OUTCOMES

At the end of the lesson students would be able to:

1. Identify the nature and types of bail – bail by the police; bail by court pending trial and; bail by court pending appeal
2. Explain the different methods of applying for bail

• Identify factors that govern grant of bail

1. Explain the procedure for applying for bail after it has been refused by the Magistrate.
2. Draft application for bail before the court.
3. Explain the terms and conditions upon which bail may be granted.

• Identify the circumstances when bail may be revoked.
• Identify Ethical Issues guiding grant of Bail

Bail is a temporary release of an accused person from custody on condition that he would attend court on days required of him.

Generally there are 3 types of bail:

• Bail pending investigation- i.e. police bail,this is usually by writing a letter.
• Bail pending trial
• Bail pending appeal

POLICE BAIL

The accused while in police custody may be released on bail free of charge.

BAIL PENDING TRIAL

Bail pending trial or court bail is granted only by court after proceedings have commenced. Application for bail pending trial can only be made after suspects have been arraigned before court. Not all offences are bailable, but at the same time it’s a constitutional right. Whether a client would get bail or not depends on the offence committed.

Power of court to grant bail depends on classification of offences

• For misdemeanour/simple offences the court shall grant bail. It has no discretion. S118(3) CPA, 158 ACJA, 115(3) ACJL (unless there is good reason not to do so) 340 CPC.
• For felonies – bail is at the discretion of the court,ss 115(2) ACJL, 162 ACJA, 118(2) CPA, 341(2) CPC i.e. court may grant bail. Felonies or misdemeanour are identified by the punishment prescribed for them.
• For very serious offences such as capital offences, bail shall not ordinarily be granted. Ss35(7)(a) 1999 CFRN, 341(1) CPC, 118(1) CPA, 115(1) ACJL . But in certain circumstances only the High court has power to consider bail for capital offences. It is not within the jurisdiction of magistrate court to consider bail in these situations.
• Magistrate may grant bail in all other cases except capital offences
• High court is empowered to grant bail in all cases even capital offences S118CPL, 115 ACJL

As a counsel, there are procedures that must be followed when applying bail although these procedures on how to make application for bail is not codified in any statute in both north and south see ss363 CPA, 262 ACJL & 492 (3) ACJA but see 35 HCL. NN. In practice applications is usually by summons in the south or motion in the north supported with affidavit.Application may be made orally for simple offences or misdemeanour, even in high court, see Abiola v FRN. Oral application is the common mode in a magistrate court. In the high court, it was formerly felt that it was improper for application to be made orally in the high court but this was refuted in the case of Abiola v FRN, which stated there is nothing precluding a counsel from making such application orally in the High Court.In writing it has to be by summons in the south and motion in the north, supported by affidavit. It has been held that one application can be made for two defendants, however there has to be separate affidavits for each applicant.

SUMMONS FOR BAIL

IN THE HIGH COURT OF OGUN STATE

IN THE ABEOKUTA JUDICIAL DIVISION

HOLDEN AT ABEOKUTA

CHARGE NO:

BETWEEN

THE STATE ………………………………..COMPLAINANT/RESPONDENT

AND

JOHN DUNAMIN ………………………….DEFENDANT/APPLICANT

 

SUMMONS

BROUGHT PURSUANT TO SECTION 123 CRIMINAL PROCEDURE LAWS OF OGUN STATE, SECTION 35(4) AND 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999(AS AMENDED) AND UNDER THE INHERENT JURISDICTION OF THE COURT

 

LET ALL THE PARTIES concerned attend this honourable court on the ……day ….of 2018 at the hour of 9’0’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the defendant/applicant for an order admitting the applicant to bail.

And for such order or further order as this Honourable court may deem fit to make in the circumstances

Dated this …….day of …….2018

 

MotunrayoOlowu

Counsel to the applicant

Streamsowers and Kohn

12 Ajegun road, Ogun state

 

On notice to:

The Attorney General, Ogun state ,

Ministry of justice

 

IN THE HIGH COURT OF KADUNA STATE

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

CASE NO:

BETWEEN

THE STATE ……………………….……….COMPLAINANT/RESPONDENT

AND

JOSEPH KIWACKY ………..……………..ACCUSED/APPLICANT 

 

MOTION ON NOTICE FOR BAIL APPLICATION

BROUGHT PURSUANT TO SECTION 35(4) AND 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) 

TAKE NOTICE THAT this honourable court shall be moved on the ……..day of ……..at 9’0’clock in the forenoon or so soon thereafter as counsel for the accused/applicant shall be heard praying this honourable court for:

• An order granting the applicant bail.
• And for such order or further orders that this honourable court may deem fit to grant in the circumstances.

Dated this …….day of ………2017

Supreme Unukegwo

Counsel to the Applicant

Olive Legal Practitioners

12 Ikoyi Road

Lagos

Bail application after refusal by magistrates’ court

There is no express provision in the statutes on procedure to adopt.

• Application is made to the high court by way of summons supported by affidavit attached with the following:

1. CTC of the charge against accused
2. CTC of the magistrates ruling refusing the bail. Simidele v COP, State v Uwah, ss123 CPA, 119 ACJL

This application is deemed an application and not an appeal because Even if an accused person is arraigned before a magistrate court and he’s meant to be released on bail and the court didn’t release the person on bail, the high court has the power to release the person on bail even without an **application before it. Also when they go to the high court, they’re going to still ask for bail on behalf of the accused person and when the high court considers what’s before him and believes he ought to be released on bail, he would release the accused on bail and the case would go back to the magistrate court to be continued. The case has not been extinguished its only the bail that was in issue.

s168 ACJA, 119 ACJL, 123 CPL – these are authorities for application for bail at high court after refusal by magistrate.

What are factors guiding the grant of bail?

They are conditions the court must consider before granting bail. Ss341(2)(b)(c) CPC, 161-163 ACJA.

These factors are laid down in decided cases as well as the statutes. See Bamaiyi v State (2001)- the position of the accused e.g. army general allows him to tamper with evidence or witnesses, Abacha v State (2002) ,Fawehinmi v State (1990), Ganiyu Adams v AG federation (2007), AsariDokubo v FRN (207). Ss 161(2),162,163 ACJA.

Factors for granting bail

1. Nature of the offence/gravity of punishment
2. Availability of the accused to stand trial
3. The quality of evidence against the accused
4. The likelihood of the accused committing another offence while on bail. R v Jammal
5. The criminal record of the accused person
6. The likelihood of accused interfering with investigation/prosecution of the case.
7. The prevalence or rampancy of the offence. Felix v State (1978) LRN 308, Ajudua V FRN (2005)
8. Detention for protection of accused person
9. Medical ground or ill-health. Ani v State (2001), Fawehinmi v State (1990). 161 (1) (2)a ACJA

Note; these factors are by no means exhaustive

Terms of Bail

What are terms of Bail?

These are conditions or security required by court for police granting bail .ss116 ACJL, 120 CPA, 349(1) CPC, 165 ACJA. It is only when the court has considered the factors and is inclined to grant the bail that the issue of terms come in.

Bail must not be refused just to punish the accused person Dogo v COP (1980). The terms must not be excessive or onerous Eyu v States,ss116(1) ACJL, 125 CPA, 344 CPC. If the term is excessive it defeats the purpose of the bail.

Below are some terms for granting bail stipulated by law

1. Self – recognizance:can be undertaken by accused himself based on his integrity and standing. Surety is not required. It is granted on this basis to persons of integrity who have a name to protect and no matter what they wouldn’t run away from the court sitting e.g. Gani Fawehinmi.
2. Execution of bond for a fixed sum – execution of a bond for a fixed amount. Accused may also do this. His finances must be checked
3. Produce sureties with bond for specified sum – sureties undertaking to pay bond sum upon default. Ss118 ACJL, 122 CPA, 345 CPC, 167 ACJA. Other conditions may be added e.g. title deeds, passport photographs j
4. Deposit of money in lieu of bond – Ss. 120 CPA, 347 CPC, 116 ACJL, 165 ACJA.

Please note the provisions of Ss.169,175 ACJA on variation of terms of bail upon application by AG Federation.

Registration of Bonds person

• In Lagos state and FCT, individuals or corporate bodies can apply to be registered and licenced as bondspersons to legally stand as sureties for applicants. Ss138(1) ACJL
• There are requirements for registration. See s.138 SACJL, 187 ACJA generally
• Must be persons of integrity among other things. Ss138(6) ACJL, 187(6) ACJA

See Bondsperson Regulations Law 2011.

• Chief judge of Lagos state, FHC and FCT are empowered to make regulations for licensing of bondspersons. Ss 138(1) ACJL, 187(1)ACJA
• There are consequences for acting as sureties without registration s 138(4) ACJL, 187(3) ACJA
• Where a registeredbondsperson violates the terms of license may pay fine of N500,000.00 or imprisoned for 12 months or both
• May forfeit license in gross acts of violation
• Can a woman be a surety? Yes Ss 118(3) ACJL, 167(3) ACJA

Ethical issues

• A lawyer cannot stand surety for his client in criminal matters, rule 37(1) RPC
• A prosecutor should not suppress facts that he knows will be favourable to the accused person’s case, rule 37(6) RPC.

REVOCATION OF BAIL

When will a bail be revoked?

1. If an accused on bail by magistrate is indicted for an offence on information at the High Court. Ss 132 CPA, 127 ACJL
2. Failure of accused to appear in court without good reasons. SS 184 ACJA , 139 ACJL
3. Where a surety applies to be discharged Ss 129 ACJL,134 CPA, 351 CPC, 177(1) ACJA. Onyebuchi v FRN 2009

Detention Time limit - s293 ACJA, 264(1) ACJL. This cures the defect on the issue of holding charge. S294-295 ACJA maximum period of *66 days.

Form 8   for request of remand.

Maximum period is 60 days under the ACJL and no further application as to remand relating to the particular defendant will be heard. Form k. 30 DAYS is granted first instance then subject to renewal for another 30 days.