In this piece, Wahab Shittu (SAN) writes on the conditions for granting application for bail
Abstract: Notably, If a person is arrested and charged with an offence, he is presumed innocent until proven guilty. By provision of section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) it provides thus: “Every person who is charged with criminal offence shall be presumed to be innocent until he is proven guilty.” Because he is presumed innocent, he can be released from custody until his court date if he makes a written commitment to appear in court, this is called bail. He may have to lodge money as part of his bail. The court can refuse bail, if it believes that he is likely to commit an offence while out on bail.
The court may not be satisfied with his promise to appear in court. It may decide that it needs valid, reliable and an independent surety to guarantee his appearance. An independent surety is a person who makes himself responsible for you coming to court. He promises to pay a sum of money to the court if you do not appear as agreed.The court can refuse the application if it is considered necessary in order to prevent the person from committing a serious offence while they are on bail.
Introduction: Bail is security given by the person into whose hands an accused is delivered. The person binds himself for the accused’s due appearance when required and if he fears the accused would escape, he has the legal power to deliver the accused to prison.The most important point for consideration in the grant of bail is best appreciated from the property of the continuous detention of an accused person. Essentially, the object of the detention of an accused person is to secure his appearance and to abide by the sentence of law, thus the principal inquiry is whether a recognizance would satisfy those ends. It is in seeking to answer this inquiry that the courts have evolved parameters for the exercise of discretion in that behalf.
One feature in the administration of justice system is the remand of an accused person who has been brought before a Magistrate. It is appropriate to appreciate that the competence of a Court to grant bail resides not in its competence to try the case but on the punishment prescribed by law.
AFAB AHMAD V. STATE OF UTTER PRADESH [1] ipso facto it is material to the judicial authority in that behalf. Accordingly, where a case is taken before a court that has no jurisdiction to mete-out the sentence allowed for the alleged offence the Magistrate would have no power to grant bail “Bail is deliver to persons who in the manner prescribed by law become security for his appearance in court: MEANING V. STATE 190 OKL.[2] imposition of heavy terms or excessive condition amounts to refusing bail, applicant can apply to higher court to vary conditions or terms wide.Personal liberty of a person can by S 35 of the 1999 Constitution be deprived upon reasonable suspicion of his committing an offence. Such deprivation must be provided by law.
In ISHAYA BAMAYI V. THE STATE [3] it was held that Criteria for granting bail are not exhaustive; they include evidence available against the accused, availability of accused to stand trial nature and gravity of the offence likelihood of committing another offence, likelihood of interference with course of justice, criminal antecedents, likelihood of further charge, probability of guilty, detention for the protection of the accused necessity of medical care. It is the essence that proofs of evidence filed by the prosecution by examined when considering bail. It is desirable where bail is refused to accelerate trial.
The guiding principles for granting bail recognized from the famous case of DANTATA V. POLICE [4] and the recognized conditions stipulated in S. 341 (2) CPC are not considered a matter within the entire initiative of the judge. Thus, where applicants had been on police bail and attended post arraignment proceedings at the Magistrates’ Court without failure for over two years, it was considered improper for the Court to import reasons of security to the refuse of application for bail of the accused.The propriety of Bail in Capital Offence:1990 Cr. L.J 1036 :AIR 1979 SC 136065, 120 P20, 980-981(2001) 4 S.C [Pt.1] 18 @ 38-7(1958) NRNLR 5 to EYU V. STATE (1988) 2 NWLR [Pt.75] 602
A person charged with a criminal offence punishable with death can only be admitted to bail by a High Court Judge.
The S.118 (1) CPL & CPA provide that a person charged with any offence punishable with death must not be admitted to bail except by High Court Judge. S 341(1) CPC is mandatory and disallows bail. The considerations for granting bail in S.340 and 341 CPC were stipulated as being to ensure attendance in Court and prevent interference with investigations in minor offences with respect to felony the additional consideration is to ensure the prevention of further offences S. 341(3) stipulates that a person accused of an offence punishable with death shall not be admitted to bail, by providing that notwithstanding preceding provision of the section. If it appears to the court that there are not reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for further inquiries , such a person may pending such inquiry be admitted to bail.
Court will decline bail where prosecution is for crime of the highest magnitude with a punishment that is the highest known to law with evidence in support of the charge being strong: MUSA & ORS V.COP [5] Court will only under very peculiar or coercive circumstances interfere to grant bail in indictment for murder, the Court should look at the materials placed before it and not just perfunctorily from the charge sheet refuse bail, the duty of the court is to satisfy itself that the applicant’s continued detention of an innocent person should be scrutinized where prosecution merely parades the word murder without trying it with the offence, a court is bound to grant bail, the only way to intimidate the court not to grant bail is to prefer an information and proofs of evidence to show that there is prima facie evidence of commission of the offence MUSA & ORS VS. COP[6]5. (2005) ALL FWLR (Pt.243) 766 & C.A6. (2005)All FWLR[Pt.243] 766 785 @ C.A
In GAYE (NO 1) V. THE STATE (NO1)[7] an experienced legal practitioner of long standing and a former police officer, stood as surety and thus secured bail in the sum of Three Million for one Alexander Beck, the managing director of a limited liability company, at the material time, being investigated by the special Fraud Squad for Tax evasion who had absconded from the jurisdiction and jumped bail. Consequently, upon forfeiture of recognizance the HC entreated the full bail bond. On the contention that there was no viable legal charge to which Book as the Managing Director of MSG Ltd should answer and that the bail bond and the order for forfeiture based it had been vitiated by its failure to lay a specific charge. The CA observed from authorities that courts will not presume the existence of facts which are central to an offence.
Thus in DILLION V. R. the factum of detention as raising a presumption that the prisoner’s detention was lawful ommia praesumntur rite et solemniter esse acta donec probetur in contrarium was rejected. Accordingly, a Jamaican constable charged with negligently permitting two prisoners to escape succeeded on appeal to the JCPC. It held that it was a necessary prerequisite of the offence of permitting a prisoner to escape succeeded on appeal to the JCPC. It held that it was a necessary prerequisite of the offence of permitting a prisoner to escape from lawful custody, that the prisoner‘s detention in custody should have been lawful. However, Francois in GAYE (NO 1) V. THE STATE observed from evidence available when the bond was esteemed that there was a triable crime and detention therefore proper Notably, it was held that exacting a recognizance is also a matter of judicial discretion, within the parameters of the law. Referring to BETTS V. ATTORNEYS GENERAL[9] that a Court could exercise discretion to estreat the whole bond how discretion should be exercised is of a general nature and guidelines in 7. [1997-2001] GR 240 @246, 254-58. [1982] AllER 1017 JCPC9. [1997-2001] GR. 262,
R. V. SOUTHAMPTON [10] Justices Exparte Green, were followed in terms of the extent of the surety’s fault whether there had been connivance, whether the surety had aided and abetted the accused ‘s disappearance and whether there had been such conduct that would require the forfeiture of a whole sum, if the surety was wanting in due diligence to secure the accused’s appearance, whether it might be proper to forfeit the whole or a substantial part of the recognizance depending on the degree of fault, in cases where the surety was guilty of no want of diligence and used every effort to secure the appearance of the accused whether it might be proper to remit entirely (but not necessarily) the whole sum but such entire remmital would only be appropriate in wholly extreme and exceptional cases, a recognizance being a civil debt should be treated no differently as a guarantee given on a civil contract and courts. The liability on the bond was reduced by half as the surety was stated not to have known the slippery character of the accused and the police was not exactly short of blame contributory.
Revocation of bail: In the event that a bail granted to an accused person is withdrawn or cancelled, the bail is said to have been revoked.Bail may be revoked if an accused person jumps bail or violates one or more conditions of the bail term.An accused is said to jump bail where he/she fails to attend court on any date fixed in the bail agreement. Once the bail is revoked, the accused will be re-arrested.
Unlawful detention in Nigeria: An unlawful detention occurs when a person’s right to personal liberty is restricted without following the legal process. This includes:Detentions that are unreasonable, inappropriate or lack legal justification. This refers to grounds or reasons for detention we looked at inDetentions that are not in accordance with national law.10. (1976] QB 11 CADetentions in which due processes of law is not followed and your rights described below are not respected.
2.5 Rights of an Accused person in detention: When in detention, the police or agency that is holding you must respect the following rights which are enshrined in the Nigerian Constitution:
2.6 Right to Life: no one shall be deprived intentionally of their life, except in execution of a court sentence in respect of a criminal offence of which they have been found guilty in Nigeria
2.7 Right to dignity of person: On no account should pre-trial detainees be tortured or be subject to inhumane or degrading treatment. Also, they cannot be subjected to forced labour.
2.8 The right to be presumed innocent until proven guilty: Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
2.9 You do not have to write a statement, or say anything while in detention: Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.
3.0 You have a right to consult with your lawyer privately: this includes the right to defend himself or be represented by counsel during trial.
3.1 Law enforcement must inform you of the facts and grounds for your detention: this should be in writing within twenty-four hours; and in a language that you understand.
3.2 You must be taken before a court within 24 hours of your arrest, and in circumstances this proves to be reasonably impossible – within 48 hours: Any period exceeding one or two days may constitute unlawful detention. However, the court has the discretion to determine the reasonableness of the length of detention based on facts/circumstances of each case.
3.3 The police must charge you with an offence within the period of 24hrs or 48hrs: If they fail to charge you, you must be released on bail except for cases where you are suspected to have committed capital offences such as murder or armed robbery.
3.4 The right to adequate time and facilities to prepare for a defence: In cases where bail is denied due to the nature of offence, the pre-trial detainee must be allowed adequate time and facilities to prepare for his defence. This includes having pre-trial interviews with a lawyer.
3.5 Time limits for detention: If you are detained without bail, you must be tried within a period of two months from the date of your arrest. If you are detained with bail, you must be tried within a period of three months from the date of your arrest. If the above deadlines are not meet and there are no further proceedings brought against you, you must be released either unconditionally or upon such conditions as are reasonably necessary to ensure that you appear for trial at a later date.
3.6 Except in certain exceptions, you can apply for bail at the police, or apply for court bail once you have been brought before a court. Bail is free.If these rights are not respected, your detention will be unlawful
3.7 CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR[11] – A man was detained for a period of three days without reasonable cause for the delay. The arrest and detention was deemed unlawful by the appeal court.
3.8 BEEIOR ISHENGE v. COMMISSIONER OF POLICE, PLATEAU STATE & ANOR [12] – The Appeal Court held that the police violated the right to personal liberty of the appellant as guaranteed by Section 35 of the Nigerian Constitution when it failed to charge the appellant within the legal time frame.
3.9 The applicant may be held in detention for more than 2 days as an exception. The only way this can happen is if the authority that accused the applicant of a crime asks a court for an extension and a court orders it, according to Section 293 of the Administration of Criminal Justice Act of 2015. A person may be remanded in custody if:
4.0 The nature and seriousness of the alleged offence necessitates that you be kept in custody.
4.1 CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR [13] – A person was detained for a period of three days without reasonable cause for the delay. The arrest and detention was adjudged unlawful by the Court of Appeal .
4.2 You can challenge an unlawful detention by using the Fundamental Rights Enforcement Procedure. To challenge unlawful detention successfully, you need the evidence to prove that you have been detained unconstitutionally or unlawfully.11 (2018) LPELR-47256(CA)12 (2019) LPELR-48390(CA)13(2018) LPELR-47256(CA)
.3 It is not the arrest and detention of a person on a reasonable suspicion of his having committed an offence that constitutes the violation of his fundamental right to personal liberty. It is the unreasonableness of the length of his period of detention that you must prove. The burden to prove this is on you.
4.4 It is important for you to state in clear terms the date and time of your arrest and the length of the period of your detention.Your evidence must reveal all necessary facts, particulars and ingredients revealing you have been detained unlawfully. The prosecution will have to prove that your detention was lawful.
4.5 Available Remedies for a person when detained unlawfully: You are entitled to remedies if the court holds that you were detained unlawfully. Section 35(6) of the 1999 Constitution states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.
4.6 The role of sureties in bail administration: A surety plays a huge role in bail agreement as the provision of sureties may be one of the conditions to fulfill in the process of securing the release of an accused.
4.7 Section 167 of the Administration of Criminal Justice Act states that a person given bail may be required to produce such surety or sureties as, in the opinion of the court, will be sufficient to ensure his appearance in court when required.
4.8 Obligation of a surety: A surety is a person who undertakes to take responsibility for a person accused of a crime not to violate the terms of their bail. In fulfilling the conditions for a bail, a surety may be required to provide security in form of money/properties known as bail bond in order to secure the temporary release of the suspect, and to guarantee that the accused will honour the terms of bail agreement by appearing in court when required, and fulfilling any other condition stipulated.
4.9 Rights of a surety: A surety or all sureties in a recognizance may apply at any time to discharge themselves from a bail agreement.
4.10 Thus, it is possible to stop acting as a surety for an accused person if you so desire. The implication of this is that the defendant will be re-arrested to find other sufficient sureties or meet some other conditions.
4.11 At the end of a trial a surety has a right to retrieve any money or security they may have deposited on behalf of an accused person as long as the accused person abides.
4.12 Section 165(3) of the ACJA states that the money or security deposited shall be returned to the defendant or his surety or sureties, as the case may be, at the conclusion of the trial or on an application by the surety to the court to discharge his recognizance.
4.13 The criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly IN DOKUBO-ASARI V. FEDERAL REPUBLIC OF NIGERIA [14] The criteria to be followed in taking a decision in cases of this nature as laid down by this court include : (i) the nature of the charge; (ii) the strength of the evidence which supports the charge; (iii) the gravity of the punishment in the event of conviction; (iv) the previous criminal record of the accused, if any; (v) the probability that the accused may not surrender himself for trial; (vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; and (x) the necessity to procure medical or social report pending final disposal of the case.
4.14 It follows, therefore, that a judicial officer saddled with the responsibility of exercising discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law.
4.15 His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.
4.16 Court is to cure an unintentional blunder in the circumstances of a case. in ADELEKE V. AWOLIYI [15] IT it was held that: “It is part of the duty of a judge to see that everything is done to facilitate the hearing of an action pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action.”
4.17 The Supreme Court in the case of the STATE V. JOSHUA [16] (2013) 12 NWLR Pt. 1368, Pg 357 @ Para A-B Per Fabiyi JSC admonished judges to avoid sentiments in adjudication thus” A judex should avoid apparent sentimental adjudication. 14. (2007) ALL FWLR (PT. 375) 558; AT 572; AND BAMAYI V. THE STATE (2001) FWLR (PT, 46) 956 AT 984.15. (1962) 1 All NLR 260, Per Ademola, CJF (as he then was) said at page 262:16. (2013) 12 NWLR Pt. 1368, Pg 357 @ Para A-B
4.18 He must call a spade by its real name not a shovel especially when a decision relates to a capital offence as herein The judicial power is conferred on the Court , it is intended to be used in deciding issues on genuine cases of controversies.
4.19 Nnamani JSC in IKEMI V. STATE [17] held that “ The power of Court to prevent abuse of court process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information, Court discloses as offence as he is anyway thinks.”See also CONNELLY V. DIRECTORY OF PUBLIC PROSECUTION (1964) AC 1254
4.20 It is trite that the Rules of Court are to be obeyed in all proceedings.Where a bail application is brought before the Court, the Court is enjoined, mandated or commanded to grant bail. This is in view of Section 35(4) of the 1999 Constitution.In G.M.ONWORAH & SONS CO. LTD. V. AFAM AKPUTA [18] it was held that “ Rules of Court are meant to be obeyed they are not made for the fun of it, they must be followed strictly, unless the Court is given discretion of it. They must be followed strictly unless the Court is given discretion under them. These rules bind all parties before the Court No party is allowed to choose when or which to obey and /or disobey”.
4.22 Conclusion: It is appropriate to appreciate that the competence of a Court to grant bail resides not in its competence to try the case but on the punishment prescribed by law. Notably, the object of the detention of an accused person is to secure his appearance and to abide by the sentence of law, thus the principal inquiry is whether a recognizance would satisfy those ends.17. (1986) 3NWLR (Pt. 28) 340 @357 Paras D-F18. (2010) 9 NWLR (Pt. 1200)Pg. 443.
