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Law/Judiciary

Bail: Determining Factors

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Section 35 of the 1999 constitution gurantees bail as a basic conditional right. A person may be denied of his personal liberty, for the purpose of bringing him before a court in execution of the court order, upon reasonable suspicion of his having committed a criminal offence or to prevent his committing the offence.

Bail arises of three stages of criminal justice process;

[a] The police may release a suspect on bail pending further investigation.

[b] The court may release an accused person on bail pending the determination of the case against him.

[c] The court may release a convicted person on bail pending the determination of his appeal against his conviction.

So either the police or the court may grant bail. Section 27 of the police Act states that “When a person is arrested without a warrant, he shall be taken before a magistrate who has jurisdiction with respect to the offence with which he is charged or is empowered to deal with him under section 484 of the criminal procedure Act as soon as practicable, after he is taken into custody; provided that any police officer for the time being in charge of the police station may inquire into the case and:-

[a] except when the case appears to such officer to be of a serious nature, may release such person upon his entering into a recognisance with or without sureties for a reasonable amount, to appear before a magistrate at the day, time and place mentioned in the recognisance: or

[b] if it appears to such officer that such inquiry cannot be completed forthwith, may release such person on his entering into a recognisance, with or without sureties for a reasonable amount, to appear at such police station and at such time as are named in the recognisance, unless he previously receives notice in writing from the superior police officer in charge of that police station, that his attendance is not required, and any such bond may be enforced as if it were a recognisance conditional for the appearance of the said person before a magistrate.

Also section 17 of the criminal procedure Act provides that;

“When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, any officer in charge of the police station may in any case, and shall, if it will not be practicable to bring such person before a magistrate or justice of peace having jurisdiction with respect to the offence charged within twenty- four hours after he was so taken into custody, inquire into the case, and , unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognisance with or without sureties for reasonable amount to appear before a court at the time and place named in the recognisance but where such person is retained in custody he shall be brought before a court or justice of peace having jurisdiction with respect to the offence or empowered to deal with such person by section 484 of this Act as soon as practicable whether the police inquiries are completed.”

In the case of Eda V. commissioner of police [1982] 3 NCLR 219 the phrase “as soon as practicable” was held to be inconsistent with the specific periods provided for by section 35 [4] and [5] of the 1999 constitution. The phrase is therefore null and void to the extent that it is inconsistent with the specific provisions of sections 35 [4] and [5]

Section 18 of the criminal procedure Act provides that when a person is arrested without warrant of arrest pursuant to section 17 of the C.P.A, for an offence other than that punishable with death, if it appears to the officer in charge of the station that inquiry into the case cannot be completed forthwith, he may discharge the said person on bail. The bail shall be upon his entering into a recognsance, with or without sureties, for a reasonable amount to appear at the police station at such time as the police may require his attendance, unless he receives notice in writing from the officer in charge of the station that his attendance is not required. Such recognisance  is enforceable as if it were a recognisance conditional for the appearance of the person before a magistrate court in the same district as the police station.

However, the following conditions must be considered for the grant or refusal of bail:-

1. When there is an evidence before the court that the accused person is likely to or has already included in acts which might interfere with further investigation of the case or the conduct of the proceedings at his trial, his application for bail may not be granted as was the case in Bamaiyi V. The state [2001] 3.S.C 53 at 76. Where inducement was intended to facilitate the retrieval of incriminating evidence against him, in custody of the police.

2. The gravity of the offence also influences the courts discretion to grant or withhold bail, even though an accused is presume-med innocent until proven guilty and therefore ordinarily is entitled to bail

3. Where there is likelihood of the accused person committing another offence if released on bail, the court will withhold bail. In R.V.Jammal. [1941] 16 N.L.R. 54, the accused person committed an offence while he was on bail for an earlier charge. His application for bail on the later offence was rejected.

4. An accused person’s criminal record is to be taken into consideration in the grant or refusal of bail, A first offender is more likely to be admitted to bail than a habitual criminal. The fact that a person has not been convicted for crime is a prima facie evidence of good character, until the contrary is proved. Such a person will readily be granted bail pending his trail.

5. A person charged with an offence may not be admitted to bail if the offence alleged is prevalent in the areas where the accused resides. Note that bail is not just intended to secure the attendance of an accused person for his trial, it is also necessary to discourage the commission of offences that have attained high frequency of occurrence, such as obtaining by false pretence.

6. The ill health of an accused person is a relevant factor in the grant of his application for bail, but note also that there must be proof before the court that the accused person is not only ill but that it will be judicious to grant him bail. In Fawehinmi V State [1990] N. W.L.R [pt 127] 486, the court of Appeal considers the ill health of the accused person sufficient special circumstance to grant him bail.

It is worthy to note that an application for bail should not be refused as a punitive measure.

 

Nkechi Bright-Ewere

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Features

Judiciary As Last Hope Of The Common Man

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The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended.  Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings.  The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?

 

By: Chidi Enyie

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Law/Judiciary

Elele OSPAC Seeks Govt’s Assistance

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Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.

It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.

Ikwerre people are proud of him and will back till eternity.

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Law/Judiciary

Legal Departments In LGAs And Justice Dispensation

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Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels:  NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing,  nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the  Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National  Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the  various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in  Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers,  the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.  A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.

 

By: Sylvester Udemezue with reports from King Onunwor

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