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APPLICATION TO ENFORCE BAIL BOND IS INTERLOCUTORY

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The application to enforce bail bond or recognisance is ordinarily interlocutory. Of course, an interlocutory application is an application or motion for an equitable or legal relief sought before a final decision. The appropriate time to bring such application, ordinarily, is during the pendency or subsistence of the substantive criminal proceedings; an interlocutory application being one for interim or temporary relief. I have read Sections 137 and 140 of the Criminal Procedure Act, and I am of the firm view that the interlocutory application for the forfeiture of recognisance or bail bond must be made during the pendency of the matter and at the time the trial Court has “jurisdiction over the matter”. Once the trial Court becomes functus officio in the matter of the criminal proceedings it ceases thenceforth to have jurisdiction over the matter.

— E. Eko, JSC. FRN v Maishanu (2019) – SC.51/2015

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THERE MUST BE A VALID REASON FOR OPPOSING BAIL

A prosecutor cannot oppose bail merely as a routine procedure. There must be a valid cause or reason for opposing bail. In fact the onus is on the Respondent to show that the Appellants are not entitled to bail and has to provide the Court with antecedents or probability or even the tendency of an applicant escaping from being tried. See ADAMS VS ATTORNEY GENERAL OF THE FEDERATION (2006); BOLAKALE VS STATE (supra); ANAKWE VS COMMISSIONER OF POLICE (1996) 3 NWLR (PT 436) 320 and OMODARA VS STATE (2004) 1 NWLR (PT.853) 80.

— U.M.A. Aji, JCA. Rajab v State (CA/A/128C/2009, 11th day of March, 2010)

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APPLICATION TO FORFEIT BAIL BOND MUST BE PROVED

✓ In Ahmadu Tea v. Commissioner of Police (1963) NWLR 77 the appellant was a surety person in a magistrate’s Court. The accused did not attend to stand trial. The recognizance was forfeited and the magistrate there upon ordered the surety to pay a penalty or be imprisoned for six months, On appeal, the appellate Court held inter alia that before a bail bond is forfeited by the trial Court; the bail bond and the facts causing the forfeiture must be proved. The surety must also be given a fair hearing.

✓ In Lamidi Abudu in Re A. K. Kotun v. Inspector General of Police (1961) LLR 83 the accused person absconded and the Court forfeited the bail bond without hearing the appellant who was the surety. On appeal, it was held that forfeiture of the bail bond without hearing the surety was premature and the ground for forfeiture was not proved.

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FACTORS TAKEN INTO CONSIDERATION FOR BAIL

The learned trial Judge listed out a number of factors or criteria that may be taken into consideration by a Judge in granting or refusing bail pending trial. These include (1) the evidence available against the accused; (2) availability of the accused to stand trial; (3) the nature and gravity of the offence; (4) the likelihood of the accused committing another offence while on bail; (5) the likelihood of the accused interfering with the course of justice; (6) the criminal antecedents of the accused person; (7) the likelihood of further charge being brought against the accused; (8) the probability of guilt; (9) detention for the protection of the accused; (10) the necessity to procure medical or social report pending final disposal of the case. Generally, these are some of the factors that may be taken into consideration. It is by no means expected that all will be relevant in every case. I do not also think they are exhaustive. It may well be any one or others may be applied to determine the question of bail in a particular case. The learned trial Judge realised this when he said:- “The bailability of an accused depends largely upon the weight a Judge attached to one or several of the criteria open to him in any given case”. This is eminently a correct view. The learned trial Judge said further:- “The determination of the criteria is very important because the liberty of the individual stands or falls by the decision of a Judge in performing the function. A Judge wields discretionary power which, like all other discretionary powers, must be exercised judiciously and judicially. In exercising the discretion, a Judge is bound to examine the evidence before him without considering any extraneous matter”. This is also correct.

— Uwaifo, JSC. Bamaiyi v State (SC 292/2000, Supreme Court, 6th April 2001)

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PRINCIPLE BEHIND THE GRANT OF BAIL

What is the principle governing the grant of bail. What it might be asked is the accused’s right of bail. It is to be stated that in virtually all civilised countries where the rule of law reigns supreme, the procedural law does not rest upon any priori sentimentality about the criminal act. Indeed the great Jurists and lawmakers and the framers of the constitution who in their different activities fashioned our laws were not and are not motivated or animated by any particular softness towards the lawbreakers. The basis behind all the procedures which ensure adequate reasonable safeguards is not rooted in coddling the criminal or any miscreant or indeed treat his alleged nefarious act with kid gloves. It is not equally to ensure that there are large and enough veritable loopholes by which he can effect his escape from the consequences of the result of his evil act. Rather it is to preserve our heritage for freedom; that a person accused is not detained for the purpose of making him suffer indignity, and that it is effectively to make certain as nearly as the complexity and perplexity of our world will permit that the truth will be discovered and that justice will be done. It therefore does not rest on a misguided and naïve unrequited emotionalism.

— Pats-Acholonu JCA. Vincent Ogueri v. The State (12th July 2000)

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APPLICATION FOR FORFEITURE OF BAIL BOND BROUGHT AFTER JUDGEMENT IS UNKNOWN TO LAW

Further, by the combined effect of Sections 119, 120, 122, 127, 128, 137, 141 and 143 of the Criminal Procedure Act, forfeiture of bail bond is contemplated during criminal trial and not after the discharge and acquittal of the accused person as in the instant case. Once judgment is delivered, resulting in conviction or discharge and acquittal of the accused person, the obligation of the surety terminates. Thus, an application for forfeiture, brought after judgment has been delivered with the accused person discharged and acquitted, is with respect, unknown to law.

— I.T. Muhammad, JSC. FRN v Maishanu (2019) – SC.51/2015

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MURDER AND BAIL; IT MAY NOT BE PROPER TO KEEP ACCUSED IN CUSTODY JUST BECAUSE MURDER IS ALLEGED AGAINST HIM

In the case of Christian Diogu v. The Commissioner of Police (2000) 1 K.L.R. (Pt. 94) 195 the appellant was charged for conspiracy and murder before the Chief Magistrate’s Court, Onitsha. The Chief Magistrate remanded the appellant in custody. He applied to the High Court for a bail. The High Court dismissed his application on the ground that it would not be in public interest to admit the applicant to bail. The applicant then appealed to the Court of Appeal, Enugu Division. The Court of Appeal in granting bail was of the view that it would be dangerous to merely arrest citizens of this country on allegation of murder without substantial facts in support and keep them in custody merely because they are being accused of murder. From the facts of that case the prosecution did not even provide the court with proof of evidence to show that there was a prima facie case of murder against the appellant.

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