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.
