The Nigerian criminal justice system stands on a fundamental principle: every person accused of a crime is presumed innocent until proven guilty. This principle, deeply embedded in the Constitution, is intended to protect citizens from the arbitrary deprivation of liberty by the state. Yet in practice, a procedural requirement that has become entrenched in many Nigerian courts continues to undermine this principle. That requirement is the insistence on FORMAL (written) BAIL APPLICATIONS before trial courts.
This essay calls for the abolishment of the requirement that bail applications SHOULD be made formally (in writing – I.e through motions) before trial courts in Nigeria. Bail applications should, as a matter of constitutional fidelity and judicial efficiency, be capable of being made orally immediately after arraignment, particularly where the offence is bailable.
THE CONSTITUTIONAL FOUNDATION OF PERSONAL LIBERTY
The starting point is the constitutional protection of personal liberty under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 35(4) provides that any person arrested or detained must be brought before a court of law within a reasonable time. Section 35(5) further defines reasonable time as 24 hours where a court is within a 40 kilometre radius, and 48 hours in any other case.
The purpose of this provision is clear. It is to prevent citizens from languishing in detention without judicial oversight. The Constitution intended that once a suspect is brought before a court, the legality of his continued detention must be immediately examined and determined.
Yet the present practice in many High Courts (and some magistrate courts) defeats this constitutional objective. A defendant may be arraigned within the constitutionally prescribed time but is then remanded in prison simply because his lawyer has not filed a formal written bail application.
This effectively converts the constitutional safeguard into a mere formality.
BAIL IN NIGERIAN CRIMINAL JURISPRUDENCE
Bail is not a privilege granted at the pleasure of the court. It is a procedural mechanism designed to balance two competing interests: the liberty of the accused and the need to ensure his attendance at trial.
The Supreme Court in Bamaiyi v. State emphasized that bail exists to ensure that an accused person appears to stand trial and does not abscond. It is not intended as punishment before conviction.
Similarly, in Dokubo-Asari v. Federal Republic of Nigeria, the Supreme Court reiterated that the grant of bail is an exercise of judicial discretion which must be exercised judicially and judiciously.
Where an offence is clearly bailable, continued detention simply because a formal application has not been filed contradicts the very philosophy and essence of bail.
Are we aware that there are some offenses that prescribe for 1 month jail term? This means, if a person stays in prison for 1 month awaiting bail hearing, such person has in a way completed prison term for such offenses. That should not be allowed.
THE ADMINISTRATION OF CRIMINAL JUSTICE ACT AND THE SPIRIT OF SPEEDY JUSTICE
The Administration of Criminal Justice Act was enacted to reform the criminal justice system by eliminating delays and ensuring efficiency.
Section 158 of the Act provides that a defendant is ENTITLED to bail. 162 says “ON APPLICATION TO THE COURT”. Importantly, the Act does not strictly mandate that such an application must always be made in writing before the court can consider it.
Despite this legislative intent, many trial courts insist on formal written applications as a matter of routine practice. This procedural insistence creates unnecessary delays and defeats constitutional and legislative intents.
Once a written application is filed, the prosecution typically seeks time to respond. In the name of fair hearing, courts often grant seven days or more for the prosecution to file a counter affidavit. During this period, the accused person remains in custody.
For a person who is still presumed innocent, this delay can translate into weeks or even months behind bars.
THE PRACTICAL REALITY IN NIGERIAN COURTS
In practice, many defendants do not even know that they will be arraigned until the very day they are brought to court. Their lawyers may only become aware of the charge when the accused person is produced in court.
In such circumstances, it is practically impossible to prepare and file a written bail application beforehand.
The result is predictable. The accused person is remanded in prison custody pending the filing and hearing of the bail application.
This practice has become a major contributor to prison congestion in Nigeria.
THE HUMAN COST OF PROCEDURAL FORMALISM: REAL HUMAN TRAGEDIES
There are countless stories of defendants who spend weeks or months in prison for offences that are clearly bailable.
I recall a fatal accident case where my client eventually opted for out of court settlement primarily because the charge was filed only a day before the hearing. He did not even know the court before which he would be arraigned. Filing a bail application in advance was impossible. The consequence would have been immediate remand in prison while waiting for the bail application to be ripe for hearing. He did not want that. He settled.
The same pattern has been witnessed in several high profile cases in Nigeria involving public figures such as Nasir El-Rufai, Abubakar Malami, and recently Linus Williams (Blord), where procedural delays around bail became central issues.
Yet the impact is far worse for ordinary Nigerians who lack public attention.
One particularly painful memory occurred in December 2024. A relative was arraigned before a Magistrate Court. The magistrate refused to entertain an oral bail application and insisted that a formal written application must first be filed. The man was remanded in prison custody and spent Christmas behind bars. Shortly after regaining his freedom, he fell ill and died.
Another client of mine was remanded by a High Court sitting in Zuba simply because we had not filed a written bail application. He spent two months in prison from July to September. His detention had nothing to do with guilt or innocence. It was purely the consequence of a procedural requirement that had become rigidly enforced.
These experiences illustrate how procedural formalism can transform the criminal justice system into an instrument of injustice.
MY APPEAL
Trial courts should allow bail applications to be made orally immediately after arraignment, especially where the offence is bailable.
This approach would achieve the following:
First, it would align judicial practice with the constitutional protection of personal liberty.
Second, it would reduce unnecessary pretrial detention and prison congestion.
Third, it would restore the presumption of innocence as a meaningful principle rather than an empty phrase.
Fourth, it would ensure that the decision to detain an accused person is based on substantive considerations rather than procedural technicalities.
If the prosecution believes that bail should not be granted, it should bear the burden of presenting convincing reasons immediately before the court.
THE ROLE OF NIGERIAN JUDICIARY
The Nigerian judiciary has the authority to correct this problem through practice directions or judicial precedent. Courts should adopt a uniform practice that permits oral bail applications at the point of arraignment.
Where the offence is bailable and no compelling reason is presented by the prosecution, bail should be granted as a matter of course.
Written applications MAY still be useful in complex cases or cases where charges are filed and served long before arraignments, but they should never become a barrier to personal liberty.
CONCLUSION
The insistence on formal written bail applications before trial courts has become one of the quiet injustices of the Nigerian criminal justice system. It prolongs detention, contributes to prison overcrowding, and undermines the constitutional presumption of innocence.
Justice should never be delayed by procedural rigidity.
If the Nigerian Constitution requires that a citizen be brought before a court within 24 hours, then the spirit of that provision demands more than mere arraignment. It demands that the court immediately consider whether that citizen should remain in custody.
For this reason, the requirement for formal bail applications before trial courts should be abolished.
Liberty must never depend on paperwork.
By Daniel Abah Iduh, Esq.
Principal Solicitor
D. A. Iduh Advocates
