CONTRIBUTOR: BETSEABASI ASUQUO
INTRODUCTION.
It is a general saying that “all offences are bailable”. This notion got its basis from the constitution of the Federal Republic of Nigeria[1], being the grundnorm which has spelt out the rights of every citizen of Nigeria, including that of an accused person, but has failed to clearly spell out instances when the court should grant a bail application and when it shouldn’t. However, irrespective of the fact that the law has not restricted bail to certain offences, the common saying that “all offences are bailable” has sprang controversy after considering various instances and offences in which if an application for bail is granted, may sabotage the case and the occasional miscarriage of justice; therefore such consideration has hence led to the birth of a school of thought which further states “though all offences are bailable, one is more bailable than the other”. Suspects charged with capital offenses (such as murder) may face more stringent conditions for bail due to the severity of the offence.
WHAT IS BAIL?
The Black’s Law Dictionary defines bail as “a security such as cash or bond; especially security required by a court for the release of a prisoner who must appear in court at a further trial” [2] . The whole concept of bail generally is about surety or sureties taken by a person duly authorised for the appearance of a defendant at a certain day and place to answer charges levelled against him and be justified by law. In other words, the concept of bail is to ensure a criminal defendant who is not remanded in prison custody does not fail to appears in court at a given day and time to answer to the charges levelled against him.
TYPES OF BAIL
Basically, there are two institutions authorised to give bail.
- Police bail (also know as Administrative Bail)
- Court bail
Police bail.
The first institution being the police has been authorised under S. 62 and S. 63 of the Police Act 2020[3] to grant bail to an accused arrested for an offence other than a capital offence. Police bail has no specific mode of application and this is satisfied by the provisions of S. 64 (3) of the Police Act 2020 which provides that;[4]
“An application for Bill under this section can be made orally or in writing”
However, the focus of this article would be on Court bail, therefore the procedure of obtaining Court Bail would be discussed extensively.
COURT BAIL.
Generally there are two types of court bail,
- Bail pending trial : This is a bail applied for immediately after the charge is red to the defendant and display has been taken. The bail subsists pending the determination of the case.
- Bail pending appeal: This is a bail applied for after the conviction of a defendant and upon entering an appeal against the decision of the lower court. The bail subsists pending the determination of the appeal
Bail is an inherent power of the court. The court however, constitutionally derived such power from the provisions of S.35 (4) 1999 Constitution of the federal Republic of Nigeria (as amended) which provides thus;[5]
(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
- Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
- Three months from the date of his arrest or detention in the case of a person who has been released on bail,
He shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
Also in an Appeal court case of Ameh Mute and 5 others v the state 1994 8 NWLR pat 360 Pg 88[6], the honourable justice held that, where there is an administrative bail, the court has the discretion to let the bail continue or add necessary additional bail terms. To further corroborate this position the Supreme courts being the apex court also held in the case of Ceekay Traders Ltd. V. General Motors Co. Ltd. (1992) 2 NWLR (Part 222) 132 SC[7] that the court has powers based on it discretion to decide whether or not to grant bail to a defendant, however where the court exercises such discretion the court must state the reason relied upon to arrive at such discretion.
THE IMPORTANCE OF COURT BAIL.
The arguments for bail finds firm footing in the constitutional rights of an accused person to be presumed innocent before found guilty as provided for in S. 36 (5) 1999 Constitution of the federal Republic of Nigeria (as amended)[8] which state thus;
(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty:
This section implies that a person is constitutionally entitled to his liberty. Even when he is brought before a Court of law to answer for the alleged commission of a crime, he would still be entitled to bail and a presumption of his innocence. Therefore, not admitting a defendant to bail can result in a breach of his fundamental human rights or such right losing its meaning and potency, becoming a myth in black and white. Al-hassan Idoko J. (as he then was) was of the same view as he further affirmed the importance of bail in the case of Obekpa v. Commissioner Of Police (1980) 1 NCR @ 113 as he stated the law in the following words:[9]
“As it appears, the spirit behind the provision in S.35(4) (a) and (b) of the Constitution is to keep an accused person out of incarceration until found guilty through the process of court trial. It is a conditional privilege, which he is entitled to under the Constitution. The reason for such privilege is obvious. It allows those who might be wrongly accused to escape punishment, which any period of imprisonment would inflict upon them while awaiting trial, staying out of prison guarantees easy access to counsel and witnesses and ensures unhampered opportunity for preparation of the defence. Of much greater importance in this regard is the 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.”
PROCEDURE FOR BAIL APPLICATION AT THE MAGISTRATE COURT OR HIGH COURT AS A COURT OF FIRST INSTANCE.
- Magistrate court:
Generally, in practice, notwithstanding the jurisdiction, bail at the magistrate court is moved orally except where the magistrate directs otherwise.
- High Court of the North;
Also in practice, bail application at the High Court of the North is brought by way of a Motion on Notice supported by an affidavit and a written address. However, the court can in the interest of substantial justice, direct that a bail application be moved orally. The prosecution has the right to object to a bail application.
- High Court of the South;
In the High Court of the south a bail application is brought by a way of Summons for Bail, supported by an affidavit and a written address.
The major difference between an applicant for bail by a way of motion on notice in the North and summons for bail in the south is that an application for bail by summon is directed to the state (prosecution) to show cause why the accused should not be granted bail, while application for bail by motion on notice prays the court to allow the accused to be released on bail. It is the accused that will show cause why you should be granted bail.
Regardless of the procedures stated above being the requirement of a formal written application, formalities in bail is unknown to law where the bail application is made before the Judge or Court before whom the defendant has been arraigned. Ordinarily, after an arraignment, the procedure ought to be for the counsel for the defendant to make an application for bail orally and for the prosecution, should it elect to oppose, to give reasons why the application should not be granted. The position of the law was stated correctly by the Court of Appeal in ABIOLA VS FRN (1995) 1 NWLR (PT.370) 155[10], a case where chief Abiola was refused bail by the court on the premises of an oral bail application moved by his counsel, the trial court ordered that a bail application should be properly written and filed. The court of appeal, however, set aside the decision of the Trial Judge and held quite rightly that a formal application was not required. This is still the position of the law even with the passing of the Administration of Criminal Justice Act.
CONCLUSION
It is important to note that the court that has the discretion to grant an application to admit a defendant to bail either orally or in writing, also has the power to revoke such bail where the defendant fails to satisfy or honour the requirements or terms of the bail granted by the court.
Also where a magistrate court, out of it’s discretion, refuses to grant a defendant’s bail application, such a defendant is to file a fresh application for bail at the high court and not an appeal, however, where such refusal is from the high court the defendant has an option to appeal such decision to the court of appeal.
Without the need to make any further application to revoke a bail, the bail application granted at the commencement of a case is deemed revoked after the judgment has been passed.
Reference
- S.35 (4) 1999 Constitution of the federal Republic of Nigeria (as amended) ↑
- Black’s law dictionary ↑
- S. 62 and S. 63 of the Police Act 2020 ↑
- S. 64 (3) of the Police Act 2020. ↑
- S.35 (4) 1999 Constitution of the federal Republic of Nigeria (as amended) ↑
- Ameh mute and 5 others v the state 1994 8 NWLR pat 360 Pg 88 ↑
- it Traders Ltd. V. General Motors Co. Ltd. (1992) 2 NWLR (Part 222) 132 SC ↑
- 36 (5) 1999 Constitution of the federal Republic of Nigeria (as amended) ↑
- Obekpa v. Commissioner Of Police (1980) 1 NCR @ 113 ↑
- ABIOLA VS FRN (1995) 1 NWLR (PT.370) 155. ↑
