bail

It is a process by which an accused person is released temporarily from state custody to sureties (or on recognisance) on conditions given to ensure his attendance in the court whenever he is required until the determination of the case against him. See Onyebuchi v. FRN (2009). The inclusion of Bail in a criminal proceeding is to protect the constitutional rights to liberty, freedom of movement and a fair trial. The Proviso to S.35(1) of CFRN 1999 states that a person who is charged with an offence shall not be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.

Yes, the police are empowered to grant bail to an arrested persons where it is impossible or impracticable to bring them before a court within a reasonable time as required by the constitution. The police may also grant bail for an offence other than an offence punishable with death. See sections 168 ACJL Kano; 17 ACJL Lagos; 30 & 31 ACJA and 27 Police Act

Yes there is; the police lacks the power to grant Bail where it is an offence punishable with death. S.30(1) ACJA reads “Where a suspect has been taken into police custody without a warrant for an offence other than an offence punishable with death….”

Although there is no statutory provision as to the procedure for applying for bail in the Police Station, it is usually in writing and signed by the suspect or his lawyer or surety. It may be with or without bond.

Police bail lasts for as long the matter remains with the police. As soon as the suspect is arraigned before the court, the Police bail lapses and another application for bail has to be made by the defendant to the court, whether orally or in writing as the court may direct.

Sections 115 of the ACJL Lagos and sections 158 of the ACJA. Section 118(1) of the Criminal Procedure Act states that; “A person charged with any offence punishable with death shall not be admitted to bail, except by a judge of the High Court.” subsection (2)(3) states where the accused is charged with a felony not punishable with death it may grant where it deems it fit and where the offence charged is neither of the former the court will grant bail except it sees good reason to the contrary.

The court will consider the following and weigh them accordingly;

1.Likelihood of the defendant jumping bail,

2.Likelihood of the defendant committing an offence while on bail, the criminal record of the defendant will also be considered.

3.The nature of the offence and the severity of the punishment,

4.The possibility of the defendant interfering with further investigation and the prosecution of the case,

5.Whether the defendant attempted to conceal or destroy evidence

6.Ill health of the defendant,

7.Detention for the protection of the defendant,

See sections 162 ACJA, section 341(2) Criminal Procedure Code. See Dokubo-Asari v. FRN (2007), Abacha v. State (2002), Bamaiyi v. State (2001)

The defendant’s affidavit in support of the bail application on health grounds must establish the following facts for the court to consider;

a) That the ill-health is likely to affect other inmates where the applicant is detained. If it is an infectious disease.

b) That there is a positive and cogent medical report issued by an expert pointing irresistibly to the existence of the illness (preferably a Government hospital)

c)That the Prison lack adequate medical facilities to treat the applicant' ailment

See Ani v. The State (2002), Fawehinmi v. The State (1990), S.161(2)(a) ACJA

A Magistrate court has the power to grant bail, however it depends on the nature of the offence. Where the offence is punishable with death(capital offence) the Magistrate court will be unable to grant bail, see S.118(1) ACJA, for other offenses which do not carry the sentence of death a magistrate court is empowered to grant bail in such circumstance. See S.118(2)(3) ACJA, the “court” in reference includes a magistrate court.

Being a court of unlimited criminal jurisdiction, the High Court has power to grant bail in all criminal cases that come before it whether in the exercise of its original or appellate jurisdiction. Unlike the magistrate court it can also grant bail in capital offences where the existence of exceptional circumstances is proved. See S.158,162 ACJA and S.115 ACJL Lagos

The CPA, CPC, ACJL, and ACJA do not provide specific procedures for bail applications at either the Magistrate or High Court. However, at the Magistrate Court, a bail application can be made orally unless the magistrate directs otherwise.

No it would not be, the High Court being a court of record, bail application is usually in writing. In the south, the procedure is by summons but in Lagos, the procedure adopted is also by summons even though section 262 ACJL Lagos gives discretion to the court to adopt whatever procedure that will do substantial justice in the course or matter. In the North the procedure adopted is application by way of Motion on notice. Note that, in the North, section 35 High Court Laws of Northern Nigeria does not permit the courts to adopt English rules and procedure.

Where a magistrate to whom application for bail has been made refused or neglected to grant bail, application could be made to a Judge of High Court who shall have power to grant such bail. See section 119 ACJL Lagos; Dogo v. The COP (Supra). In Lagos the procedure usually adopted by the court is application through summons supported by affidavit exhibiting the necessary documents and a written address. In Kano and other Northern States is to make such bail application by motion on notice, supported by affidavit. The affidavit must equally evidence the certified true copies of the charge sheet and certified true copies of the Ruling of the lower court refusing the bail application.

In such a circumstance the Magistrate or Judge may issue a warrant for his arrest and to be brought before him. See sections 355 ACJL Lagos, 115 ACJA. Note also that the surety may forfeit his bond upon the accused absconding or of failing to show up in court.

Yes he will, a person convicted of an offence is no longer presumed innocent but is in fact a prisoner and will have his right to freedom of movement and liberty curtailed. (see S.35(1)(a) CFRN 1999) Both the trial court and appellate courts have power to admit to bail a person convicted of an of an offence by the trial court pending his appeal. S.28(1) Court of Appeal Act empowers the Court of Appeal to grant bail in such circumstances.

No, it is not as a matter of course. Bail pending appeal is only granted under special circumstances. This is because the accused who has been convicted by the trial court no longer enjoys the presumption of innocence. See Fawehinmi v. The State (1990)

The following situations have been pronounced upon by the court to constitute special circumstances:

a. Where the applicant will be of assistance for the preparation of the real case for appeal

b. Where to refuse the application will put the applicant's health in serious jeopardy. Fawehinmi v. The State (1990)

c. Where a sentence is manifestly contestable, refusal of bail in such circumstances could inflict a greater injury on the applicant who may well have served an illegal sentence. See Fawehinmi v. The State (1990)

d. The court also considers the length of time which must elapse before the appeal can be heard and the length of sentence appealed against. Where the defendant may have served the sentence before his appeal can be heard, bail may be granted. Obi v. State (1992)

e. Where the appellant was granted bail in the course of trial, and he did not jump bail. See Munir v. F.R.N (2009)

f. Where the appellant is a first-time offender. See Buwai v. State (2004)

Application for bail pending appeal is done by motion supported by affidavit and not summons. In a motion he is coming by way of prayer stating why he should be released on bail as opposed to a summons which is calling on the state to show cause why bail should be denied. Aroyeun v. C.O.P (1968)

Terms of Bail is also known as security for bail, it is the condition(s) upon which bail is granted. which must be fulfilled before the offender/defendant will be released from custody. The terms of bail are usually spelt out by the Judge when granting bail depending on the circumstances of the case and the status of the individual applying for bail. See s. 165 (1)ACJA; s.116 (1) ACJL Lagos, 175 ACJL Kano.

Bail may be granted on the following terms and/or conditions;

a. Self-Recognisance : Bail may be granted on this term when the person applying for bail appears to be a person of repute and the court reasonably believes that such person will appear to face his trial or jump bail.

b. Defendant executing a bond : The court may make an order for the execution of bond for a fixed sum before the applicant for the bail will be released from custody. Where the applicant fails to appear as at when due, the sum in the bond may be forfeited, the bail revoked and bench warrant issued for his arrest. See S.184 ACJA.

c. Defendant producing a surety/sureties who will enter a bond in a specified sum : Such surety/sureties are to execute a bond in a specified sum in favour of the State which is an irrevocable undertaking to forfeit the sum stated in the event that the applicant jumps bail, unless he shows good reason why he should not be made to forfeit the sum.

d. Deposit in lieu of bond : The court may suo motu direct an applicant for bail to deposit money in lieu of entering into a bond. See s.116 (2) ACJL Lagos; S. 165 (2) ACJA . The applicant could also make such a request and the court will consider it especially where the applicant may find it difficult to get a surety.

For a person to stand as surety for an accused he/she must be a person of known address, a person of good character and must be acceptable to the court. See S.118(2) ACJL Lagos.

No, his lordship’s position is misplaced and unconstitutional. There is no law in Nigeria prohibiting a woman from standing as a surety either at the police station or in the court. The ACJL Lagos and ACJA expressly prohibits such attempt to stop a woman from standing as a surety. See section 118 (3) ACJL Lagos. See also section 167 (3) ACJA 2015.

These are registered individuals or corporate bodies that act as bondsperson within the jurisdiction of the court where they are registered, in order to ease the burdens of those applying for bail subject to their meeting the conditions and criteria set by those bondspersons. See section 138 (1) ACJL Lagos; S. 187 (1) ACJA. The bondsperson will automatically be employed to meet the conditions set by the court for the defendant. See section 187 (5) ACJA; S. 138 (5) ACJL Lagos

An accused may have his bail revoked in the following circumstances;

a. Bail granted by the police is automatically revoked upon arraignment in court or otherwise revoked by the police if the conditions has been breached.

b. Where bail is granted by the court pending trial or by an appellate court pending appeal, it is revoked upon the determination of the accused’s guilt, or the bail is revoked by the court for breach of the conditions.

c. Where the surety applies to be discharged and surrenders the accused the court will oblige him and discharge him. The defendant will be detained until he gets another surety. Caleb Ojo & Anor. V. F.R.N (2006) S. 177 (1) ACJA; S.134; S.129 ACJL Lagos.

d. Where the defendant who is on police bail commits another offence for which the police cannot grant bail. The Magistrate shall issue a warrant for his arrest. S.127 (1) ACJL Lagos.

e. Where the defendant fails to keep the terms and conditions of the bail, a bench warrant may be issued for his arrest and the bail bond forfeited. See S.184 ACJA