S 96 arrested without warrant, any stage of proceedings or conviction pending appeal, with or without sureties, HC or CC may direct bail of DC, conditions not be excessive. Accused-principal party, Surety-person giving undertaking, Undertaking-bail bond. If without sureties, then self-recognisance bail. Bail pending investigations as police recognisance bail.
Bail pending trial same as during trial, if harsh conditions apply to HC or CC for review S 96(3). Affidavit states facts leading to arrest, nature of offence, reason for bail, willing to give bail bond, provide sureties, appear to stand trial, report to police any time. Court has discretion to grant or not S 96(4), grounds for refusal opposite of above, interfere with evidence or witness, hamper investigation, commit further offence, charged with less than 6 months’ imprisonment whilst on bail, in custody for own protection, already serving custodial sentence, already absconded an offence charged, S 96(5). Whether accused may appear to stand trial court consider, nature of accusation, evidence in support, severity of punishment, previous failure to comply with conditions, whether has fixed place of abode in Republic, not gainfully employed.
Bail pending appeal S 96(1)(a) is by motion and affidavit. Fynn v Republic held that it will succeed where there is an unusual and exceptional ground for application, conviction wrong and appeal likely to succeed, offence is such that accused is not free to confer on counsel to facilitate preparation of appeal, because of delay or vacation and nature of sentence accused is likely to spend a substantial part of sentence at time appeal will be heard confirmed byEx Parte AG.
Recognisances per S 97 bond by principal need not be signed before court but will be deemed as such, where a condition of surety is required, sureties will sign bond and both will be binding as if signed at same time, condition for appearance on bond may be varied by the court. Where release is condition upon bond execution, accused will be released per S 98.
In bond execution, officer in-charge may except in good behaviour bond, permit an amount to be paid failure to obey bond will lead to forfeiture proceedings under S 104 where recognisance is forfeited (unable to provide principal), the person bound by it shall be called upon to pay the penalty, or upon failure forfeit sum paid in bond warrant issued to attach properties to sale, per Martin Kpebu v AG, provision for imprisonment upon failure of surety is unconstitutional S 104(4).
The court may vary the recognizance by altering or ordering new bond to be executedfailure result in imprisonment S 100.Sureties may apply to discharge themselves from the bond and the magistrate by warrant arresting the accused fully to be committed to prison or partially allowed to find other sureties S 101. Where accused is juvenile, bond shall be executed not by juvenile but by his parent or guardian S 102.
Martin Kpebu case: by Article 19(11) & 14, S 104(4) is unconstitutional. Failure of recognizance on bail bond which is a contract is a civil debt and not a criminal debt, so not enforceable by imprisonment. No offence can be prosecuted if no charge sheet is prepared in respect of it except contempt. All offences are bailable but it is still discretionary on the trial judge to either or not grant it.