Whether a Person Charged with the Offence of Treason can be Granted Bail


Without equivocation, a state is regarded as the reflection of the wishes of the people. It is not wrong therefore to say, that a person who attacks the state is attacking the people or the public. Such a person is deemed to be trying to unsettle/scuttle public order.[1]

Any act of maligning, destroying or setting the state on the precipice of internal insurrection or external aggression is known as treason and inchoate acts of treason are known as Treasonable Felonies.

Treason has been defined by the Black’s Law Dictionary 9th Edition as:

The offense of attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies.

In addition,  the Black’s law Dictionary 9th Edition, defined treasonable felony as:

An act that shows an intention of committing treason, unaccompanied by any further act to carry out that intention.  This offense usually results in life imprisonment rather than the death penalty.

Treason related offences are provided for in S. 37 to Section 49[2] (applicable in the southern parts of Nigeria), and in Section 410 to section 415 of the Penal Code[3] (applicable in the northern parts of Nigeria). The offense of treason is punishable with death while treasonable felony is punishable with life imprisonment.[4]

By all its form and appearance, the offense of treason is a capital offense frowned at by all and sundry, and of course, punishable with death.

From the lens view of the State and the drafters of our Code, it is seen as an act akin to a goat eating palm fodder on the head of a man. It is sacrilegious. The crux of it is that the accused person is denied bail based on the severity of the offense committed.[5]

Following, bail is the process by which any person arrested and detained for an offence is released from custody either on the undertaking of a surety or on his own recognizance to appear on a future date.[6]

Section 341(1) of the Criminal Procedure Code[7] provides that persons accused of an offence punishable with death shall not be released on bail.

From the above premise, we can judicially swim unaided, to the general principle of law that persons accused of a capital offence(s) are not be released on bail and this without qualifications, include our subject matter, Treason. This might seem to be anomalous and a violation of several constitutional principles.

The fundamental human rights of Nigerians are guaranteed, protected and provided for in Chapter four of the 1999 Constitution of Nigeria.[8] One notable provision of the constitution is the presumption of innocence in Section 36(5) of the CFRN.[9]

This presumption is the foundation of our criminal law system and has been described as the golden thread that runs throughout the criminal law.[10] The right to bail is a constitutional right guaranteed under a community reading of Section 35(1)(4) of the Nigerian Constitution,[11] Section 158 of the Administration of Criminal Justice Act of 2015[12] and Section 27 of the Police Act.[13]

However, this right is not absolute as it can be derogated from when the offense committed is a capital offense as provided in section 35(7) of the 1999 Constitution.[14] This is the general law as recognized by Nigerian courts as the law settled like sand in a glass of water.[15]

In the case of Taiwo Ajeigbe v. The State[16], the court had this to say:

“…the time frame requirement in Section 35[4] of the Constitution does not ipso jure apply to cases where the charge is for capital offence.”

The issue now is that since treason is a capital offense punishable with death, is the general rule that a defendant is not entitled to bail applicable to a person charged with the offense in Nigeria. The answer is in the affirmative.

Another question that deserves an answer is whether or not there could be special circumstances that would cause an accused person charged with a capital offense to be entitled to bail. This writer answers in the affirmative.

The writer’s answer is strengthened by the fact that murder, an equally capital offense, frowned at with the same severity like treason accepts special & exceptional circumstances where a defendant can be granted bail.

Before further submissions, It is important to state that it is only a High Court that has the right to grant bail in a capital offense charge in Nigeria.[17]

This writer will surgically examine and mathematically analyze whilst citing copious judicial authorities in support, state in military parade order, the instances where bail should be granted to a person charged with treason below.


  • Proposed Exceptional Circumstances for Grant of Bail for the Offence of Treason

The following are the special circumstances in the opinion of the writer, where bail can be granted in murder cases likewise in the offence of treason, pending trial in the opinion of the writer:

First, the accused’s health is a factor significant enough to be taken into account as a unique circumstance regardless of the stage at which bail is requested. But a simple claim of poor health won’t be enough to qualify as a unique circumstance for the granting of bail.

In Abacha v. State, the applicant stated that he had kidney ailments and required his doctor’s close attention. There was no expert testimony stating that the man’s renal disease was a life-threatening condition that couldn’t be controlled or treated while he was being held in custody pending trial. His application for bail was therefore denied.[18]

In the a notable judicial authority of Jimoh v. Commissioner of Police[19], Honourable Justice Onnoghen, JCA [as he then was] while granting bail to a person charged for murder and armed robbery had this to say-

“in such a situation the sickness or ill-health of the applicant may constitute special circumstances for the exercise of the discretion of the court to grant bail in his favour”

It Is therefore the submission of the writer, that when a person is charged with the offense of treason applies for bail on the ground of health and such is sufficiently investigated, found not to be superfluous or a frivolous attempt to slip away from justice, such a person should be granted bail on ground of such application.

Every person accused of an offence must be alive to face his trial. He must also be of sound health to participate fully in the trial. The state of health of the accused person is therefore of great concern to every court of justice.[20]

In addition, if there is no documentation on file with the trial court establishing that the appellant is facing a murder accusation, including proof of evidence, then that situation unquestionably qualifies as a peculiar case for the purpose of granting bail.

In Musa & Ors v. Commissioner of Police[21] the court granted the appellants release, after they had been held without a charge or trial for more than 22 months, despite the lack of any supporting evidence.[22]

In line with the above principles, it is my humble submission that when a person is charged with treason and it appears that there’s no material evidence linking him to the charge, an application for bail should not be denied or rejected by the court.[23]

Again, when the defense of alibi is proved by the defendant who is charged with the capital offense and such a defense is investigated to the logical conclusion and in favour of the defendant, such a person’s right to bail should not be denied.[24]

In conclusion, having swam through the seas and climbed the mountains of law, it is very noticeable like a jewelry worn on the wrist that there are special circumstances where Nigerian courts grant bail to persons charged with capital offenses.

It is the submission of this writer that such special circumstances should also be attributed and ascribed without qualifications to a person charged with the offense of treason. This submission is leveraged on the saying, that what’s good for the gander is also good for the goose.

The Nigerian Courts are enjoined to grant bail to people charged with treason if any of the above special circumstances is satisfied. Truly, doing otherwise will amount to a case of robbing Peter to pay Paul, therefore amounting to selective justice.


About the Author

Anyiam C. Kelechukwu, is a 300 level Law student of the university of Nigeria Nsukka (UNN). He is a writer, avid and passionate lover of research and an advocate of Legal inclusivity. Kelechukwu can be reached via; Email; [email protected]; or WhatsApp;08060370812



[1] Lear, Floyd Seyward (2013). Treason in Roman and Germanic Law.

[2] Criminal Code Act (1916) (Cap C. 38 LFN 2004).

[3] Penal Code (Northern States) Federal Provisions Act.

[4] Anthony Enahoro v. Queen

[5] Oladele v. State (1993) 1 NWLR (Pt. 269) 294.

[6] Ojo v. FRN (2006) 9 NWLR (Pt. 984) 103.

[7] Cap C41 LFN 2004.

[8] Constitution of the Federal Republic of Nigeria, 1999.

[9] Ifejirika v. State (1999) 3 NWLR (pt. 593) p. 59, at p. 62.

[10] Woolmington v. D.P.P.1935 App. C 462 (Sankey L). It has also been identified as the “cornerstone of Anglo-Saxon justice” Abraham, H. The Judicial Process, (New York: Oxford University Press, 5th ed., 1986) p.98.

[11] Supra.

[12] The Administration of Criminal Justice Act, 2015.

[13] Cap P19 LFN 2004.

[14] Supra.

[15] Gani Adams v. A.G. Federation (2006)LCN/2031(CA).

[16] [2005] ALL FWLR [PT.801] 1507 at 1524 para. B-D.

[17] Ukatu v. C.O.P (2001) 6 NWLR (Pt. 710) 773.

[18] Abacha v. State.  (2002) 5 NWLR (Pt. 761) 638.

[19] [2004] 17 NWLR [PT.902]389 at 407 paragraph C-E.

[20] Fawehinmi v. The State [1990] 1 NWLR [PT.127] 486.

[21] (2003) LPELR-7202(CA),

[22] Anaekwe v. Commissioner of Police [1996] 3 NWLR [PT.436] 320 at 332-333 C.A.

[23] Emmanuel Chinemelu v. Commissioner of Police [1995] 4 NWLR [PT.390] 467.

[24] Alhaji Musa Sani  v. The State (2015) Legalpedia (SC) 51133.

  1. A wonderful article, from my own brother, whose wisdom flourishes like a palm-tree. However in my view I think the second and last reasons which are no material evidence and alibi are sufficient to grant bail to those charged with treason.
    Health condition is not a sufficient reason, and consistent use of it by smart criminals will only assist them in escaping justice. It becomes more suspicions when these accused suddenly fall ill few days in detention that the health condition couldn’t be managed within the confines of the detention.
    The health care system and other facilities at the detentions should be well equipped to meet international best practices, to avoid these excuses of health challenge.

Leave a Reply

Your email address will not be published. Required fields are marked *

You May Also Like