CRIMINAL LITIGATION: BAIL PENDING TRIAL THROUGH CASES AND STATUTES

N.B: Kindly refer to our earlier post on “UNDERSTANDING BAIL IN NIGERIA (by MASA).

LOCUS CLASSICUS ON MAIN FUNCTION OF BAIL(Nigeria) IS STATE V OKAFOR(1964): Where the court held that the main function of bail is to ensure the presence of the accused at trial

FOUNDATION RULE: When Police grants bail, it last for as long as the matter remains with the police. As soon as the matter is charged to court and the suspect appears in court, the bail by the police lapses and a fresh application has to be made to the court.

However, don’t forget that if the suspect while still in the POLICE CUSTODY is refused bail, he can do the following;

1.      He may apply to the High Court  of the state where his being detained, under the Fundamental Rights (Enforcement Procedure) Rules 2009  to enforce his right of liberty. Section 46 (1) CFRN 1999 as amended.

2.      He may apply to the High Court of the State where is being detained for his release under the Habeas Corpus Procedure, Order 41 Uniform Civil Procedure Rules And High Court (Civil Procedure) Rules of the various states

3.      In Lagos State, he may apply to a Magistrate Court having jurisdiction over the offence for which he his detained, for an order of the court directing the officer to bring him  before the court. See Section 18 ACJL

SO NOW THE ACCUSED PERSON HAS BEING BROUGHT BEFORE THE COURT

The questions we need to ask ourselves to have a grasp of this topic are;

1.      Are all offences bailable?

2.      What category of offence can the Magistrate Court grant bail?

3.      Who can grant bail for a capital offence?

4.      What are the conditions court would consider to grant bail pending trial?

5.      What is the mode of granting bail?

6.      Can a bail application be made orally?

7.      Terms of a bail

8.      How can I draft a bail application in the North and South

9.      What should my affidavit contain?

10.  What documents should accompany my bail application when am refused bail at the court of first instance?

Actually, we have given answers to most of these questions in our earlier post titled ‘’Understanding Bail In Nigeria’’

So we will just be giving you some vital points mentioned in class and decided cases on bail pending trial.

RULE 1: All offenses are bailable in Nigeria. Bail is an offshoot of the constitutional rights to liberty, freedom of movement and fair trial. The importance of bail was stated in the case of OBEKPA V STATE;

                        ‘’Bail allows those who might be wrongly accused to escape punishment which any period of imprisonment would inflict while awaiting trial; the stay out of prison guarantee easy accessibility to counsel and witnesses and ensures unhampered opportunity for preparation of the defence. Of much further advantage in this regard is this fact that unless the right to bail or to freedom before conviction is preserved, protected and allowed, the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence would lose its meaning and force’’

                                    MAGISTRATE COURT VIS A VIZ BAIL AND REMAND

But we should be guided that Magistrate court can grant bail in a criminal matter generally with the exception of CAPITAL OFFENCES.

CASE: POLICE V JIME & 3 ORS: Where the court held that; A Chief Magistrate by the provision of Section 12 (1) CPC read together with Appendix A, has no power to try the case of Culpable Homicide Punishable with Death. His incompetent to consider any application for bail, His duty starts and stops in taking cognizance of the offence and remanding the accused in custody pending trial in the appropriate High Court.

POSER: Does A Magistrate has Power to remand Pending suspect pending formal arraignment at the high court?

            Yes. In LUFADEJU V JOHNSON (2007) LPELR-1795 (SC)

The court defined REMAND to mean ‘’to send back to prison from a court of law to be tried later after further inquiries have been made, often ‘’remanded in custody’’ it also means to recommit on trial accused to custody after a preliminary examination.

            The court went further to hold on the power of Magistrate to Remand; A magistrate to have jurisdiction to remand, the person to be remanded must have been arrested for an indictable offence such which is outside the jurisdiction of the Magistrate to try. In such a situation the Magistrate is empowered, upon the suspect being brought before him, to remand the suspect in custody pending the arraignment of such person before a competent court with the requisite jurisdiction to try the said indictable offence.

However, it should be noted that both ACJA and ACJL have made provision empowering the Magistrate to remand a suspect in respect of an offence it is not competent to try. See SECTION 293 ACJA and SECTION 264 ACJL.

N.B ACJA went further to provide for the procedure for application;

           I.            An exparte application made in the prescribe form

         II.            And duly verified on oath giving reasons for the remand request. See Section 293 (2) ACJA

In ACJL see Section 264(3).

However, the Magistrate court must take into consideration some factors “probable cause’’ to be established before he can exercise this power;

a)      Nature and seriousness of the offence

b)      Reasonable grounds to suspect the involvement of the suspect in the commission of the alleged offence

c)      Reasonable grounds for believing that the suspect may escape if not remanded and

d)      Any other circumstances of the case that justifies the request for the remand. See SECTION 294(2) ACJA, SECTION 264 (2) ACJL.

Consequently, both statutes provides for the time frame a person can be remanded. In ACJA; it is 14 days in the first instance, renewable for another 14 days upon good cause shown. But after this second remand the defendant shall be released unless good cause is shown why he should be remanded for further 14 days. After the second extension, the court will issue hearing notice to the IGP, CP and AGF to inquire as to the position of the case and for the IGP to show cause why the suspect should not be released unconditionally. See SECTION 296 ACJA.

IN ACJL, SECTION 264(6) provides that; it shall not exceed 30 days in the first instance and at the expiration of which the Magistrate shall order the release of the person remanded unless good cause is shown why there should be a further remand order for a period not exceeding one Month.

N.B: THE REASON WE GIVING THIS IS BECAUSE THE LECTURER AT THE END OF THE CLASS MENTIONED IT……

The MAGISTRATE can grant bail for;

a)      Simple offences carrying less than 3 years imprisonment. See Section 118(3) CPA, Section 158 ACJA, Section 115 (3) ACJL

b)      For felonies other than Capital Offence. See Section 118(2) CPA, Section 115 (2) ACJL

HIGH COURT AND BAIL APPLICATION

First thing to note is that the High court is court of unlimited Criminal Jurisdiction by virtue of SECTION 251 CFRN giving it power to grant bail in all cases including Capital offenses. See Section 115 (1) ACJL, Section 118(1) CPA, Section 161(1) ACJA

                                  

                                     MODE OF APPLICATION

An oral application can be brought to the court to grant bail. Under Section 18 (3) ACJL, it expressely provide that ‘’an application for bail does not need to be in writing’’, Section 32 (3) ACJA  provides that it may be made orally or in writing.Relying strongly on ABIOLA V FRN, the supreme court held that an oral application for bail can be made at any court.

However, the procedure counsel follows in bringing the bail application in the High Court in the South is by SUMMON supported by an Affidavit and Writen Address and by way of MOTION in the North supported by Affidavit and wriiten address.

Now note that when the bail application being taken to the High Court is after the bail application has been refused at the Magistrate Court then your application must be accompanied by;

a)      CTC of the Charge against the accused

b)      CTC of the Magistrate ruling refusing the bail

c)      Written address

N.B: FOR THE PURPOSE OF BAR PART 2; if we are given two accused person, you will draft two applications and two affidavits for the accused persons.

SAMPLE DRAFRT FOR SUMMON

Heading of the court

Refrence No: charge No(South) or Case No(North) and Motion No(North) or Summon  No(south)

Parties: Defendants/Applicant (south) or Accused/ Applicant (North)

Summon heading.

Statues for the application

You start with LET ALL PARTIES

Date

Signature and For Service on

N.B Try and Draft it now.

FOR MOTION

The same format what change is the beginning of the draft …..TAKE NOTICE.

JUDCIAL AUTHORITIES ON FACTORS TO CONSIDER IN GRANT OF BAIL

1.      ANAEKWE V COP: Inordinate delay in the prosecution of the applicant resulting in exceptionally long period in detention without trial has been held to qualify as special circumstances to grant bail in a capital offence.

2.      BAMAYI V STATE AND GANI ADAMS V A.G FEDERATION listed the folwing conditions;

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.

3.       ANI V STATE AND ABACHA V STATE AND OFOLUE V FRN : All mentioned ILL-HEALTH as a condition for grant of bail especially for capital offences. However, for this to be accepted by the court, the applicant must show;

a)      That the ill-health is of such a nature as would affect other inmates of the detention place where the applicant is detained or being held

b)      That there is a positive, cogent and convincing medical report issued by an expert in that field of medicine which the accused suffering the ill-health is referable

c)      That the prison or other detention authorities have no access to such medical facilities as are required in treating the accused person ailment.

4.      IN DOKUBO-ASARI V FRN: The availability of the accused at the trial.

Statutorily, see SECTION 341(2) CPC, Section 161-163 ACJA.

N.B: In DOGO V COP: The court held that at all times that bail whether applied for with the police or with the court must not be reused as a PUNISHMENT.

                                                      TERMS OF BAIL

N.B Terms of bail is different from factors to consider granting bail.

1.      Self- recognizance

2.      Execution of Bond for a fixed sum

3.      Bond with surety for a specified amount

4.      Deposit of money in lieu of Bond

POSER: CAN A WOMAN BE A SURETY?

YES, by virtue of SECTION 118(3) ACJL and 167(3) ACJA. Both provides that;

            ‘’No person shall be denied or prevented or restricted from entering into any recognizance or standing surety or providing any security on the ground that the person is a woman’’

                                    REVOCATION OF BAIL

1.      If an accused on bail by Magistrate is indicted for an offence on information at the High Courts. See SECTION 132 CPA, 127 ACJL

2.      Failure of Accused to Appear in court without good reason. See SECTION 184 ACJA, 139 ACJL

3.      Where a surety applies to be discharged.  Section 129 ACJL, 134 CPA, 351 CPA, 177(1) ACJA

REGISTRATION OF BONDPERSON

The Administration of Criminal Justice Law of Lagos State (ACJL) empowers the Chief Judge of the state to, by legislation, register and license individuals or corporate bodies or persons to act as Bondsperson within the jurisdiction of the court where they are registered- S. 138 ACJL

·         For any individual to be eligible for registration under the Bondperson Regulation 2011, he must be a person who has not be convicted of any offence. Reg. 3(1)(a) Bondperson Regulations 2011.

·         For a corporate body to be eligible under the Bondsperson Regulation, the Directors shall be persons who have not been convicted of any offence involving dishonesty. Reg. 3(1)(b) Bondsperson Regulations 2011.

PROCEDURE

The procedure is an application in writing containing the information contained in the forms contained in schedule 1 of the regulation supported by

a.       Certificate of registration (where applicable)

b.      3 years tax clearance certificate of the individual applicant or of the Directors in the case of a corporate body

c.       Criminal history record obtained from the Nigerian Police

d.      Detailed financial statement under oath

e.       Any other document required by the chief judge. Reg. 2Bondperson Regulations 2011.

On the other hand, Administration Criminal Justice Act by its section 187(1) also empowers the Chief Judge of the Federal Court or of the High Court of the Federal Capital Territory; Abuja may make regulation for the registration and licensing of corporate bodies or persons to act as bond persons within the jurisdiction of the court in which they are registered.

Proceeding further, section 187(2) exempts’ person engaged in the business of bail bond services without being duly registered and licensed in accordance with the regulation.

Sub section 3 now prescribes punishment for contravention of Sub section 3 or where licence is given for the contravention of the terms of the licence will be liable to a fine of hundred thousand Naira or imprisonment for term not exceeding 12months or to both.

The bond person shall not be registered as a bond person unless the person is of unquestionable character and integrity and deposits with the Chief Judge sufficient bank guarantee in such amount as may be determined by the chief Judge. A registered bondperson shall maintain with the bank or insurance company designated in his licence such fully paid deposit to the limit of the amount of bond or recognizance to which his licence permits him to undertake.