Company Law, Criminal Law

Bail And The Issuance Of Detention Orders By Magistrate Courts In Nigeria: The Effects And Legality

   “A man of courage never needs weapons, but he may need bail.”

                                               -Lewis Mumford.

In Nigeria, the legislature has over time tried to preserve the rights of citizens against illegal detention, amongst others through various laws. This was achieved through various provisions of the Acts of the National Assembly with particular reference to the Constitution of the Federal Republic of Nigeria, 1999 as amended (hereinafter referred to as CFRN 1999. The CFRN 1999 as the supreme law governing the nation, is the source where every other law, Act, agency, governmental position, as well as every other machinery in charge of the entity called Nigeria, derives their powers. This notwithstanding, there has been an upsurge in detention order issuance by magistrate courts in Nigeria at the expense of the innocence of ordinary Nigerians. The balance of detention on the altar of investigation must definitely rank low compared to the preservation of the innocence of Nigerians. This paper seeks to highlight the detention orders viz-a-viz the constitutional right of bail.

INTRODUCTION

The growth of civil, democratic, and judicial systems in any part of the world is heavily dependent on the respect of the constitutional rights of individuals. The constitution as the bedrock of civil rights protections lays a firm foundation on the legitimate right of bail in Nigeria. Unarguably, considering the sensitivity of criminal allegations, the law has stipulated conditions to be met for bail to be granted. This paper will seek to argue against the prevalence of detention orders.

The CFRN 1999 provides for bail of a suspected criminal. However, due to an effort to meet standards, the legislature has made various legislations capable of disrobing citizens of this right which law enforcement agencies are now abusing by obtaining what we generally refer to as “Detention Orders” in this article. This has brought untold hardship due to the corrupt and abusive practices of law enforcement agencies that now see it as an avenue to trample on citizen’s rights by holding suspects back in detention. Detention Orders here refer to any order capable of holding back suspects in detention for more than the constitutionally required duration. This article will examine the doctrine of bail under the Nigerian legal system with the aim of identifying the root of detention orders.

A section of this paper will analyze the meaning of Remand Orders and Detention Orders in its actual legal denotation. The core of the analysis of this paper will be the legislative or enforcement justification of detention orders, dwelling on their legality and concomitant effects. The concluding phase of this paper will suggest workable recommendations to assuage the effects of detention orders and simultaneously improve the human rights jurisprudence of Nigeria.

MEANING OF BAIL

Bail is a process where an accused or detained person is set free temporarily pending either the investigation of the alleged crime (administrative bail/police bail), awaiting trial (before judgment) or trial pending appeal (after judgment has been given by trial court). Bail is granted, sometimes on condition that a surety who enters into a bond will produce the suspect when needed for questioning or prosecution. In the case of Caleb Ojo v. Federal Republic of Nigeria,[1] the court interpreted bail to mean,

   “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 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.”

Again in, Onyebuchi v FRN & Ors[2] the Court defined Bail as:

‘… the process by which an accused person is temporarily released from state custody to sureties on conditions given to ensure his attendance in Court whenever he is required until the determination of the case against him.’

Bail is an important aspect of any democratic criminal justice system, enabling individuals accused of offenses to secure their release temporarily[3]. Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria provides that:

“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…”

This is to the effect that an individual naturally harbors a conditional entitlement to bail save and except the law provides otherwise. Section 35 of the 1999 CFRN went ahead to state instances where such rights might be restricted in the subsections. Normally, a person who is accused of a crime is required to remain in custody until their guilt or innocence is established. Nonetheless, the court may decide to release the individual prior to that determination, this is known as bail. This is so but not exactly so in terms of administrative or police bail, as the police and other administrative bodies capable of arrest are mandated by the constitution to produce a suspect in court not later than 24hrs where there is a court of competent jurisdiction within 40-kilometer radius from the police/administrative station; and where a court of competent jurisdiction is not within 40(forty) kilometers, the suspect must be charged within 48hrs (forty-eight hours) or within a reasonable time. This is to protect the rights enshrined in Section 35. Bail plays a vital role in upholding fundamental human rights, thereby promoting the fair administration of justice, and preventing the unnecessary overcrowding of correctional facilities.

Section 158 of the Administration of Criminal Justice Act 2015 states 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.”

Thus, bail is the security in the form of a bond required by a Court for the release of a prisoner who is to appear in Court at a future date. Bail is temporary release from court or police custody on the condition that the accused will appear either in court or police/administration when need be. From the foregoing, it is evident that bail is a critical part of the rule of law which portrays how our judicial system perceives presumption of innocence as well as freedom and personal liberty.

At the Biannual Conference of All Nigerian Judges of the Lower Courts which was organized by the National Judicial Institute on 19th November 2012, Administrator of the National Judicial Institute (NJI), Justice Umaru Eri, made instructive persuasion on the subject matter of bail and excessive conditions of bail as follows:

“From statistics and my practical knowledge of the prisons, 50 percent of the warrants of those awaiting trials are signed by Judges of the Lower Courts, that is to say, Magistrates, Area Court, and Customary Court Judges. Why do we send suspects accused of overnight cases like minor theft, wandering, petty quarrels, perhaps at Club Houses, assault, and improper dressing, to mention but a few, on remand? Why do courts give in to requests for remand on mere presentation of First Information Report by Police? In most cases, these young persons plead not guilty and our lower courts proceed to grant them bail pending trial. They find themselves in prison because they have no sureties. These are cases that require caution and discharge…And so also we have had politicians ensuring the detention of their opponents in prison until after the elections are over. I, therefore, call on the various Judicial Service Commissions in the states to outrightly discipline any Judge of the lower court found to abuse his powers. Bail in all these cases should be automatic with no conditions attached.” (emphasis are mine)[4]

Courts of Criminal Jurisdiction in Nigeria

In our judicial system in Nigeria, there exist hierarchies of court as well as their different aspects of law, be it civil or criminal. For the purpose of this paper, our attention is drawn only to the criminal aspect of this jurisdiction. Some crimes are left for the exclusive jurisdiction of some courts and by implication; bail is only made to such courts. Be it as it may, the administrative bodies have their own scopes as a drug case is meant to be transferred to the National Drug Law Enforcement Agency. The same is the case when it comes to court as the Federal High Court has exclusive jurisdiction to try cases of drugs, etc.

Trial Courts:  Bail is often granted in trial courts except for some statutory reasons and restrictions. The reason for this is that an accused is innocent until proven guilty. However, if rejected by the trial court (magistrate court), the accused can further apply or appeal to the higher court in the hierarchy (high court).

Appellate Courts: Here, judgment had already been passed by the trial/lower court hence the accused appeals to a higher court for a more favorable judgment. Bail here is rarely given. This is because the element of innocence had been robbed of the accused by the finding of guilt after judgment had been passed.

Purpose of Bail.

Bail serves various purposes, including ensuring the accused’s presence in court, safeguarding their rights, maintaining the presumption of innocence, preventing excessive pretrial detention, and minimizing the impact of confinement on the accused.

Statutory Criteria for Granting Bail in Nigeria

The Courts have established criteria that must be considered by trial courts in deciding whether or not to grant bail to an accused person before trial. These criteria include the nature of the charges, the strength of evidence, the severity of the potential punishment, the accused guilt, the need to protect the accused, and the need for medical or social reports during the case.

Types of Bail

Bail can be granted in various forms, including cash bail, surety bail, property bond, or personal recognizance. Types of bail in Nigeria include: Administrative bail and court bail which can either be bail pending trial or bail pending appeal.

a.  Administrative Bail

b. Court Bail

     ·   Bail Pending trial

     ·   Bail Pending Appeal

Conditions for the Grant of Bail

In Ogbuawa v. FRN , Tsamiya, J.C.A[5]  stated thus,

 “When it comes to the issue of whether to grant or refuse bail pending trial of an accused person by the trial court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. The criteria have been stated in several decisions of this court and the apex court. Such criteria include inter-alia, the following,

1. The nature of the charge

2. The strength of the evidence which supports the charge

3. The gravity of the punishment in the event of conviction,

4. The previous criminal record of the accused, if any,

5. The probability that the accused may not surrender himself for trial.

6. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.

7. The likelihood of further charges being brought against the accused.

8. The probability of guilt

9. Detention for the protection of the accused,

10. The necessity to procure medical or social report pending final disposal of the case”

DETENTION ORDERS

A detention order in this article is to be conceived as any order causing a detainee to exceed the constitutional limit in custody. The term will be used interchangeably with remand order. A Remand Order is an order made by the court usually at a bail hearing ordering the accused to remain in custody until the determination or judgment is given or released on bail review. In Lufadeju v. Johnson[6], the Supreme Court defined Remand to mean “to send to prison or send back to prison from a court of law to be tried later after further inquiries have been made; often in the phrase ‘remand in custody’.

Detention Orders by Magistrate Courts, its Effects and Legality in Nigeria

Detention Order is of no doubt, a deviation and against the spirit of Section 35 of the 1999 CFRN which provides that;

“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…”

It went further to provide that any person being detained must be produced before a court of competent jurisdiction within 24 hours or 48 hours depending on the distance from the detained location to a court of competent jurisdiction. This provision tries to secure the personal liberty of an accused against power-drunk officers of the law. However, the Administration of Criminal Justice Act 2015, provides for a loophole where citizens’ rights could be tampered with. This is the provision for remand order contained in Section 293 of the Act

Detention orders/Remand orders as opposed to bail play a very important role in the criminal justice system, allowing for the lawful detention of individuals suspected or accused of committing a crime. A detention order in its strict legal term is an order issued by the court authorizing the detention of an accused person for a specified period, pending the conclusion of an investigation or trial.

In Nigeria, the Magistrate Court issues detention/remand orders for long days and for an extended duration thereby making what would have ordinarily been an unlawful detention lawful. Though the Nigerian Constitution recognizes the right to personal liberty, the right is subject to certain limitations. The limitations include detention or arrest in accordance with established procedures by law. This means that detention orders can only be issued by a competent court of law. It is only legal when it is issued by a competent court of law.

The Magistrate Court as a competent court of law can issue that detention/remand order. It has the power to issue detention/remand orders for a period not exceeding the time stipulated by law. However, this period can be extended by the court upon application by the prosecutor.

The power of the Magistrate Court to issue detention orders is based on the need to preserve the integrity of the investigation or trial and to prevent the accused from absconding or interfering with the investigation. A detention order is not punitive but is aimed at ensuring that the investigation or trial proceeds smoothly.

Before a detention order is issued, the accused person must be brought before the court and informed of the charges against them. The accused person may then be remanded in custody or released on bail pending the conclusion of the investigation or trial. 

LEGAL FRAMEWORK OF DETENTION ORDERS

Analyzing the legal framework governing detention orders in the Nigerian Magistrate Courts is essential to evaluating their impact on access to justice. Relevant legislations include the Criminal Procedure Act, the Criminal Code, and the Administration of Criminal Justice Act.

Section 293(1) ACJA 2015 provides as follows:

‘a suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand’.

 Section 294(1) of ACJA 2015 further provides that:

“Where the Court, after examining the reason for the arrest and for the request for remand in accordance with the provisions of section 293 of this Act, is satisfied that there is ‘probable cause’ to remand the suspect pending the receipt of a copy of the legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate court, as the case may be, may remand the suspect in custody.”

 In an attempt to limit the power of the magistrate to grant such an order, the act went further to provide for when  “probable cause” can be said to have been established before a remand order can be granted pursuant to subsection (1) of Section 294, which provides that the court may take into consideration the following: (a) the nature and seriousness of the alleged offence; (b) reasonable grounds to suspect that the suspect has been involved in the commission of the alleged offence; (c) reasonable grounds for believing that the suspect may abscond or commit further offence where he is not committed to custody; and A court may remand in prison custody. (d) any other circumstance of the case that justifies the request for remand. The Act nevertheless, made provision for the bail of suspects in remand proceedings brought before it. The duration for the remand order is not limitless as the Act provides for 14(fourteen days) period in the first instance and subsequently. This is evidenced in Section 296(1) ACJA 2015 which provides as follows;

‘where an order of remand of the suspect is made pursuant to section 293 of this Act, the order shall be for a period not exceeding 14 days in the first instance, and the case shall be returnable within the same period.’

296(2) ‘Where, on application in writing, good cause is shown why there should be an extension of the remand period, the court may make an order for further remand of the suspect for a period not exceeding 14 days and make the proceedings returnable within the same period.’

In a bid to prevent the abuse of remand order, the Act stipulated a remedy in the provisions of Section 296 and other foregoing sections.[7]

What is the essence of a Detention Order?

In the realm of criminal justice, detention orders and bail are both mechanisms used by courts to ensure the appearance of defendants at trial. While bail allows individuals accused of crimes to remain free during the legal process, detention orders, on the other hand, require defendants to await trial behind bars. This article aims to shed light on why detention orders may be deemed necessary instead of bail.

By examining the key reasons behind this decision, we can better understand the system’s ultimate interest in ensuring public safety, preserving the integrity of the judicial process, and addressing the risk of flight.

1. Preserving Public Safety:

One of the primary reasons why detention orders are used instead of bail is to preserve public safety. In cases where the defendant poses a substantial threat to society, be it due to the severity of the alleged offense or their previous criminal history, detention can be deemed necessary. By incarcerating individuals who may pose a risk to the community, the justice system aims to prevent potential harm or further criminal activity.

2. Addressing the Risk of Flight:

Another crucial factor that leads to detention orders instead of bail is the risk of flight. If there is substantial evidence to suggest that a defendant may attempt to escape or evade justice, a court may deem it necessary to detain them until the trial.

3. Ensuring the Integrity of the Judicial Process:

The integrity and fairness of the judicial process are paramount concerns for a functioning legal system. In complex investigations or cases where the evidence is still being collected, detaining the defendant can be crucial to ensure witness protection, prevent interference with evidence, or safeguard the overall integrity of ongoing investigations. Detention orders, in these situations, help preserve the fairness of the legal process and the outcome of the trial.

4. Preventing the Destruction of Evidence:

In some cases, there might be a substantial concern that defendants, if released on bail, could destroy evidence relevant to the case. Detention orders serve to prevent the tampering, destruction, or alteration of evidence, thus ensuring that accurate and reliable information is available for trial.

Others include the nature and seriousness of the alleged offence, reasonable grounds to believe that the suspect has been involved in the commission of the alleged offence, or any other ground that justifies the request for remand.

The decision to implement detention orders instead of granting bail is a crucial aspect of the criminal justice system. By prioritizing public safety, addressing the risk of flight, preserving the integrity of the judicial process, and preventing the destruction of evidence, detention orders aim to strike a balance between the rights of the accused and the interests of justice. It is imperative for the legal system to carefully consider these factors on a case-by-case basis to ensure that justice is served for all parties involved.

Reasons Why Bail Should be Considered Instead of a Detention Order:

1. Psychological Impact: Being detained pending trial can have severe psychological effects on individuals, leading to anxiety, stress, and a sense of injustice. Prolonged detention without trial or bail as mostly seen in Nigeria can hinder personal well-being and potentially jeopardize the accused person’s ability to effectively contribute to their legal defense. However, it should be noted that most reoccurring crimes are being committed by those who were once incarcerated.

2. Socioeconomic Consequences: Detention can adversely affect an individual’s employment chances, relationships, and financial stability. The inability to work or secure income during the pretrial period can result in poverty and financial strain for the accused and their families.

3. Overcrowding of Correctional Facilities: The issuance of detention orders without considering the chances of bail can contribute to the overcrowding of correctional facilities. Overcrowded prisons, one of Nigeria’s many prison issues, can lead to unsanitary conditions, increased violence, and the violation of detainees’ rights to humane treatment. As of the 15th of September 2023, over 81,683 inmates are in Nigerian Correctional Centers and 56,335 are awaiting trial.[8]          

4. Delayed Justice: Detention orders that keep individuals incarcerated without bail chances and without trial can contribute to significant delays in the dispensation of justice. This congestion within the legal system undermines the principle of “innocent until proven guilty”. It should be noted that it is dangerous to allow suspects, especially first-time offenders, to mingle and dine with convicted inmates.

RECOMMENDATIONS

1. It is recommended that detention orders should be expunged from the Nigerian Criminal Justice System so as to aid a better protection of citizen’s rights, as well as introducing a firm and respectable practice in the law enforcement agencies. In civilized countries, investigations are made before an arrest is made but in Nigeria, an arrest is made before an investigation which ought not to be so and has ended up in belittling our justice system. We must stand to uphold both case laws and the enactment of statutes to safeguard citizens against such abuse.

2. Legislative reforms should be made to avoid incidents of breach, extraneous bail bonds, and in respect of suspects arrested for higher crimes, the advent of tethers which are a form of inseparable bracelets and a form of electronic monitoring devices capable of recording showing locations of their wearers by using the (GPS) tracking systems through the use of radio frequency transmission and cell phone towers to communicate with the court and law enforcements.

3.  If at all a Detention order is to be given, the suspect should be taken before a court, or in chambers and the Court should have the privilege of foresight to determine whether to grant such detention orders or not. It is manifestly unfair & unjust to remand a suspect more than the constitutionally guaranteed timeframe and to do so with a detention order gotten behind the suspect. The Chief Judge should issue a standing order that on no occasion should a Detention Order be given without the presence of the accused and its legal representative.

CONCLUSION

In conclusion, there is no legislative justification for detention orders under the criminal justice system as it is a perversion of the provisions of the Constitution. Extreme eagerness for legislative reforms should not be encouraged at the expense of the fundamental right of freedom. The Police and the Courts will need to find a system that works that will indeed propagate the idea of equity and fairness. We cannot afford to put innocent individuals behind bars for long periods solely because a certain group of people have not yet completed their jobs. Bail is a constitutional right; the indiscriminate issuance of detention orders amounts to usurping a constitutional right. To get Nigeria working, we must ensure that our constitution is obeyed and enforced to the letter!


[1] (2006) 9 NWLR (Pt.984) 103

[2] (1987) LLJR-SC

[3] Suleiman v. C.O.P  (2008) LCN/3593(SC) 

[4] https://nji.gov.ng/activities-of-nji/ (Accessed 25th September 2023)

[5] (2011) LCN/4483(CA)

[6] (2007) 8 NWLR (PT 1037) P. 535

[7] ‘296 (3) Where the suspect is still in custody on remand at the expiration of the period provided for under subsection (1) or (2) of this section, the court may, on application of the suspect, grant bail in accordance with the provisions of sections 158 to 188 of this Act.  296(4) At the expiration of the remand order made pursuant to subsection (1) or (2) of this section, and where the suspect is still remanded with his trial having not commenced, or charge having not been filed at the relevant court having jurisdiction, the court shall issue a hearing notice on: (a) the Inspector-General of Police and the Attorney-General of the Federation, (b) the Commissioner of Police of the state or of the Federal Capital Territory or the Attorney-General of the Federation, as the case may be, or Time and protocol for remand orders. (d) any relevant authority in whose custody the suspect is or at whose instance the suspect is remanded, and adjourn the matter within a period not exceeding 14 days of the expiration of the period of remand order made under subsection (1) or (2) of this section, to inquire as to the position of the case and for the Inspector-General of Police or the Commissioner of Police and the Attorney-General of the Federation to show cause why the suspect remanded should not be unconditionally released.

[8] https://www.corrections.gov.ng/statistics_summary  (accessed on the15th of September 2023).