Sunday, 3 February 2019

Meaning of Bail

BAIL
By Isa Ibrahim Alhaji.

MEANING OF BAIL
It is the temporary release of an accused (if charged to Court) or suspect (if in Police custody) from prison or custody pending the determination of the case on the condition that he would attend Court for his trial.
It is a constitutional right. -S. 35 (4) of the 1999 Constitution( as amended) on the right to personal liberty. 

IMPORTANCE OF BAIL

1.it allows an innocent person escape punishment before their trial.
2. it gives the accused enough time to prepare for his defence

TYPES OF BAIL

Bail arises at three different stages of the criminal justice process;
a. Police Bail pending investigation-(SUSPECT) S. 17 CPA;S.17 ACJL S. 129 CPC, S. 27 Police Act
b. Bail pending Trial(ACCUSED PERSON)-S.118 CPA;s.115 ACJL;S,340&341 CPC
c. Bail pending Appeal(CONVICTED PERSON)

DURATION/ LIFESPAN OF BAIL
This depends on the type of bail applied for and granted as follows:
1. Police bail: will lapse on the arraignment of an accused in Court
2. Bail pending trial: the bail will subsist till the end of the trial.
3. Bail pending appeal will subsist till the determination of the appeal. 

BAIL BY THE COURT PENDING TRIAL-
S. 118 CPA,
SS. 340 & 341 CPC.

This may come in two ways;
1. Endorsement of court bail upon warrant of arrest by the court or JP EXCEPT in capital offences.-Sections 30 CPA, 57 CPC
2. Application for court bail immediately after arraignment .

CIRCUMSTANCES WHEN COURT BAIL MAY BE GRANTED IN NIGERIA

This depends on the nature of the offence as follows:

a. SIMPLE OFFENCES (LESS THAN SIX MONTHS),
MISDEAMEANOURS(6 MTHS-3YRS)-the Court shall grant bail.  EXCEPT it sees good reason not to. -

S. 118(3) CPA;
S.115(3) ACJL
S. 341( 3) o CPC 

NB-S.340(1) CPC has TWO EXCEPTIONS-If the bail will prejudice further investigation or occasion risk of escape.(NORTH ONLY)

B.FELONY (THREE YRS OR MORE)it is at the discretion of the Court.
S. 115 (2) ACJL,
 S. 341(2)CPC and
 S. 118(2) CPA.

C. CAPITAL OFFENCES-Only a High Court Judge that can grant bail on capital matters. 
S. 115 (1) ACJL,
S. 341(1) of the CPC,
S. 118(1) o CPA,
S. 35(7) (a) CFRN
OLADELE VS. THE STATE.

NB- Grant of bail in capital offences is prohibited in the northEXCEPT therer are no reasonable grounds for believing that a person committed the offence-S.341(3) CPC

An applicant for bail on capital offences must show SPECIAL CIRCUMSTANCES-
ABACHA V. STATE.

SPECIAL CIRCUMSTANCES FOR GRANT OF BAIL IN CAPITAL OFFENCES
1. On grounds of severe ill health-SULEIMAN V.STATE
2. When the proof of evidence does not link the accused person with the crime-ABACHA V.STATE
3. Where a defence of ALIBI has been satisfactorily investigated.

NB-A magistrate Court can grant bail on all other offences exceptin respect to CAPITAL OFFENCES in Nigeria-
S.12 CPC&APPENDIX A CPC;
S.118 CPA;
S.115 ACJL
STATE V.OZUZU

MODES OF APPLICATION FOR BAIL
1.POLICE BAIL: by writing a letter addressed to the Divisional Police Officer of the Station or form

2.BAIL PENDING TRIAL-This will depend on the Court in question:

a. Magistrate Court in the North/south it can be made orally immediately after arraignment or where the adverse party objects or is likely to object to the bail application, the court may require the Applicant to make a written applicationor by a Motion on  Notice.

NB-where the magistrate has heard an oral application for bail and the objections taken; then the magistrate should rule on the application  andnot ask for a written application - Dogo v. COP

b.High Courts in the South it is by a summons supported with an affidavit and a written address. S. 363 of the CPA, SIMIDELE VS. COP;English Rules of the Supreme Court 1949

c.High courts in lagos-S.262 ACJL-Summons or motion

d.High Courts in the North, it  is by summons or Motion on Notice. 

e. Refusal of bail at magistrate courts in the South- it is by SUMMONS supported by affidavit-S.363,SIMIDELE V. COP

f.Refusal of bail at magistrate courts in the North-Summons or motion-(summons is usually preferred)-ACHADU V.STATE;TANKO V.STATE

NOTE-(EXAM)-Application for bail at the High Court can be made orally and subject to discretion of the court, however it is desirable that it is made by Motion on Notice supported with an affidavit and a written address. -ABIOLA VS. FRN

APPLICATION FOR BAIL TO THE HIGH COURT AFTER REFUSAL AT THE MAGISTRATE COURT-

This is done where an application for bail is made to the magistrate court and it fails to consider;refuses or neglects to grant bail.
S.123  CPA,
S.119 ACJL;
S. 342 of the CPC
 DOGO VS. COP.

CONDITION PRECEDENT-an application for bail must have been made first at the magistrate court-ABACHA V. STATE
EXCEPTION- cases of extreme urgency- Offiong v. Police-(no urgency)- APPLICATION REJECTED

PROCEDURE-summons or motion (north) and Summons(south).
The Summons for bail will be supported with:
1. An affidavit
2. Certified true copy of the Charge Sheet
3. Certified true copy of the Order of the Magistrate refusing bail
4. Written address
NB-(VIP)- Where two or more co-accused apply for bail engaging one Counsel, they must do it separately as it is personal. Separate affidavits and written addresses should be filed. 

PROPER STEP TO TAKE AFTER REFUSAL OF BAIL BY A HIGH COURT(EXAMS)
Where bail is refused by a High Court Judge, a similar application cannot be made to another High Court Judge as this will amount to the Judge sitting on appeal over the decision of a Court of co-ordinate jurisdiction.
The proper thing to do is to appeal against the order of refusal to the Court of appeal-
THE STATE VS. UWA (contrast this with CONSENT/LEAVE TO FILE CHARGE

DIFFERENCES BETWEEN MOTION ON NOTICE & SUMMONS FOR BAIL
1. The application for bail pending trial is by summons which is directed to the state to show cause why the accused should be granted bail(presumption of innocence) while application for bail by motion instead, prays the court to allow the accused to be released on bail.
2. Application for bail through summons is usually made to the Judge in chambers while appl. for bail by motion is made to the court.-STATE V. UWAH
3. The only difference between the contents of summons and the content of a motion is in the commencement phrase
Summons == "LET ALL PARTIES …"
Motion== "TAKE NOTICE …"

EFFECT OF NON COMPLIANCE WITH THE PROCEDURE FOR BAIL APPLICATION
1.The Court will not strike out the application if commenced by a Motion on Notice instead of it to be by Summons.
This is to do substantial justice rather than allowing technicalities of the Law to delay justice. OLUGBUSI VS. COP
if a person has a right, it does not matter how he enforces it. -FALOBI VS. FALOBI and BELLO VS. A.G OYO STATE.

CONDITIONS FOR GRANTING BAIL APPLICATIONS IN THE NORTH
The CPC prescribes some conditions for bail viz
a. whether there are reasonable grounds for believing that a person accused has committed the offence S. 341(3).
b. that by reason of granting bail, the proper investigation of the offence would not be prejudiced; and
c. that no serious risk of the accused escaping from justice would be occasioned; and
d. that no ground exist for believing that the accused, if released would commit an offence - S. 341(2)
NB ==The first condition is independent, while the last three conditions are cumulative.

GENERAL CONDITIONS OR FACTORS FOR THE GRANT OR REFUSAL OF BAIL
No laid down rules in the CPA/ACJL/CFRN
1. Nature/gravity of the offence or severity of punishment for the offenceANAEKWE V. COP
2. Availability of the accused to stand trial
3. Nature, character and quality of available evidence against the accused- ABACHA V. STATE(Strong indication of commission of a serious offence) CONTRAST WITH NWOKE V. FRN(weak proof/trivial offence)
4. Likelihood of commission of another offence while onbail-R V. JAMMAL
5. Criminal Records of the accused if he is a first offender or not-EYU V. STATE(Good character) and AJUDUA V. FRN(several pending cases)
6. The Prevalence of the offence. THE STATE v FELIX and AJUDA VS. FRN. NB-NWOKE V. FRN-bailaible offences
7. Detention of the accused is for his Protection/safety.-BAMAIYI VS. THE STATE; NNOGU V. STATE
8. Interference with police investigation or prosecution - DANTATA VS. IGP(bribe)BAMAIYI V.STATE(Influential person);DAMBABA V.STATE
9. Medical or health grounds. FAWEHINMI VS. THE STATE;ANI V. STATE:NWUDE V.FRN

NB- CONDITIONS-The prison facilities must not be sufficient
Continued detention of the accused will endanger life of other detainees.
There must be evidence that the accused personwhile in detention has sought for treatment from prison authorities.


TERMS /CONDITIONS/ SECURITY FOR BAIL
NB-do not mix up with factors for grant of bail
This refers to the Conditions to be fulfilled by the accused in order to secure the bail.
THE TERMS OF BAIL ARE:
1. Bail on self-recognisance with no surety, security or conditions needed.
1. Execution of bail bond(undertaking to be present) for a fixed amount
NB-forfeiture of bond- he only pays when he fails to appear-s.132 ACJL
1. Bail with surety with a bond for a specified sum.-
S. 122 CPA ;
S.118 ACJL;
S.345 CPC;
S.27 Police Act
1. Deposit of money in lieu of bond. .
S.120 CPA ;
S. 347 of the CPC.;
ONUIGBO V. POLICE
NB-This may be on the application of the accused or order of court-
EYU V. STATE;
S.120 CPA;
S.116(2) ACJL
ADDITIONAL SECURITY FOR GRANTING TERMS OF BAIL
A court may demand that a surety must be
i. Resident within jurisdiction.
ii. Own landed property within jurisdiction.
iii. Deposit his title deeds to the property with the court.
iv. Swear to an affidavit of means.
v. Deposit his international passport with the court.

REVIEW OF THE TERMS OF BAIL
S. 120 CPA & 344(1)
CPC&
S.116(1) ACJL provide that the terms of bail shall be fixed with regard to circumstances of each case and shall not be excessive.
An accused person granted bail by a magistrate court on onerous terms  mayapply to the High Court for a review of the terms of bail. -
S. 125 CPA;
S. 344 CPC
Eyu v. State(EXCESSIVE TERMS) ;State v. Amaefule (NOT EXCESSIVE)
OPTIONS OPEN TO A COURT WHEN AN ACCUSED PERSON ON JUMPS BAIL
-Where a person on police or court bail fails or refuses to attend the station/court on the date fixed on the bail bond ,the court may:
a. revoke his bail.
b. issue a bench warrant for his arrest.
c. order the forfeiture of the bail bond
d.       order surety to pay the said sum




FORFEITURE OF BAIL BOND
Upon forfeiture of the bond,  the court may order the surety to pay the sum stated in the bond into the court registry.
Before the bail bond executed by the surety is forfeited, the surety must be given a fair, hearing.- Amadu Tea v. COP; -S. 354 (1)(2) CPC
NB- where the surety cannot pay/or fails to pay, he will be thrown into prison till he is able to pay the sum.
NB- any person dissatisfied with the order of forfeiture by the court can appeal.s. 142 CPA

REVOCATION OF BAIL
The grounds for revoking the bail granted are as follows:
1. If an accused who was granted bail by the Magistrate Court is also indicted for an offence at the High Court.
S. 132 of the CPA and
S. 127  ACJL.
2. If the accused failed to appear for his trial with no reason
3. The surety applies to be discharged.
 S. 129 ACJL,
S. 134 CPA and
S. 351 CPC.
4. The accused granted bail is about to leave Nigeria and an information is given to the
Court-S. 130 of CPA
5. If the grant was based on fraud.

WHO QUALIFIES TO BE A SURETY
a. A person of known address
b. A person with known means of income
c. A person of good character
d. A person acceptable to the court.

ELIGIBILITY OF WOMEN TO STAND SURETY (EXAM AREA)(LAGOS)
There is no law that stops a woman from standing surety in any case.  Such discrimination is unconstitutional(S.42).
NB-S. 118(3) ACJL 2011 provides that no person shall be denied or prevented or restricted from entering into any recognizance or standing as surety on the ground that the person is a woman.


APPLICATION FOR DISCHARGE BY A SURETY
A surety may apply to be discharged from his surety ship or surrender the accused to the court before the date assigned.-Onyebuchi v. FRN

NB-Where this happens, the accused shall be detained until he gets another surety, else he would remain in detention until the case is determined.-
S. 134 CPA,
S. 351 CPC,
S. 129 ACJL
HOW TO MOVE AN APPLICATION FOR BAIL-IRPAAC/MOWAC(P.587;179-182-ONIEKORO)
1. R(Rule/section)- the motion is brought pursuant to ______and under the inherent jurisdiction of this court
2. My lord,we seek the following reliefs
3. An order of the court admitting the 1st accused person/applicant to bail pending the determination of his trial
4. A-my lord,our motion is supported by a10 paragraph affidavit sworn to by _____________
        We rely on all the paragraphs of the affidavit particularly paragraphs 4-9. Accompanying the affidavit are ___ exhibits marked___.
5. A- we have also filed a written address in support of our application.we wish to adopt same
6. My lord it is trite law that for an applicant to be granted bail,he must _--the applicant has satisfied these conditions
7. C-We humbly  pray this honourable court to grant bail to the accused on liberal terms
8. May it please the court/ we are grateful,my lord.
Note- when to align your depositions in the affidavit for bail with he factors for grant of bail(2013 pq)
Note- the hospital card  can be attached as an exhibit











SCENARIO FOR FURTHER PRACTICE
Dr chidi wanpam  is a resident medical doctorwith Jos university teaching hospital and resides in the rayfield area of the city.On the 15th of june 2013 while he was on special duty at the teaching hospital,two men,Audu Mekoi and benbon forum broke into his apartment and carted away with his property.following a tip off, they were arrested by the police at the old airport junction,jos and taken to the state police command where they were detained.the police has refused to grant them bail after one month of detention on the groundthat investigation are still on. Audu nekai is an outpatient at the plateau specialist hospital where he is receiving treatment for diabetes while his friend suffers from high blood pressure.draft an application for bail and supporting affidavit of 5 paragraphs for each accused person.

GUIDELINES
Write the traditional first two paragraphs, Third- details of arrest and detention and the reasons in the 4thparagraph(here state reasons in (a,b,c) including ill health details and conclude eith the last traditional paragraph.


SAMPLE DRAFT OF BAIL APPLICATIONS

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA
IN THE BWARI JUDICIAL DIVISION
HOLDEN AT BWARI
CASE NO:…………….

BETWEEN:
THE FEDERAL REPUBLIC OF NIGERIA...COMPLAINANT/RESPONDENT
V
1.IKPO
2.BURAGO………………… ACCUSED PERSONS/APPLICANTS

SUMMONS
BROUGHT PURSUANT TO SECTION 35(4),S.36(5) OF THE 1999 CONSTITUTION OF THEFEDERAL REPUBLIC OF NIGERIA(AS AMENDED), SECTION 341(2) OF THE CRIMINALPROCEDURE CODE ACT AND UNDER THE INHERENTJURISDICTION OF THIS HONOURABLE COURT

LET ALL PARTIESattend at the High Court of the FCT Abuja holding at Bwari on the …….day of ……. 2014 at the Hour of 9 O'clock in the forenoon on the hearing of an application for bail by the Accused persons/ Applicants praying for:
1.AN ORDER admitting the Applicants to bail pending the determination of the trial at the Magistrate Court.
2.AND FOR SUCH ORDERS  OR FURTHER ORDERS as this Court may deem fit to make in the circumstances.
DATEDTHIS ……… DAY OF………………………….2014.
This Summons was taken out by  Ndu Gabriella of NDU and Co whose address for service is at No. 15 law schoolclose,Bwari,Abuja, Legal Practitioner for the applicants.
FOR SERVICE ON:
The Attorney-General of the federation
 Federal Ministry of Justice Abuja.




IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE BWARI JUDICIAL DIVISION
HOLDEN AT BWARI
CASE NO:…………….
 BETWEEN:
FEDERAL REPUBLIC OF NIGERIA              ………..……..COMPLAINANT/RESPONDENT
VS.
1.IKPO
2.BURAGO       ………………… ACCUSED PERSONS/APPLICANTS
MOTION ON NOTICE
BROUGHT PURSUANT TO SECTION 35(4) ,S.36(5)OF THE 1999 CONSTITUTION OF THEFEDERAL REPUBLIC OF NIGERIA (AS AMENDED), SECTION 341(2) OF THE CRIMINALPROCEDURE CODEACT AND UNDER THE INHERENT JURISDICTION OF THISHONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on the …….day of ……. 2014 at the Hour of 9 O'clock in the forenoon or so soon thereafter as Counsel to the Accused persons/ Applicants will be heard praying this Court  for:
1. AN ORDER admitting the Applicants to bail pending the determination of the trial.
2. AND FOR SUCH ORDERS as this Court may deem fit to make in the circumstances.
DATED THIS ……… DAY OF ………………………….2014.
……………………..
                     NDU GABRIELLA
        COUNSEL TO THE ACCUSED/APPLICANTS
 Whose address for service is:
                     NDU& Co
                                            No. 15 Binta Close Bwari, Abuja
FOR SERVICE ON :
The Attorney-General of the federation,
Federal  Ministry of Justice,
Maitama , Abuja, 








IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE BWARI JUDICIAL DIVISION
HOLDEN AT BWARI
CASE NO: …………….
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA              ………..…….. COMPLAINANT/RESPONDENT
V.
1.IKPO      …………………1st  ACCUSED PERSON/APPLICANT
AFFIDAVIT IN SUPPORT OF MOTION (SUMMONS) FOR BAILOF THE 1ST ACCUSED
I, Samuel ikpo, Male, Adult, Christian, businessman and a Nigerian citizen of No. 40 Ankpa Street High Level Makurdi do hereby make oath and state as follows:
1. That I am the elder brother of the 1st Accused person/Applicant and by virtue of which I am conversant with the facts of this case.
2. I have the consent of the 1st Accused/Applicant to depose to this Affidavit. 
3. That on the 10 day of February 2013 the accused/Applicants were arrested by the police for allegedly stealing the sum of  N20,000.00 from one Miss Ene Agbo at  10 kilometers away from the Jamb office in Bwari, Abuja..
4. That the Accused/Applicants is standing trial for the Charge of stealing which is a misdeameanour..
5. The 1st accused/Applicant is a person of good character having no previous criminal record.
6. The 1st Accused/Applicant was diagnosed of renal failure and Kidney stones in 2010 and he is still undergoing medical checkup monthly, a copy of the Medical Report is hereby attached and marked as Exhibit ‘A'.     
7. I was informed by the 1st Accused/Applicant on the 20 of May 2012 at 5.00 pm at the Kuje Prison Makurdi and I verily believe him that he will not
a. jump bail if admitted to bail pending his trial.
b. interfere with Police investigation
c. commit another offence while on bail.
1. I am ready to stand as surety for his bail on such terms imposed by the Court.
2. It is in the interest of justice to grant this application.
3. I swear to this affidavit in good faith believing its content to be true and correct in accordance with the Oaths Act.
………………………
Deponent 
Sworn toAt the High Court Registry, Makurdi
This …..day of …… 2014.
BEFORE ME 
………………………………………………………
COMMISSIONER OF OATHS










IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE BWARI JUDICIAL DIVISION
HOLDEN AT BWARI
CASE NO: …………….
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA              ………..…….. COMPLAINANT/RESPONDENT
V.
1.IKPO
2.BURAGO SHEHU       ………………… ACCUSED PERSONS/APPLICANT
COUNTER AFFIDAVIT
I, Kene omalicha, Adult, female, Nigerian Citizen and Medical Doctor with the Nigerian Prison Service, Minimum Prison Makurdi do make oath and state as follows:
1. That I  am the Chief Medical Officer at the  Nigerian Prison Service Makurdi where the 1st Accused/Applicant has been in custody and by virtue of  which I  am conversant with the facts of this case.
1. That I admit paragraphs 3 and 4 of the Applicant's Affidavit in support of his bail application.
2. That on the 10 day of March 2014, the 1st Accused/Applicant was brought to our clinic for checkup from custody following his complaints.
3. I ran a major test on the 1st accused/Applicant to reveal any medical disorder in the 1st Accused/Applicant, a copy of the test result is hereby attached and marked Exhibit ‘A1'.
4. That it is not true that the 1st Accused/Applicant is suffering from neither renal failure nor kidney stone disease.
5. That the result showed that the 1st Accused/Applicant is depressed from anxiety.
6. The 1st Accused/Applicant was provided with relevant drugs to control the condition and the Prison has the medical capacity to handle such.
7. The Accused/Applicant has again been brought for a second checkup, the result showed a better emotional condition, a copy of the test result dated the 30 day of March 2014 is hereby attached and marked Exhibit ‘B1'.
8. The 1st Accused/Applicant's application for bail should be refused in the interest of justice. 
9. I make this statement in good faith believing its content to be true and correct and in accordance with the Oaths Act 2004.
………………………
Deponent 
Sworn to at the High Court Registry, Abuja.
This ….. day of  __ 2014.
BEFORE ME 

……………………………………………………………
COMMISSIONER FOR OATHS

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