Bail under Nigerian law is constitutionally provided.
Bail means temporal release of a person on certain condition required by law with the undertaking to always be present whenever needed, pending the conclusion of investigation, trial or appeal.
Bail supports the constitutional right to liberty and presumption of innocence.
SEE SECTION 35 AND 36(5) OF THE 1999 CONSTITUTION OF NIGERIA AS AMENDED.
TYPES OF BAIL
Bail under Nigerian law is categorized into three:
This is bail granted often to a suspect at the police station. It is called Bail pending investigation or police administrative bail as noted by Lawpadi. The bail last till the conclusion of investigation and arraignment of the suspect in competent court.
The suspect is expected to produce a reliable surety who will take him on bail.
Depending on the nature of the offence alleged against the suspect, the police may grant or refuse the application for bail. Where the offence is a simple offence, the police is required by law to release the suspect on bail.
Again, where the offence is capital in nature, the suspect will definitely not be granted bail. This does not in any way prejudiced the presumption of innocence as provided in section 36 of the Constitution.
BAIL PENDING TRIAL
We stated earlier that police Bail last till the arraignment of the suspect in Court. Upon arraignment, the Defendant is expected to apply for another bail through his counsel.
This kind of Bail is referred to as Bail pending trial. The bail if granted will last till the conclusion of the matter.
Again, the granting of Bail is within the discretionary powers of the court. SEE THE CASE OF LIKITTA V COP(2002)FWLR(PT106)1075
The court in exercising this discretionary power is expected to act judicially and judiciously.
Furthermore, there are situation where an accused person will be arraigned in magistrate court for remand order.
This happens where the offence alleged is capital in nature and the magistrate court has no jurisdiction to try the offence alleged and the information or charge has not been filled.
The court in this instance will not release the accused person on bail but will be remanded in custody pending when information will be filled.
However, within the time the accused person is in custody, the accused person may through his counsel apply for his bail in High Court.
BAIL PENDING APPEAL.
This is also another type of Bail under Nigerian law. This type of bail becomes necessary where the accused person is convicted and the accused person wishes to exercise his right of Appeal.
For court to grant this kind of Bail, the Defendant has to adduce sufficient reasons.
Again, Bail pending Appeal will equally be necessary where bail application made by the accused person was refused at the lower court.
FACTORS THE COURT CONSIDERS IN GRANTING OR REFUSING BAIL.
1.Whether the Defendant will jump bail if he is released.
2. The likelihood of the Defendant or accused person committing another offence why on bail.
3.Whether investigation or proper handling of the matter will be prejudiced if the accused is release on bail.
4.The nature of the charge against the Defendant.
5. The criminal record of the accused person.
6. The health condition of the accused persons.
SEE THE CASE OF ANI V STATE(2002) 1NWLR(PT.747) 217. SEE ALSO.ABACHA V STATE(2002) 5 NWLR(PT.761)638. BAMAIYI V STATE(2001) 8 NWLR (PT.715) 270.
PROCEDURE FOR APPLYING FOR BAIL UNDER NIGERIAN LAW IN MAGISTRATE COURT.
Once a charge is read, and the Defendant takes his plea, the Defendant’s counsel is expected to apply for his bail. Usually, this is done orally. However, the prosecution may oppose the application for bail made, giving cogent and compelling factors or reason why the application for bail should not be granted by the court.
SEE THE CASE OF ANI V STATE SUPRA.
Upon making the oral application for bail, the court may grant or refuse same. Where it is refused, another application for bail can be made to the High Court within that jurisdiction.
Such application shall be accompanied by Certified true copy of the charge, and Certified copy of the magistrate court ruling refusing the application for bail.
PROCEDURE FOR BAIL APPLICATION IN HIGH COURT.
At High Court level, bail application shall be made by way of motion on notice accompanied by affidavit and written address.
READ MORE..HOW TO MOVE MOTION IN COURT.
The said Motion on notice shall be served on the prosecution. The prosecution may oppose the application for bail by filling counter affidavit. The defendant may proceed to file further affidavit and reply on point of law.
The motion will be moved on the slated date. Again, the court may in considering the affidavit and counter affidavit of parties grant or refuse the application for bail. Where it is refused, the Defendant can appeal to the court of Appeal. SEE THE CASE OF STATE V UWAH.
TERMS AND CONDITION UPON WHICH BAIL MAY BE GRANTED.
1. SELF RECOGNIZANCE.
Where the accused person
renowned personality, the accused person may not necessarily produce a suretee. Such a person will be granted bail on self recognizance. This is because, it is usually inferred from his known personality, that he will not jump bail.
2. ACCUSED PERSON EXECUTING A BOND
The defendant may be required to execute or deposit a fixed sum as condition for his bail. The sum so deposited will be forfeited if he jumps bail.
3.ACCUSED PERSON PRODUCING A SURETEE.
The suretee will be required to deposit bond and fulfill other conditions that may be stipulated by the court. The suretee undertakes to pay or lose the bond if the Defendant jumps bail.
However, note that there is no law that says that a suretee should be arrested to face trial in place of the Defendant who he elected to surety in situation where the Defendant jumps bail.
Again, there is no law prohibiting a woman from standing as a surety. SEE SECTION 166(3) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015.
4.DEPOSIT OF MONEY IN LIEU OF BOND.
The court or police may equally require an accused person to deposit money in lieu of bond. Where this happens, the suspect upon satisfaction of bail condition is allowed to go and likewise the suretee.
CAN BAIL BE REVOKED?
Yes, bail can be revoked if the accused person:
a. Jumps bail
b. Fails to keep any of the conditions stated in the bail.
c. Commits another offence why on bail.
d. Interferes with proceedings or gathering of evidence or investigation.
Also, bail may be revoked if the surety surrenders. That is, if the surety applies to the court to be discharged from his undertaking. The accused person will be kept in custody pending when the accused person finds another surety.