BAIL AND PRE-TRIAL DETENTION: PERTINENT

CONSIDERATIONS UNDER THE ADMINISTRATION

OF JUSTICE ACT
Presented by
HON. JUSTICE EJEMBI EKO, JSC

My Lords, the theme of this conference is: INCULCATION

OF JUDICIAL EXCELLENCE IN THE NEWLY APPOINTED JUDICIAL

OFFICERS. The theme accords with the Seventh Schedule of the

Constitution read together with the Fifth Schedule of the same

Constitution. The core provision of the Judicial Oath which every

judicial officer shall subscribe to, before assuming the judicial

office to perform his judicial function, is the solemn declaration

on oath and undertaking on oath by the judicial officer to –

abide by the Code of Conduct contained

in the Fifth Schedule of the constitution
of the Federal Republic of Nigeria; that
I will not allow my personal interest to
influence my official conduct or my
official decision; that I will preserve,
protect and defend the constitution of
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 the Federal Republic of Nigeria.

You will find in the Fifth Schedule to the constitution the

injunction, to wit –

9. A public officer shall not do or

direct to be done, in abuse of
his office, any arbitrary act
prejudicial to the rights of any
other person knowing that
such act is unlawful or
contrary to government policy.

Your Judicial Oath, like any other Oath, is a solemn appeal

to God in attestation of the truth of the statement or promise

therein. The person making the Oath implicitly invites to himself

punishment should the statement be untrue or the promise be

broken. The municipal penalty for falsity of the promise or

statement on oath is the punishment for perjury. There is

punishment, in both secular and spiritual realms, for false

declaration or promise on oath.

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 Paragraph 9 of the Fifth Schedule to the Constitution,

incorporated by reference into the Seventh Schedule thereof,

emphasises the point that abuse of office includes doing or

causing to be done any arbitrary act prejudicial to the rights of

any other person knowing that such act is unlawful. Every

judicial officer discharges the judicial functions assigned to the

judicial office he is chartered to perform either under the

Constitution or the enabling statute. His decision, and this

includes the decision to grant or refuse bail, is a determination

of the civil rights and obligations of the defendant qua his

prosecutor: Sections 36(1) & 318 of the Constitution.

Section 36(1) of the Constitution enjoins the judex or the

judge to observe the rules of fair hearing in the following words

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 36(1): In the determination of his civil
rights and obligations, including
any question or determination
by or against any government
or authority, a person shall be
entitled to a fair hearing within
a reasonable time by a court or
other tribunal established by
law and constituted in such
manner as to secure its
independence and impartially.

Accordingly, when a court or judge is constituted to determine

any question as to the rights or obligations of any person to bail

or pre-trial detention it should always be borne in mind that he is

not constituted to conduct “Spanish inquisition”. Rather, he (the

judex) shall remain “independent and impartial”. His security

of tenure, guaranteed by Section 292 of the Constitution,

secures his independence. The combined effect of Sections

36(1) and 290 of the Constitution is that the Judge, independent

of the prosecutorial authority or government, must ensure

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that he, is not only independent and impartial; he must be seen

to be so in the eyes of the reasonable man - the officious

bystander, since in his Judicial oath the promises to be free and

fair and not to be carried away by any other extraneous matter

that will expose his decision to any suggestion that it is an

“arbitrary act prejudicial to the rights of any other person

knowing that act is unlawful”.

It should always be borne in mind that this country’s “social

order is founded on ideals of Freedom, Equality and Justice”; and

that in furtherance of the social order –

i. Every citizen shall have equality of

rights, obligations and opportunities
before the law;

ii. the independence, impartiality and

integrity of courts of law, and easy
accessibility thereto shall be secured
and maintained.

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See Section 17(1) & (2)(a) & (e) of the constitution.

Equality before the law, in furtherance of the National

Social Order under Section 17(1) & (2)(a) of the Constitution

means that both the prosecutor and the defendant are qual

before the law and judge. Section 17(2)(e) of the Constitution

enjoins the court to maintain its integrity, independence and

impartiality in any question relating to pre-trial detention and

bail.

An application for the Court to make pre-trial detention of

a person accused or suspected to have committed a criminal

offence, not bail pending trial, is an invitation to the court to

perform its judicial function. It must observe the procedure of

fair hearing guaranteed under Section 36(1) of the Constitution

and shall always bear in mind that the Nation’s Social Order is

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founded on the constitutional injunction to the court to always

maintain is independence, integrity and impartiality.

In the recent times, application for pre-trial detention of

persons suspected or accused of committing criminal offences

has become popular with prosecutorial authorities. The

application is usually made ex parte, inspite of Section 36(1) of

the constitution providing that in the determination of his civil

rights and obligations, including any question or determination

by or against any government or authority, a person shall be

entitled to a fair hearing. The question that readily comes to

mind is: whether an ex parte application for pre-trial detention

of a person whose right to personal liberty guaranteed by

Section 35 of the constitution the court is being asked to take

away, ex parte pending investigation of an alleged offence, is not

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an egregious invasion of his personal liberty in total disregard of

his fundamental right to fair hearing? Section 35(1) of the

Constitution does not seem to justify this procedure that no

doubt, is a derogation of the right to personal liberty guaranteed

therein. Section 35(1) provides –

35(1) - Every person shall be entitled to his

personal liberty and no person shall be deprived
of such liberty save in the following cases and in
accordance with a procedure permitted by law –

a. in execution of the sentence or order of a

court in respect of a criminal offence of
which he has been found guilty;

b. by reason of his failure to comply with the

order of a court or in order to secure the
fulfilment of any obligation imposed upon
him by law;

c. for the purpose of bringing him before a

court in execution of the order of a court
or upon reasonable suspicion of his having
committed a criminal offence, or to such
extent as may be reasonably necessary to
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 prevent his committing a criminal offence;

d. in the case of a person who has not a

attained the age of eighteen years, for
the purpose of his education or welfare;

e. in the case of persons suffering from

infectious or contagious disease,
persons of unsound mind, person
addicted to drugs or alcohol or
vagrants, for the purpose of their
care or treatment or the protection
of the community; or

f. for the purpose of preventing the

unlawful entry of any person into
Nigeria or of effecting the expulsion,
extradition or other lawful removal
from Nigeria of any person or the
taking of proceedings relating
thereto;

Provided that a person who is charged with an offence and

who has been detained in lawful custody awaiting trial shall

not continue to be kept in such detention for a period

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 longer than the maximum period of imprisonment

prescribed for the offence.

Section 1 of the Constitution is very emphatic. It provides

for the supremacy of the Constitution and its detestation of any

provision in any law that may be inconsistent with any of its

provisions thus –

1. This Constitution is supreme and its

provisions shall have binding force on
all authorities and persons thoughout
the Federal Republic of Nigeria.

3. If any other law is inconsistent with

the provisions of this consistent, this
constitution shall prevail, and that
other law shall to the extent of the
inconsistency be void.

If equality before the law assured by Section 17 of the

Constitution, is any thing to go by; the question the court should

ask itself, in the ex parte application for pre-trial detention,

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should be: why would a suspect be incarcerated unheard and his

liberty curtailed when the prosecutor has not undertaken any

investigation yet nor is he yet ready to commence trial of the

suspect within a reasonable time? Both the prosecutor and the

suspect, who is not yet a defendant, at the Bar before the court

enjoy equality of rights, obligations and opportunities. The

prosecutor is, by law, obligated to prove the guilt of the suspect

beyond reasonable doubt before the court may convict him and

thereafter sentence him and make him liable for the “execution

of the sentence or order of court in respect of a criminal offence

of which he has been found guilty”. I have my doubts though not

magisterial, if the “procedure permitted by law” contemplated

by Section 35(1) of the Constitution would accommodate any

criminal procedure that allows a suspect to be detained ex parte

even before the investigation into his alleged offence

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commences. Reading Sections 131 & 135 of the Evidence Act,

2011 together with Sections 35 and 36 of the Constitution

strengthens the proposition that the burden of proof, if the

commission of a crime by a party is directly in issue, is one of

proof beyond reasonable doubt.

If, by motion ex parte, it is sought of the court to detain a

person pre-investigation; it appears to me appropriate for the

court, before obliging the investigator, to ask itself: is it fair to all

concerned and in accordance with the procedure permitted by

law which also accords with the constitution?

Bail in criminal proceedings is said, according to Earl Jowitt:

The Dictionary of English Law (1965 Ed), to be when an accused

person is said at common law to be admitted to bail when he is

released from the custody of officers of the law and is entrusted

to the custody of persons known as his sureties, who are bound

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to produce him to answer, at a specified time and date, the

charge against him and who, in the default of so doing, are liable

to forfeit such sum as is specified when bail is granted. The

purpose of bail therefore is the assurance that the defendant at

the Bar will appear subsequently “to answer, at a specified time

and date, the charge against him”. For that assurance the court

specifies the terms of the recognizance or bail terms which are

forfeited when the defendant subsequently failed to surrender

to his terms.

The Administration of Criminal Justice Act (ACJA), 2015, in

Sections 164 and 165 thereof, provides

164. Where a defendant is brought before

a court on any process in respect of
any matter not included within
Sections 158 to 163 of this Act, the
person may, at the discretion of the
court, be released on his entering into
recognisance, in the manner provided
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 in this Act, for his appearance before
the court of any other court at the
time and place mentioned in the
recognisance.

165.(1) The conditions for bail in any

case shall be at the discretion of the
court with due regard to the
circumstances of the case and shall
not be excessive.

(2) The court may require the

deposit of a sum of money or
other security as the court may
specify from the defendant or his
surety before the bail is approved.

(3) The money or security deposited

shall be returned to the defendant or
his surety or sureties as the case may
be, at the conclusion of the trial or
on an application by the surety to the
court to discharge his recognisance.

It has never been the purpose of bail for the trial court, in

the interlocutory proceedings, to punish the defendant before

the trial or to show its disgust and/or disdain for the offence
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charged. Interim or interlocutory custodial sentence or

punishment, pending trial, is unknown and alien to our

jurisprudence. It is not so provided for under the ACJA.

For time immemorial; when a judge grants bail, it is for him

to fix the amount of bail and the number of sureties and to

decide as to the sufficiency of the sureties: R v. SAUNDERS

(1841) 2 COX CC 249. This discretion is judicial, and it must be

exercised judicially and judiciously – not arbitrarily or

capriciously. Section 165(1) ACJA, in recognizing that the

conditions for bail remain within the discretion of the court, has

a caveat however that the bail conditions “shall not be

excessive” and that the court, in exercise of its discretion, shall

“have due regard to the circumstances of the case”.

Judicial excellency abhors a reckless illegality on the part of

judicial officers. Abuse of office by doing or causing to be done

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“any arbitrary act prejudicial to the rights of any other person

knowing that such act is unlawful” is clearly antithetical to

Judicial Oath as well as the Code Conduct for Public Officers and

the Code of Conduct for Judicial Officers.

At common law the remedy for excessive bail lies in the

prerogative order of habeas corpus: Ex Parte Thomas (1956)

Crim. L. R. 119: (1956) CLY 1739. It is an appealable decision by

dint of Section 318 of the Constitution. In law, excessive bail

amounts to “imprisonment without legal cause”.

The case of ALA NYAMIKUME & ANOR. v. C.O.P.

(unreported: No. GBO/5 – 6m/184 of 15th March, 1984 – Eko:

The law of Bail p. 158 Rev. Ed) tells the story of a very egregious

unwarranted, albeit capricious abuse of judicial power by a

senior magistrate. He granted bail and made outrageous

conditions of the bail thus –

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 But it is not the intention of this court to
frustrate genuine efforts being made by
the military to remove undesirable persons
from the society. Therefore, even though
each accused is granted bail in the sum of
N5,000.00 and one surety in the same
amount, the surety of whom must be
resident in Gboko township, the surety
must be approved in writing by the
Chief of Staff in the Supreme Headquarters
himself stamped by him.

The bail terms are not only excessive, the learned senior

magistrate (should we say he is) had clearly, in overzealousness,

abdicated his judicial function and surrendered same,

unconstitutionally, to the Executive to approve who should

stand surety. The High Court reviewed the bail decision,

quashed it and substituted therefor the following order:

Exercising the powers conferred on by

Section 344 of the C.P.C I hereby reduce
the bail as follows –

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 1. Applicants are each allowed bail in
the sum of N5,000.00 and one
surety in the like sum

2. The sureties shall be approved by

me.

etc

We are discussing how at common law excessive bail

amounts to “imprisonment without legal cause”. It is an illegality

committed only by “lawless Judges”, and it is still being

committed when bail terms still include “one of the sureties shall

be a Director in the Federal Civil Service and resident in Abuja

FCT who shall show evidence of his ownership of landed

property the value of which shall not be less than

N500,000.000.00”. Now, the question: why a Director in the

Federal Service? And which Director legitimately can afford this,

not to mention whether every accused person has a Director

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friend? It is unfortunate. I say no more. Suffice only that I say

that the theme of this conference is: inculcating Judicial

Excellence in the Newly Appointed Judicial Officers.

Judicial excellency abhors a reckless illegality on the part of

judicial officers. Abuse of office by doing or causing to be done

“any arbitrary act prejudicial to the rights of any other person

knowing that such act is unlawful” is clearly antithetical to

Judicial Oath as well as the Code Conduct for Public Officers and

the Code of Conduct for Judicial Officers.

The ACJA, in Section 158 thereof, seems to suggest that bail,

subject to certain statutory derogation, is a basic right. In ONU

OBEKPA v. C.O.P (1980) 1 NCR 113, it was so stated by the Benue

State High Court (Coram Idoko, J – as he then was); that for non

capital offence bail to an accused person is a basic constitutional

right, notwithstanding the provisions in Section 341(2) of the

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CPC that appear to restrict that right. In DOGO v. C.O.P. (1980)

1 NCR 14, Okadigbo, J echoing that refrain stated that bail in such

circumstance should be granted without formality. The

magistrate in ONU OBEKPA preferred a bare statement from the

Bar from the prosecutor to the accused’s oral application

supported by uncontradicted testimony of the witnesses called

by the accused person to deny bail. He suggested that formal

application be filed. He was, rightly overruled by the High Court

which further held that a bare statement from the Bar had no

force of legal evidence to defeat the testimonies of the witnesses

for the accused/Applicant.

Section 158 of the ACJA does not appear to insist on too

much formality in the application for bail in substance. It

provides:

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 158. When a person is suspected to have
committed an offence or is accused of
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.

Two situations are herein provided for. That is –

i. the person suspected to have

committed an offence is arrested
and detained, but yet to appear in
court (see also Section 159 ACJA); and

ii. the suspect has been arraigned,

pre-trial, and he is brought before
the court.

In the case of the pre-arraignment situation under Sections

158 and 159 ACJA bail remedy, as it appears, avails the suspect

detained by way of Habeas corpus action. Th court is

empowered under Section 159(1) to direct the officer in-charge

of the Police Station or any other place of detention to produce

the suspect at the time and date specified in the order before
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the court. Thereafter the court, under Section 159(2), may make

orders for his release on bail.

The second scenario under Sections 158 & 159 will be when

the suspect appears or is arraigned before an inferior court and

the former had wrongly denied him bail and he is subsequently

remanded in prison. The superior court, in the circumstance can

review the decision of the lower court and release him on bail

from prison or place of detention.

Reading Sections 158 and 162 of ACJA; it appears

mandatory that any person accused of committing an offence

with imprisonment for a term not exceeding three years is

entitled to bail as of right. The provisions are akin to Section 340

of the Criminal Procedure Code held to be mandatory and that

the suspect must be released on bail, except for reasons which

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must be recorded in writing, which reason can only be of the two

stated therein: LALA JAIRAM DAS v. EMPEROR A (1945) P.C. 94.

In respect of a defendant charged with an offence

punishable with imprisonment exceeding three years; Section

162 ACJA provides:

162. A defendant charged with an offence

punishable with imprisonment for a
term exceeding three years shall on
application to the court, be released
on bail except in any of the following
circumstances:

(a) where there is reasonable ground to

believe that the defendant will, where
released on bail, commit another
offence;

(b) attempt to evade his trail;

(c) attempt to influence, interfere with,

intimidate witnesses, and or
interfere in the investigation of the
case;

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 (d) attempt to conceal or destroy
evidence;

(e) prejudice the proper investigation

of the offence; or

(f) undermine or jeopardize the

objectives or the purpose or the
functioning of the criminal justice
administration, including the bail
system.

Notwithstanding the clumsy draftsmanship it behoves the

prosecutor, who opposes the application for bail to show or

establish the six (6) exclusionary situations or circumstances

entitling him to call upon the court to deny the application of the

defendant for bail; once the applicant establishes the prima facie

his right to be granted bail pending trial. That is, that he is

entitled to the right to enjoy his personal liberty. Since 1965

Idigbe J (as he then was) made this sound declaration of law in

JA ISUMAN v. POLICE (1965/66) MNLR 111 – that it is not enough

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for the prosecutor to oppose bail. The onus is on him to adduce

sufficient evidence in support of his opposition to bail

concomitant with this burden of proof is the rule of evidence:

that a bare statement from the Bar by the prosecution in

opposition to bail has no force of evidence: ONU OBEKPA

(supra).

There is nothing in the ACJA that absolutely prohibits a High

Court from granting bail to any person accused of committing a

capital offence. Section 161 ACJA vests discretion, in the Judge

of the High Court, to grant bail to “a suspect arrested, detained

or charged with an offence punishable with death” under

exceptional circumstances, which are stated in subsection (2)

thereof. Section 161 of ACJA provides -

161.(1) A suspect arrested, detained or

charged with an offence punishable with
death shall only be admitted to bail by a
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Judge of the High Court, under
exceptional circumstances.

(2) For the purpose of exercise of

discretion in subsection (1) of this section,
“exceptional circumstance” include :

(a) ill health of the applicant which

shall be confirmed and certified
by a qualified medical
practitioner employed in a
Government hospital, provided
that the suspect is able to prove
that there are no medical
facilities to take care of his
illness by the authority detaining
him;

(b) extraordinary delay in the

investigation, arraignment and
prosecution for a period
exceeding one year; or

(c) any other circumstances that

the Judge may, in the particular
facts of the case, consider
exceptional.

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 Let it be on record herein that nothing in Section 35 of the

Constitution denies to a person accused of committing a capital

offence the right to be granted bail pending trial. When sub-

sections (4) & (7) thereof are read together; the clear intent or

policy of the Constitution is that a person so accused whose trial

exceeds “three months from the date of his arrest or detention”

shall not automatically be entitled to be released on bail. The

discretion of the Judge of a High Court to grant bail, in

exceptional circumstances, to such a defendant remains

inviolate under the Constitution.

In MORGAN OGWU v. THE STATE (1981/82 BNLR 31 which I

argued under Section 341(1) of the CPC that provides that

“persons accused of an offence punishable with death shall not

be released on bail”. The High Court (Idoko, J) stated that the

seeming ban or bar is not absolute. And as to the contention of

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the prosecution that a person accused of capital offence is not

entitled to bail the learned jurist (in MORGAN OGWU, supra)

declared –

i. he shall only be denied bail if prosecution

shows, and the court is satisfied, that
reasonable grounds exist to show that the
accused committed the alleged capital
offence against him; and that in the
circumstances where sufficient grounds
exist for conducting further inquiry or
investigation bail should be granted.

ii. when the accusation is merely fanciful

or arbitrary and capricious, or under a
reckless regard to get the actual
perpetrator of the alleged offence, or
where the investigatory approach is
totally faulty and not aimed at getting
at the truth of the matter; and

iii. that the general ban or bar to releasing

on bail, a person accused of capital
offence operates against him unless
he demonstrates that no reasonable
justification exists for holding him in
penitertiary while awaiting his trial.
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Undue delay or indiligent prosecution, consistent with the

necessity for speedy trial within a reasonable time under

Sections 35 and 36(1) of the Constitution is now regarded inter

alia, under Section 161(2)(b) of ACJA, as “exceptional

circumstance” warranting the judge releasing on bail, pending

trial, the person accused of capital offence. The law, particularly

the constitution, does not contemplate a prosecutor roaming

large without breeches or control to act any how or with

audacious impunity as it pertains to or affects the right to

personal liberty of the citizen.

Whether it pertains to bail for non-capital offence or bail for

a capital offence; when the court or judge, in exercising his

undoubted discretion, applies too much leaning towards, or

places so much, emphasis on the penalty for the alleged offence,

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the danger lies that the judge or court might pre-judge the guilt

of the accused person in total disregard of his duty to act fairly

under Section 36(1) of the constitution: C.O.P. v. IBRAHIM AUTA

(unreported: AHC 166m/1991 of 29, July 1991 – Eko, J). For

emphasis: bail for non-capital offence is basic fundamental right

of the accused person: ONU OBEKPA (supra).

We have a lot to say, but I must round up. The importance

of bail decision can hardly be exaggerated. It involves the liberty

of the individual who (in the case of remand before conviction)

has been found guilty of no offence against the need to ensure

that the accused persons are duly brought to trial and the public

protected. Quite apart from depriving him of his liberty, a

remand in custody may have other harmful effects – on the

other hand, it is rightly a matter of serious concern if a person

granted bail absconds or commits offence while on bail: This is

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culled from the UK: Home Office Working Party on Magistrates’

courts bail procedures (Magistrates’ Courts Report of the

Working Party, London – HMSO 1974, p. 17).

The truth on our hands today in Nigeria is that remand

prisoners (awaiting trial) are often held in worse conditions than

the convicted persons. The prisons are congested. Human

beings are just cramped and lumped together in that

“warehouse” now called “Correctional Home” in utter violation

of Section 34 of the Constitution that guarantees to them the

right to dignity of their persons. That right includes the

statement that no such “person shall be subjected to torture or

to inhuman or degrading treatment”.

In nutshell, it should always be uppermost in your mind, as

trial Judges, that the courts are charged with the vital

responsibility to enforce the rule of law, and not the rule of

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thumb. This responsibility also entails your upholding not only

the Constitution and other statutory provisions but also your

oath of office and personal integrity, as opposed to personal

inituitions or emotions.

In the spirit of the old National Anthem the Judiciary, and

that each of us here, should help ourselves build a nation where

no man is oppressed. The prayer to “Oh, God of Creation” alone

will not work. Remain blessed. Thank you.

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