Tag: rights to fair hearing

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The Presumption of Innocence vs The Presumption of Guilt; The Nigerian Bail Story.

In Nigeria, every person (including suspects and defendants/accused persons) is assumed to be innocent until a court declares a person guilty. This is a constitutional right that should not be violated by any person (including law enforcement agencies, institutions, leaders and government). However, the reverse is the case, with overzealous law enforcement agencies, going in the circles of; abuse, arrest, abuse, detain and abuse again before taking the suspect to court (if the suspect is fortunate to be arraigned). In Nigeria, “Bail” is mostly seen in law books and movies, since many suspects are detained without bail for weeks in all parts of Nigeria and lawyers get beaten up for seeking bail for clients. This work reveals the quickest means of obtaining bail after 24 hours of arrest in any part of Nigeria.

There is a big gap between criminal law and human rights as contained in our law books and as applied in reality. There are three groups of law enforcement agents in Nigeria; the first group understands the law and applies it thoroughly, the second group understands the law but will not apply it due to corruption, nepotism and fear while the third group does not understand the law and does not care. Unfortunately, the last group seems to be dominating followed by the second group, as such human rights suppressed. Among the concerned human rights are; right to life, right to dignity of human person, right to personal liberty, right to fair hearing and right to freedom of movement.


The essence of bail is to enable a suspect to go home and about his affairs while ensuring the suspect will at a later date, appear in a given place (like the office of a law enforcement agency or in court for investigation or to answer to his case). Bail is not a privilege or favour done to a suspect rather a right of a suspect. Remember that a suspect is not guilty so he/she should not suffer or be treated as if he is guilty. Consequently, a suspect that is detained for an offence not punishable with death (non-capital offences) is entitled to bail within 24 hours of being arrested.

The police (any law enforcement agency) time for detaining a suspect arrested for an offence that is not to be punished with death (non-capital offences) is 24 hours. Time starts counting from the moment a person is arrested, ceased or appears to answers an invitation of a law enforcement agency (whatever the language/term, so far as a person is no longer free). So, once a suspect is arrested, the law enforcement agency must ensure that its further investigation, bio-data capturing, granting of bail and seeking for advice, approval and any indoor management/protocol is completed within 24 hours. Where a suspect is detained beyond 24 hours for an offence that is not punishable with death, the suspect can be granted bail by a court having jurisdiction over the offence.

In Nigeria, a detained person may not be allowed to approach a court to seek his own bail or to even access a lawyer of his/her choice, by overzealous law enforcement agents working on ignorance or corruption. Hence, where a suspect is not granted bail by a law enforcement agency within 24 hours over a non-capital offence, any person can go to court and institute a case against the concerned law enforcement agency (and its agents) on behalf of the suspect. The court will order the suspect to be produced (brought to) court and inquire into the circumstances of the detention. Where the court desires, the court will grant bail to the suspect. The required application for bail in court, can be written or oral, even if the court is a superior court (High Court/Federal High Court/National Industrial Court).

It is better to engage a lawyer to assist with bail application in court. Bail is a right and not a favour. Bail is free because it is a constitutional and fundamental human right, provided freely by the Constitution of Nigeria. Report any law enforcement agent, court staff, magistrate, judge or legal practitioner that request for money/gift in order to grant bail. However, a legal practitioner is entitled to charge for his legal services but no to charge any fee to be paid as bribe or gift for bail.

My authorities are:

1. Sections 32, 161, 162, 163, 164, 494 and 495 of the Administration of Criminal Justice Act 2015 and its equivalent in states across Nigeria.
2. Sections 34, 35, 36, 230, 237, 249, 255, 260, 265, 318 and 319 of the Constitution of the Federal Republic of Nigeria 1999.
3. Judgment of the Supreme Court of Nigeria (on the nature and effect of Bail) in the case of SULEMAN & ANOR v. COP PLATEAU STATE (2008) LPELR-3126(SC)
4. Judgement of the Supreme Court of Nigeria (on bail) in the case of UGWU v. STATE (2020) LPELR-49375(SC)
5. Judgement of the Court of Appeal (that every person is presumed innocent) in the case of ALAYA v. STATE (2007) LPELR-8841(CA) citing Eyu v. The State (1988) 2 NWLR (Pt.78) 602 at 610, Abiola v. FR.N. (1995) 7 NWLR (Pt.405) 1 at 155
6. Judgment of the Court of Appeal (on whether bail can be granted in non-capital offences) in the case of OGEDE v. FRN (2018) LPELR-46816(CA)
7. Judgment of the Court of Appeal (on whether bail can be granted in capital offences) in the case of OGEDE v. FRN (2018) LPELR-46816(CA)
8. Judgment of the Court of Appeal (that oral bail application can be made in any court, including courts of record) in the case of Chief Alhaji Moshood Kashimawo Abiola V. Federal Republic of Nigeria (1995) NWRL PART 370 P.155.
9. James Ezeh, “Nigerian Lawyer Hospitalised after Police Assault, NBA Demands Justice” (Premuim Times, 13 October 2019) 1 September 2020.

© thenigerianlawyer.com
7/10/2020

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HRCRC Facilitates the Release of over 20 inmates of Abakaliki and Afikpo Prisons in Goal Delivery by CJ of Ebonyi State

Every person charged for committing an offence is entitled to be arraigned and tried before a competent court of law within 48 hours. However, certain alleged offenders have been remanded in prison for over two years without trial.

The Chief judge in his magnanimity, backed up by statutory provisions, discharged alleged offenders awaiting trial in a goal delivery exercise. Over 50 persons awaiting trial were discharged

HRCRC is happy to be part of this exercised, facilitating the release of a number of alleged offenders, spare headed by the lawyers in the department of Access to Justice.

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Goal Delivery July 2018

Justice and Mercy – In the spirit of these Godlike twin concepts, the Chief Justice of Ebonyi State, His Lordship Alloy Nnwankwo embarked on a goal delivery on the 19th and 20th of July for inmates incarcerated in Afikpo and Abakaliki Prisons respectively; both in Ebonyi State. The exercise saw to the outright discharge of several inmates, especially those awaiting trial and those with no information filed for them. More lenient bail conditions were granted others. As usual, HRCRC was consulted and deeply involved in the process…

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RIGHT TO FAIR HEARING

As Ngozi descended the stairs into the mall hall at the first floor, she just knew she hadn’t been treated right. Tears welled up in her eyes and her knees were still trembling. How come she was not given a chance to defend herself? Each time she attempted to speak before her supervisor and the HR, they shouted her down.

Earlier in the morning, at about 8.00 hours, she was at her post as a cashier in a popular and busy mall. She had resumed at about 7.20 which was 10 minutes away from the red time of 7.30. As she was dressing her stands and fixing up the machine to get ready for the day’s job, Mr. Anale called up to her, instructing that she go see the top boss upstairs. It was at the boss’s office she was handed a note that spelled she was no longer needed at her place of work.

Before being given the letter, the boss had told her the management got a report on her that she fought a customer on her way home the previous day. According to them, the said customer had raised some issues concerning a transaction Ngozi handled for her during the day and instead of showing ‘a good customer relationship’, Ngozi engaged her in a public fight.

“That is unacceptable from any of our staff. You’re hereby fired”.
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The story above presents us an interesting scenario that is very much related to article 10 of UN Universal Declaration of Human Rights. The article provides for rights to “fair and public hearing”and is enshrined in the Nigerian Constitution under Chapter 4, section 36. Ngozi case is chosen because it mirrors what often happens at homes, public instructions (e.g. church, schools, and hospitals) and private institutions when people are summarily judged of having committed offense. Whenever people are condemned without an opportunity to present their defense, they are left grieved. Fundamentally, such incident negates natural justice which provides that anyone accused should have,Fair hearing,that is, such an individual is given an opportunity to present evidence to support this or her case and to discover what evidence exists against him or her. Fair hearing must not be only in a criminal or civil trial as in a court. It also applies to administrative procedures to entertain complaint as provided for in section 36, subsection 1 of the Nigerian Constitution (1999 as amended):

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a FAIR HEARING within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

Criminal case deserves special attention as often times, extra-judicial killings/corporal punishment take place in many communities within our country. African Commission on Human and People’s Rights (ACHPR) provides Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003). A(1) provides in clear terms that “in the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body”. In other words, it is not in the place of a mob or group of persons other than CONSTITUTED authorities to hear, convict and met out punishment to anyone SUSPECTED to have committed a crime or an offence. And section 36(4) of the Nigerian Constitution grants that “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a FAIR HEARING in public within a reasonable time by a COURT or TRIBUNAL”. Under these instruments, ‘jungle justice’ or mob killing/punishment is criminalised. This is because, in whatever form they come, summary judgement takes away element of justice, fair hearing, by which an accused is supposed to have a chance for reasonable defence. In the case of ‘jungle justice’, section 36(5) of the Nigerian Constitution which provides that a suspect of any crime is presumed innocent until proven guilty is blatantly violated. Note that where the accused is to be ‘proven guilty’ is not at the market square, the police post or at the field. It is at a hearing that is constituted by “competent, independent and impartial judicial body” (e.g., the court, tribunal or administrative authority vested to entertain specific complaint).

Back to Ngozi, what can she do given the circumstances surrounding her dismal from job? If the company where she was fired from has higher authority than that which effected her dismal, she can appeal to it for redress. Another option is to institute legal action in the interest of her fundamental rights. Caution however, is needed. The action needs to take into cognisance terms of engagement between the employer and Ngpzi, and Nigeria Labour Laws. Michael Dugeri, a Regulatory Compliance and Commercial Law Advisor, offers insights on the difference between termination of a contract of employment and a dismissal under Nigeria’s legal system. According to him, “In Nigeria, an employer can terminate the contract of employment with his worker at any time and for any reason or for no reason at all provided that the terms of the contract of service between them are complied with”. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 – 685 and Opuo v. NNPC (2001) 14 NWLR (Pt. 734) 552. With dismissal however, the employer is required to give reason for the action. See Union Bank of Nigeria Plc v. Soares (2012) 11 NWLR (Pt. 3112) 550.

Our take is that whether termination or dismissal, there are procedures (could be internal or external, e.g. labour laws), and the principle of fair hearing is central to the integrity of that procedure. Ramatu Umar-Bako (2012) cited a case which highlights this point:

“On 20 May 2011, a Federal High Court sitting in lagos, nullified the dismissal of the former Director – General of the Nigerian Stock Exchange (NSE), Professor Ndi Okereke – Onyuike and awarded her N500 million naira in damages for exemplary and aggravated damages for recklessness. It held that Okereke – Onyuike’s RIGHT TO FAIR HEARING was breached, the letters removing her were reckless, hasty and done in bad faith. The Judge maintained that it was ridiculous for the NSE to remove her within 24 hours based on bad and unverified allegations’ and that the NSE did not comply with the condition precedent in removing the plaintiff.”

This landmark judgement should serve to encourage other employees who have been unfairly dismissed like Ngozi in Nigeria. Equally, organisations can learn from it to avoid facing legal actions by ensuring employees are fairly treated before dismissal.

For a detailed account of principles and guidelines on fair trial, see ACHPR’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003).

Shalom!

Contributors: C. O. IkegbunamEsq.
C. A. Nwankwo Esq.
D. A. Okoliko

{image, defendernetwork.com}

 

Disclaimer:
This is a free educational material and not a source of legal advice. If you need any, please consult your lawyer.