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Detainee has right to bail

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By Justice Usman Bwala

A person who is imprisoned or detained has a right to an early trial or be released on bail, James Danbaba vs The State 2000 14 NWLR (Pt 687) 396 at 409. Where there is a delayed investigation or trial a person can apply for bail pending the conclusion of investigation or trial. Bail, therefore, is applicable in three stages: bail before trial; (2) bail during trial; and (3) bail after conviction.

We shall start with bail before trial. What is bail? Bail is a common word in every society, however, its meaning and applicability may not be known or understood by all. Bail is a legal word which has its origin from the French word “brailler” meaning “to deliver” The Nigerian Law Dictionary by S.1 Nichi 71.

Bail simply means to set at liberty somebody who has been arrested or imprisoned Emeka Ekwenugo vs F.A.G 2001 6 NWLR (Pt 708) 17 where it was held as follows: “It literally means to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and a day certain.”

Bail is applicable to both criminal and civil matters. Bail in civil matters is used mainly to secure directly or indirectly payment of debt or performance of civil duties Johnson vs Shaffer 28 N.E. 2d 765. Bail is applicable to both common law and statutes. At common law all felons are bailable In Re Nottingham Corporation 1897 2 Q.B. 502.

At common law all courts have inherent jurisdiction to grant bail R vs Spilsbury 1898 2 Q.B. 615 where it was held as follows: “…court has independently of statute by common law, jurisdiction to admit to bail.”

The function of bail in criminal matters is to release a person detained or arrested to regain his freedom by way of bail with or without condition to enable him appear in court on a day certain Johnson vs Shaffer supra held as follows: “…while in criminal cases object is to secure appearance of a person before the court when his presence is needed.”

Bail is not only granted to a natural person, bail can be granted to a sea or ocean going vessels, ships, boats etc, that is, admiralty proceedings. A ship seized may be granted bail, based on two principles of law. These principles of law are best arguable case and the value of the ship Delta Steel Co vs Aditya Prablia 1987 – 90 3 NSC 602.

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A person who has not been tried and convicted by a court is presumed to be innocent until proved guilty S.36 (5) of the 1999 Constitution as amended. This presumption of innocence of an accused person is preserved and reinforced by granting an accused person bail pending and during trial Stacks vs Boyle 342 U.S 1951 where it was held as follows: “Unless this right to bail before trial is preserved, the presumption of innocence secured only after centuries of struggle would loose its meaning.”

The constitutionality of bail is recognised and contained in the common law, all constitutions ever operated in Nigeria and the CPA Sections 118 – 142 and CPC Sections 340 – 355 reinforced by decisions of courts interpreting the constitutional provisions of bail see S 36 (5) of the 1999 Constitution, Chief Pius Anaekwe vs COP 1996 3 NWLR (Pt 436) 320. Section 6 of the African Charter on Human and Peoples Rights have given all those living in Africa the freedom of bail.

Bail is applicable only when the freedom of movement guaranteed to an individual has been restricted or restrained Jahar Mal vs The State 1954 A.I.R (Raj) 279 where it was held as follows: “The conclusion, therefore, at which we arrived, is that there must be some kind of restraint to him before a person who appears before court, is granted bail by court.”

Anticipatory bail is not granted in most states in the world. However, India practices what may be termed as anticipatory bail Amir Chand vs The Crown 1950 A.I.R. (E.P.) 58 where it was held as follows: “In the case of a person who is not under arrest but whose arrest warrant have been issued, bail can be allowed if he appears in court and surrenders himself.”

Anticipatory bail is not granted in serious cases or to a person being investigated for serious offences Samunder Singh 1987 A.I.R. (S.C.) 737.

Anticipatory bail is like enforcement of fundamental rights guaranteed under S. 46 (1) of the Constitution, one need not wait unless he is apprehended, a person who reasonably fears his fundamental right is eminently about to be violated can stop it by applying S.46(1) of the Constitution supra.

In the language of bail the phrases “admitted to bail” and “granted or released on bail” is frequently interchangeably used, it has been held in Juhal Mal. Vs The State supra to mean the same thing as follows:

“The basic idea in both these sections is the release of a person concerned on bail, and the use of different expressions namely “released on bail” in one and “admitted on bail” in the other does not, in our opinion make any difference to the meaning, and both sections are meant for the release of a person on bail.”

To grant or not grant bail by court is discretionary R vs Abdullahi Jamal 16 NLR 54 as follows: “The position is therefore clear that I have a clear discretion as to granting bail.”

Though, granting bail is discretionary of a court the discretion must be exercised according to the rules of reason and justice and not according to private opinion Sharpe vs Wakefield 1891 A.C. 173. Discretion is exercised according to common sense and justice Gardner vs Jay 1885 29 Ch. D. 58.

A discretion in law must be exercised judicially and in accordance with established principles Adamu Muri vs 1GP 1957 NNLR 5, it must be exercised judicially and judiciously Dana Impex vs Stephen Aderotoye 2006 All FWLR (Pt 308) 1388.

The purpose of granting bail is for a person detained to regain his freedom, bail conditions must therefore not be excessive or unreasonable to enable an accused person fulfil the conditions and regain his freedom Mathias Onuigbo vs COP 1975 NNLR 34 held as follows: “…bail must not be excessive. Excessive bail might amount to no bail at all because the accused person may not be able to comply with the term.”

See also El-Alim Mirghani vs Sudan Gov’t 1960 S.L.J.R 68. Where excessive bail conditions are granted it can be reviewed by courts SS 334, 125 CPC and CPA respectively, Mathias Onuigbo vs C.O.P supra.

There are two types of bail Mathias Onuigbo vs C.O.P supra as follows: “Bail is mainly of two types: (1) Self recognisance by which the accused person is merely asked to enter into bond of certain sum of money which may be estregated in full in case he fails to turn up on a given date; (1) Bond with surety or sureties by which he is asked to enter a bond of a fixed sum of money and the surety the same bond by which they bind themselves to forfeit a fixed sum of money in case of default of appearance by the accused person.”

Failure to fulfil bail bond terms can lead to forfeiting the bond, cancellation of the bail and re-arrested of the accused person Ss. 348 and 121 CPC and CPA respectively. A court can order deposition of money in a court as a fulfillment of bail terms Mathias Onuagbo vs C.O.P supra.

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There are procedures for forfeiting bail bond and the procedures must be meticulously followed Aiyegoboyin vs A.G. Oyo 1982 1 NCR 295. The conditions are a court must be satisfied bond was been forfeited, grounds for the forfeiture of the bond and it is discretionary of a court to order forfeiture S. 354 CPC, R vs Southampton Justices 1975 2 All E.L.R. 1075, El Alim vs Sudan Gov’t 1960 S.L.J.R.68. A bail bond must be in writing COP vs John 1981 1 NCR 139; R vs Mc Gary 1945 30 Cr. Ap. R 187.

Bail before trial is sometimes referred to pre-trial bail and a person who has not been tried and convicted by a court is prima facie entitled to be granted bail unless there are mitigating circumstances Ani vs The State 2002 1 NWLR (Pt 747) 217.

Courts have inherent power to grant bail to a person before his committal for trial continues unless it is expressly taken away R vs Augustino 1950 WWR 1075. Bail will be refused an applicant when prosecution witnesses are afraid to testify in the case Bamaiyi vs The State 2001 2 NWLR (Pt 698) 435.

An applicant awaiting trial who is refused bail pending trial should be brought to court within a two months period stipulated in S. 35(4) constitution Bamaiyi vs The State supra. There are many factors considered before a court grants bail pending trial Shafiu vs The State 2002 4 NWLR (Pt 757) 265.

When a suspect will not appear in court to face trial, commit other crimes or has record of previous convictions bail will be denied Girdhar vs R 1960 E.A. 320. When a suspect interfere with investigation bail will be denied James Danbaba vs The State 2000 14 NWLR (Pt 687) 396. The fact that a suspect has grievous charges against him is not a ground to refuse him bail James Danbaba vs The State supra.

A suspect who has not been tried and convicted by court should be granted bail as a matter of course Emeka Ani vs The State 2001 FWLR (Pt 81) 1715. Bail will be refused to an applicant who admitted committing a crime or investigation of his case was still going on Suleman Adamu vs C.O.P 2006 All FWLR (Pt 298) 1348.

Prisoners charged with high offences will not be granted bail Re Nottingham Corporation 1897 2 Q.B. 502. Capital offences are not bailable unless there are compelling and constraining circumstances COP vs Dr Iruoma 1977 1MSLR 80.

Inordinate delay in prosecuting a case is a ground to grant bail pending trial COP vs Dr Iruoma supra. An applicant who has history of past convictions and committing other offences while on bail will have his bail revoked H.M. Postmaster vs Whitehouse 1951 35 Cr. A.P.R 8.

When a prosecutor asks for adjournment on the ground that the facts are insufficient to proceed against an accused person means there is no case against a suspect he is entitled to bail COP vs Dr Iruoma supra.

When an applicant for bail pending hearing interferes with the course of justice bail will be denied A. G. vs Duffy 1942 I.R. 529. It is the duty of the prosecution who opposed bail to provide prima facie evidence that the case against an accused person will succeed The State vs Lambert Onwu 1978 IMSLR 154.

Whatever stage application for bail is made the health of an applicant is a weighty matter to be considered Chief Olabode vs FRN 2010 5 NWLR (Pt 1187) 254.

Bail will not be granted to an applicant who has other cases pending against him Michael Patrick Philips 1948 32 Cr APR 47. Bail must not be refused for personal vendetta, capricious reasons or to force an accused person to plead guilty Ugwumba Elisha vs C.O.P 1974 4 E.C. S.L.R 362. Difficulties encountered by an applicant is not a ground for granting bail but is a ground to adopt liberal approach Raghbir Lambon vs R 1933 E.A. 337.

Sections 27 and 332 of the Nigeria Police Act allows police officers to release on bail those arrested for minor offences. Under S. 332 (vii) of the Police Act the second in command in a police station can release on bail a suspect arrested without warrant.

Why it is the second in command who grants a bail in a police station and not the head or any other person is not clear. When police officer releases on bail a suspect on conditions and the suspect fails to satisfy those conditions the suspect is no longer illegally detained Eda vs COP 1980 1 NCR 14.

Political motivation is not a ground to warrant an applicant get bail Aiyegboyin vs A.G. 1982 1 NCR 295. There is nothing in Nigerian law known as “holding charge” a major reason for keeping suspects in custody pending being charged to court Chief Pat Ewere vs COP 1993 6 NWLR (Pt 299) 333.

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