Week 3 &4 Sources of Criminal Procedure Laws


DURATION/ LIFESPAN OF BAIL

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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 CPL,

SS. 340 & 341 CPCL.

This may come in two ways;



  1. Endorsement of court bail upon warrant of arrest by the court or Justice of the Peace EXCEPT in capital offences-Sections 30 CPL, 57 CPCL

  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:




  1. SIMPLE OFFENCES (LESS THAN SIX MONTHS),

MISDEMEANOURS(6 MTHS-3YRS)-the Court shall grant bail EXCEPT it sees good reason not to. –

S. 118(3) CPL;

S.115(3) ACJL

S. 341(3) CPCL
NB-S.340(1) CPCL 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)CPCL and

S. 118(2) CPL.

C. CAPITAL OFFENCES-Only a High Court Judge that can grant bail on capital matters.

S. 115 (1) ACJL,

S. 341(1) of the CPCL,

S. 118(1) of CPL,

S. 35(7) (a) CFRN

OLADELE VS. THE STATE.
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 except in respect to CAPITAL OFFENCES in Nigeria-

S.118 CPL;

S.12 CPCL&APPENDIX A CPCL;

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:

No provision in the CPL or CPCL or ACJL on the procedure for applying for bail.

a. Magistrate Court in the North/south: Application for bail can only be made after plea It can be made orally immediately after arraignment (after a plea has been made) 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 application or by a summons (supported by an affidavit).


Okeke and another v COP (1960) NRNLR 1: held that an application for bail pending trial should be by way of summons (Northern Nigeria).

Tanko v COP: held that application for bail pending trial should be by way of summons.

Supreme CT clarified the difference btw summons and motion. Summons is used pending trial because presumption of innocence still inures to the benefit of the accused. So it is for the State to explain why the accused should remain in prison. We use motion after conviction, presumption of innocence no longer applies.

If application is not of the nature to be taken orally, then accompany it with an affidavit. Must contain facts that will allow the magistrate/judge to exercise his discretion in your client’s favour

NB-where the magistrate has heard an oral application for bail and the objections taken; then the magistrate should rule on the application and not ask for a written application – Dogo v. COP

Exercise of this power to grant bail depends on the nature of the offence charged. In the North, it is possible to grant bail for a capital offence (s341(1) & 344 CPCL). While in the South and Lagos: s118(1) CPL & s115(1) ACJL, it is possible but restricted to High CT judges.

Felonies other than capital offences: both the magistrates and High CTs may grant bail: s341(2) CPCL, 118(2) CPL & 115(2) ACJR&R Law

Misdemeanour or other simple offences: both magistrates and high CTs may grant bail s340(1) CPCL, s118(3) CPL, s115 ACJR&R Law.

(Section 322(1) CPCL, 225(1)(a) CPL and s219(1)(a) Administration of Criminal Justice (Repeal & Re-enactment) Law 2011). (Check this out as to when application for bail can be made even where plea is not taken e.g. in cases of insanity e.g. s225(1)(a) CPL states that Whenever an accused person is found to be of unsound mind and incapable of making his defence, the court, the offence charged is bailable by the court, may, in its discretion, release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the court or such officer as the court appoints in that behalf.).

High Courts

The various laws did not provide for the procedure for bail application in the High Court: s363 CPL (since no stated procedure, the procedure in High CT of England is applicable i.e. by summons); s262 ACJR&R Law (to do substantial justice – the same procedure under the CPL is adopted), s35 High Court law of Northern Nigeria (prohibited the adoption of the procedure under CPL to refer to the High CT of England so substantial justice is to be done – so if the application is by motion or summons, the CT is empowered to listen to the relief sought).

b. High Courts in the South it is by a summons supported with an affidavit and a written address. S. 363 of the CPL, 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 but usually by motion on notice
e. Refusal of bail at magistrate courts in the South-apply to the High CT by SUMMONS supported by affidavit-S.363, SIMIDELE V. COP (1966)
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-

The magistrate shall inform the accused of that right to apply to the High CT after refusal. Certified true copies of the proceedings shall be lodged at the High CT

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 CPL; S.119 ACJL; S. 342 of the CPCL; DOGO VS. COP.

NB: Dogo v COP: bail cannot be refused as a punishment

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 record of proceedings

  4. Certified true copy of the Order of the Magistrate refusing bail

  5. 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. UWAH (1976) (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 application 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 CPCL 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 FACTORS FOR THE GRANT OR REFUSAL OF BAIL

No laid down rules in the CPL/ACJR&R/CFRN. Only the CPCL made provisions as a guide: s341(2) CPCL and note s341(3) CPCL. Applicant is expected to generate his factors to be taken into account – depending on the case at hand


  1. Nature/gravity of the offence or severity of punishment for the offence: ANAEKWE V. COP (1996): on a charge of conspiracy and murder, the Magistrate ordered that the defendants remanded in prison custody. The High CT judge refused an application for bail on the ground that the offence allegedly committed was ‘murder’

  2. Availability of the accused to stand trial i.e. danger of absconding

  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) e.g. witness testimonies, exhibits filed.

  4. Severity of punishment in the event of conviction

  5. Likelihood of commission of another offence while on bail–R V. JAMMAL

  6. 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) –record of previous convictions

  7. The Prevalence of the offence i.e. where a particular offence is prevalent in an area or at a given time, the CT is usually slow to grant bail. THE STATE v FELIX and AJUDA VS. FRN. NB-NWOKE V. FRN-bailaible offences. In Bamaiyi v State (2001): the spate of assassinations in the country especially in Lagos was a factor the court considered to deny the applicant bail; Omodara v The State

  8. Detention of the accused is for his Protection/safety.-BAMAIYI VS. THE STATE; NNOGU V. STATE

  9. Interference with police investigation or prosecution - DANTATA VS. IGP(bribe)BAMAIYI V.STATE(Influential person);DAMBABA V.STATE

  10. Medical or health grounds. FAWEHINMI VS. THE STATE; ANI V. STATE; NWUDE V.FRN e.g. renal failure. NB: it appears that HIV/AIDS no longer counts as a health factor

NB- CONDITIONS

  • The prison facilities must be insufficient


  • Continued detention of the accused will endanger life of other detainees.

  • There must be evidence that the accused person while in detention has sought for treatment from prison authorities.

NB: If the defence counsel puts legal argument and conclusions and points of law in his affidavit, the prosecution can orally ask the CT to exclude these legal arguments as this offends against the Evidence Act
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. Used for securing attendance of the accused. Conditions are generally at the discretion of the court to impose. NB: there are no general conditions and conditions must not be onerous and excessive: s349(1) CPCL; s120 CPL & 116(1) ACJR&R Law


THE USUAL TERMS OF BAIL ARE:

    1. Bail on self-recognisance with no surety, security or conditions needed – normally in cases of misdemeanour

    2. 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. Under ACJ, there are registered bond masters

    1. Bail with bond and surety for a specified sum.-

S. 122 CPL ;

S.118 ACJL;

S.345 CPCL;

S.27 Police Act

    1. Deposit of money in lieu of bond. .

S.120 CPL ;


S. 347 of the CPCL.;

ONUIGBO V. POLICE

NB-This may be on the application of the accused or order of court-



EYU V. STATE;

S.120 CPL;

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.

CT may require a surety of a particular standing/status in society e.g. Civil servant above a particular grade in the Ministry. NB: the terms and conditions are not exhaustive – determined by the particular circumstances of the case



s138 ACJ(R&R) Law: introduction of bail bondsmen

s372 ACJ (R&R) Law decides on how the law should be cited


REVIEW OF THE TERMS OF BAIL

S. 120 CPL & 344(1) CPCL& 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 may apply to the High Court for a review of the terms of bail. –



S. 125 CPL;

S. 344 CPCL

Eyu v. State(EXCESSIVE TERMS); State v. Amaefule (NOT EXCESSIVE).

Application to review bail terms can be made where they are onerous. A surety may upon application be discharged by the court.

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) CPCL

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: S142 CPL
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 CPL and

S. 127 ACJL.

  1. If the accused failed to appear for his trial with no reason

  2. The surety applies to be discharged. NB: CT will not immediately revoke bail, they give the accused an opportunity to substitute the surety. Only when the accused cannot procure a surety that is to the satisfaction of the CT will the CT revoke bail.

S. 129 ACJL,

S. 134 CPL and

S. 351 CPCL.
  1. The accused granted bail is about to leave Nigeria and an information is given to the


Court-S. 130 of CPL

  1. If the grant was based on fraud.


WHO QUALIFIES TO BE A SURETY

  1. A person of known address

  2. A person with known means of income

  3. A person of good character

  4. 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 1999 Constitution).

NB-S. 118(3) ACJL 2011 provides that no person shall be denied or prevented or restricted from entering into any recognisance 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 CPL,

S. 351 CPCL,

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 a 10 paragraph affidavit sworn to by _____________

We rely on all the paragraphs of the affidavit particularly paragraphs 4-9. Accompanying the affidavit are ___ exhibits marked___.

  1. A- we have also filed a written address in support of our application. We wish to adopt same

  2. My lord it is trite law that for an applicant to be granted bail, he must _--the applicant has satisfied these conditions

  3. C-We humbly pray this honourable court to grant bail to the accused on liberal terms

  4. May it please the court/ we are grateful, my lord.

Note- when to align your depositions in the affidavit for bail with the 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 doctor with 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 have refused to grant them bail after one month of detention on the ground that investigations are still on. Audu Mekoi 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 with the last traditional paragraph.



IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CASE NO:…………….
BETWEEN:

THE FEDERAL REPUBLIC OF NIGERIA...COMPLAINANT/RESPONDENT

AND

1.IKPO……………………ACCUSED PERSONS/RESPONDENT

2.BURAGO………………… ACCUSED PERSON/APPLICANT
SUMMONS

BROUGHT PURSUANT TO SECTIONS 35(4), S.36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED), SECTION 341(2) and (3) OF THE CRIMINAL PROCEDURE CODE ACT AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

LET ALL PARTIES attend at this Honourable court on the …….day of ……. 2015 at the Hour of 9 O’clock in the forenoon or so soon thereafter on the hearing of an application for bail by counsel on behalf of the Accused person/ Applicant for:

1.AN ORDER admitting the Applicant 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.

DATED THIS ……… DAY OF………………………….2015.

This Summons was taken out by:


Emokiniovo Dafe-Akpedeye (Applicant’s counsel)

No. 15 Law School Close, Bwari, Abuja,

Legal Practitioner for the applicants.

FOR SERVICE ON:

The Hon. Attorney-General of the Federation

Federal Ministry of Justice Abuja.

NB: If Capital offence, cite section 35(4) and 35(7)(a) 1999 Constitution. Also see 115-119 Evidence Act



IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CASE NO:…………….

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA ………..……..COMPLAINANT/RESPONDENT

AND



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