Remand is a term used to describe a situation where a suspect
who is charged with an indictable offence is ordered by a court of law, to be
kept in prison custody, pending his bail, trial or release on the advice of the
Director of Public Prosecution (DPP) of the State.
Generally, remand proceedings begin with the process of
arrest of any person(s) suspected to have committed or is about to commit an
offence. In Holgate Mohammed versus
Duke (1984), the
House of Lords stated the 'meaning of the word arrest as follows: "it is a
continuing act and starts with the arrester taking a person into custody, it
continues until the person restrained is either released from custody or having
been brought before a magistrate is remanded in custody, by the magistrate's
judicial act".1
The provisions on remand proceedings
particularly in Lagos State were apparently emphasized by the need to provide a
release structure for decongesting the long list of persons awaiting trial who
are detained in prisons and in police cells across the State. The time lag
between arrest, investigation, arraignment and trial has led to a rising list
of detainees awaiting trial some of which have not been charged with specific
commission of any offence.
The provisions of the Administration of
Criminal Justice Law on remand are designed to achieve the following objectives:
(i) managing
the process between arrest, investigation and formal charge and arraignment
before a court of competent jurisdiction to try the offence;
(ii) vesting
in magistrate courts the supervisory jurisdiction and discretion to oversee the
process of remand and to make appropriate orders and ensure that the relevant
agencies perform their respective duties;
(iii) empower
the magistrate by statutory provision to deal with remand proceedings although
the magistrate does not have jurisdiction to try the substantive offence; and
(iv) ensure
that the periods of remand is within the constitutional stipulations of when a
person can be detained without trial under section 35(4) of the 1999
Constitution
The Constitution indisputably guarantees individual’s right to liberty,2
a right which was further protected by virtue of Section 268 of the ACJL that
any person arrested for any indictable offence shall within a reasonable time
of arrest be brought before a magistrate for remand, and the magistrate shall
have power to remand such person after examining the reasons for the arrests
exhibited in the request form filed by the police and if satisfied that there
is probable cause to remand such person pending legal advice of the Director of
Public Prosecution and/or the arraignment of such person before the appropriate
court or tribunal.
Remand proceedings are necessitated by the type of offence omitted or
committed by person(s) suspected to have committed a serious offence.
Generally, these offences are classified under “indictable offence”.3
Section 268 (9) of the ACJL defines “Indictable Offence” as any offence
which on conviction:
(a)
shall be punished
by a term of imprisonment exceeding two years, or
(b)
shall be punished
by imposition of a fine exceeding fifty thousand naira;
(c)
shall be punished
by death
Sections 268 to 271 describes “Probable cause” as circumstances of
the individual case, nature and seriousness of the alleged offence, reasonable
grounds that the person has been involved in the commission of the alleged
offence and reasonable grounds that the person shall abscond or commit further
serious offence.
In any
remand proceedings with respect to any indictable offence against a law before
a Magistrate, the Attorney-General of the state may indicate to the court
either personally by himself or through any of the officers in his chambers in
writing informing the Magistrate by way of legal advice through the prosecuting
Police officer or a Law officer that the state intends that the proceedings
shall be discontinued and thereupon the suspect shall immediately be discharged
in respect of the offence.4
1.2 The Constitutionality of Remand Proceedings
The constitutionality of section 236 of the
Criminal Procedure Law on remand was sustained by the Supreme Court in Mrs. E.A Lufadeju v. Bayo Johnson
5. The
respondent in this case, sought for bail, but the appellant denied his bail
application on grounds of jurisdiction and remanded the respondent in custody.
As a result of this refusal of bail and the remand in custody, the respondent
sought a judicial review in the High Court. The learned judge ruled that by
virtue of Section 236 (3) of the Criminal Procedure Law, the 1st
appellant was authorized to remand persons who may have been arrested for
indictable offence. Dissatisfied with the decision, the respondent appealed to
the Court of Appeal, who in turn allowed the appeal. The Supreme
Court held that there is no conflict between section 236(2) and the provisions
of section 32 of the 1979 Constitution. The provision of section 236 has been
retained in the new Law in section 268 and substantially amended to empower the
Magistrate to ensure that constitutional right of the person remanded is not
infringed.
The long awaiting trial detention, associated with the
application of the present remand system as the main problem of the
administration of criminal justice in Nigeria. The police often take
suspects who have committed serious offences to the magistrate courts, which
have no jurisdiction to try such serious offences, on a holding charge to be
remanded in prison custody, pending the outcome of the legal advice by the DPP,
or ultimate prosecution before the High Court.
The Administration of Criminal Justice Law also
contain provisions to the effect that a Magistrate may have jurisdiction to
take remand proceedings even though the person is arrested on allegation of
having committed an offence, which if charged, he cannot be arraigned before
that Magistrate.
In other words, the Law
conferred jurisdiction to hear remand proceedings on the magistrate,
which is unrelated to the jurisdiction to try the substantive offence with
which the person may be finally charged with before a court.7
Application for remand is to be made in a specified manner,
by filling out the “Report and Request for A Remand Form” as contained in the
Appendix to the Bill.8.
Section 272 of the
Bill expressly provides that the court may grant bail in remand proceedings.
1.3
Time Frame for Remand Orders
The ACJL Lagos 2007 contains a time frame for remand
orders. Under section 268 (5), an order of remand made by a Magistrate shall
not exceed a period of thirty (30) days in the first instance. After the
expiration of the 30 days, the Magistrate shall order the release of the person
remanded unless good cause is shown why there should be further remand order
for a period not exceeding one month. At the expiration of the further order,
the Magistrate is to issue a hearing notice to the Commissioner of Police or
DPP to show cause why
the person remanded should not be released.
The
Magistrate is to extend the remand order only if satisfied that there is good
cause shown and that necessary steps have been taken to arraign the person
before an appropriate Court or Tribunal.9
1.4
Principles of Recognisance in Nigeria
Recognisance
is an obligation of record, which a person enters into before a court of
record, or magistrate duly authorised, binding himself under a penalty to do
some particular act; for example, to appear before the Court, to keep peace, to
pay a debt, or the like.10
In the
criminal litigation procedure, recognisance is akin to a device called bail whereby an accused person is
granted a temporary release from police custody while he is awaiting his
trial. The accused person is
required to give an undertaking by recognisance that in return for being
granted a temporary release he will appear in the court at any specific time
and if he does not so appear he will pay a certain sum of money fixed by the
court. This undertaking of the accused is usually guaranteed by another third party
produced by him and acceptable to the Court. Such a person is known as a surety.
He binds himself to pay a sum of money also fixed by the Court if the accused
person fails to appear in Court when required. More than one surety may be required
where the offence is a serious one.
There are reasons to support
granting bail to accused persons by our Courts. Apart from giving practical
effect to the accused persons' constitutional right to personal liberty, there
is the need avoid congestion of our prisons which are designed for convicts and
not for persons awaiting trial. As rightly observed, a judge should avoid "being
counted as one of the Courts of Law being responsible for the perennial prison
congestion in the country.
Definitions of Bail
Bail is defined as a security such as cash or a bond, especially security
required by a court for the release of a prisoner who must appear at a future
time. To obtain the release of [oneself or another] by providing security for
future appearance.11
Senna and Siegel (1981)
define bail as ‘representing money or some other security provided
to the court to ensure the appearance
of the defendant at every subsequent stage of the criminal justice processes’.
Alubo (2007)
defines bail as ‘setting at liberty a person arrested or imprisoned on security
being taken for his appearance on a day, and a place certain’. He also states
that: ‘Bail is a written undertaking by an accused person and his surety or
sureties, if any, conditional upon the appearance at a specified time and place
to answer a criminal charge.’
Doherty (1999)
defines bail as ‘the procedure by which a person arrested for an offence is
released on security being taken for his appearance on a day and place
certain’.
It appears that several Authors seem to
concur on the definitions of ‘bail’ however; its application in the African
setting varies a great deal within a country as well as across countries.
Though bail is enshrined in the Nigerian constitution, different
interpretations by the various levels of the judiciary system and deliberate
manipulations due to unethical conduct as well as resource constraints, which
grossly affect its application.
Bail is a basic
conditional right, an option available to anyone who has been accused of a
crime and this is guaranteed under Section 35 of the 1999 Constitution. Section 35 of the Constitution confers the
right to personal liberty. However, the
same Section 35 provides exceptions when a person may be deprived of his
personal liberty and they are:
1. When it is necessary to
bring any person before a court in execution of an order of a court;
2. Where a person is
reasonably suspected of having committed a criminal offence;
3. In order to prevent a
person from committing a criminal offence.
Section 35(4) of the
Constitution provides that any person who is arrested or detained must be
charged to court within a reasonable time.
‘Reasonable time’ is defined in section 35(5) of the
1999 Constitution of Nigeria as:
1.
24 hours (a day) in the case of an arrest
or detention in any place where there is a court of competent jurisdiction
within a radius of 40kms.
2.
In any other case , 48 hours (two days) or
any longer period, which given the circumstances of the case, the court
considers reasonable.
Many accused persons are kept in custody
without bail by the police, and in many instances they are not brought before a
court within the constitutionally prescribed limit of 24 or 48 hours. A study
by the Nigerian Institute of Advanced Legal Studies (NIALS) revealed that,
out of a respondent sample of 845 accused persons, only 11.5 per cent had been
released from police custody within 24 hours of their arrest. The majority
(55.5 per cent) spent longer periods in police custody, ranging from a few days
to one month. Almost 9 per cent of the respondents were kept in police custody
without bail for more than one month. It is difficult to understand why this
should be so. 12
In the administration of the criminal
justice system in Nigeria, bail arises at three points: a suspect may be
granted bail by the police; the accused may be granted bail by the court; and a
convict may be granted bail while awaiting his or her appeal.
BAIL
BY POLICE
Section 17 of the Criminal
Procedure Act, provides that whenever a person is taken into police custody
without a warrant for an offence other than one that is punishable by death,
any officer in charge of a police station may bring such a person before a magistrate
or justice of the peace who has jurisdiction over the offence charged, within
twenty-four hours of being taken into custody. Unless the offence appears to be
of a serious nature, the suspect may be
discharged upon entering
into a self-recognition, with or without sureties, for a reasonable amount, to
appear before a court at a time and place to be agreed upon. But section 484 of
this act provides that where such a person is retained in custody, he or she
shall be brought before a court or justice of the peace who has jurisdiction
over the offence or is empowered to deal with such persons as soon as
practicable, whether or not the police inquiries have been completed.
Section 17 & 18 of
the Criminal Procedure Act (CPA) and Section 129 of the Criminal Procedure Code
(CPC) says as soon as practicable and Section 27 of the Police Act authorise
the Police to release on bail any person who is suspected to have committed a
criminal offence except a capital offence.
The person should be released as soon as practicable. The person granted bail by the Police must
enter into a recognisance with or without sureties.
Where the recognisance is
with a surety, the surety must be a person of substance and sufficient
means. The surety must give a written
undertaking that if the person is released on bail, he will not jump bail. The surety also undertakes to forfeit the sum
of money stated in the recognisance if the accused person jumps bail.
Note that legal
practitioners cannot stand as sureties for persons in custody. They may, however, recommend a person as a
fit and proper surety. In practice,
women are not accepted as sureties.
If a suspect remains in
custody only because he has failed to satisfy the bail conditions, his
continued detention is not a violation of his right to personal liberty. That was the decision in Eda V. Commissioner of Police. 13
Bail by courts
The power of a court to admit
an accused to bail depends on two factors:
i. the court before which the accused is being
charged and
ii. the nature of the offence leveled against the
accused.
The court held in the case of Mrs E.A Lufadeju (Chief Magistrate Grade I) v. Evangelist Bayo Johnson
(SC. 247/2001) that “even though Section 118 (2) of the C. P.
L. permits the court to grant bail to the accused in certain cases, this does
not apply in a case involving a capital offence like treason for which the
accused persons stand charged”.
Section 118 of the Criminal
Procedure Act states that a person charged with any offence punishable by death
shall not be admitted to bail except by a judge of the high court. Where a
person is charged with a felony other than one that is punishable by death, the
court may, if it thinks fi t, admit him or her to bail.
When a person is charged
with any offence other than those referred to in the preceding subsections, the
court shall admit him or her to bail, unless it sees good reason to the
contrary.
The Criminal Procedure Act does not
expressly state the factors that must be considered by a court in granting
bail. Section 118, which deals with granting bail to an accused, is silent on
the issues governing admission to bail.
Nonetheless, the courts in the southern
states consider certain aspects in deciding whether to grant or withhold bail.14
The Nigerian court considers the
following circumstances before bail consideration is ever contemplated.
1. The Nature of the Offence and the Punishment Prescribed for
it.
If the offence is a
serious one, and carries a heavy penalty (for example a homicide case), the
court may not exercise its discretion in favour of granting bail to the
accused.
2. Presumed Innocence of the Accused Person(s)
An accused person is presumed innocent until proved guilty.15 Therefore, he or she should not be punished by being denied
bail in the absence of cogent or compelling reasons.
3. Criminal Record of the Accused
The criminal record must
be taken into account in considering whether the court should grant or deny him
bail. If the accused can show that he or she is a person of good character and
has never been convicted of a criminal offence, the court ought to exercise its
discretion in favour of the accused and admit him or her to bail.
1. Possibility of the Accused Committing further Offences
The court may deny
bail application if it is established by the prosecution that the chances of
the accused person committing further offences if admitted to bail. If an
accused is unlikely to commit further offences while on bail, the court should
exercise its discretion and admit the accused to bail.
2. Possible Interference with Investigation Process
The accused person may be denied bail If he is likely to
obstruct the course of investigation. But if there is no evidence that the
accused will hamper the investigation of the case, bail ought to be granted.16
GRANTING
OF BAIL PENDING APPEAL
In the southern states, the
provisions for granting bail pending appeal are contained in the magistrate’s
and high court laws. For example, in Lagos State, section 58(2)(a) of the
Magistrate’s Court Law provides that where an appellant has been sentenced to imprisonment or sent to a Borstal institution [for young off enders who are not old enough
to be sent to adult prison], the Magistrate shall release him
or her on bail from custody on self-recognition with or
without sureties and in such reasonable sum as the magistrate thinks fit,
or on such other conditions for the appearance of appellants for the
hearing of the appeal. However, if the appellant has previously served a sentence of not less than six months
imprisonment; or if there is evidence that the appellant has been
convicted previously for any offence which may have been
recorded against him, the magistrate may reasonably presume that if
released from custody, the appellant is likely to commit a further offence,
or evade or attempt to evade justice by absconding or otherwise disappearing.
Thus, the magistrate has
discretion to release the appellant from custody or not.17 Section 342(2) of the
Criminal Procedure Code (applicable in the northern parts of the country) states:
When a person is convicted
of an offence in a court and an appeal from such court moves to the High Court;
after conviction, a
convicted person is still entitled to bail but because he has lost the
presumption of innocence, he is not entitled to bail as of right.
The
grant of bail to a convicted person is at the discretion of the court. The convicted person must establish special
circumstances that warrant is being admitted to bail. However, in Lagos State, Section 58(2) of the
Magistrate Court Law (MCL) provides that a convict may be granted bail except
that:
1. The convict has
previously served a term of imprisonment not less than 6 months; or
2. Based on the convict’s
previous conviction, he is likely to commit further offences; or
3. He is likely to evade
justice by absconding.
Once
any of these conditions applies to a convicted person, he can only be granted
bail at the discretion of the court. See
KUTI V. COP (1975). In that
case, it was held that because none of the conditions contained in Section 58(2)
of the MCL applied to the applicant, he was entitled to bail.
WHAT CONSTITUTES SPECIAL CIRCUMSTANCES?
The
grant of bail pending appeal at the Court of Appeal and Supreme Court usually
depends on special circumstances. In the
case of ADAMU MURI V. IGP (1957) NNLR
5, it was held that the convicted person must establish unusual or
exceptional circumstances for bail to be granted. Before the Supreme Court or Court of Appeal
will even consider the application for bail, the applicant must:
1. have filed an appeal.
2. have complied with the
conditions of appeal.
3. not have abused a bail
granted to him during trial.
In
the case of AJAYUI V. STATE FCA/L/2/77,
the court laid down what constitutes special circumstances and they are:
1.
If
there is real doubt that the conviction of the accused person was wrong on
point of law. FAWEHINMI V. STATE
(1990) 1 NWLR 486, particularly at page 498.
2.
If the duration of the appeal is likely to be
longer than the sentence of imprisonment, then it is special circumstances for
the grant of bail.
1.4
BAIL CONSIDERATIONS
There are
statute-based recognized bail considerations or terms list below which the court
may consider in granting bail to the respective applicant or even at the police
station as the case may be.
1.
Bail
on Self-Recognisance
An accused may be granted bail on his self-recognisance.
In this case, there shall be no bond or surety.
The only condition is that the accused person shall appear in court or
Police Station on a specific date to answer to the charges against him. In practice, bail is rarely granted on
self-recognisance except where the alleged offender is a respectable and
responsible member of the society.
2. Bail on a Bond for a Fixed Amount
In this case, the accused
person may be granted bail without a surety but he shall be required to execute
a bond in a fixed amount of money. The
bail bond is a written undertaking given by the accused person stating that
while at liberty because of bail, he shall appear in court or Police station
whenever his attendance is required. If
the accused person fails, refuses or neglects to appear in court or Police
Station when his attendance is required, he becomes liable to pay the amount of
money stated in the bond.
3. Bail
on a Bond with Sureties
Sections 122 of the CPA,
345 of the CPC and 17 of the Police Act provide that an accused person may be
admitted to bail on the condition that he produces one or more persons who
shall stand as his sureties. Bail on a
bond with sureties involves an undertaking that the state shall release the
accused person on bail on the guarantee given by the surety that the accused
person shall not fail to attend his trial.
Therefore, if the accused person fails to attend his trial, the bail
bond shall be forfeited and the surety shall become liable to pay the amount of
money stated in the bail bond.
4. Deposit
of Money Instead of a Bond
Section 120 of the CPA
and Section 347 of the CPC provides that an accused person may be granted bail
on the condition that he deposits a fixed sum of money instead of executing a
bond. Under the CPC, the application to
deposit a fixed sum of money is made by the accused person. It is only when an accused person applies for
it that bail may be granted on the condition of a deposit of money. That was the decision of the court in ONUIGBO V. POLICE (1975) 1 NMLR 44.
Bail may also be granted
on the deposit of money under the CPA.
However, under the CPA, the accused person may apply for it or the
court, on its own volition, may order it.
That was the decision of the court in EYU V. STATE (SUPRA).
In addition to this
general condition, the court may demand additional surety. This, the court may demand that the sureties
must be resident within jurisdiction, that they must be owners of landed
property, that the sureties must deposit their international passport or that
of the accused person; or that the sureties must depose to an affidavit of
means. The court may order a combination
of the terms of bail, that is, the court may order that the accused person may
provide a bond as well as provide a surety.
However, whatever the terms are, they must not be excessive.
Sections 120 of the CPA
and 349 of the CPC provide:
1. the terms of bail shall
depend on the circumstances of each particular case.
2. The terms of bail shall
not be excessive. If an accused person is not satisfied with the terms of bail,
he may apply to the High Court for a review of the terms of bail. See EYU
V. STATE. The accused person was granted bail on the following terms:
i. A deposit of N400,000 with the Registrar of the Court.
ii. A bond in the sum of N5,000.
iii. One surety in like sum,
that is, N5,000.
He appealed against the
conditions of Bail and the court held that the terms of bail were
excessive. The court set aside the
conditions and substituted more lenient terms.
Note that an appeal
against the terms of bail granted by a High Court shall be made to the Court of
Appeal and thereafter to the Supreme Court.
See STATE V. AMAEFULE (1988) 2 NWLR (PT. 75) 156. Whether the terms of bail are excessive
or not depends on the circumstances of each case. In this case, the accused person was granted
bail by the court on the following terms:
1. One surety in the sum of N20,000 for each accused.
2. The surety must have
landed property within jurisdiction.
3. The surety must have tax
clearance certificate.
4. The surety must be
resident within jurisdiction.
5. The surety must file
copies of title deeds to the property with a Registrar of the Court.
6. The surety must swear to
an affidavit stating his residence, particulars of his property and tax clearance
certificate.
7. A solicitor must
recommend the accused and his surety.
Dissatisfied, the accused
persons applied for a review of the terms of bail to the court of Appeal. The Court of Appeal held that the terms of
the bail were not excessive. Note that
where the terms of bail are not excessive and the accused person cannot fulfil,
then he will be remanded in custody until he meets the conditions. Such detention is not a violation of his
fundamental human rights.
1.6 WHEN AN ACCUSED PERSON JUMPS BAIL
If a person who is on
bail fails, refuses or neglects to attend the Police Station or court on the
day he is required to attend, he is said to have jumped bail. If it is Police bail that he jumped, he will
be re-arrested and he will no longer be entitled to Police bail.
If an accused person
jumps Court bail, the court may do any or all of the following:
1. Revoke his bail.
2. Issue a bench warrant.
3. Forfeits his bail bond.
4. Order the surety to pay
the amount stated in the bond into the Court Registry.
Note that before a bail
bond is forfeited, the surety must be given a fair hearing. In TEA
V. COP (1963) NNLR 77, an accused person failed to attend his
trial. The court forfeited the bail bond
and ordered the surety to pay the sum of N200
or be imprisoned for six months. The
surety appealed against this decision.
The appellate court held that before a bail bond is forfeited, the
surety must be given a fair hearing to enable the court determine if the surety
has been in breach of the terms of bail.
See also the case of LAMIDI
ABUDU in RE: A.K. KOTUN V. IGP. In
that case, the same principle was applied.
Therefore, before a bail bond is forfeited, you must exhibit the order
granting bail and a copy of the bail bond which was executed by the surety. Thereafter, the surety must be allowed the
opportunity to show why the bond should not be forfeited. Any surety who is not satisfied with an
order of the court forfeiting bail can appeal.
1.7 WHO
CAN ENTER INTO RECOGNISANCE?
Section 118(3) of the Administration
of Criminal Justice Law provides that no person shall be denied or prevented or
restricted from entering into any recognisance or standing as a surety or
providing any security on ground that the person is a woman.
The above provision has evidently
put an end to the issue of discrimination against
women in the practice of bail
in Nigeria.
Paul Mashote, Esq.
08022737965
topshaddai@gmail.com
ALL RIGHTS RESERVED
1. Holgate
Mohammed versus Duke (1984) Vol. 79 CR. App. Rep. 120
2. Section 35 of 1999 Constitution of the Federal
Republic of Nigeria
3. Section 3, Criminal Code Act,
LFN 2004
4. Section 71(1) ACJL 2007
5. SC. 247/2001
6.
Section 268 ACJL Lagos, 2007.
7.
Sections 270 and 271 of the ACJL 2007.
8.
Section 270 (2) ACJL 2007
9.
Section 273 (1) ACJL 2007
10.
Mozley & Whitley’s Law Dictionary, 10th Edition at Page 383
11.
Black’s Law Dictionary, 8th Edition, 2004
12. The
Nigerian Institute of Advanced Legal Studies conducted a study (coordinated by
M Ayo Ajomo and Isabella Okagbue in Lagos in 1988) on human rights and the
administration of criminal justice. The respondents’ sample was 845, drawn from
various backgrounds including suspect (accused) persons in police
custody/prison, legal practitioners, judges in the various courts, police,
prison warders and strata of the public for citizen awareness interviews (see
pp.317–364). See M Ayo Ajomo and I E Okagbue 1991, Human rights and the
administration of criminal justice in Nigeria, Lagos: NIALS
13.
[1982] 3 NCLR 219
14 See the state magistrate’s court law, Laws of Lagos State
1973.
15 Constitution of the Federal Republic of Nigeria, 1999,
section 36(5).
16. In
Dantata v Police, bail was refused because the accused
offered a bribe of N36 000 to the police in order to retrieve evidence of
commission of the offence, which was in the custody of the police.
17. See Magistrate’s Court Law, Laws of Lagos State, 1973.
REFERENCES
*Alubo,
A.O. 2007- Modern Nigerian Criminal Procedure Law
*Ayo
Ajomo, Okagbue & Isabella (Edition) 1991- Human Rights and the
Administration of Criminal Justice in Nigeria
*Doherty
O. 1999- Criminal Procedure in Nigeria: Law and Practice.
*Bail
and Criminal Justice in Nigeria- Prof. J. NNAMDI Aduba & Emily I. Alemika
*Black’s
Law Dictionary, 8th Edition
* Mozley & Whitley’s Law Dictionary, 10th Edition
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