DO NIGERIAN POLICE HAVE THE POWERS TO DETAIN SUSPECTS/ACCUSED PERSONS IN CUSTODY FOR MORE THAN 24 OR 48 HRS WITHOUT BAIL?

By Joseph Titilope Akogun Esq.
07088326341

One of the fundamental Rights of every accused person as provided by the Nigerian Constitution is the right of presumption of innocence as enshrined in Section 36(5) 1999 Constitution of the Federal Republic of Nigeria (As amended).

The Nigerian Constitution presumes every accused persons charged with criminal offence innocent, prior to a time he is proved guilty by the Prosecution who is alleging.

The right of every Nigerian is fundamentally guarded by the Constitution; hence the sole reason the court will always frown at breaches of fundamental human rights.

Opinions have it that, the Nigerian Force that breaches Human Rights most frequently is the Nigerian Police Force.

The Nigerian Police often arrest, detain and prosecute persons suspected of having committed one offence or the other.

The arrest and detention is mostly done unlawfully. Every persons invited or arrested by the police has the duty to heed the call and attend interrogations of any kind. If such persons are alleged to be guilty, he is to be detained and charged to court within the next 24 hours or 48 hours as the circumstance of the case may require.

Any position to the contrary entitles the accused person to bail by virtue of Section 35(4) & (5) of the 1999 Constitution. Hence, if charging an accused person to bail appears impracticable, the police is expected or enjoined to grant such accused persons bail.
See Section 17 CPA, Section 37 CPC and Section 27 of the Police Act.

What then is bail?
Bail is the conditional release of an accused person connected with a crime upon the provision of a security so as to ensure that the accused will be available for his trial.
Note that Bail is also a constitutional right of every accused person as every Nigerian is entitled to his personal liberty as enshrined in Section 35 of the 1999 constitution.

Therefore, we shall delve into the types of bail that can be granted an accused throughout his trial period.
1. Police Bail i.e Administrative bail
2. Bail Pending Trial
3. Bail Pending Appeal
POLICE BAIL
As stated earlier, every persons invited or arrested by the police has the duty to heed the call and attend interrogations of any kind. If such persons are alleged to be guilty, he is to be detained and charged to court within 24 hours or 48 hours as the circumstance of the case may require.

Any position to the contrary entitles the accused person to bail by virtue of Section 35(4) & (5) of the 1999 Constitution.

Some police officers are of the view that an accused person is not entitled to bail in Capital Offences like Murder, Rape, Felony etc. This runs against the effect of the provisions of Section 36(5) which presumes every accused persons innocent.

An attempt to distinguish between a minor allegation and a capital offence allegation would set the accused on conviction before arraignment. Therefore, every accused person, no, matter the ofence, is bail able.

So far the accused persons can provide sureties to sign the bail bond, the accused would be granted bail by the police.

Note further that if the police refuse to grant bail to the accused person, it is advisable for the accused lawyer to apply to the court for the enforcement of the fundamental rights of the accused, and to pray the court for the police or anyone in whose custody the accused person is, to produce him in court to state why he should not be granted bail.

But the Police could refuse bail as they are always very cautious in granting bail to an accused person alleged to have committed a capital offence except if investigation is completed or there are VERY RELIABLE sureties willing to take the bail of the accused.
See Eda v Commissioner of Police (1982) 3 NCLR 219.

The law does not also likewise empower the Police to demand for money before the release on bail. Bail is free though discretional. It is to be exercised judiciously and the suspect be discharged upon completion of their investigation.
See Section 19 CPA.

The inability of the accused to perfect his bail conditions would however not be a violation of the rights of the accused. The accused should better apply to court to procure his bail.

COURT BAIL (Bail pending Trial)

Upon arraignment in court by the police/ state prosecutor, the accused person either by himself but mostly through his lawyer must pray the court for bail throughout his trial pursuant to Section 35 and 36(5) of the 1999 Constitution as amended and Section 341(2) of the Criminal
Procedure Code.

The police bail upon arraignment terminates, and the accused person is expected to provide sureties with two passport photographs on the arraignment date.

The accused is advised to ask his lawyer, come to court with the surety, 2 passports, letter of promotion or employment ( in case a civil servant surety is required by the court as the condition for the bail).
If this is done, the accused person returns home from the court. Else, the accused will be deposited at the prison pending the time the bail condition is fulfilled in court, which the court would consequently sign the production warrant of the accused, for him to be released until his next fixed date for his trial.

CONDITIONS FOR GRANT OF BAIL

Circumstances of the case matters in granting bail. Therefore, If the court believe or is convinced in the accused person’s prayer for bail,
Mostly through the supporting affidavits and a fair consideration of this application, the court would grant bail especially in considering whether:

1. The accused is a family man, married with children.
2. The accused person has sureties that are ready to take him on bail.
3. The granting of the bail would not prejudice further investigations.
4. The accused would not commit another offence
5. The accused needs proper medical attention that cannot be provided in prison custody.
6. The accused will not jump bail.
7. The nature of the offence and the punishment it carries.
See Section 341(2).

Under section 341 (2) of the Criminal Procedure Code, in order to grant bail to an accused person charged with an offence of serious nature, the accused person must satisfy the following conditions:

That by reason of grant of bail, the proper investigation of the offence would not be prejudiced; that no serious risk of the accused person escaping from justice would be occasioned; and that no ground exists for believing that the accused person, if released, would not commit other or similar offence.

In other words, where an offence is of a serious nature, once the accused person has satisfied the conditions stipulated under section 341 (2) of the Criminal Procedure Code, the court shall exercise its discretion in granting him bail. See CHINEMELU V. C.O.P (1995) 4 NWLR (PT.390) 467.

In the case of an offence not ordinarily bailable, it is the duty of the applicant to make an application with an affidavit stating the reasons why he should be granted bail.

On the other hand, the onus, is on the prosecution to show why the applicant should not be admitted to bail; that is, to show that the conditions stipulated under section 341 (2) of the Criminal Procedure Code have not been satisfied by the accused. See OGBHEMHE V. C.O.P (2001) 5 NWLR (PT.706) 215.

An accused person who jumps bail does so at his own peril, and risks his bail being revoked and a warrant issued for his arrest.

Hence, the risk or strong likelihood that an accused person may jump bail should not be used as a sole bulwark for denial of bail or basis for imposing suffocating bail conditions against such an accused person, until the occurrence of such an untoward development.

Therefore, if an offence is readily bailable, it is both legal and logical that the conditions for bail attached thereto must be such as will engender positive utilization of the grant of the said bail to fullest extent whenever it is granted. See IBORI V. F.R.N (2009) 3 NWLR (PT.1127) 96
There are also instances; some policemen/prosecution would have kept the accused person in custody for several months and on arraignment still raise objections to the grant of the accused bail.

It does not lie in the mouth of the prosecution to say that an accused person should not be released on bail because the offence is a serious offence when it failed to arraign the accused before a competent court for trial with proof of evidence. It is the seriousness of the offence that should spur the prosecution to do or perform its functions timeously and properly because the liberty of a citizen is at stake.

It is when the prosecution has done what it is supposed to have done that it can properly object to the bail of the accused person. See ABACHA V. STATE (2002) 5 NWLR (PT.761) 628.

By virtue of section 341 (2) of the Criminal Procedure Code, a person charged with an offence which is punishable with imprisonment exceeding three years shall not normally be released on bail; but the court may, on an application, release such person on bail if it considers that by reason of the grant of bail; the proper investigation would not be prejudiced; or that there is no risk that the accused will commit a further offence or escape from justice. See DANTATA V. POLICE (1958) NRNLR 3. See also Section 158 Administration of Criminal Justice Act 2015.

Note also that an application for bail can be presented several times within the same case, so long as there are changed circumstances, warranting the invitation of the court to exercise its discretion in a particular way. Thus, an applicant for bail can re - present the application for bail despite initial refusal, when the circumstances are more favourable.

In other words, judges can take different positions on bail in situations where there are changed circumstances. The principle of estoppels, does not therefore apply in such circumstances. See ATIKU V. STATE (2002) 4 NWLR (PT.757)265; OMODARA V. STATE (2004) 1 NWLR (PT.853) 80; ABACHA V. STATE (2002) 5 NWLR (PT.761) 638.

Therefore, in a criminal trial, an accused is entitled to protection under the constitutional provisions, which includes freedom of movement and presumption of innocence. See IBORI V. F.R.N (2009) 3 NWLR.

REMEDIES AVAILABLE TO A SUSPECT DETAINED IN CUSTODY FOR MORE THAN 48 HOURS.
1. Where a suspect taken into custody in respect of a non-capital offence is not released on bail after 24 hours or 48 hours, a court having jurisdiction with respect to the offence may be notified by application on behalf of the suspect.
2. The court shall order the production of the suspect detained and inquire into the circumstances constituting the grounds of the detention and where it deems fit, admit the suspect detained to bail.
3. An application for bail under this section 341(3) CPA even if it is a capital offence, an application to be made by legal practitioner stating exceptional grounds that should warrant the bail of the accused. See Olugbusi v. COP (1970)2 ALL N.L.R.I
4. An application for Fundamental Human Rights in court.
5. An order for damages in form of compensation
6. An order for Apology by the persons or enforcement agents that had unlawfully detained the accused persons.
CONCLUSION

In conclusion, No police Officer has the powers to detain an accused person beyond 48 hours without a remand order from court, except in Criminal case and an accused person can always quickly apply to court to enforce his rights, if he is being detained beyond 48 hours let alone detention for weeks or months.
Bail is discretional and the Court always has the discretion to refuse or grant an application for bail if it is satisfied that substantial grounds exist for believing that the Applicant will not abscond or interfere with witnesses or otherwise obstruct the course of justice if granted bail.
See Section 118(2&3) CPC, Section 158, 159, 162, 163 ACJA, Section 340(1) CPC, ULAUKU V. COP (1986)1 Q.L.R.N 146; TARKA V. DPP (1961) N.N.L.R 3; UKATU V. COP (2001) 6 N.W.L.R PT710, 765

The writer can be contacted via
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