Home / bail / Samuel Okolie: Citizen’s right to bail

Samuel Okolie: Citizen’s right to bail

Let me start on the easy premise that bail is a proper and never a privilege. This proper is absolutely ensconced and embedded within the 1999 structure, and this proper is accessible to each one who has been accused or suspected to have dedicated a criminal offense. Bail merely put, is a process by which an individual arrested or detained in reference to a criminal offense could also be launched upon safety been taken for his look on a day and place as possibly decided by the particular person or authority affecting the discharge. It’s a course of by which an individual is launched briefly from state custody on situations given to make sure his attendance within the courtroom every time he’s required, till the dedication of the case towards him.
The precise to bail is an adjunct or direct offshoot of the constitutional proper to liberty assured below Part 35(1), and the suitable of freedom of motion below part 38 of the structure. It’s also not unconnected with proper to presumption of innocence below part 36(5) of the structure. Part 35 of the structure is the omnibus part upon which the suitable to bail is based.

Part 35(1) offers; that each particular person shall be entitled to his private liberty and no particular person shall be denied of such liberty. Conscious of the truth that the regulation enforcement officers or businesses who train the facility of detention as aforesaid might abuse such powers by preserving an accused or suspect longer than obligatory, subsection 4 of part 35 of the structure offers that; Any one who is arrested or detained in accordance with the availability of subsection (1)(c) of this part shall be introduced earlier than a Courtroom of Legislation inside an inexpensive time.

To keep away from any controversy as to what an inexpensive time means, Subsection (5) offers the reply, thus:
In subsection (A) of this part, the expression an inexpensive time means; (a) Within the case of an arrest or detention in a spot the place there’s a courtroom of competent jurisdiction inside a radius of forty kilometers, a interval of sooner or later; and (b) In some other case, a interval of two days or such longer interval as within the circumstance could also be thought-about by the courtroom to be affordable.

From the above, it’s pertinent to state that the minimal period of time a suspect is allowed to be in detention with out bail is a interval of 48 hours (2 days). Nonetheless, there are a number of exceptions to those constitutional provisions.

In legal proceedings, the query of bail normally arises at three (3) totally different phases:
(1) Bail by the Police or any Legislation Enforcement Companies
(2) Bail by the courtroom pending trial
(3) Bail by the courtroom pending Attraction

With respect to bail by the police or some other Legislation enforcement businesses, Every time the Police or the Legislation enforcement agent carries out an arrest with out a warrant, the officer in command of the station or the Legislation enforcement company that approved such arrest, might launch such a suspect upon safety being taken for his attendance in courtroom or at such station every time required. The constitutional provision of not preserving a suspect or an accused particular person for greater than 48 hours (2 days) applies strictly in one of these bail, because the courtroom has severally warn towards preserving an accused past the constitutional provisions with out first charging the suspect to courtroom or releasing the suspect on bail. In Eda vs commissioner of police (1982) 2NCLR219. The courtroom held that the availability of part 27 of the Police Act which state that an accused needs to be charged to courtroom as quickly as practicable after he’s taken into custody is unconstitutional because it runs opposite to part 35(4) and (5) of the structure which offers for a most interval of 48 hours earlier than a suspect is been charged to courtroom.

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The subsequent stage within the utility for bail is;
BAIL PENDING TRIAL: That is the place the police or the related Legislation enforcement businesses cost the suspect to courtroom.

Right here, the suspect by way of his counsel might apply for bail of the suspect or the courtroom might suo moto admit the defendant on bail. It’s also vital to attract a distinction between the facility of the Justice of the Peace courtroom to grant bail and the facility of the excessive courtroom to grant bail. It’s submitted that the facility of the Justice of the Peace courtroom to grant bail is proscribed to minor offence because the Justice of the Peace courtroom can not grant bail in critical offence, because the courtroom doesn’t Ipso facto has jurisdiction over capital offences, therefore they can’t grant bail in capital offence- see part 115 of the administration of legal justice regulation of Lagos state 2011. The observe the place Justice of the Peace courtroom grant bail in capital offence below the guise of Holden cost has been declared unconstitutional by Plethora of Supreme Courtroom instances, see Ogor Y. Kolawole (1985) 6NCLR 534 at 539; EYA VS THE STATE (1988) 2NWLR (pt 200) 333. The excessive courtroom has energy to grant bail in all legal instances that comes earlier than it whether or not within the train of its unique, supervisory or appellate jurisdiction. Within the train of the powers of the courtroom to grant bail, the courtroom has discretion to both or not grant bail. See ONAGORUWA VS THE STATE (1992) 2NWHR (PT221) 33 AT 54.

In exercising this discretion the courtroom will take into accounts a variety of elements earlier than deciding whether or not or to not grant bail. The issues are as follows
i. The character of the cost;
ii. The power of proof which help the cost;
iii. The gravity of the punishment within the occasion of conviction;
iv. The earlier legal document of the accused, if any;
v. The likelihood that the accused might not give up himself for trial;
vi. The chance of the accused interfering with witness or might suppress any proof which will incriminate him;
vii. The chance of additional cost being introduced towards the accused; and
viii. The need to acquire medical or social report pending ultimate disposal of the case- BAMAIYI VS THE FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (PT 375) 558; -once the courtroom has take into account this elements favorably, the courtroom is enjoined to grant bail. Additionally it should be borne in thoughts that the correct check the courtroom will take into account whether or not or to not grant bail is to contemplate the likelihood that the accused will seem to take his trial and that he’ll do nothing to frustrate the same-in reality, all different elements revolve round this all vital issue.

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BAIL PENDING APPEAL: That is the final stage the place an applicant can apply for bail. An utility for bail on the appellate stage might come up within the following circumstances; (a) the place the applicant/appellant has been tried and convicted however he has appealed towards his conviction and he’s bringing his utility for bail, pending the dedication of the enchantment (b) the place the accused has made an utility for bail on the trial courtroom pending trial however identical was refused and the trial remains to be pending earlier than the courtroom. Thus the place any of the aforementioned eventualities happens, the accused/convict can apply for bail pending trial. In granting bail to an accused below this stage, the courtroom will take into account a variety of elements like;
(a) The character of the enchantment (2b) the bodily or psychological well-being of the appellant (c) the place the trial, conviction and/ or sentence is/are manifestly contestable (d) the size of sentence handed on the applicant (e) the place the applicant is a first-time offender (f) the place the appellant was granted bail in the midst of trial and he/she didn’t bounce bail.
As soon as the courtroom is happy with the aforementioned elements, the courtroom will grant bail.

This refers back to the situation or situations upon which bail is granted. It’s normally spelt out by the decide when he’s granting bail. Bail possibly granted on the next phrases and/or situations
SELF RECOGNIZANCE: Bail is normally granted on this situation when the accused particular person is a recognized character whom the courtroom is of the opinion is just not prone to bounce bail. The late Chief Gani Fawehinmi was an enormous beneficiary of those phrases of bail
AN ACCUSED EXECUTING A BOND: An individual could also be granted bail provided that he executes a bond for a hard and fast sum. The place the accused fails to seem earlier than a courtroom on a day he’s required to be so current. He could also be made to pay the quantity contained within the bond. That is in any other case known as forfeiture of bond.

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PROVIDING SURETY OR SURETIES; right here the accused might be directed to supply sureties who will stand for him, and if he fails to seem earlier than the courtroom, the sureties might be made to a pay the sum acknowledged within the bond or be dedicated to jail.
PAYMENT OF DEPOSIT: below this time period, the courtroom will ask an accused particular person to pay a selected sum of money into an curiosity yielding account supplied by the courtroom, the rationale for that is that, if an accused fails to seem earlier than the courtroom, the accused should forfeit the quantity deposited to the federal government.

There are conditions the place the courtroom can revoke the bail granted to the accused; an instance is the place an accused bounce bail, an accused is claimed to have bounce bail the place he fails to seem in courtroom on a date the case is arising, with out giving a or justifiable motive for his lack of ability to attend courtroom. One other occasion is the place the sureties who stood for an accused, applies to be discharged, or give up the accused to the courtroom earlier than the date assigned-see the case of CALEB AND ANOR VS FRN (2006) 4 NWLR (PT 984) 103 AT 115.
Lastly, it needs to be identified that although accused has a proper to bail, such proper is just not absolute however certified; and the suitable of an accused may be disbursed with, within the curiosity of justice and when nationwide curiosity is contain. In DOKUBO-ASARI VS FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (PT 375) 558 the Supreme Courtroom held thus; the pronouncement by the courtroom under is that the place nationwide safety is threatened or there’s the chance of its being threatened, human proper or the person proper of these accountable takes second place. Human proper or particular person proper should be suspended till the nationwide safety may be protected or taken care of. This isn’t something new. The company existence of Nigeria as united, harmonies, indivisible and indissoluble sovereign nation is actually higher than any citizen liberty or proper. As soon as the safety of this nation is in jeopardy and it survives in items somewhat than in peace, the people liberty or proper might not even exist.

Samuel Okolie is a Lagos-based authorized practitioner. 08066756987, samuelokolie2017@gmail.com

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