Bail is Free?

Bail is Free?

On the 28th of March, 2017, Daily Post reported that a Yola High Court sitting in Adamawa State granted former Governor of the state, Bala Ngilari bail on health grounds after he appealed against his recent conviction.

Justice Nathan Musa granted the former governor bail in the sum of N100 million with two sureties, who must deposit Certificates of Occupancy of landed property owned in Yola.

The judge ruled that Ngilari would enjoy his bail pending the determination of his appeal.

Justice Musa had in March 2017 sentenced Ngilari to five years in prison, without an option of fine, for violating the Public Procurement Act in the award of contract for the purchase of 25 vehicles during his administration.

The governor, who appealed his conviction, went back to the same court that convicted him, and asked for bail pending the determination of his appeal.

After listening to arguments from Ngilari’s counsel, Sam Olugunorisa, SAN, and that of the Economic and Financial Crimes Commission, EFCC, Abubakar Aliyu, Justice Musa granted Ngilari bail.

Ngilari’s bail application was supported by a medical report from Yola Prison, which stated that he had been under intensive medical care.

According to the medical report signed by a Deputy Comptroller in charge of Health, John Bukar, the former governor had diabetes, hypertension and insomnia.

The report stated that Ngilari, who had been referred to Canada Specialist Hospital in Dubai, for evaluation and management, had blood pressure that was rising between 180/110 MMHG to 190/120 MMHG.

However, the Comptroller of Adamwa Command of the Nigerian Prison Service, NPS, Peter Tenkwa, rejected the medical report on which Ngilari was granted bail.

Addressing reporters on the 27th of March, 2017 in Yola, Tenkwa said he was not aware of the letter and had communicated to the prison headquarters.

Tenkwa said, “Nigeria Prison Service, as I stated, knows nothing about this letter; whoever wrote that letter is on his own. I have been directed to query the officers involved.”

The Prison boss in the state noted that all he knew was that he got a letter dated March 23 from Adamawa Ministry of Justice concerning the health facilities in Yola Prison where Ngilari was remanded and that after accessing the facilities, he replied to the letter, informing the ministry that the facilities were okay.

“We have enough medical facilities to handle high profile inmates like Ngilari; we even received some supply of drugs on Friday,” Tenkwa said.

My long term friend, Pastor Yemi Adetayo has asked me why Ex-Governor Bala Ngilari had to use N100 million and his properties to pay for his bail despite the popular slogan that “BAIL IS FREE”.


Points to Note:
1. Bail is the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.
2. According to the Nigerian Constitution which guarantees right to personal liberty, the Police cannot, except in capital or other serious offences, detain a person beyond 48 hours in any case. Put differently, the police is empowered to grant bail to arrested persons where it is impossible or impracticable to bring them before a Court within a reasonable time as required by the constitution.
3. Note that there is no statutory provision as to the procedure for applying for bail in the Police Station. However, it is usually in writing and signed by the suspect or his lawyer or surety. It may be with or without bond.
4. BAIL IS FREE! Although in practice it is not unusual for the suspect or their family members to give money to the police to secure the bail of the arrested person but this is clearly illegal.
5. Note that it is fact that people automatically turn themselves to Father Christmas at the police station out of fear that has encouraged the police to always demand for money ILLEGALLY before they grant bail.
6. Once the suspect is charged to Court, the Police bail lapses and another application has to be made by the accused or his legal representative, immediately after arraignment before the Court which may be oral or in writing as the Court may direct.
7. Any person arrested for any offence triable on Information (i.e. at the High Court) shall within a reasonable time of the arrest be brought before the Magistrate Court for remand which the Magistrate have power to make a remand order after examining the reasons for the arrest as stated in the request form filed by the police.
8. In respect of the above, the maximum period which the Magistrate may remand the suspect is sixty (60) or fourty-two (42) days, depending on the jurisdiction and it may be extended only on good cause shown that necessary steps have been taken to arraign the person before an appropriate Court or tribunal.
9. Once the accused has been taken to Court, application for his bail is usually made to a Magistrate or the judge and the granting of bail by the Court depends on whether the offence is a simple offence, misdemeanor or a felony. Bail is usually refused in respect of a capital offence except in special circumstances.
10. In deciding whether or not to grant bail, the court takes into consideration several factors such as Whether the accused will appear to stand for his trial (whether or not he will jump bail), ill-health of the accused etc
11. The Court must not refuse the accused bail as a punishment. This is because the accused is usually presumed innocent until his guilt is proved beyond reasonable doubt.
12. Note that the accused is only required to enter into recognizance in the sum fixed by the Court. It is not a requirement of the law that he should deposit money before bail is granted. Simply, he is to find sureties who are worth the sum attached to his bail and are ready to guarantee his appearance in court during his trial.
13. In granting bail, the amount of bail to be taken in any case shall be fixed with due regard to the circumstances of the case, status of the accused person and shall not be excessive. Thus where the sum is excessive, application may be made to a higher Court for the review of the conditions of the bail.
15. Where a Magistrate to whom application for bail has been made refused or neglected to grant bail, application could be made to a Judge of High Court who shall have power to grant such bail.
16. When the circumstances are brought to the knowledge of the Court that a person already granted bail ought not to have been granted bail, the Court may cause him to be arrested and may commit him to prison until the trial, or if thought fit, reconsider and increase the sum in which he had earlier bond himself.
17. When an accused jumps bail by failing to appear as specified, the Magistrate or Judge may issue a warrant for his arrest and to be brought before him. The surety may forfeit his bond upon the accused absconding or of failing to show up in Court.
18. However, if it is brought to the knowledge of the court that the surety intentionally aided the accused person to jump bail, the court may commit such a surety to prison upon being tried and convicted of obstruction of justice.
19. An accused that has been convicted is no longer presumed innocent. He becomes a prisoner. Although he may apply for bail pending the hearing of his appeal, such a bail is usually rarely granted. The Court only grants bail upon special circumstances being shown by the prisoner.
The above points of law shows that the accused person(s) or their sureties are not required to pay for the bail. Rather, they are required to enter into recognizance in turn of the value attached to the bail. For example, Ex-Governor Bala Ngilari is only expected to get two (2) sureties that worth N100 million who must deposit Certificates of Occupancy of their landed property owned in Yola. In essence, BAIL IS FREE!

THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede

 

Joseph Ogunmodede
Founder, THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede is a budding lawyer and founder of Nigerian-based innovative network known as THE LEGAL DIARY, an online platform for educating people on their legal rights and duties which is a unique idea that meets the pressing need for public enlightenment in Nigeria.
Since the evolution of THE LEGAL DIARY in January, 2017, he has consistently updated his audience with various legal stories and legal opinions posted on a weekly basis. He has also offered several pieces of advice and legal opinions to a number of clients both online and physically.
He was born in Ogun State, Nigeria, and holds Bachelor of Laws (LL.B) Degree from the prestigious University of Ibadan, Ibadan, Oyo State where he was awarded a First Class (Honours). He is currently an Intern at B. O. Ogunmodede & Co, Abeokuta, Ogun State.

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