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Friday, December 23, 2022


By Eld. Emmanuel Udosen

I am constraint once again to write on this subject matter which is receiving adequate legal attention, but which, in my humble opinion, requires the education of interested members of the public with intent to reduce or curtail the effect of ignorance on the innocent public. 

Many people have been fed with falsehoods which drive their actions, even at their detriments. 

Ab initio, the issue of bail owes its origin to Sec.36(5) of the 1999 Constitution of the Federal Republic of Nigeria which states, inter alia, that, "Every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty". It is buttressed by Sec.34(1) and 35(1) of the same constitution which borders on right to dignity of persons and of liberty (freedom of movement) respectively. 

The fulcrum of bail is sec.36(5) which birth the popular presumption of "innocence of accused person until proven otherwise".

It follows that once a court of competent jurisdiction has convicted an accused person (rightly or wrongly), the presumption of innocence ceases to avail an accused person who now takes the new nomenclature as a Convict. At this point, Bail fails to be his fundamental right and becomes a matter of absolute discretion of the court, and which discretion the court cannot just exercise without the fulfilment of certain conditions precedence. 

At this point also, it is not for the prosecution to show cause why the convict should not be granted bail, but on the convict to show cause why he should be granted bail pending appeal. 

This article is further intended to answer the many questions that I have been asked on OBA's chances of bail either at the court of first instance or at the Court to which his Appeal lies. 

It is trite that a post conviction bail can be granted by the court of first instance on application by the convict and by the appellate courts up to the Supreme Court by the same application of the Appellant. 

One very interesting and outstanding fact about OBA's bail prospect is that his application for post conviction bail is filed at the Vacation Court currently holding in Port Harcourt because the Federal High Courts, including Uyo Federal High Court that convicted him are on vacation. The question of law arising from this is, whether the Vacation Court, being a court of Coordinate Jurisdiction with Uyo can be construed as the court of first instance to which OBA will have the right of first refusal before he can proceed to apply for bail at the Court of Appeal. 

In the ordinary business of the courts, a court of first instance refers to the Trial Court simplicita and nothing so pretentious. A vacation court is an emergency arrangement put in place to attend to urgent matters which may not wait for the courts to resume from vacation. It does not assume the position of the court of first instance or trial court even if the Presiding Judge is the same as the Judge of court of first instance; let alone when the two Judges are different and operate as courts of coordinate jurisdiction. 

Besides, there is nothing in the present case to suggest urgency to which this post conviction bail application can be based.

As we read this article, OBA's post conviction bail application came up on the  22nd December 2022 at the Federal High Court, Port Harcourt, being the vacation court for the Federal High Courts. The matter has been adjourned to Wednesday, 28th December for consideration. 

Barring any other ground for objection to the bail, I guess the main contending issue will be whether a vacation court, being a court of coordinate jurisdiction, can assume the powers of the trial court in the instant case and go ahead to grant or refuse the post conviction bail application. 

However, refusing the bail application at this level does not foreclose his chances of bail as Sec. 28(1) of the Court of Appeal Rules provide that:

"The Court of Appeal may, if it thinks fit, on the application of an appellant admit the appellant to bail pending the determination of the appeal". But the application for post conviction Bail in the Court of Appeal can be made when there is a pending appeal before it, and not when the appeal is yet to be entered as it stands now. 

Until then, one fact remains intact; that fact is that OBA SHALL enjoy his Christmas rice in prison. To his fellow inmates, and maybe to the warders, this is a prayer answered because they know that there is nowhere their colleague and friend will enjoy Christmas delicacies while they watch with reckless abandon. 

But at the time of this report, it is not known whether the new benevolent inmate who magnanimously donated foams and medicines some weeks ago has made any budget or set aside some largess for the prison inmates for Christmas. Some inmates were said to have mumbled that God has forcefully brought to them their monies which were stashed away over the years thereby denying them their entitlements as Nigerians in Correctional Centers.

It is certain that OBA's initial showmanship and demonstration of "machomanship" is fast diminishing. Even his preference for the gubernatorial contest of 2023 is gradually giving way to his deep desire to breath an air of freedom. The late visitors to his new place of abode who keenly observe his demeanor in the prison attest to the fact that what is left of his morale is dwindling as he spends more time asking questions about his chances of release than the outcomes of the jamboree which his friends and foes call campaigns in his absence.

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