Administration Of Criminal Justice: Demostrated Powers Of Court To Adopt Administrative Bail Terms – Practical Lessons From Hon. Justice Inyang Ekwo

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By Emeka J. P. Obegolu, SAN

Bail is a constitutional and lawful process by which a person charged with an offence and held in the custody of the law is delivered into the custody of a surety upon a recognizance executed by the surety to ensure the presence of the person he took on bail at any place or time required of him by the court for his trial for the alleged offence. In the case of SULEMAN & ANOR V COP PLATEAU STATE (2008) LPELR-3126(SC), the Supreme Court in line with this principle declared as follows:



”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. 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.

The Nigerian criminal justice system recognizes about three instances where a defendant can be admitted to bail. There are:

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  1. A suspect may be granted bail by the police at the police station (administrative bail);
  2. A defendant may be granted bail by the court pending trial;
  3. A convict may be granted bail pending the determination of his appeal.

This conditional release of a defendant/accused is anchored on the constitutional acclamation that any person charged with a criminal offence is presumed innocent until otherwise proven guilty as enshrined in Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The Nigerian Police Force or any other law enforcement agencies have powers to grant bail where a suspect or defendant has been arrested. The courts also have the powers to grant bail.

By the provision of section 30 of the Administration of Criminal Justice Act, “where a suspect has been taken into police custody without a warrant for an offence other than an offence punishable with death, an officer in charge of a police station shall inquire into the case and release the suspect arrested on bail subject to subsection 2 of this section, and where it will not be practicable to bring the suspect before a court having jurisdiction with respect to the offence alleged, within twenty-four hours after the arrest.

By the provisions of sub section (2) of the above Act, it provides thus: “The officer in charge of a police station shall release the suspect on bail on his entering a recognizance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognizance.

It is however important to state that by Section 494 of the ACJA, “Police means the Nigerian Police, established by the constitution or where the context so admits, shall include any officer of any law enforcement agency established by an Act of the National Assembly”

By the provisions of Section 158 of ACJA, 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.

From the paragraph above, once a person has been brought before a court, he/she is entitled to bail. It is his constitutional right save for any impediment created by law.

It is not in doubt that by the Nigerian jurisprudence, once an accused is brought to court, upon arraignment, the bail already granted by the prosecuting authority ceases and the said accused person is meant to make a fresh application for bail before the court.

We are of the view that when an accused person/defendant, prior to arraignment, has been granted bail by the Police, the court should, unless in exceptional circumstances, allow the said bail and its conditions to continue based on the terms and conditions of the administrative bail.

This view appears to be in the overall interest of criminal justice administration because the primary essence of bail is to secure the attendance of the defendant/accused person to answer to the charge(s) against him/her. We have had instances where defendants/accused persons who are presumed innocent and came to the court voluntarily from their homes are taken from the court upon arraignment back to detention facilities because bail conditions imposed by the court could not be met and verified within court hours.

We also have instances where these categories of persons spend upwards of one week while the bureaucracy works its way to perfect the bail conditions. In most cases these are persons who have met the terms of their administrative bail by the prosecuting authority, been complying with the mandatory reporting regime of the bail without fail for, in some cases, months and years.

It is not in doubt that the grant of bail is at the discretion of the court. section 165 of ACJA provides thus: “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.” This position was re-echoed in EYE V FRN (2018) LPELR 43599 (SC) where the Supreme court held; “On the part of this court in my view, the grant of bail to an accused person standing trial before a High Court, purely is a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously”

Section 164 of ACJA provides that when a defendant is brought before a court, the person may at the discretion of the court, be released on his entering a recognizance, in the manner provided in the Act, for his appearance before the court or any other court at the time and place mentioned in the recognizance.

We reiterate our earlier submission that the powers and discretion of the court, whom a defendant has been brought before should be exercised in allowing the bail and its conditions, already granted by the Police, to continue to run, if the court is satisfied with the terms and conditions of the bail, the sureties and the terms of the recognizance.

A look at section 170 of ACJA, lays credence to the above fact.

Subsection (1) reads thus: “The terms of recognizance fixed by the court in respect to any surety or sureties shall be processed in that court.”

Subsection (2) reads thus: “The recognizance as mentioned in subsection (1) of this section may be entered into by the parties before any other court, any registrar, superior police officer, officer in charge of a police station or any official in charge of a prison.”

Subsection (3) reads thus: “Recognizance entered into as described in subsection (2) of this section shall have the same effect as if they have been entered into before that court.”

This section has stated that recognizance entered before an officer in charge of a police formation can have the same effect as same entered before a court.

In my view, to uphold justice and to reduce the burden on some defendants who may have reasonable sureties, already verified by the officer in charge of a police station, the court should adopt the procedure of allowing the bail already granted by the Police, prior to a defendant being brought to court, to continue.

It is trite that the jurisdiction of the court in a criminal trial is activated upon plea, that is the reason why after plea is taken by defendants, the court should do the following:

  1. Inquire from the prosecution if such defendant is already on administrative bail.
  2. If the defendant is already on administrative bail, inquire as to the terms and conditions of the bail, the sureties and the recognizance entered.
  3. Allow the bail of the said defendants to continue as it raises a presumption that the prosecution who already granted them administrative bail, will have no objection to the court granting them bail and/or allowing the said conditions to apply.

On Wednesday, 2nd November 2022, I had the privilege of appearing before Hon. Justice Inyang Ekwo of the Federal High Court, Abuja Division and before my matter came up, the court called the criminal case with CHARGE NUMBER FHC/ABJ/CR/302/2022: BETWEEN FRN VS PROF. ALEX AKPA & 2 ORS.

The case was for arraignment and after the pleas have been taken, the Learned Senior Counsel for the 1st defendant wanted to move the bail application, the Judex asked the prosecution whether the defendants have been on administrative bail. When the prosecutor answered in the affirmative, the Judex asked the terms of the bail and upon being satisfied, ordered the prosecution to transmit the recognizances to the court within seven days and granted the bail on the same recognizances. The defendants walked away from the court with a sense of justice in action.

I can say that all counsel in court on that day were unanimous in appreciating the Judex for the practical justice exhibited in court on that day. Personally, I left the court wishing that other courts may consider adopting this mode of practical justice which is backed by law and can only serve to give life to the constitutionally guaranteed presumption of innocence.

Emeka J. P. Obegolu, SAN.



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