By Taiye Agbaje, News Agency of Nigeria (NAN)
Many myths or misconceptions surround the legal terms, “Bail Bond.” Judges are, more often than not, criticised on social media for imposing certain sums of money on a suspect or suspects facing trial as bail bonds.
Some Nigerians see the amount as either too small or pricey for the offence committed.
(Chief Judge of the Federal High Court of Nigeria, Justice John Tsoho)
While some feel that a bail bond is indirectly a way of letting a suspect or defendant off the hook and free from the offence(s) charged, others feel the money imposed, at times, is a strategy of keeping the suspect perpetually in detention till the trial last.
Many users of X, formerly Twitter, or other social media platforms, usually express their bewilderment at the seemingly conflicting outcomes on issues of bail bond, especially on cases they presumed to be identical.
A close example is the trial of former Accountant-General of the Federation (AGF), Ahmed Idris, on alleged N109 billion fraud by the Economic and Financial Crimes Commission (EFCC).
Idris, alongside three co-defendants, was arraigned on July 22, 2022, on 14-count money laundering charge before Justice Jadesola Adeyemi-Ajayi of a Federal Capital Territory (FCT) High Court in Maitama.
(Judges of the Federal High Court of Nigeria during the ceremony to mark the new legal year in Abuja)
Justice Adeyemi-Ajayi had, on July 28, 2022, granted Idris and others bail in line with the same terms and conditions of the administrative bail granted the defendants by the EFCC.
The judge held that the offences charged against the defendants were bailable and in line with the due process and supremacy of the law, the defendants were still entitled to bail, irrespective of the enormity of the allegations against them.
Besides, the judge observed that the anti-graft agency did not controvert the depositions of Idris and his co-defendants that they did not flout the terms of the administrative bail.
Although Idris was released based on the EFCC’s administrative bail earlier granted to him, the former Central Bank of Nigeria (CBN) Governor, Godwin Emefiele, was admitted to bail in the sum of N300 million with two sureties in like sum by Justice Hamza Muazu of FCT High Court, Abuja on Nov. 22, 2023.
1
(Chief Justice of Nigeria, Justice Kudirat Kekere-Ekun)
The sureties, the judge said, must have Certificates of Occupancy and titles of property within the Maitama District in the alleged N6.5 billion fraud charge.
He also ordered Emefiele to deposit all his travel documents with the registrar of the court and to remain within the Abuja Municipal Area Council.
Emefiele is standing trial for alleged procurement fraud in the 20-count charge.
But the Federal Government later reduced the charges to six counts to the tune of N1.2 billion. It is equally worthy of note that Emefiele is being prosecuted in other matters in Abuja and Lagos State.
Also, the case of 119 protesters, who were arrested and arraigned over their involvement in the #EndBadGovernance protest organiser between Aug. 1 and Aug. 10, readily comes to mind.
Justice Obiora Egwuatu of a Federal High Court (FHC) in Abuja had, on Nov. 1, admitted them to a N10 million bail each with two sureties each in like sum.
Justice Obiora directed them to provide the two sureties each, who must be a civil servant and a parent or sibling of the defendants.
Delivering his ruling, the judge observed that some of the defendants were under 18 years old, and the defendants’ lawyers had promised not to interfere with the trial or destroy evidence.
He also observed that the prosecution did not contest the defendants’ application for bail.
He ordered the adults among them to be remanded at Kuje Correctional Centre, while the minors were remanded in the Borstal Home of the Correctional Service.
The Inspector-General (I-G) of Police had preferred charges bordering on alleged treason, intent to destabilise Nigeria, conspiracy to commit felony and inciting mutiny, among others, against the protesters, who were arrested in Abuja, Kaduna, Kano, Katsina, Sokoto and Gombe over the 10-day protest which resulted in violence and killings in parts of the country.
The charges were later withdrawn against the children protesters after President Bola Tinubu’s directive to the AGF and Minister of Justice, Mr Lateef Fagbemi, SAN, to the effect.
The rulings on these three bail applications, among others, had stirred criticisms by many Nigerians.
While some critics saw the first two rulings as a way of giving softlanding to Idris and Emefiele, many condemned Justice Egwuatu’s ruling on the minors’ bail application for being “harsh and insensitive,” describing it as “a punishment” to keep them in detention.
But a Lagos-based legal practitioner, Josephine Ijekhuemen, said the essence of bail bond in the criminal justice system is to guarantee the presence of the defendants in court.
“If somebody is being accused of a crime is admitted to bail without any condition, there is every likelihood the case may not be conclusively prosecuted if the defendant decided not to show up again.
“But having a surety, who is ready to depose to affidavit of means, will ensure that the defendant is present in court until the case is determined. The surety will be responsible until the judgment is delivered,” she said.
The lawyer described a bail as “a temporary release of an accused person or a defendant standing trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.”
According to her, the 1999 Constitution of the Federal Republic of Nigeria guarantees the right to bail as a fundamental right of every citizen charged with a criminal offence.
“Section 35(1) of the constitution states that no person can be deprived of their personal liberty unless it is in accordance with the constitution or a statute.”
She said to apply for bail, the accused person’s counsel can make an oral or written application upon arraignment before the court.
The lawyer said Section 32(3) of the Administration of Criminal Justice Act (ACJA), 2015 states that an application for bail may be made orally or in writing.
“The court will stipulate certain conditions or terms of bail before the suspect’s release can be successful.
“Therefore, Section 165 of ACJA 2015 empowers the court to make an order for the bail sum to be made during the pendency of the case.
“Section 167 of ACJA states that a person given bail may be required to produce such surety or sureties as, in the opinion of the court, will be sufficient to ensure his appearance in court when required,” Ijekhuemen said.
Also speaking, Oyeghe Seprebofa, an Abuja-based lawyer, said there are different types of bail.
According to him, there is administrative bail which is the bail that is usually granted to a suspect that is in custody of a law enforcement agency like the police, EFCC, ICPC or DSS, as the case may be.
“Where a suspect is in their custody, they may ask for a surety and the suspect will be granted bail. Such bail is what we refer to as administrative bail,” he said.
Seprebofa said where the suspect is eventually arraigned before a court of law, the bail that was granted by the law enforcement agency automatically elapsed.
“Hence, there will be the need for a fresh bail application to be made on behalf of the suspect and court may grant it,” he said.
While liking this to the trial of former ex-AGF Idris, Seprebofa said a court can admit a defendant to bail in the terms of the administrative bail earlier granted by a law enforcement agency if the defendant conducted himself well while on administrative bail by adhering to the conditions of the bail.
On issue of bail bond, the lawyer said it is a sum the surety will forfeit to the Federal Government of Nigeria if the defendant or suspect he took on bail, absconds or jumps bail
“This is so because when a bail is being granted, the defendant is handed over to a surety. The surety is now standing in, in the event that the defendant absconds or refuses to show up,” he said.
According to him, the bail bond is not a money the surety is to pay immediately before he will take the defendant on bail.
“It is a commitment, that is why it is called a bond or pledge, that if this defendant escapes, I am going to forfeit this sum to the Federal Government. That is the nuances about bail and bail bond,” Seprebofa said.
The lawyer explained further that the presence of a surety is not needed in court at every court sitting but that only the defendant standing trial that must always be in court.
“The law is that the defendant must be available to stand his trial day to day. So, any time the matter is coming up, the defendant is expected to be at the dock to hear and listen to every bit of the allegation against him.
“The presence of a defendant, in a criminal trial, is mandatory throughout the proceedings,” said.
He, however, said that a surety is required to come to court if the defendant, who he took on bail, is unavailable in court
“The surety is to come and show course why the bail bond should not be forfeited following the absence of the defendant in court.”
He said the surety is to explain to court whether the absence of the defendant in court is on grounds of health, accident, etc.
“For any reason the defendant was not in court, the surety is expected to come and show course, explain first, why the defendant is not in court. Two, to show course why the bail bond should not be paid to Federal Government.
“The idea is to allay the fear or made it known that the defendant who he took on bail did not jump bail. So when the reason is disclosed to the court, the matter can be adjourned,” he said.
On how long the court can wait before a surety forfeits the bail bond, Seprebofa said this would depend on the peculiar fact.
“If for example, a defendant who has always coming to court suddenly stops coming to court, there must be a reason
“If it is on ground of health, his lawyer will communicate to court the reason and the surety too will do same.
“For instance, if the defendant had a fatal accident that the defence and the prosecution counsel are all sure he may not recuperate within two or three months, the implication is that a longer adjournment will be sought till the time he will likely be available to stand his trial.”
He said bail is necessary in the country’s judicial system because in a criminal matter, refusal to grant bail will amount to pre-trial conviction.
The lawyer, who said that a defendant is presumed innocent until proven guilty, said bail is to ensure that the suspect is not punished unjustly.
“There are two ways to this. If the defendant is not admitted to bail, he will be coming to court from correctional centre. So his liberty will be restricted.
“However, there are several provisions of the law that back issues of bail. For example, Sections 158, 159 of the ACJA, 2015, provide for rights of a defendant to bail.
“Also the constitutional provisions of Sections 35 and 36, which provide for presumption of innocent of a defendant standing trial, provide for bail,” he said.
Seprebofa, however, said there are instances court may not be inclined to granting bail to defendant(s) standing trial.
“These include matters that have to do with capital punishment (death sentence), if the defendant is found guilty after trial,” he said.
He enumerated some of the offences as murder, terrorism, kidnapping, armed robbery, rape, etc.
“Those are offences that the court will be very reluctant to grant a defendant standing trial bail,” he said.
Citing the trial of the 119 minors before Justice Egwuatu another legal practitioner, David Ihuoma, corroborated that most times, the application for bail depends on the gravity of the offence committed.
“That is the standard upon which the court might actually make the bail application stringent,” he said.
Cynthia Okechukwu, a lawyer, also explained that Justice Egwuatu admitted the 119 protesters to a N10 million bail each with two sureties each in like sum due to the gravity of the offence with which they were charged by the police.
According to her, terrorism offence is not a bailable offence, except in a peculiar case.
She, however, said that if the allegations bordered on misdemeanor offences or offences with lesser imprisonment or term, the court can give a liberal term of bail application the defendant can meet in order to perfect his bail application.
Okechukwu said the importance of bail is also to give the defendant the facility and time to defend himself in the charge preferred against him, and to ensure that he is not unjustly punished.
The lawyer said justice is a tripartite thing; justice to the defendant, justice to the prosecution and justice to the state.
She said, therefore, granting bail is at the discretion of the court in accordance with Sections 158, 162 and 165 of ACJA, 2015, especially when the offences are bailable.
“How would the former Head of Civil Service of the Federation, Mr Steven Oronsaye, who was discharged and acquitted of the money laundering charge by the Federal High Court in Abuja, feel if he was denied bail while the trial last?,” she asked.
On his part, Ihuoma said: “If a court asked a defendant to produce a bail bond of N20 million, what it means is that the money in the account of the surety should be up to N20 million.
“The bank account will not be put on post no debit (PND). The surety can still make use of the account but if the defendant jumps bail, the surety may forfeit the bail bond.”
He alluded to the EFCC’s N2 billion money laundering charge against a convict, Mr Abdulrasheed Maina, the former Chairman, defunct Pension Reformed Task Team, who jumped bail during trial in 2020.
The lawyer recalled that the then trial judge, Justice Okon Abang, revoked Maina’s bail and ordered his surety, Ali Ndume, a serving senator, to be reminded in correctional centre.
He said the judge ordered Ndume to remain in detention until he met any of three conditions – produce Mr Maina in court, pay the N500 million bail bond, or have his property, offered as security for the defendant’s bail, sold and its N500 million proceeds paid to the Federation Account.
Ihuoma, though faulted Ndume’s remand, he said that the surety is only entitled to forfeit the sum the court granted.
“If the surety could not meet up with the condition of such bail, I think base on the case of FRN Vs. Ali Ndume at the Supreme Court, issues of suretyship between the court and surety is more like contractual obligation.
“So if the surety fails to produce the defendants or fails to pay a particular amount of money as his bond, the court might likely prosecute or litigate on that matter to attach the property of that person to the tune of amount to meet up the bail bond granted.
“Remember that Ndume deposited his building’s Certificate of Occupancy (C of O) as bail bond in the release of Maina,” he said.
He said the apex court held that issues of suretyship should not attract the conviction or remand of a surety, for failure to forfeit his bond.
He said bail bond is part of the criminal procedure system because some people can be arrested, arraigned and the court will grant them bail based on personal recognizance or who they are in the society.
“This is part of our criminal justice system,” he said.
The Chief Judge of the Federal High Court of Nigeria, Justice John Tsoho, while shedding light on the commonly misconstrued phrase, “bail bond,” said most people interpret the “bond” entered into as a bail condition, to mean actual payment of money.
He said it was important to dispel any myths or misconceptions about the phrase.
“When bail is ‘granted in the sum of N1 million’ for instance, it does not mean that the surety is there and then expected to deposit that sum of money with the court.
“Rather, the surety is to enter into a bond, which is a promise, an undertaking or agreement, to the effect that the person undergoing trial would consistently attend court and would not escape, until the trial is concluded.
“If however, the person escapes without satisfactory explanation, the surety will be held to pay the promised money (the value of the bond) to the court.
“This is a voluntary decision by the surety, hence unless he is trusting of the person under trial, he is not obliged to execute the bail bond,” he said.
According to Tsoho, it is therefore, a matter of ignorance or mischief, to ascribe a contrary interpretation to the matter of bail bond.
“This explanation is meant to enlighten the misinformed, so that they will refrain from unduly vilifying judges regarding the issue of bail bond,” the CJ said during the occasion of the special court session to mark the commencement of the court’s 2024/2025 legal year.
He condemned the attitude of some people towards the decisions of the judges across the country.
“I am compelled to seriously deprecate the current pervading attitude of some lawyers, litigants and public commentators, of launching virulent attacks in the media, against judges and their decisions.
“The Federal High Court regrettably, has been worse for it, arising from its wide territorial and vast subject matter jurisdiction.
“This trend seems to have become a ready means of seeking fame, employed mostly by failed lawyers and litigants.
“They do not realise that the field of law and indeed adjudication, is not a pedestrian affair,” Tsoho said.(NANFeatures)(www.nannews.ng)
