THE RIGHT TO BAIL AS A CONSTITUTIONAL RIGHT IN NIGERIA

Oguntade J.C.A (as he then was) in contributing, his view on the need for the preservation of the freedom or liberty of man in the case of Comptroller of Nigerian Prisons v. Adekanye (1999) 10 NWLR (Pt. 623) 400 held at 426 – 427 paras G-B as follows:


“Freedom is no doubt the greatest gift or heritage of man. Omnipotence created man and accorded him with divine freedom. Men are born free with liberty to think what he will, to say what he will and to go where he likes, all in a lawful manner, without let or hindrance from any other persons, private or governmental authorities. It therefore follows that, generally, detention of a man by a fellow man is a violation of the law of God and man.I am not oblivious of the fact that there are checks and balances to the series of freedom given to man. To the extent to which a man must not do his things in a way calculated to injure or adversely affect the exercise of the freedom of another man, his own freedom is limited. The whole of Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10 laws of the Federation of Nigeria 1990 is in tune with the universal concept of criminal law in a civilised society that upholds the rule of law as a way of life; by it, accessibility to the court and even to the highest court is guaranteed. to the citizen whose fundamental rights are threatened; his right to presumption of innocence until he is proved guilty by a court of competent jurisdiction is assured; his right to defence which includes the right to be defended by a counsel of his choice is offered to him on a platter of gold and his right to be tried within a reasonable time by an impartial court or tribunal remains sacrosanct. That is the continental law Nigeria voluntarily subscribed to. It came into force on the 17th day of March 1983.

In order to preserve the liberty of an accused person especially with the presumption of the law in Nigeria that, an accused person is innocent until he is proved guilty by a court of competent jurisdiction, a legal instrument called bail was evolved in tune with the universal concept of criminal law, in a civilised society that upholds the rule of law as a way of life.


A bail is a security required by a court for the release of a prisoner as a guarantee that the prisoner would appear in court at a set date, it includes security provided for the release of an accused person in the custody of the Police or a law enforcement agency as a guarantee for his or her future appearance. The security is usually in the form of a cash deposit or a bond, while cash bail is applicable in some jurisdictions, it is not applied in Nigeria.


In practice, the accused person is only required to enter into recognisance in the sum fixed by the Court or law enforcement agency. It is not a requirement of law in Nigeria that he should deposit money before bail is granted. A Recognisance is a promise to pay a sum of money by way of security if the accused fails to appear in court. Additionally, instead of Recognisance the accused may be required to provide a surety i.e. a person who undertakes to pay a sum of money if the accused does not appear in court.


(1)                Bail is a Basic Right of Every Citizen of Nigeria


·                     Bail is a basic right of every citizen of Nigeria who is charged with a criminal offence by virtue of section 35(1) of 1999 Constitution and Administration of Criminal Justice Act. Thus, every person is entitled to his personal liberty and no person is to be deprived of his liberty except as stipulated by the Constitution and or statute. Alaya v. State (2007) 16 NWLR (Pt. 1061) 483 at 500, paras. F - G; 501-502, paras. G - B per Agube J.C.A.Onyirioha vs. I.G.P. (2009) 3 NWLR (Pt. 1128) 342 at 362 para. H


·                     Bail to a person accused of an offence other than a capital offence is a basic right and undoubtedly the right to release before trial is much more basic if the trial is going to last more than two months for non-capital offences. Obekpa vs. C. O. P (1981) 2 NCLR 420 at 422 para. 3  Idoko J.


·                     Bail is a constitutional right under Section 35(1) and 36(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. It is a right of an accused person, except where the alleged offence is a capital offence accused person is not usually denied bail, except where special circumstances genuinely exist. Bolakale vs. State (2006) 1 NWLR (Pt. 962) 507 at 518 B per Muntaka – Coomassie J.C.A.


·                     A person cannot be detained for more than 24 hours before he is released on bail or taken to court.


·                     Section 35(1) and 36(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria provides that a person shall not detained without a court order to that effect. This provision guarantees the right not to be arrested and imprisoned arbitrarily.


·                     The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. Suleman vs. C.O.P Plateau State (2008) 8 NWLR (Pt. 1089) 298 at 322 paras D-E. per Tobi, J.S.C.


(2)              Bail Pending Trial


·                     The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. Suleman vs. C.O.P Plateau State (2008) 8 NWLR (Pt. 1089) 298 at 322 paras D-E. per Tobi, J.S.C.


(3)              Suffocating Bail Conditions


·                     It is to be realized that an accused person who jumps bail does so at his own peril. Hence the risk or strong likelihood that an accused person may likely jump bail should not be used as a sole bulwark for denial of bail or basis for imposing suffocating bail conditions against such an accused person, until the occurrence of such an untoward development. Thus, if an offence is readily bailable, it is both legal and logical that the conditions for bail attached thereto, must be such as will engender positive utilization of the grant of the said bail to the fullest extent whenever it is granted.Ibori vs. FRN & Ors (2009) 3 NWLR (Pt. 1127) 94 at 106.


·                     It does not speak or say well of the courts or our justice system, that when bail is granted with one hand it is surreptitiously retrieved, withdrawn or taken away with the other by the imposition of unwieldy and inhibitive bail conditions. Hence, courts must always be conscious and approach the issue of grant of bail with an element of liberalism and circumspection. Eyu v. State (1988) 2 NWLR (Pt.78) 602, Danbaba v. State (2000) 14 NWLR (Pt.687) 396.


·                     Conditions attached to grant of bail must not be suffocating, unbearable, unworkable and unduly burdensome.Danbaba v. State (2000) 14 NWLR (Pt.687) 396.


(4)              Innocent Until Proved Guilty in Court


·                     An accused is presumed innocent until proved guilty in court. This presumption of innocence of an accused person as a constitutionally entrenched provision implies that, no matter how seemingly serious, grave, heinous or unconscionable an alleged offence or offences committed by an accused person might look, he is still entitled to that presumption as an article of faith  and a matter of right guarantee by the Constitution. Eyu v. State (1988) 2 NWLR (Pt.78) 602, Danbaba v. State (2000) 14 NWLR (Pt.687) 396.


·                     In Onyirioha vs. I.G.P. (supra) at 376-377 Court of Appeal per Ogunwunmiju, J.C.A. held as follows: “I am of the fervent view that onerous provisions in S. 18(1) of the Advance Fee Fraud and Other Related Offences Amendment Act is a violation affront to the provisions of S. 35(1), S. 36(5) and (6) of the 1999 Constitution and against Article 7 of the African Charter on Human and Peoples’ Right Enforcement Act, Cap. 10 Laws of the Federation and it should be struck down”.


·                     In the case of Comptroller of Nigerian Prisons v. Adekanye (supra) at 423 paras. D-E it was held that Section 26 of Failed Bank Decree No. 18 of 1994 was in its effect  oppressive and totally destroys the presumption of innocence in favour of an accused. It was too harsh and ensured that a person accused of committing an offence under the Decree does not get bail at all. It was held to bad legislation and clearly offended Article 7, (1)(b) of African Charter on Human Rights Act, Cap 10, Laws of the Federation 1990.


(5)              Bail should not be Withheld  as Punishment


·                     It has been well established that bail is not to be withheld merely as punishment, and furthermore that the requirements as to bail are primarily to secure the attendance of the accused persons at the trial. Dogo vs. C.O.P (1980) 1 NCR 14 at 19 para 10-15

To be continued

THE RIGHT TO BAIL AS A CONSTITUTIONAL RIGHT IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)