offence and severity of punishment.
– Whether the accused person will interfere with investigation[4].
– Criminal record/antecedents of the accused and whether he would commit another offence while on bail.
– The prevalence of the offence Felix v State.
– Quality of evidence against the accused.
– Whether detention of the accused is for his safety.
– The health of the accused. Ill health (as shown in the affidavit in support of the bail) must be contagious and of such a nature as to put other inmates at risk; must not be treatable by the prison authority and must be certified by a medical practitioner (preferably government hospital) Fawehinmi v State, Abacha v The State
:: TERMS AND CONDITIONS UPON WHICH BAIL MAY BE GRANTED:
Bail is usually granted on certain terms and conditions determined by the circumstances of the case. Provided that the bail conditions must not be extremely difficult (onerous) otherwise the accused shall apply to a higher court for review Dogo v The COP. Bello v AG Oyo that procedure cannot overrule substantive justice. Court cannot refuse bail to punish an accused person.
Terms upon which bail may be granted include;
– Bail on Self-Recognizance usually granted to respectable offenders for minor offences 119 CPA.
– Bail on a Bond for a Fixed Amount is granted without surety after execution of a bond for a fixed sum of money and undertaking that he would appear to face trial. Failing which sum in bond would be forfeited, bail revoked and bench warrant issued for his arrest
– Bail on a Bond with Sureties: is the release of an accused on condition that he produces one or more persons to stand as his sureties[5]. If the accused misses trial the SURETY will pay the amount on the bail bond into the court registry[6].
– Deposit in lieu of Bond: an accused may be granted bail if he deposits a fixed sum of money instead of executing a bond. Under the CPC the accused has to apply for this bail term. Under the CPL he may apply to the court or the court will set it of its volition.
:: REVOCATION OF BAIL: The court may revoke his bail, order forfeiture of bail bond, and issue a bench warrant for his arrest IF; – accused Jumps bail (absconds); – accused commits or is indicted for another offence; accused breaches the terms and conditions of his bail; – court becomes aware that he is about to leave Nigeria; – bail was obtained by fraud or ought not to have been granted in the first place; – If the surety applies to be discharged the judge or magistrate shall revoke bail and accused would be detained until he gets another surety; Law officer of AG can apply to court to cancel (or increase) it.
Police bail is revoked upon arraignment of the suspect in court, bail pending trial is revoked upon determination of the trial, bail pending appeal is revoked upon the determination of the appeal.
BAMAIYI V THE STATE.
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[1] Lagos and Abuja now allow Magistrate to Order the remand of an arrested person pending the advise of DPP or his arraignment (for an offence triable on information) for a maximum of 60 or 42 days in ACJL (264) and ACJA respectively.
[2] Police and Magistrate cannot grant for capital offences.
[3] Once charged to court, the bail lapses (although another application can be written (to DPO or Officer in charge of station) or orally made to the court).
[4] Court can also look at whether the accused attempted to conceal or destroy evidence.
[5] Sureties should preferably be acceptable persons of known abode and good character. A woman too can stand as surety-42 CFRN, 118 ACJL. Persons or corporate bodies may register and act as bond persons within the jurisdiction of the court where they are registered.
[6] Before paying, the surety must be given fair hearing as to why the bond should not be forfeited and can appeal Tea v C.O.P.
