CRIMINAL LITIGATION: UNDERSTANDING BAIL IN NIGERIA (By MASA)

BAIL.

Bail is a temporary release of an accused person from custody pending his trial. But it will not be granted unless there is certainty that the accused person will appear in court for his trial while it lasts.

Every individual is entitled to his personal liberty; this is protected and provided for in the constitution of Nigeria[1]. To this effect, an accused person is innocent until proven guilty and as such entitles him to bail. The constitution also makes provision that an accused person arrested in connection to an offence (not capital offence) should be charged within a reasonable time or released on bail[2]. This highlights the fact not necessarily only the courts can grant bail.

Before we get to the types of bail and who can grant them, the Supreme Court in Suleiman v Commissioner of Police, Plateau State[3] explained bail as;

“The right to bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place……..The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused.”  

NOTE that bail is at the discretion of the court but such discretion must be exercised judicially and judiciously. Before granting bail, the court will consider the nature of the offence, the punishments attached and the facts in support of the charge.

Types of Bail.

1.      Police Bail:

The timeline between the arrest of a suspect (for non-capital offences) and when he/she is arraigned in court is twenty-four hours after arrest or forty-eight hours where there is no court within a forty kilometer radius from the place of arrest or detention[4]. In some matters, such time is not enough for the police to conduct and conclude investigations. Where such arises, the police could grant bail to the accused pending further investigations. To detain a suspect beyond such time is unconstitutional as seen in Danfulani v Economic and Financial Crimes Commission[5] where the appellant was detained beyond the constitutionally approved time. Such act was held unconstitutional and the Court of Appeal said;

“…..the power of the commission to investigate is no license for license for it to contravene the provisions of the constitution with regards to every right guaranteed to every citizen….”  

Police bail is an administrative arrangement made between the officer in charge of the station and the legal representative of the accused to release the accused pending the conclusion of investigation and arraignment.[6]

Such arrangement ends once the suspect is arraigned in court. Here, the suspect is expected to apply to court for bail pending his trial once arraigned.

2.      Bail Pending Trial:

Bail is at the discretion of the court but such discretion must be exercised judiciously and judicially. This exercise of discretion depends on the offence is a capital offence or a non-capital offence. Capital offenders are usually not entitled to bail except in special or exception circumstances and it can only be granted in the High Court[7].

In Chinemelu v Commissioner of Police[8], the court explained what constitute special circumstances; where there is delay or failure to prepare the proof of evidence or to file information in court against the accused person for the alleged murder. Also where an accused as remained in custody without trial for two months, he is entitled to bail.[9]

In the South, only the High Court can grant bail to an accused person in a capital offence trial[10], while in the North, persons accused of offences punishable by death shall not be released on bail[11]. Where there are insufficient facts to prove that the accused committed the offence, he is entitled to bail[12]. But in all other non-capital (bail-able)[13] offences, a magistrate judge could grant bail to an accused person. In Olawoye v Commisioner of Police[14], the appellants; students of the Federal Polytechnic, Offa, Kwara State were denied bail by the Magistrate Court. On further appeal to the High Court, they were also denied due to their association with secrets cults and secrets societies which was a menace in the society. The Court of Appeal reversed the decision as the appellants had been in custody for nine months without trial which was an infringement on the constitutional rights.

Factors to consider in granting Bail Pending Trial.   

The Constitution, the Criminal Procedure Act and the Administration of Criminal Justice Law of Lagos State, 2011 did not specify any guidelines to follow in releasing an accused person on bail.  But Section 162 of the Administration of Criminal Justice Act, 2015 and Section 341 of the Criminal Procedure Code made such guidelines available.

Other Factors to consider in granting Bail Pending Trial.

In Gani Adams v A.G Federation[15], the Court of Appeal listed the criteria to be considered by court in granting or refusing bail applications. They are:

a)      The evidence available against the accused;

b)      Availability of the accused to stand trial;

c)      The nature and gravity of the offence;

d)     The likelihood of the accused committing another offence while on trial;

e)      The likelihood of the accused interfering with the course of justice;

f)       The criminal antecedents of the accused person;

g)      The likelihood of further charge being brought against the accused;

h)      The probability of guilt

i)        Detention for the protection of the accused; and

j)        The necessity to procure medical or social report pending disposal of the case.

Note that this factors are not exhaustive as there are other factors in existence.

Procedure for apply for bail in the High Court after refusal in the Magistrates’ Court.

In the South, a bail application may be filed in the magistrates’ court for the accused if the case originated in such court. This could be done orally or formally where the court directs such application to be brought in such manner. Where refusal occurs in the magistrate court, it could be filed by way of summons in the High Court[16]. No specified procedures exist in the Criminal Procedure Act for filing this type of application thus, the High court under section 363 of the Criminal Procedure Act resort to the use of summons which is the prescribed procedure used in the High Court of Justice in England. Such summons must be supported by an affidavit with a certified copy of the charge sheet and a certified copy of the ruling of the magistrates’ court refusing the application for bail.

Where the charge is that of a felony, the onus will be on the accused to show cause why the magistrate did not exercise due discretion under section 118 (2) of the Criminal Procedure Act in his favour. But where the offence is ordinary and bail-able, the onus will be on the prosecution to show reasons why the accused should be admitted to bail[17].

In the north also, there are procedures to be followed in the Criminal Procedure Code where the magistrate refuses the bail application and it is taken to the high court. But in section 35 of the High Court laws of Northern Nigerian, 1963, it expressly forbids the use of the procedure in the High Court of Justice in England but allows any other procedure to be followed that will do substantial justice in the matter. Thus, it could be through summons or motions although motion is generally accepted procedure in the north.

Application for bail could be made orally or in writing[18]. The fact that an application is made orally is no grounds for bail for not to be granted. See Abiola v Federal Republic of Nigeria[19] where the appellant was arraigned for treason and treasonable felony in which he pleaded not guilty to. Defence counsel relied on the fact that the appellant had been unlawfully detained at the police custody without trial and made an oral application for bail under section 341 of the Criminal Procedure Code. The trail judge rejected the application based on the fact that it was made orally and not in writing. The Court of Appeal reversed the decision and alluded that the trial judge was wrong to reject the application based on its oral form.

3.      Bail Pending Appeal;

Where conviction and sentencing has been given against an accused person in the High Court to which he appealed; the appellant may apply for bail pending appeal. That bail was refused during proceedings in the lower Court does not stop such appellant from applying at the Court of Appeal. This is because the decision of the High Court to refuse bail is final decision from which the appellant may only against the decision as of right[20]. But before such application can be brought to the appellate court, he must have first presented his application before the lower court and such application must have been refused.

There are no provisions in the Criminal Procedure Act or Criminal Procedure Code authorizing appellate courts to grant bail during appeals so such courts depend on the statutes creating the court or the rule in granting such application for bail.

Procedure for bringing application for bail pending appeal.  

Such procedure must be done by motion on notice supported by affidavit stating the special circumstances that will justify the grant of bail to the applicant.

The reason for this is because it is an interlocutory application in the appeal and by the Rules of the court such application should be done on notice.

Principles of granting bail pending appeal.   

In such a situation, the principles for granting bail pending appeal are not the same with principles pending trial. Here, it’s no longer a matter of innocent until proven guilty as the accused has been convicted already. So the applicant must show special or unusual circumstances to justify his application which include;

                                i.            Where the sentence is manifestly contestable as there are substantial grounds of law in the grounds of appeal[21]

                              ii.            Where the applicant is likely to spend the full terms of sentence before the appeal is heard to conclusion due to congestion of cases[22].

                            iii.            Where the applicant’s health will put him in serious jeopardy and there are no sufficient medical facilities at the prison to cater for him[23].

The above conditions are not exhaustive as to what will constitute special circumstances. More often than not, it depends on the peculiar facts of each case.

Conditions for granting bail.

The exercise of the power to grant bail is at the discretion of the court with due regard to the facts of each case but it must be moderate[24]. Usually, the accused is requested to enter into an undertaking to be available in court at any time the court requires. The content of the undertaking may include;

                                i.            Entering into a bond for a certain sum of money which the accused may forfeit where he jumps bail or is absent from court with no just cause or reason.

                              ii.            Furtherance to the first condition, the accused may be required to produce a reliable surety who gives an undertaking to ensure the presence of the accused person in court at all the sittings of court[25]. A surety can be of any gender[26].

                            iii.            The court may order an accused person to make a deposit of money to the court in lieu of executing a bail bond[27] but such option must be at the instance of the accused not the court.

                            iv.            Bail may also be granted in self-recognisance where the accused is a person of high repute in the society who is not likely to escape from his trial[28].

                              v.            A parent, legal guardian or other fit person with or without sureties may enter into a recognisance before the court that the child who is standing trial shall do what is required under the court’s order and the child will appear for his trial

Review of bail conditions.

A High Court judge can review the conditions for bail made by a magistrate or police officer[29]. Where bail conditions are difficult for an accused to meet, he could apply for a review of the conditions to the court. A High Court Judge may also order for the release from custody of the State or the Federal Capital Territory of an accused on bail.

            ON A FINAL NOTE THE COURT HELD IN DOGO V COP

“ IT MUST BE NOTED THAT AT ALL TIMES THAT BAIL WHETHER APPLIED FOR WITH THE POLICE OR WITH THE COURT MUST NOT BE REFUSED AS A PUNISHMENT’’

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[1] See section 35 Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[2] Ibid sections 35 (5) and (7).

[3] [2008] 8 NWLR (Pt. 1089)298 at 322.

[4] See section 35 (4) (5) and (7) Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[5] [2016] 1 NWLR (Pt. 1493) 233 at 247-248.

[6] Section 18 CPA; Section17 (2) ACJL; Section 30(1) ACJA.

[7] Section 161 (1) and (2) ACJA; Section 118 (1) CPA; Section 34 (1) CPC and Section 115(1) ACJL.

[8] [1995] 4 NWLR (Pt. 390) 467.

[9] Sections 35(4) and 36(5) Constitution of the Federal Republic of Nigeria 1999, (as amended).

[10] See sections 118(1) CPA, section 115 ACJL and section 161(1) (2) (a-c) ACJA.

[11] Section 341(1) CPC.

[12] Section 341(3) CPC. Also see Enwere v C.O.P [1993] 6 NWLR (Pt. 299) 333; Suleman v C.O.P, Plateau State (supra).

[13] This are offences whose punishment does not exceed three years. See section 341(2) CPC.

[14] [2006] All FWLR 1483

[15] [2007] All FWLR (Pt. 355) 429 at 445; (Pt. 375) 558 at 572.

[16] See section 123 CPA and section 119 ACJL.

[17] Okeke v Commissioner of Police [1960] NRNLR 1 HC.

[18] See section 32(3) ACJA and section 18(3) ACJL

[19] [1995] 1NWLR (Pt. 370) P 177.

[20] Section 241 (1) (a) Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[21] Buwai v The State [2004] All FWLR (Pt. 227) 540 at 548

[22] R v tunwase [1935] 2 WACA 236

[23] Fawehinmi v The State [1990] 1 NWLR (Pt. 127) 486.

[24] Section 165 (1) ACJA

[25] Section 122 CPA, Section 345 CPC and Section 118(1) ACJL

[26] Section 167 (3) ACJA

[27] See section 347 CPC and section 116 (2) ACJL

[28] Section 119 CPA and Section 122 ACJL

[29] Section 168 (a) ACJA