The Case Of Prof. Maurice Iwu By L.G Jamala, Esq. – TheNigerialawyer

The right to bail is a direct offshoot of the constitutional
right to liberty guaranteed under Section 35(1)(a)[1], the right to
freedom of movement, presumption of innocence as well as the right
to fair trial all in chapter iv of the Constitution.

Bail is the longstanding concept of presumption of innocence,
the very basis for the security given by accused persons for their
attendance in court at their trial. It has a Constitutional as well
as Statutory foundation. What then is bail? Simply put, it is the
process by which an accused person is released temporarily from
state custody to sureties or in certain cases, on personal
recognizance on conditions given to ensure his attendance in the
court whenever he is required, until the determination of the case
against him.[2]

Bail usually arises in three instances in the criminal justice
system thus:

• A suspect may be granted bail by the police at the police
  station (administrative).
• An accused may be granted bail by the court pending trail
  and
• A convict may be granted bail pending the determination of his
  appeal (bail pending appeal).

The gravamen of this piece however shall be on bail pending
trial and the intendment for bail condition vis-à-vis its emerging
trends in the Nigerian judicial space. It is apposite to state here
however that the right to bail is not automatic and is therefore
not granted as a matter of course. While it is well established
that bail can be granted in respect of almost all the offences
known to law[3], certain conditions must be fulfilled before a
person is admitted to bail.

It is important to note however that the imposition of
conditions are discretionary powers of the court that must be
exercised judicially and judiciously to which is primarily aimed at
securing the attendance of the accused in court but not suggestive
of a conviction and or declarations of innocence. In Abacha V.
State[4], it was held inter alia that the most proper test
whether bail should be granted or refused is the probability that
the accused will appear to take his trial….”

This criterion is regarded as not only the omnibus one but the
most important. As a matter of law and fact, it is the mother of
all criteria. All other criteria are parasitic on the omnibus
criteria of availability of the accused to stand trial.[5]

Having briefly stated the rather elementary aspect of the
concept of bail with specifics on bail pending trial, I shall now
examine the case under review and the conditions as given by the
court.

The  Economic & Financial Crimes Commission had on the
8^th day of August, 2019 arraigned a former chairman of
the Independent National Electoral Commission (INEC) on a four
count charge bordering on fraud before a vacation Judge of the
Federal high Court sitting in Lagos. Iwu was/is alleged to have
between December 2014 and March 27, 2015 aided the concealment of
over 1.23billion in the account of Bioresources Institute of
Nigeria Limited, an act, the anti-graft agency posit, is contrary
to sections 18(a) and 15(2) (a) of the Money Laundering
(Prohibition) Act, 2011 and liable upon conviction, to be punished
under section 14(3) of the same Act to which the defendant pleaded
not guilty on all the counts. Considering the bail application of
the Defendant the court admitted the Defendant to bail in the like
sum:

• The sum ofN1 billion with two sureties in like sum.
• One of the sureties must own a landed property in Lagos.
• A professor or a civil servant not below grade level 16.
• Both sureties are to furnish the court with the
  statement of their bank accounts showing a minimum balance of
  N
• The sureties are also to submit their recent passport
  photographs and
• The defendant is to deposit his passport (International) with
  the Deputy Chief Registrar of the court[6].

Section 165(1) of the Administration of Criminal Justice Act
2015 provides that the conditions for bail in any case shall be at
the discretion of the court with due regard to the circumstances of
the case and shall not be Excessive[7].

Let’s have a closer look on the 4^th condition to
wit:

“Both sureties are to furnish the court with the
statement of their bank accounts showing a minimum balance of one
billion naira”.

The courts have held on what amounts to be “Excessive, punitive
or stringent bail conditions to mean conditions that are too harsh
and may not be easily met or fulfilled by the defendant and thus
defeating the very essence of the bail: see Akila & Ors V.
Director General State Security Service & Ors. The
Mariam-Webster Dictionary defines “Excessive” as amount or degree
too great to be reasonable or acceptable.

As stated earlier in this piece, the very essence for the grant
of bail is securing the attendance of the accused person.

On the strength of the above therefore, can it be rightly said
and yours truly that a professor and or a civil servant in the
Federal Civil Service of the Federal can be reasonably presumed to
have in his account a minimum balance of N1 billion Naira, can the
legitimate income of a civil servant of grade level 16 have (him)
in his account such a humongous sum? In Uduesegbe V. FRN (2014)
LPELR- 23191 (CA) the court held.

“Trial courts are enjoined to be liberal in their approach to
grant of bail and the conditions thereof in non-capital offences.
They are thus to grant bail on favourable and affordable
conditions. It has been held that it is against the spirit of the
law to impose excessive and stringent conditions for bail as that
would amount to a refusal of bail. Where the conditions are
stringent, the trial court or an appellate court has a duty to vary
the conditions.”

The right of an accused person to be released on bail is germane
to the just and efficient dispensation of criminal justice the
world over. While it is agreed that such a right is not automatic
or absolute, effort must be seen not to refuse bail for punitive
reasons but for valid reasons and reasons that will further the
cause of justice. Where any bail condition is seen to be excessive
or punitive, it loses its purpose, function and goal.

The right to bail is a fundamental human right provision in our
Constitution, it is my humble view that the condition to be
considered for granting same should not be left to the discretion
of any individual, panel or a group.

[1] Constitution of the Federal Republic of Nigeria,
1999 as amended. see also sections 35(4 &5) and section 38

[2]See Onyebuchi v. FRN (2009) All FWLR (Pt. 458)
341

[3]. note that persons accused of an offence
punishable with death shall not be released on bail except in
special circumstances.

[4]. (2002) FWLR (PT. 98) 863

[5]. The State v Kasimu (2014) LPELR-23468 (CA) per
Akeju JCA, (pp.14-15 paras G-D): Asari Dokubo v. FRN (2017) All
FWLR (Pt. 375) 588 Per Tobi JSC @ 589 PARAS a-d.

[6]. www.punchnewsonline.com^[1]
last accessed 9^th August, 2019.

[7]. emphasis are mine

Written by L.G Jamala, Esq.

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