Are Our Magistrates Sponsoring Prison Congestion?


The power of Magistrates to remand an accused person brought before them is unlimited. Upon such remand order, where a bail application is made by the accused person’s counsel, the magistrate has a discretionary power to either grant or refuse the bail application. The conditions upon which a bail application may be refused are pretty settled and it calls for no confusion in the mind of the Magistrate who seeks to exercise his discretionary powers in that regard.

In fairness to Magistrates, except in very rare cases, the exercise of discretion in bail applications have been very magnanimous. In fact, as a defence counsel, you most times would be tempted to breach the professional ethics and promise the friend and family of the accused person that the bail application would be granted. You are always almost certain that it would be granted. The problem however is that the grant of a bail application in most jurisdictions turn to a greek gift which leaves a sour taste in the mouth of the accused person, his counsel, family and friends.

When a bail application is granted, there are formalities which must be fulfilled. One regular feature of the condition for bail is the presentation of reliable sureties by the accused person. The sureties would have to be interviewed/verified by the Magistrate before signing off the release warrant. Here lies the problem!!!

The moment Magistrates makes an order of remand against an accused person, and there has been a subsequent bail application granted, some magistrate immediately forget that the accused person who is then presently in prison custody has no business remaining there. Some magistrate become so dethatched from the plight of those accused person, and one begins to wonder if the remand order made at the initial stage was intentional and a personal vendetta against the accused person. Two incidents come to mind immediately.

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The Magistrate had granted bail to the accused person on Thursday. On Friday the conditions of bail had been met. When the defence counsel, got the court with the sureties, the Magistrate had just rose from days proceeding. The Registrar quickly took the documents to the Magistrate for the release warrant to be signed and the Magistrate refused. Her excuse was that she was in a hurry to catch up with an appointment. The Monday and Tuesday after that Friday were both public holidays. The accused person languished in prison for four additional days because of “His Honour’s Appointment”.

The second incident is more recent. The condition of bail has been fulfilled. The only thing outstanding was for the sureties to be interviewed. The magistrate on the day the sureties were present failed to show up in court. With pressure from defence counsel, the Registrar called the Magistrate and her response was that she was attending three day seminar. The sureties should come back on the fourth day/ the Registrar even dared to use her initiative and ask the Magistrate if the sureties may be taken to His Honour’s brother Magistrate, the Magistrate’s response to the Registrar was unpalatable.

Cases such as these are very common. One wonders how many persons across Nigeria are granted bail and kept in prison custody to continue to put pressure on the already overstretched prison facilities.

Your Honours, please help in the decongestion of our prison, do not sponsor congestion.


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