Lawyers disagree over bail terms for graft suspects

Ilori, Ahamba, Njoku differ on courts’ discretion

TOP stakeholders in the judiciary are divided over alleged stringent bail conditions being imposed on accused persons by trial courts in the country, particularly the Federal High Court of Nigeria.

This is coming on the heels of increasing number of corruption cases and how the courts exercise their discretion to grant bail to accused persons who are standing trial for graft.

For example, a Federal High Court, Abuja, recently granted bail to a politician at N400 million for alleged fraud charges brought against him by the Economic and Financial Crimes Commission (EFCC).

To enjoy the bail, even if he met his own conditions, he was also required to provide two sureties who would produce N200 million each and were required to own property in the elite area of Maitama District of Abuja.

The sureties, according to the court, must swear to affidavit of means, provide two years’ tax clearance, while the ownership of their property must be confirmed at the Abuja Geographic Information Service (AGIS) by the Chief Registrar of the Federal High Court, and a lawyer to the EFCC.

Some highpoints of the conditions as imposed by the court were that the sureties could also be civil servants in the position of permanent secretaries or directors in the ministries, agencies and parastatals.

To constitutional lawyer and Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, there is nothing illegal about the so-called stringent bail conditions.

In his reaction to the bail conditions given the Peoples Democratic Party (PDP)’s spokesman, Chief Olisa Metuh, erstwhile National Security Adviser (NSA) to former President Goodluck Jonathan, Col. Sambo Dasuki (rtd) and leader of the Indigenous People of Biafra (IPOB) Nnamdi Kanu, Ahamba said: “since bail is discretional, it is, therefore, legitimate to give conditions.”

According to him, when a court gives conditions that do not suit the accused person, he has the right to seek variation with cogent reasons and if, however, the court fails to grant a variation, the accused has a right of appeal.

“The Court of Appeal will look at the basis of the lower court’s decision. Normally, the court’s decision on bail is not appealable except where the court has not exercised decision in a manner that is judicious. It is only then that Court of Appeal can interfere. If a court has taken a decision in a manner a particular party does not like, that party has another chance at the Appeal Court. There is no illegality about it,” he added.

But former Chief Judge of Lagos State, Justice Samuel Ilori (rtd) who also agreed that granting of bail is at the discretion of the judge or the presiding judicial officer, said bail normally is a right, unless, the offence does not qualify for bail

According to him, when the offence is bailable, it is a right and should not be granted on conditions that amount to the denial of bail.

He said: “Granting of bail, I must say, is at the discretion of the judge or the presiding judicial officer. But in doing that, the presiding judicial officer must look at the gravity of the offence, the circumstances of the offence and the substance of the accused person.

“If the accused person is a man of substance who is not likely to jump bail, it can be granted on self-recognition. If he is well known in the society, not likely to compromise the conduct of his trial, he can be granted bail on most liberal terms. But if he is a known criminal and has a record of jumping bail then it can be made stringent,” he said.

For human rights lawyer, Aham Njoku, although bail is at the discretion of the judge who should consider the nature of the charge, the key issue is to make sure that the accused person attends trial.

Aham, who expressed reservations against stringent bail conditions said allowing an accused person to stay at the cubicle of the court to defend himself amounts to declaring him guilty before his trial.
According to him, the essence of bail is to give the accused person ample opportunity to prepare his defence by allowing him to go home and prepare adequately for his trial.

“Locking him up in prison will not give him and his lawyer the ambience or conviviality to put up a good defence. Since bail is to procure attendance to trial so that the accused could prepare to defend himself, denying him bail or giving stringent conditions that amount to denial make it look as if the person has been presumed guilty before the trial. It is not for nothing that our Constitution guarantees the presumption of innocence until an accused is proven otherwise,” he added.

According to Lagos lawyer and human rights crusader, Dame Carol Ajie, the bail conditions the courts impose on accused persons are so stringent, that many a time accused persons hardly meet them, meaning that they have to remain in detention until they are able to do so.

Her words: “If a court imposes stringent conditions which are difficult for an accused person to meet, the court has indirectly sentenced the accused to perpetual detention while his trial proceeds. The conditions a court should impose on an accused are such that the person should enjoy his temporary freedom and at the same time attend to his trial without jumping bail.”

To Ajie, the court does not grant bail arbitrarily, neither does it impose arbitrary conditions on accused persons. Lagos lawyer, Ikechukwu Nwanguma, said the amount of bail a court imposes depends on the nature of the crime and the accused person’s status, which include: his employment, property ownership, and his family ties.

Each of the above items, according to him, helps the court assess the likelihood that an accused will appear for trial and not jump bail.

“When bail is granted, a court may impose restrictions that will also help to ensure the appearance of the accused in court,” he stated, adding: “This means that the court may restrict the freedom of the accused to travel by impounding his travel documents, determine the type of people he associates with and check his living standard or lifestyle.”