When a person is arrested, one of the several things that can happen to him/her is that, the Police can release him on bail, and equally if he is charged to court, the court before whom he is brought may release him on bail. The Nigerian Constitution does not explicitly guarantee bail for a person arrested for an offence but by implication, it provides for bail by stating that the person arrested must be tried within a reasonable time, otherwise he/she should be released unconditionally or on conditions which are reasonably necessary to ensure his subsequently appearance for trail (see section 35 (4) of the Constitution of the Federal Republic of Nigeria 1999).
WHAT IS BAIL
Bail is the arrangement whereby an accused person is granted a temporary release from custody pending the determination of the case against him.
This is done upon his providing security, usually in the form of a secure for his appearance at a certain date and place to answer the charge against him.
The decision of the Courts in Nigeria is that bail is a basic and fundamental right of an accused person.
But there are circumstances, which may justify the refusal of bail. Such circumstances may include, the quality of the evidence available, the likelihood of the accused person interfering with prosecution evidence against him, likelihood of his repeating the offence if he is released on bail, likelihood of accused escaping from justice etc.
In practice even if none of the above circumstances is applicable, the law enforcement agents, do not like granting bail except they are gratified.
However, in granting bail, the condition should be stringent or expensive; for that would amount to refusal of bail.
Where the conditions are stringent, an accused person has a right to apply to a higher Court for the review of those conditions.
Bail can also be granted on self-recognition of the accused person, that he undertakes to appear to answer the charges against him when needed. By self-recognition, it implies that the accused is well known and respected in the community and society and it is believed that he will not run away.
THE TIME TO GRANT BAIL
1. When the Police investigation is still pending
2. When the trail is still pending
3. When an appeal is still pending
TYPES OF BAIL
There are two types of bail. There are Police bail and Court bail.
POLICE BAIL: This is when the officer in charge of a police station releases a person who was arrested without a warrant or written permission by an official of law on any of the following grounds:
a. Investigation has been completed on the person’s case and this will take some time to be completed.
b. The person cannot be taken to Court within 24 or 48 hours as the case may be.
c. There is no sufficient evidence to believe that the person has committed the offence.
d. The Court is more that 40 kilometers away and it will take sometime to file the charge in the Court.
e. If the offence is not one punishable by death.
COURT BAIL: This is granted when the presiding Judge or Magistrate before whom the accused is taken grants bail to the accused person until the case comes to an end. This is usually granted on any or all of the following conditions:
1. To afford the accused person adequate time and facilities to prepare his defence.
2. When the accused person is sick, to allow him access to medical facilities.
In granting bail to an accused person, the Court is usually guided by some of the following considerations:
i. The nature and gravity of the charge
ii. The magnitude or severity of the punishment, which a conviction will entail.
iii. The nature and character of the evidence received so far or the weight of evidence against the accused.
iv. The character, means and standing of the applicant.
v. Any peculiar circumstances peculiar to the accused.
vi. The probabilities of his absconding or the availability of the accused to stand trial.
vii. The danger of the offence being continued or repeated.
viii. The danger of witnesses being tampered with or terrorized or harass.
ix. The period spent in custody and the likelihood of delay in the trial.
x. The opportunity to prepare the defence.
xi. The health, sex or age of the accused.
xii. The evidence available against the accused.
xiii. The probability of guilt.
xiv. Detention for the protection of the accused.
xv. The likelihood of the accused interfering with the course of justice.
xvi. The criminal antecedents of the accused person.
xvii. The likelihood of further charges being brought against the accused.
xviii. The availability of substantial sureties.
xix. In the cause of a convicted person, the possibility of success of his appeal as can be inferred clearly from the evidence and grounds of appeal.
xx. In the case of a convicted person, where it is glaring that the appeal through no fault of the convicted person is not likely to be heard in good time by the appellate Court vacation is imminent or there is no Court Judge available to hear the appeal.
CONDITIONS FOR BAIL
Bail is generally granted on certain terms and conditions which the Court or Police may determine.
However, the conditions should not be stringent or excessive. Where the conditions are too stringent, it is implied that there is a refusal of bail. In such a situation, the accused can apply or appeal to a higher Court for a review of the conditions. In any case when bail is granted the following conditions normally suffice.
1. Where bail is on self-recognition, the accused undertakes to appear to answer the charges whenever he is needed. Self-recognition is resorted to where the accused is a reputable person and well known in the society.
2. Bail with a bond executed for a fixed amount. The bond is to the effect that the accused person would appear in Court. Where he fails to appear, the amount in the bond would be forfeited to the government.
3. Bail with surety, who will execute a bond for the appearance of the accused person. A surety is a person who guarantees by means of a recognizance, the appearance in Court or at the Police station of an accused person admitted to bail.
4. The Court sometimes required sureties to be property owners within its jurisdiction and they should produce certificate of occupancy of the property or other title document, Tax Clearance Certificate and passport photographs.
5. Deposit in lieu of bond.
It should be noted that women are eligible to stand as surety just as men for an accused person. The 1999 Constitution of the Federal Republic of Nigeria in section 39 prohibits discrimination on grounds of the sex of anybody. A woman can bail anybody who is well known to her is and she is sure that she can produce the person whenever the person is needed.
OFFENCES THAT ARE AVAILABLE
Bail can be granted to an accused person who is charged with committing a simple offence or where the punishment for the offence does not exceed 3 years. Or the punishment for the offence does not involved death.
However in case of offences of a serious nature whether carrying the death penalty or not, a judge of the High Court can exercise his discretion to grant bail in the Southern States of Nigeria, while in the Northern States of Nigeria bail cannot be granted in respect of offences carrying the death penalty.
REMEDY FOR REFUSAL OF BAIL
Where bail has been refused by a lower Court of the Police, the accused have a right to apply to a higher Court for bail, and may be granted bail by the Court. Where a High Court refused an accused person bail, the accused person can appeal to the Court of Appeal and even the Supreme Court against any decision that violated his right to bail. Even if bail has been granted on very stringent conditions, he can appeal to a higher Court for the review of the condition of bail as most stringent conditions amounts to refusal of bail.
WHO CAN APPLY FOR BAIL
Anybody close to the accused person can apply for bail on behalf of the accused person and even the accused person where he is not represented by a Lawyer can equally apply himself.
PROCEDURE FOR APPLYING FOR BAIL
1. In the Police Station, the practice is to make a formal application and a superior police officer; usually the divisional Police officer will approve it. When the accused person is charged before a Magistrate Court, where he retains the services of a counsel, the counsel orally applies for bail and where the accused person is unrepresented, the Court would normally proceed to consider the issue of bail and once the offence is one for which the accused is entitled to bail, bail would be granted to the accused.
2. Where bail has been refused by the Magistrate Court an application by way of summons is filed at the High Court. The summons is usually supported with an affidavit and a certified true copy of the charge sheet is attached together with the ruling of the Magistrate.
3. The affidavit will show the character of the accused person, the level which investigation has reached, the none interference with witnesses and other matters which will make the Court to exercise its discretion in the accused favour particularly that the accused is coming to stand trial for the offence which he is charged.
4. A copy of the application would be served on the prosecution who is at liberty to file a counter affidavit in opposition, where he disputes some of the facts stated in the affidavit.
5. If it were a Police bail, the application would be made to the official in charge of the case.
It should be noted that where the accused person refused bail and he is not charged to Court, an application for the issuance of the writ of habeas corpus should be filed, or a motion challenging the detention should be brought.
If any Police Officer asks you to pay for bail, report him or her to Commissioner of Police in your State.
Or further information on your rights in relation to Law Enforcement, contact
Community Policing Partners for Justice Security and Democratic Reforms
44 Ikot Abasi Road, Oku Abak
Abak Local Government Area
P.O. Box 861 Abak 532101
Akwa Ibom State, Nigeria.
Tel: +234-806-668064, 802-3811786, 7088738308, 8099911146
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