By Bamidele Kolawole

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Surety is someone, who stands for and assures the court that an accused person, better known in Law as a defendant under Criminal Proceedings, will be available in court whenever the court demand for the Presence of the defendant to face the trial of a Criminal Charge.

The Court cannot remand surety for failure to produce an accused person or a defendant standing trial. What the court can do is to order that the surety should show cause why the bond he entered should not be forfeited to the government.

You know when a surety applies to take a defendant or an accused person on bail, he will be made to enter into a bond with the court to the effect that he would forfeit the sum of money stated in the bond to the government if he failed to produce the defendant or the accused person in court.

It is a wrong procedure for the court to remand a surety in custodial centre for failure to produce the defendant or accused person he took on bail.

The courts have at different times state this position of law to the effect that the Court has no power to remand a surety in prison for failure to produce the accused in Court.

In the case of NDUME v. FRN (2022) LPELR-58272(CA), the Court of Appeal while pronouncing on the legal principle of “CRIMINAL LAW AND PROCEDURE – BAIL –

Whether a trial Court is empowered to remand a surety for failure to produce an accused person standing trial in a criminal offence_” held that: “In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times.

And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.”? If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited.

 In other words, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law.

A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law.

Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional.” Per DANLAMI ZAMA SENCHI, JCA (Pp 32 – 34 Paras D – A).

Before a surety can be remanded for failure to produce the accused person he/ she stood as surety for, the surety have to undergo trial, where surety will be asked to show cause why he/ she will not forfeit the bail bond he or she entered to the Government.

After the trial, the surety may be discharged (e.g if the accused person has died), has to forfeit the bond he/ she entered or serve prison term based on the circumstances that led to the disappearances of the accused person.

The question of whether a Court can remand a surety for failure to produce the accused person is a question infusing both law and fact.

Traditionally, the essence of bail is to secure the accused present in court to stand trial for the offense with which he is charged as correctly stated by the Court of Appeal in Okomoda vs. FRN & Ors (2016) LPELR-40191 (CA).

The Fundamental underlining of this legal philosophy of administration of criminal justice and the rule of law demands that a citizen should be punished for a distinct breach of the law and nothing else.

 The Right of bail, a constitutional right, is contractual and should not be criminalized under any disguise. (Mr. Kayode Akintola Samson v. FRN (2020) Legalpedia (CA) 41180).

Explaining the philosophy of law upon which granting of bail is premised and the role of a surety in a bail system, the Nigerian Supreme Court in Suleman & Anor v. COP Plateau State (2008) LPELR-3126 (SC) noted:

The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail.

Then the question is, what are the consequences when the surety failed to ensure that the defendant (accused person) entrusted to him appears at his trial at a specific time and place?

If the accused is brought before a Justice in court, then typically the release is called a ‘recognizance’.

 A recognizance in bail is the bail agreement, entered into between the accused person and the court or enforcement authorities, with or without sureties, where the accused person agrees to appear whenever he is required to do so in exchange for his temporary freedom.

 The agreement may have terms such as the accused person providing security to ensure compliance in the form of money or property, known as the bail bond.

The recognizance contains the number of sureties if any, the amount to be forfeited on bond, and the date and time the person released on bail must appear in a stated place and before a named authority.

Once the surety default in fulfilling his obligation under the recognizance and upon failure to show a good cause why the bond sum should not be forfeited to the Court, then he should be ordered to pay the sum standing on the bond.

Where he is unable to pay, it morally follows that the Court will compel him to pay. At that stage, the legal procedure for the enforcement of Court orders will follow. A surety must be made to be responsible for his or her undertaken under the law.

However, where it is proved that the surety lied to the Court to accept him as a surety, (s)he will be proceeded against for Contempt of the Court. If (s)he disobeys any order made by the Court to make him pay the sum standing in the bail bond, he may end up in jail.

 If (s)he is proven to have used any fake document, property, address, or by any means supplied false information to the Court upon which the bail is granted, then he has committed various offenses that may lead him indirectly to prison for the suretyship he entered.

Therefore, though the Court cannot directly remand a surety for failure to produce the accused person, the surety may end up in prison for disobeying Court orders after his or her failure to produce the accused person before the Court. He may also be convicted for any crime or act of criminality committed that mislead the Court to allow him standing as a surety.

I opine that a surety could be defined as someone recognised by law who agrees to the release of an accused person back to the society, thus, supervising his/her activities in the society and most importantly producing him / her in court anytime he/she is to stand trial for the alleged offence.
The law expects that the surety will be a person close to the alleged accused who will be much familiar with the trends of activities by the accused person, usually a friend or a relative is most appropriate. The law does not recognise anybody who does it for money, that is, the professional sureties, it is not a career neither is it a profession.
The surety must not be charged with the alleged offence, must be free from any criminal case, not a minor, that is, must be above 18 years of age.
It is important to explain the meaning of bail; Black’s Law Dictionary defines bail as the process by which a person is released from custody either on the undertaking of a surety or in his or her own recognizance.
In a situation where the accused person jumps bail or otherwise breaks any of the terms of the recognizance, the surety is obliged to pay the sum agreed upon in the recognizance.
If the surety refuses to pay the security or bail bond, the court may institute proceedings to recover the amount in the same manner prescribed by the Act for the recovery of fines.
If the court is unable to recover the amount, then the surety may be sentenced to jail for a duration not exceeding six months.
Ideally, a surety should never be arrested in situation where the accused jumps bail, that is, absent from court, the surety needs not be arrested but may be asked to produce the accused person but where he fails to produce, he can be made to forfeit whatever he deposits in court.
Going through the provisions of the Administration of Criminal Justice (Repealed and Re- enacted) Law (ACJL), Section 118 and that of Administration of Criminal Justice Act, 2015, Section 167, it appears to me that the main essence of the surety is to produce the accused person in court to stand his/her trial, just to ensure that the accused does not jump bail.
The recent decision of the Court in NDUME V. FRN (2022) (CA) …… ‘it was clearly stated that having perused the provisions of the law, I have not seen where it was stated that a surety should be remanded if he/ she fails to produce the accused person in court, the relationship between the surety and the court is contractual and where the surety fails to produce the accused in court, the court will evoke those bail conditions in accordance with the law before bond is forfeited and lastly, the provisions does not empower the court to remand the surety.
Thus, the order of remanding the surety in the correctional centre by the trial court, the trial court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional’ Per DANLAMI ZAMA SENCHI, JCA (Pp 32 – 34 Paras D – A)

A surety is anyone standing in for another person who is undergoing a criminal trial/investigation, who needs to be admitted on bail. It could also be a person who takes responsibility for another person’s performance of a legal undertaking.
In the case of bail in a criminal trial, the surety undertakes to provide security for the release of the suspect – as described in the Bail Bond, with the promise that the suspect honours the terms of the bail agreement by appearing in Court as required and he is responsible for the suspect’s acts and lack thereof, pertaining to the terms of the bail granted.
For a layman’s explanation; if they bring you to Court or a Police Station as a suspect in a criminal matter and I stand in for you to be released on bail, that makes me your surety.
Therefore I am responsible for all of your actions and in-actions during the pendency of the criminal trial/investigation.
If the suspect absconds or jumps bail then what becomes the fate of the surety? The answer is that the surety loses that security he provided for the bail unless he can give reasons as to why he should not lose the security he provided for the bail.
Oftentimes, many Nigerian Courts have had to arrest and commit to custody a surety who fails to produce the suspect in Court without any justifiable reason. However, it should be noted that remand of sureties till production of the suspect is wrong.
Sureties are not criminals, and the arrest of sureties at first instance over the failure to produce the suspect must be stopped.
The surety enters into a bond by either depositing money or other security which he forfeits if the suspect breaches any of the terms of his bail.
The Court/Police would first institute a proceeding to recover the amount or the security provided unless the surety can give reasons why he should not lose the security he provided for the bail.
According to Section 179(4) of the Administration of Criminal Justice Act 2015, if the Court is satisfied that the security should be forfeited after the surety has been allowed to explain himself, the Court may then give an order that the surety must pay the amount in the bail agreement but if the surety for bail refuses, then the Court can go after the property of the surety to recover the security.
Accordingly, Section 179(5) of the Administration of Criminal Justice Act 2015 provides that if the Court is unable to recover the Bail Bond, then the Court can give an order for the surety to be arrested and imprisoned for a term not exceeding six (6) months.
A surety should not be arrested at first instance; the arrest of surety for his failure to produce the suspect in Court comes later as seen above only when the Court is unable to recover the Bail Bond on the surety.

NDUME v. FRN

(2022) LPELR-58272(CA)

ISSUE

CRIMINAL LAW AND PROCEDURE – BAIL

Whether a trial Court is empowered to remand a surety for failure to produce an accused person standing trial in a criminal offence

PRINCIPLE

“In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times.

And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.”? If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited.

In other words, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law.

 A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant. A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law.

Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional.” Per DANLAMI ZAMA SENCHI, JCA (Pp 32 – 34 Paras D – A).

Surety is someone, who stands for and assures the court that an accused person, better known in Law as a defendant under Criminal Proceedings, will be available in court whenever the court demands for the presence of the defendant to face the trial of a Criminal Charge.

The common Practice is for the court to grant Conditional Bail pending the trial and the determination of a charge on the merit, this the court would do in certain instances in accordance with the law so as to enable the defendant prepare for his defense, however a verifiable Surety, who is a man of means, must apply to secure the bail.

The surety, ordinarily, is expected to know and understand that he will have to show-cause why he should not be committed to prison, either by producing the offender or forfeit the bond with which he secured the bail as must have been pronounced earlier in the court order for bail.

 Failure to do or fulfill either of these two conditions, depending on the nature of the offence, he could be jailed. However, in offences with capital punishment, if the offender died, that will be the end of the case, even if the offence were not one carrying Capital punishment, should the offender dies, the charge will abate and the surety will be discharged consequently.

There are Jurisdictions, e.g. Lagos State where Corporate Suretyship is allowed, in that instance when the offender Jumps Bail, the surety, who is a juristic person will only need to forfeit (lose)the bail-bond, since there is no biological individual to be committed to Prison.

So, in a nut-shell, a court could remand a surety for “failure to show-cause” in certain instances.