Section 35 of the Constitution of the Federal Republic of Nigeria 1999 and article 6 of the African Charter on Human and Peoples Rights Ratification and Enforcement Act Cap A9 Laws of the Federation of Nigeria 2004 guarantee the personal liberty of every person in Nigeria. Even though the right to personal liberty may be encroached upon by the State if there is reasonable suspicion that any person has committed a criminal offence, a criminal suspect is entitled to bail pending the conclusion of investigation or trial or appeal.
However, bail can be justifiably denied by a court if there is evidence that an accused person may tamper with investigation or jump bail or that the suspect may continue the crime. The principle behind bailù pending trial is to ensure that an accused person is not kept in custody since every person is entitled to presumption of innocence until the contrary is proved by the State. In Obekpa v. Commissioner Of Police (1980) 1 NCR @ 113, Al-hassan Idoko J. (as he then was) had this to say:
“as it appears, the spirit behind the provision in S.32(4) (a) and (b) of the Constitution is to keep an accused person out of incarceration until found guilty through the process of court trial. It is a conditional privilege, which he is entitled to under the Constitution. The reason for such privilege is obvious. It allows those who might be wrongly accused to escape punishment, which any period of imprisonment would inflict upon them while awaiting trial, staying out of prison guarantees easy access to counsel and witness and ensures unhampered opportunity for preparation of the defence.
Of much greater importance in this regard is the fact that, unless the right to bail or to freedom before conviction is preserved, protected and allowed, the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence would lose its meaning and force.”
In the second republic, Nigerian Judges admitted accused persons to bail in liberal terms in line with the letter and spirit of section 32 of the 1979 Constitution which is in pari materia with Section 35 of 1999 Constitution. Even under the defunct military junta, politicians and activists who were charged with treason and treasonable felony were granted bail in liberal conditions. A few of such cases are briefly reviewed below:
- In Commissioner of Police v. Dr. Beko Ransome Kuti & 4 Ors. (reported in The BAR and the BENCH in defence of the RULE OF LAW in Nigeria by Ayo Olanrewaju Esq. Nigerian Law Publications, 1992 P. 431), the accused persons were charged with treasonable felony for circulating posters with inscription :”Babangida Must Go” and thereby formed an intention to remove President Ibrahim Babangida as Head of the Federal Military Government contrary to Section 41 of the Criminal Code Act.
Chief Gani Fawehinmi was the 2nd defendant while I was the 3rd defendant. As we and other defendant were held incommunicado in Kuje prison, we were unable to brief a lawyer to represent us. So Chief Gani Fawehinmi) and I appeared for our Comrades and ourselves. We applied and argued an oral application for our bail. Apart from making a strong case for our bail, we argued that the provisions of the Criminal Code Act are not meant to protect the military dictators who had sacked a democratically elected government on December 31, 1983.
The presiding Chief Magistrate, Nwada Balami Esq. (as he then was) said that he did not have the authorities cited by us in the course of our arguments. We requested the Chief Magistrate to order our law firms to send the authorities to the court through the Kuje prison management. The request was granted and the order was carried out and the authorities were supplied by our law firms in Lagos. Two weeks later, the Chief Magistrate delivered his ruling and admitted each of us to bail in the sum of N20,000.00 and one surety in like sum.
- M.K.O. Abiola v Federal Republic of Nigeria (1995) I NWLR Part 370 P.155
The appellant declared himself President and Commander-in-Chief of the armed forces of the Federal Republic of Nigeria on the ground that he won the June 12, 1993 presidential election. He was arrested and arraigned on a 3-count charge of treasonable felony contrary to Section 41 of the Criminal Code Act.
The Appellant pleaded not guilty and applied for bail orally through his counsel. The Federal High Court refused to grant the oral evidence and directed the counsel to file a formal application. Dissatisfied with the ruling, the Appellant appealed to the Court of Appeal. In allowing the appeal the Court of Appeal held that the lower court was wrong to have rejected the oral application for bail.
Consequently, the Court granted bail to the appellant in the following terms:-
(1) The appellant is granted bail in his own self recognisance.
(2) The appellant should not indulge in any activity that will jeopardize the peace of this country.
Gani Fawehinmi & 2 Ors
As a result of the nationwide protests which greeted the criminal annulment of the result of the June 12, 1993 presidential election by the Ibrahim Babangida military junta, the late Chief Gani Fawehinmi, Dr. Beko Ransome Kuti and I were arrested in Lagos and taken to Abuja where we were charged with unlawful rallies, sabotage of political transition programme. Our application for bail was rejected by the presiding Magistrate, Aisha Allasan.
We were remanded in Kuje prison. To prevent the high court from granting us bail, General Babangida ordered our detention under the obnoxious State Security Detention of Persons Decree No 2 of 1984. But we were admitted to bail by Bage J.(who later rose to the Supreme Court bench, retired and became the current Emir of Lafia). We were granted bail in self recognisance, notwithstanding that we were also detained incommunicado under a preventive detention decree.
- AHMED EBUTE & 5 ORS V THE STATE (1994) 8 NWLR (PT 360) 66
In this case, the following Senators: (1) Ameh Ebute; (2) Chief Polycap Nwite: (3) Rev. Mac. Onyernechi Nwulu; (4) Onyeka Amadi Okoroafor; (5) Abu Ibrahim and (6) Bola Ahmed Tinubu and others at large on the 30th day of May, 1994 at Lagos in the Lagos Judicial Division of the Federal High Court formed an intention to remove during his term of office other than by Constitutional means the Head of State of the Federal Republic of Nigeria and Commander-in-Chief of the Armed Forces, General Sani Abacha as Head of State and manifested such intention by issuing a Press Statement declaring the Federal Government illegal and thereby committed an offence contrary to Section 41 (a) E of the Criminal Code Act 77, Laws of the Federation, 1990 and punishable under the same section.
The appellants pleaded not guilty and applied for bail. The application was refused by the learned Chief Judge of the Federal High Court. Dissatisfied with the decision of the trial court the appellants took the matter to the Court of Appeal. In allowing the appeal, the Court of Appeal ordered as follows:
“(i) Bail is granted to each of the appellants in his own recognizance.
(ii) Each of the appellants shall within 24 hours hereof deposit his passport (s) with the Deputy Chief Registrar of this court pending the determination of his charge before the trial court.
(iii) Each of the appellants should show his presence to the Deputy C Inspector General in charge of C.I.D. Alagbon, Alagbon Close, Lagos, or any other officer designated by him in an area nearest to the place of abode of the particular appellant on every Friday at 10 to 11 a.m. of the week beginning from 29th, day of July, 1994 pending the determination of his charge before the trial court.”
ONEROUS BAIL CONDITIONS UNDER DEMOCRATIC RULE
Under the current democratic dispensation, Judges of the various High Courts in the country have a penchant for imposing stringent bail conditions on suspects even though the proof of evidence may disclose the case of the prosecution is weak. The bail conditions that are imposed by judges of the Federal High Court include the sum of 100 million Naira and 2 sureties in like sum. One of the sureties must have a property in Ikoyi, Victoria Island or Banana Island in Lagos State or Apo, Asokokoro or Maitama in the Federal Capital Territory while the other surety must be a level 17 officer in the public service of the Federal Government.
It is ironic to note that bail conditions set by judges under military rule were not as stringent as bail conditions imposed on citizens charged with criminal offences under the current democratic dispensation. The few cases that will be reviewed below will confirm that the majority of Nigerian judges do not agree with Justice Atkin who once said that “amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”
FRN v Omoyele Sowore & Anor (2019)
In August 2019, Omoyele Sowore and Olawale Bakare were charged with treasonable felony, money laundering and cyberstalking at the Federal High Court sitting in Abuja. The learned trial judge, Justice Ijeoma Ojukwu granted bail to Sowore in the sum of N100m with two sureties in like sum. The sureties, who must be resident in Abuja must also have landed assets worth the bail sum in Abuja, and they were to deposit the original title documents of the assets with the court. The judge also ordered him to deposit the sum of N50m in the account of the court as security.
The judge granted bail to Bakare in the sum of N50m and one surety in like sum. The sum of N50 was to be deposited as security. Both Bakare and Sowore were barred from addressing any rally pending the conclusion of their trial. As if that was not enough, the judge barred Sowore from travelling out of Abuja and restricted the movement of Bakare to Osogbo during the duration of the trial.
As the Defendants could not meet the bail conditions they remained in the custody of the State Security Service. However, the court granted the application for variation of the bail conditions by cancelling the deposit of N50 million by one of the two sureties. The Defendants approached the Court of Appeal for further variation of the bail conditions. In granting the applicant, the Court cancelled the restriction of the movements of the Defendants.
FRN v Michael Tobiloba Adaramoye (aka Lenin) & 9 Ors (2024)
The Defendants who had taken part in the #endbadgovernance in August 2024 were charged with treason and allied offences before the Federal High Court in Abuja. Each defendant was granted bail in the sum of N10 million with one surety who must have landed property worth the bail sum in Abuja. As part of the bail conditions, the judge ordered that the sureties must submit their passports to the court.
FRN v Adebayo & 118 Ors (2024)
The Defendants including 29 malnourished children were charged with treason at the Federal High Court, Abuja for aleged participation in the #endbadgovernance protests.
They pleaded not guilty and were granted bail in the sum of N10 million and one surety in like sum who should be a civil servant of not less than level 15.The children were however granted bail to their parents who were ordered to stand sureties for them.
It is submitted that it is contradictory to grant bail and proceed to impose stringent conditions that cannot be met by defendants without filing an application for variation or an appeal. For instance, how did the trial judge expect poor parents to travel from Kano, Kaduna, Sokoto, Maiduguri etc to travel to Abuja to stand sureties for the 29 minor defendants?
Apart from politically exposed persons, how many defendants are in a position to mobilise Grade Level 17 officers in the public service of either the federal or state government to stand sureties for them? In a country where the national minimum wage is N70,000 per month, how many defendants can deposit N100 million as security for their bail?
Inspector-General of Police v Omoyele Sowore (2005)
Last week, the authorities of the Nigeria Police Force arrested Mr. Omoyele Sowore for alleged cyberstalking. In admitting him to bail, he was asked to produce a surety who is a Grade Level 17 officer in the Federal Public Service. Following my intervention in the case, the Police Authorities reviewed the bail condition and substituted a Grade Level 16 officer for a Grade Level 17 officer as a surety!
It is pertinent to draw the attention of Nigerian judges and law enforcement agencies to fact that the Court of Appeal had declared illegal the involvement of top level civil servants in the bail of criminal suspects in the the case of Dasuki V. Director-General, S.S.S. [2020]10 NWLR PT.1731 PG. 136-143 where Adah JCA (now JSC) held as follows:
“Let me quickly say that of concern it is to us that as a court we must be ready and sensitive enough not to allow or do anything that will run foul of the law. The issue of involving civil servants or Public Officers in the Public Service of the Federation and the State in bail of people accused of criminal offences has never been the practice in Nigeria or any part of the civilized world. It was an oversight on our part to allow it in. Our Civil and Public Service Rules do not have any room for it. Expecting a Level 16 Servant to own property worth N100,000,000, will be running counter to the Public Service Rules and by extension the war against corruption. It is in this respect that I will act ex debito justitiae to ensure that the aspect of involving serving Public Servant below the status of Level 16 Officer in either the state or Public Service of the Federation or any of its agencies be removed and I so order.”
VERIFICATION BY PROSECUTORS
In order not to be accused of detaining arrested suspects illegally, the police and other law enforcement agencies usually furnish them with bail conditions. Once that is done, it is said that the suspects have been granted administrative bail by the detaining authorities. However, as the bail conditions are always made stringent, the suspects may be detained for several days and months while efforts are made to fulfill them.
Even when the bail conditions are met they may not be verified timeously by the detaining authorities. Thus, the suspects may be further detained while awaiting the verification of their bail conditions. Since Nigeria is a class society, former governors, ministers and other politically exposed persons are able to meet onerous bail conditions which are usually tied to ownership of properties. The detaining authorities ensure that the verification of the bail conditions is carried out with dispatch in order not to subject members of the ruling class to illegal detention.
Since the granting of bail is at the discretion of a trial court, it is legally indefensible to direct prosecutors, who had opposed bail applications, to authenticate the title documents of sureties. Henceforth, only court officials should be authorised to verify the documents submitted by sureties.
CONCLUSION
In view of the clear and unambiguous state of the law on bail, Nigerian judges should stop adjourning bail applications since it is going to be eventually granted. Indeed, once a suspect is charged before a court the trial judge should dispense with written applications and oral arguments and proceed to fix the bail condition. After all, the Court of Appeal had ruled in the case of Abiola v Federal Republic of Nigeria (supra) that an oral application for bail can be entertained by a High Court Judge.
Finally, even though bail is usually tied to properties in every capital society, Nigerian Judges should realise that the over 150 million citizens who are said to be dimensionally poor do not own developed or undeveloped properties. Therefore, ownership of properties should no longer be a conditionality for bail when indigent citizens are charged with criminal offences either in the Magistrate Court or High Court in any part of the country. Otherwise, the correctional centres will continue to be congested by thousands of defendants who are unable to meet bail conditions on grounds of impecuniosity.
