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IN OUR COUNTRY, COURTS SHOULD BE CAUTIOUS IN REMANDING ACCUSED

Dictum

In a country such as ours where there is so much inter-ethnic animosity and hatred, the court ought to be cautious in remanding accused persons in custody unless there is some substantial evidence in support of allegations of crime against them because it is so easy for an enemy to make a false allegation of murder or robbery against a citizen to keep him out of circulation.

— J.O. Ogebe JCA. Vincent Ogueri v. The State (12th July 2000)

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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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APPLICANT FOR FORFEITURE OF BAIL BOND MUST DO SO TIMEOUSLY

It is a settled principle of law and in a community reading of the provisions of Sections 137, 141 and 143 of the Criminal Procedure Act (CPA), that when an accused person/defendant is granted bail and he jumps it, the trial Court may, upon noticing such a breach by the accused/defendant may: i. revoke the bail, ii. issue a bench warrant for his arrest, iii. order the forfeiture of the bail bond, and iv. upon forfeiture of the bail bond, order the surety (sureties) to (each) pay the sum stated in the bond into the Court’s Registry. My lords, from the analysis given above from the decisions of the two lower Courts, it is clear that the two Courts are in concurrence on the finding that the appellant adopted wrong procedure in its application. Certainly, the law has its set out procedures in pursuance of applications relating to bail and perfection of bail bond and or its forfeiture as envisaged by Sections 137, 141 and 143 of the CPA or their similar provisions in other enactments. Therefore, an applicant for forfeiture of bail bond, such as in this matter, must do so timeously and should commence the procedure the moment the accused fails to appear in Court to attend to his trial.

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

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APPLICATION TO ENFORCE BAIL BOND IS INTERLOCUTORY

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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WHEN APPELLATE COURT WILL NOT INTERFERE WITH TRIAL COURT’S DISCRETION NOT TO GRANT BAIL

By the judicial interpretation of the provisions of Sections 340 and 341 of the Criminal Procedure Code, it appears settled law that the power to grant or not to grant bail is entirely at the discretion of the Judge, and when a judge is considering whether to release an applicant to bail pending trial, the following are paramount, viz:- a) The nature of the charge; b) The evidence by which it is supported; c) The sentence which by law may be passed in the event of a conviction and; d) The probability that the accused will appear to take his trial. Where these are weighty, an Appellate Court will not interfere with exercise of discretion by the trial Court not to grant bail, see MAMUPA DANTATA VS IGP (1958) NNLR 3, see BAMAIYI VS THE STATE (2001) 8 NWLR (PT.715) 270, DOKUBO ASARI VS FEDERAL REPUBLIC OF NIGERIA (2006) 11 NWLR (PT.991) 141 at 155, NWUDE VS FEDERAL GOVERNMENT OF NIGERIA (2004) 17 NWLR (PT.902) 306 at 328; LIKITA VS COMMISSIONER OF POLICE (2002) 11 NWLR (PT.777) 145; and ANAJEMBA VS FEDERAL GOVERNMENT OF NIGERIA (2004) 13 NWLR (PT.890) 267. The relevant considerations for a decision in respect of the above requirements can be listed as:- a) The evidence available against the accused; b) Availability of the accused to stand trial; c) The nature and gravity of the offence; d) The likelihood of the accused committing another offence while on bail; e) The likelihood of the accused interfering with the course of justice; f) The criminal antecedents of the accused person; g) The likelihood of further charge being brought against the accused; h) The probability of guilt; i) The detention for the prosecution of the accused j) The necessity to procure medical or social report pending final disposal of the case. These factors may not be relevant in all bail application cases and they are not also exhaustive. It may well be that any one or other may be applied to determine the question of bail in a particular case.

— 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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