Bail Application: Custody is Not a Prerequisite to Apply for Bail Application

By AbdulRazaq Oshogbade 

A crucial issue arose yesterday at the Federal High Court Headquarters, Abuja. Can a bail application be made for defendants who are not in state custody but appear from their own homes for arraignment?

In the case at hand, the defendants, present from the comfort of their residences, were arraigned and pleaded not guilty to a six-count charge. While the prosecution counsel sought an adjournment for trial, the defense counsel, without objection, moved to hear their bail application, which had already been served.

The prosecution objected, arguing the bail application was premature. Their contention, based on a misinterpretation of Section 158 of the Administration of Criminal Justice Act (ACJA), was that a bail application could only be “matured” if the defendants were first arrested, detained, and then arraigned. They insisted these conditions must be conjunctively present, arguing that since the defendants weren’t in custody, there was no basis for bail, and thus, they should be remanded first before a proper application for their bail can be made.

However, Section 158 of the ACJA explicitly states, “When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained or appears or is brought before a court, he shall, subject to this provision of this part, be entitled to bail.”

It’s a fundamental principle of statutory interpretation that when the words of a statute are clear and unambiguous, they must be given their plain and ordinary meaning. The use of “or” in Section 158 clearly denotes a disjunctive rather than a conjunctive set of conditions. This means that arrest, detention, or appearance are distinct triggers for bail eligibility, not cumulative requirements.

Therefore, the prosecution’s argument, though seemingly persuasive, was fundamentally misconceived. There is no legal authority backing to support the claim that a defendant must be in state custody for a bail application to be valid. A bail application can be made once a charge has been properly framed and the defendant arraigned in court, irrespective of their physical custody status.

Furthermore, while bail remains a matter of court discretion, such discretion must be exercised judicially and judiciously, guided by the rule of law and common sense, not arbitrarily. This principle was affirmed in cases like SARO-WIWA V. A.G., FED (1994).

In my humble view, the learned trial justice rightly overruled the prosecution’s objection as misconceived, aligning with the clear and unambiguous provision of Section 158 of the ACJA. The position is unequivocally that a bail application can be made for defendants not in state custody who appear from their homes, provided a proper charge is framed and they have been arraigned.

Oshogbade AbdulRazaq Adewale is a student of Ahmadu Bello University, Zaria. He can be reached via email at adewalerasaq24@gmail.com or by phone at 08102958058.

Source: BarristerNG