You
could read up on our previous post on Understanding Bail in Nigeria.
So today we will be running through the drafting of the bail application pending
appeal.
The rule
on Bail Application from time is that;
a)
Police
Bail gets revoked upon arraignment of the accused person
b)
Bail
pending Trial gets revoked after Judgment have been given
c)
Bail
pending Appeal until end of Appeal
Remember,
that on No B, if the Trial court refuses your application for Bail, you can
appeal, on this form of application the accused person is still presumed
innocent, so his fundamental right of liberty under SECTION 35&36(5) CFRN
still stands. Now you remember the documents he will attach to his application (Read
up on our Post on; Bail Pending Trial)
So we
working with the presumption that the accused person was actually granted bail
in the trial court, so trial proceeds and the accused person found guilty and
convicted.
TAKE HEED: What we considering is Application for Bail pending Appeal after Conviction, this is different from Application for Bail pending Trial or Pending Appeal but before Conviction. NWOKE V FRN
TAKE NOTE: That his status in this instance
as changed upon conviction, it is presumed that the Prosecution has been relieved
of his duty of Burden to Proof and the accused person cannot hide under the
auspices of the Right to Liberty under SECTION 35 CFRN.
TAKE NOTE;
The
application will depend on the stage at which the Appeal is during the
proceeding. Whether the Appeal is at the stage of being BROUGHT or ENTERED
A little
recap on what I mean by Appeal is BROUGHT OR ENTERED
IN THE
CASE OF BARIGHA V PDP,
Appeal
is deemed to have been bought as soon as the Notice of Appeal has been
filed at the registry of the lower court.
Appeal
is deemed to have been entered as soon as the Record of Appeal has been
transmitted to the superior court and entered in the Cause List.
What
makes the difference between the two is that; BROUGHT, simply means
that the Lower court is still empowered to entertain application, according to ORDER
6 RULE 4 OF COURT OF APPEAL RULES 2016 provides that some
application have to first be made to the Lower court and upon refusal it can
then be brought to the court of appeal or where there are special circumstances
which makes it impossible or impracticable to apply to the court below. The applications
the rules envisage are;
a)
Application
for Bail Pending Appeal
b)
Leave
to Appeal etc….
N.B: When the application is refused at the Lower Court, an application for a similar purpose may be made to the COA within 15 days after the date of refusal. ORDER 6 RULE 3 COAR 2016
BUT,
on the other
hand of ENTERED, the lower court seize from entertaining any
application, all application must be taken to the Court of Appeal…….
So,
let stroll back to the drafting, I believe you have a grasp of the gist.
The
reason for this comparism is because the mode of making application for Bail
pending Appeal is by way of Motion and not Summon.
The drafting
of the Motion is different while you are at the stage of Appeal been BROUGHT
and been ENTERED
V.I.P: Your Application will not be
made under SECTION 35 CFRN, because at this stage the accused person has
been found guilty of the offence charged. This is the reason for the accused to
have a ‘’Special Circumstances’’ grounds upon which the bail
application will be granted.
THE GROUNDS ARE
1.
Ill-health
2.
The
trial below and conviction are manifestly contestable
3.
The
accused is a first time offender
4.
Where
the accused person is likely to spend the full term of sentence before the
appeal ends
5.
The
accused was on bail during trial and he didn’t jump bail
6.
The
nature of the appeal is so complex that the accused need constant time with his
counsel
N.B: BAMAIYI v STATE
and JAMMEL V STATE
TERMS OF BAIL
1.
Self-recognizance
2.
Execution
of bond by the accused
3.
Production
of surety or sureties who will execute a bond in a specified sum
4.
Deposit
in lieu of bond. ETC…
THE DRAFTING
REMEMBER, MOTION + AFFIDAVIT+
WRITTEN ADDRESS
So
the accused person is brought to the Court of Appeal, at this stage the Appeal
has been ENTERED.
REMEMBER, his application is not under the
constitutional provisions of SECTION 35 &36(5) CFRN
REMEMBER, that if the accused persons are
more than 1, you will draft different applications for them
REMEMBER, the Motion to be drafted must
comply with the Preacipe FORM 4 in the Court of Appeal Rules
REMEMBER, the condition precedent before
applying for bail pending appeal is that there must be a pending substantive
appeal
IN THE COURT OF APPEAL OF NIGERIA
HOLDEN AT ABUJA
CHARGE NO:LD/24/09
APPEAL NO:...................
BETWEEN:
MUSA
UGOCHUKWU....................................................................APPELLANT
AND
THE FEDERAL
REPUBLIC OF NIGERIA.......................................................................................RESPONDENT
NOTICE ON MOTION
BROUGHT PURSUANT TO ORDER 17 RULE 13 OF THE COURT OF
APPEAL RULES 2016
AND UNDER
THE INHERENT JURISDICTION OF THIS COURT.
TAKE NOTICE that
this honourable court will be moved on the 27th day of March 2017 at the hour of 9 0’Clock in the forenoon or so soon
thereafter as counsel can be heard on behalf of the Appellant/Applicant for the following reliefs;
1. AN
ORDER GRANTING THE APPLICANTS/APPELLANTS BAIL PENDING THE HEARING AND
DETERMINATION OF THE APPEAL.
2. AND
SUCH FURTHER ORDER OR ORDERS as
this honourable court may deem fit to make in the circumstances.
TAKE
FURTHER NOTICE that the GROUNDS of this Application
are;
1. The
trial below and conviction are Manifestly contestable
2. The
well-being of the Appellant.
3. The
appellant is a first time offender.
Dated at Abuja……….this
……………day of ……………..2017
____________________
APPELLANT’S
SOLICITOR
MUSA DERIN
GROUP 4 CHAMBERS
NO 1 Law School drive. Victoria Island
FOR
SERVICE ON:
RESPONDENT’S SOLICITOR
ATTORNEY
GENERAL OF FEDERATION
NLS BWARI, RM F230,Abuja.
IN THE COURT OF APPEAL OF NIGERIA
HOLDEN AT ABUJA
CHARGE NO:LD/24/09
APPEAL NO:...................
BETWEEN:
MUSA UGOCHUKWU....................................................................APPELLANT
AND
THE FEDERAL
REPUBLIC OF NIGERIA.......................................................................................RESPONDENT
AFFIDAVIT IN SUPPORT OF NOTICE ON MOTION.
I, Bisi
Ebiti, female, Christian, Trader, Nigerian citizen of 6, kubwa
road, Bwari, Abuja do hereby make oath and state as follows:
1. That
I am the elder sister of the accused/applicant and by virtue of which I am
conversant with the facts of this case.
2. That
I have the authority and consent of the applicant to depose to this affidavit.
3. That
on the 12th March, 2017,
judgment was given against the applicant by Hon Justice Maza Maza Suuso the
Bwari Judicial division.
4. A
certified copy of the judgment of the lower court is hereby attached and marked
Exhibit A1.
5. That
the applicant has filed his notice of appeal, a copy of which is attached and
marked Exhibit A3.
6. That
there are special circumstances warranting the grant of this bail in favour of
the applicant.
7. That
there is real doubt of the correctness of the conviction on point of law.
8. That the accused/applicant has
never being charged with an offence before in his life
9. That the accused/applicant is a
currently suffering from bronchitis and cardiopathy, a medical certificate is
attached and marked Exhibit A4
10. That
the applicant if granted bail will not jump bail.
11. That
he is prepared to provide reasonable sureties.
12. That
i swear to this affidavit in good faith believing same to be true and correct in accordance with the Oaths
Act.
_____________________
DEPONENT
Sworn to at the High Court Federal Capital Territory
Registry, Abuja.
This 26th day of March 2017
Before Me
-----------------------------------
Commissioner of Oath
Thank you
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