Sometime in February 2026, police officers stormed a shop at Iloabuchi, Mile 1, Diobu, Port Harcourt, and arrested X, the owner of the shop. What triggered it all was a customer who had come in to buy electronics. The customer had accused X of dealing in stolen goods.
It took several days before X was finally taken to court. When the charge was read to him, he pleaded not guilty. Thereafter his lawyer applied for his bail, insisting that the court had a duty to safeguard the defendant's constitutional right to liberty and to give him the full benefit of the presumption of innocence.
In our quest to live in a safe society, we are quick to say all criminals should go to jail, assuming already that a person alleged to have committed an offence is actually guilty. But let us begin with an elementary question. Who is a criminal? Is he the one arrested with handcuffs on him to the glare of his neighbours before being whisked to some police station? Or is he the one beaten to pulp by jungle justice seekers before the police intervenes?
If we tie these enquiries to the experience of X, a strong poser comes to the fore: should X be in prison because of the need to protect society, or should he be released because he is presumed innocent until proven guilty? This is one of the most fundamental questions of criminal law jurisprudence.
The answer to this question is one that is so crucial to fundamental human rights. Under the law we have what is called the 24/48-hour rule, which is a constitutional safeguard against abuse of a person's rights to presumption of innocence alongside other rights. By virtue of Sections 35(4) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), a person who is arrested must be brought before a court of competent jurisdiction within a "reasonable time." Where there is a court of competent jurisdiction nearby, he must be brought before such court within 24 hours. Where there is none, then at least within 48 hours. The Constitution is also explicit on the issue of determining how nearby a court is: it provides that such person must be brought before a court of competent jurisdiction within a 40-kilometre radius, as judicially interpreted under the Constitution. Where a person is detained beyond this period without arraignment, it constitutes an infringement of the right to personal liberty.
Section 35(6) of the CFRN 1999 (as amended) entitles the victim to compensation and a public apology. The detainee may enforce this right through an action under the Fundamental Rights (Enforcement Procedure) Rules 2009, seeking declarations, damages for unlawful detention, and other appropriate reliefs.
In Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225 at 256, paras. B-C, per M.D. Muhammad, JSC, the Court held thus: "Appellant's unlawful detention by the respondents constitute a breach of his right to personal liberty as guaranteed under section 35(1) of the Constitution..." On the other hand, the case of Lufadeju v. Johnson (2007) 8 NWLR (Pt. 1037) 535 (SC) underscores the fundamental nature of personal liberty as it relates to the power of the Court to issue remand orders. In Lufadeju, which has since generated serious controversy, the Supreme Court held that courts have the right to issue remand orders even where they lack jurisdiction to try the said offence, pending the outcome of police investigation. This should not be misconstrued with the right to personal liberty — remand orders are usually issued in cases involving serious offences and/or in situations where the police is yet to conclude its investigations.
As it relates to the right of a person to enforce his rights where the police has allegedly infringed on same, it is imperative to state that although the police may have violated such person's rights, it does not stop them from preferring a criminal charge against him where a prima facie case has been established against him upon conclusion of investigations. On the flip side, the unlawful arrest gives rise to a separate action against the State.
1. What Is Bail?
Bail is the temporary release of an accused person pending trial, usually on conditions that he will be available to attend his trial.
The courts have consistently held that the reason for bail is to secure the attendance of the defendant in court, by putting him in the trust of a credible, reliable and reasonable surety who will ensure his attendance in court — see Suleman v C.O.P (Plateau State) (2008) 8 NWLR (Pt. 1089) 298 at 323.
2. Constitutional Foundation of Bail in Nigeria
The right to bail is provided in the Constitution of the Federal Republic of Nigeria 1999 (as amended):
- Section 35(4) provides for the right to personal liberty
- Section 36(5) is on the presumption of innocence
The concomitant effect of these provisions is that an accused person should not be punished before conviction.
3. Statutory Framework
The Rivers State Administration of Criminal Justice Law No. 7 of 2015 regulates criminal procedure and bail in the High Court of Rivers State, Magistrates' Courts, and other state-controlled courts exercising state jurisdiction. Key provisions include:
- Section 165 — provides guidelines and conditions for granting bail
- Section 300 — governs applications for remand or other interlocutory applications. It is imperative to highlight that an application for remand is to be made ex parte (Section 300(2))
4. Judicial Discretion: When Is Bail Granted or Refused?
Bail is not automatic. In granting bail, courts exercise judicial discretion guided by established principles. In Suleman v C.O.P (Plateau State) (2008) 8 NWLR (Pt. 1089) 298, the Supreme Court stated the factors to be considered in general before granting bail:
- The availability of the accused to stand trial
- The nature and gravity of the offence
- The likelihood of the accused committing an offence while on bail
- The criminal antecedents of the accused
- The likelihood of the accused interfering with the course of justice
- The likelihood of further charges being brought
- The probability of guilt
- Whether detention is required for the prosecution of the accused
- The necessity to procure a medical or social report pending final disposal of the case
5. Presumption of Innocence vs Public Safety
It is trite law that every accused person is presumed innocent until proven guilty. Yet, courts must also consider public safety. Where there is a real risk of flight or obstruction of justice, detention is justified — in other words, the defendant can be denied bail. The law does not blindly favour liberty; it weighs the risks of granting bail on one side of the scale of justice against the rights of the defendant on the other, to see which weighs heavier in the given circumstance.
6. Pre-Trial Detention: The Other Side of the Scale
This occurs where a person is held in custody pending trial, either because bail was refused, or because he could not fulfil the conditions attached to it. Sadly, this is not an isolated case in our jurisdiction — a situation where many detainees end up spending years in custody without their trial ever coming up for hearing. Some are not even denied bail on paper; they are just too poor to afford the conditions set for them. And that is where the real problem lies — a troubling paradox where people the law still presumes innocent end up being treated no differently from convicted criminals. There are ample cases of people alleged to have stolen petty items who have spent upward of five, even ten, years in prison awaiting trial. It is strongly recommended that our laws be strengthened to avoid situations like this. Legal practitioners and members of society should also be vocal in speaking against ills like this and, where possible, step in to provide the support permissible within the ambits of the law.
7. The Danger of Abuse
Imagine X's bail is set at N5 million with two civil servants as sureties of Grade Level 14 with landed properties within jurisdiction. Legally, he has a right to bail, but if he is unable to satisfy the conditions because of how onerous they are, it defeats the essence of bail. Bail conditions can become tools of indirect detention, and in some cases pre-trial detention can morph into punishment without conviction.
The major focus here is not on the five million naira itself — that is important to clarify. He is not expected to pay that amount before he is granted bail; rather, it is the amount he becomes duty-bound to pay under law if he abandons his trial after being granted bail. Litigants and their loved ones often misconstrue this condition.
The major issue is the requirements attached to the surety. With respect, it is submitted that a requirement that a surety be a civil servant of a specific grade level — say GL 12, 13, or 14 — when the alleged offence is a simple one, is a notoriously restrictive condition. As someone who sees this play out regularly in court, I am also aware that most civil servants are usually reluctant or terrified to stand as sureties, because if a defendant they stand for jumps bail, they stand to forfeit the bail sum. They also risk losing their government jobs or having their pay withheld while the case drags on in court and the defendant is nowhere to be found.
It is my humble view that when a court sets bail conditions that are onerous, the right to bail which a defendant has under the law becomes featherweight — one of the causes of delay in our criminal justice system, and a contributor to overcrowding in our prisons.
8. Striking the Balance: Liberty vs Justice
How then does the law strike the balance between liberty and justice — between the right of the defendant to liberty on the one hand, and the right of the complainant and the state to justice for a crime committed against the state, on the other?
The law seeks to reconcile two competing interests. On the one hand, liberty presupposes the right to freedom of movement guaranteed under Section 41 of the Constitution, the right to personal liberty under Section 35, the presumption of innocence under Section 36(5), and protection from arbitrary detention under Section 35. On the other hand, justice is paramount: in deciding whether to grant bail, the court is mindful of whether the defendant will attend trial, the need to protect witnesses, and the need to prevent further crime.
9. Reform and the Way Forward
To better balance liberty and justice, it is imperative that our laws be reformed:
- Reasonable bail conditions tailored to the defendant's means should be made the standard.
- There should be a time limit within our laws to ensure speedy trials, reduce pre-trial detention, and provide consequences where there is poor compliance or violation.
- There should be greater use of non-custodial measures. Part 44 of the Rivers State Administration of Criminal Justice Law (ACJL) 2015 covers the conditional release of a defendant and payment of compensation for loss or injury suffered, while Section 471(1) empowers the court to make an order committing a convict to community service.
- There should be measures to ensure judicial vigilance against abuse of discretion.
Conclusion
Bail is not merely a procedural step. It is a moral and constitutional safeguard, and it answers a fundamental question: should the state restrain a person who has not yet been proven guilty?
Although X is allowed to walk out of custody after meeting his bail conditions, the law is yet to declare him innocent or guilty — it only presumes him innocent until the reverse is proven. He is treated as an innocent man for the time being, until his trial is concluded and the court decides whether or not he is guilty.
In this distinction lies the true balance between liberty and justice.
Facing a bail application or a matter involving pre-trial detention? Contact Brimany Attorneys for guidance from our litigation team.