Every Nigerian must read the part 2 of this interesting information on bail that would help you to know your fundamental human rights.
Bail Part 2
There have been deluge of questions raised on this topic bail and we will like to expatiate. In this regard, we shall be looking again at the issue of bail and try to answer the numerous questions.
Black Law Dictionary defined “bail” as, to set at liberty a person arrested or imprisoned, on security of being taken for his appearance on a day and place certain, which security is called “bail” because the party arrested or imprisoned is delivered into the hands of those who bind themselves for its forthcoming.
Grant of Bail
Whether accused will be granted bail or not depends on the nature of the offence.
Offences are classified under three categories:
1. Minor offences: for example stealing, burglary etc. These are offences punishable for a term not exceeding 3 years. The accused is entitled to bail as of right unless the court decides otherwise.
2. Serious offences e.g. fraud, drug offences, rape. Term of imprisonment exceeding three years shall not ordinarily be granted bail unless the court exercises its discretion to grant. Police detain those arrested for serious offence beyond the constitutional time limit without granting bail on the condition that investigations are incomplete.
3. Capital offences: e.g. murder, treasonable felony armed robbery. In the northern part of Nigeria, we criminal procedures code (CPC) regulating criminal procedure and in the south we have Criminal Procedure Administration and Lagos state has Administration of Criminal Justice Law of Lagos. I do not want to bore our readers with too many laws since this is intended for citizens to know their basic rights but lawyers have asked questions on not citing relevant laws, so we will minimise our legal jargons to the least.
Section 341(1) of the criminal procedures code provides that a person charged with a capital offence shall not be granted bail. But section 341(3) also provides that notwithstanding subsection (1), if it appears to the court that there are sufficient grounds, then the accused may be released on bail. This is to say that magistrate in northern Nigeria may grant bail to accused charged with capital offence. Meanwhile in the southern part of Nigeria, section 118(1) CPA, bail is not granted to a person charged with a capital offence except by a high court. Magistrates in southern part of Nigeria cannot grant bail to an accused charged with capital offence unlike their counterparts in the North.
Factors to be considered in granting or refusing bail:
Police Bail: Police ought to offer bail to any one arrested alleged to have committed a non-capital offence if they fail to arraign him in court within stipulated time limit. This is a duty imposed upon them. Unlike the court, police have no discretion in the issue of bail. They must compulsorily grant bail as long as the suspect complies with the conditions of bail before being released by the police. Where the suspect is not offered bail by the police officer in charge of the station, the suspect or his counsel or relation may apply for this bail in writing.
Sometimes police detain those arrested for serious non capital offences (fraud, rape, drug offences) before the constitutional time limit without granting bail on the ground that investigations are ongoing or incomplete. This situation ought not to be so. Many people have complained of being held by the police for months without being taken to court. A person held for non-capital offence and cannot be brought to court as stipulated by the constitution within 24hrs to 48hrs time limit must be granted bail by the police. No ground is sufficient whether investigation is incomplete or not. As long as the suspect enters into a bond with sureties to appear at the police station at the time specified in the bond.
Consideration for Bail in Court
1. Nature of the offence will determine whether it is a simple offence, serious offence or capital offence.
2. The severity of the punishment; how many years imprisonment is it likely to attract?
3. The criminal records of the accused: is the accused a known criminal? This is likely to affect his grant of bail. He must be able to show good character.
4. The likelihood of the accused committing further offences while on bail will be looked at by the court.
5. Is the accused likely to interfere with investigation of the offence?
6. The most important consideration is if the accused will jump bail or run away and not face his trial. Bail shall be denied.
Sometimes bail is denied for the protection of the accused if it appears his freedom might lead to other offences.
Although all the factors mentioned above are not strictly adhered in granting bail, all or many of these factors must apply in any given case. One factor may be applied in a particular case to guide a trial court. The terms of bail are fixed with regards to the circumstance of the case.
Both the police and court may admit to bail a person alleged to have committed an offence in such terms and conditions as they deem fit.
Terms of Bail
1. Bail on Self Recognizance: A person may be granted bail on his own recognizance. The accused is not required to execute any bond nor bring any surety being a reputable member of the society, a high standing person in the society and the court is satisfied that he would appear to stand his trial.
2. A person may be admitted to bail on condition that he executes a bond for the fixed sum. A bond is a written undertaken executed by a person to be admitted to bail that if he default on the bail arrangement, does not appear to face trial, he will forfeit a particular amount to court.
3. Bail with bond and surety: the accused executes a bond personally at the same time provide surety to guarantee his attendance in court. The number and qualification of sureties may be fixed by the court.
4. Deposit of money in lieu of bond or surety: This is a situation where the accused may apply to deposit money in lieu of bond/surety. If he is finding it difficult to get required surety, then he can ask for deposit of money. This can also be done for personal reasons by the accused. In the north, the court can ask the accused to deposit money in lieu of bond but not so in the south. The new law in Lagos 116(2) ACJL 2011 empowers the court to ask the accused to deposit money in lieu.
Consequences of Jumping Bail
Jumping bail simply means running away, absconding, and not coming for trial.
The court will do the following in case such happens;
1. The court may revoke the bail
2. Court may issue a bench warrant for his arrest and that he be brought to court subsequently.
3. If he entered into a bond, the court will require him to show cause why the bond should not be forfeited and if he is unable to show cause (give reason), he will forfeit the bond and he will be liable to pay the amount stated to the court. If bail was granted with surety, the surety will be invited to show cause on why his bond should not be forfeited though this is not automatic. The surety will be brought to trial if the surety is unable to give good reasons why the bail should not be forfeited, he shall pay the sum forfeited or have his property taken and sometimes sent to prison.
So surety must be careful and be sure to be familiar with the accused before standing as surety and signing a bond. An order of forfeiture made by a court(loss of surety’s property) is subject to appeal.
Culled from Talk To A Lawyer