Bail: Presumption of innocence and right to liberty (1)

IN recent times, criminal proceedings in our courts have come under intense public scrutiny. Some of these cases are in relation to allegations of corruption and financial crimes for which the government not too long ago set up a special team of prosecutors while some relate to persons accused of engaging in conduct the government and security agencies deem as threats to the peace and stability of the country. While many are by now familiar with the procedure adopted by prosecutors, defence lawyers and the courts following an arraignment, there are several others who have yet to comprehend in any measure all that transpires in court after charges are read to a criminal defendant and he is asked to plea to the said charges. It is therefore not surprising to find many questioning why a man already adjudged in the court of public opinion to be guilty, should be allowed to return home so soon after arraignment while his trial is ongoing and his innocence or guilt yet to be determined. For many, the moment a man is charged to court, he should immediately be committed to prison custody and kept there to serve as punishment for whatever crime he is accused of having committed. For such people it matters not that there is a process called “bail” by which a person is entitled to be released and allowed to attend court while his case is hard. Such people can easily be forgiven when it is considered that even amongst Lawyers and Judges there is still a great deal of misconception about the law and procedure pertaining to bail and bail applications and in no other instances is this misconception revealed than with regards to the form in which an application for bail can be made and the conditions which a judge can impose upon the grant of bail.

 

Written application for bail unknown to Law

Therefore, for some time now, it has been common to hear of judges insisting on the filing of written applications for bail even where the circumstances permit that the application be made orally. However even more worrying now is the situation, which is fast gaining ground by which judges now order accused persons to make huge deposits of money and also produce high ranking members of society such as serving senators as sureties. As I will discuss, these developments do no good to the administration of justice.  I do not intend this to be a comprehensive write up on the legal principles surrounding the decision of a court whether or not to grant bail to a criminal defendant. My intention is to briefly highlight errors which are still being committed by some courts in dealing with the issue of bail. In doing so it is my objective that these errors will be corrected and that the entire criminal justice system will be better for it.

 

Bail: Presumption of Innocence

One of the constitutionally guaranteed rights of an accused person under the Nigeria jurisprudence is the right to presumption of innocence. A corollary to that right is the grant of bail to an accused person.  Black’s Law Dictionary, 9th Ed. Defines bail as “a security such as cash or bond, especially security required by a court for the release of a prisoner who must appear in court at a future time”. Bail has equally been given judicial interpretation by our courts. In Caleb Ojo v. Federal Republic of Nigeria (2006) 9 NWLR (Pt.984) 103, the concept of bail was defined as: “the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he (accused) also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though, they may, if they will surrender him to the court before the date assigned and free themselves from further responsibility.”

The importance of bail also finds firm footing in the provisions of Section 36 of the Constitution of the Federal Republic of Nigerian 1999 (as amended) regarding the right to a fair hearing. This point was made in the case of Obekpa v. Commissioner of Police (1980) 1 NCR at 113 where Al-Hassan Idoko J. (as he then was) stated the law in the following words: “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.”

The implication of all the above is that a person is constitutionally entitled to his liberty. Even when he is brought before a court of law to answer for the alleged commission of a crime, he will still be entitled to bail and a presumption of his innocence.

 

Justice is not one way traffic

Despite the provision of the law as to the presumption of the innocence of an accused person, it is still common nowadays to read that a Judge before whom an accused person has been arraigned has ordered the his counsel to file formal applications supported with affidavits to ask for the bail of the defendant, after which the defendant is then ordered to be remanded in prison custody pending the hearing and determination of the application for bail. Further saddening is the fact that the application for bail may not even come up for hearing until a much later date, and worse still, the court may not even sit.

This is very wrong. The requirement of a formal written application for grant of bail is unknown to law particularly where the application for bail is made before the Judge or Court before whom the defendant has been arraigned. After such an arraignment, the procedure is for the counsel for the defendant to make an application for bail orally and for the prosecution, should it elect to oppose, to give reasons why the application should not be granted. The law was stated correctly by the Court of Appeal in Abiola v. FRN (1995) 1 NWLR (PT.370) 155 wherein the judge before whom late Chief Abiola was arraigned had refused to entertain an oral application for his bail and had ordered his counsel to file a written application. The Court of Appeal set aside the decision of the Trial Judge and held quite rightly that a formal application was not required. This is still the position of the law even with the passing of the Administration of Criminal Justice Act in 2015. Section 158 of the Act provides that:  “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 the provisions of this part, be entitled to bail”.

With respect to offences in respect of which a sentence exceeding 3 years is imposed, the law states that upon application, the accused shall be entitled to bail, taking certain conditions into consideration. However, it does not stipulate the presentation of a formal written application.

It is said in law that justice is not a one-way traffic. A person who has been accused of infraction of a law and thereby arraigned before a court of law is still deserving of the protection of the law applicable to his case. The law relating to bail is one of such. It must always be respected in relation to all persons. Ordering the remand into prison of a person who under the constitution enjoys a presumption of innocence pending the filing of a written application for bail is erroneous as the higher court have ordered that application for bail can be made orally. An order to file written application for bail is a great disservice to the cause of justice. (You may send your comment to president@abuad.edu.ng)

To be continued

AARE AFE BABALOLA, SAN, CON, LL.D (Lond.) etc

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