By Solomon Runsewe & Damilola Akinmolayan
The incidents of sureties arrested and threatened with arrest are a common phenomenon in Nigerian criminal administration and have painted a horrid picture of the role of a surety in a bail application in the minds of average Nigerians. The Hope Classics spoke with expects on the issue. Excerpts:
A surety or a guarantor is an agreement or a contract where the surety (guarantor) undertakes to be answerable to the creditor for the liability of the principal debtor whose primary liability to the creditor must exist or be contemplated. In other words, for a suretyship to exist, there must be an existing relationship known by the law between another two persons the relationship in which the surety is not a party, so to say.
Therefore, where the relationship that led to the suretyship is cancelled, terminated, illegal or unenforceable against the person the surety stands for, the surety has the right in law to terminate the surety.
The surety definitely has some other rights granted by the law. In the second place, a surety has a right to terminate the suretyship for good reasons at any time before default on the party of the person he stands surety for.
Again, if the surety pays the debt granted or the bail bond or recognisance he entered, he has a direct right against the debtor or the suspect he granted his appearance at a given date and time.
This means that the guarantor has the right to recover from the owner all sums paid by him under the guarantee agreement, hence, the surety retains the right to pay the debt when it was originally due and claim an indemnity from the debtor at the later time.
The surety’s right of indemnity is based on two possible legal foundations; an implied contract with the debtor and the law of restitution (quasi-contract).
An implied contract can exist only if the suretyship was undertaken at the request (express or implied) of the debtor. If this is the case, however, the law assumes an implied agreement between them that the surety is to have right of indemnity against the debtor.
It is apposite to note that surety obtains this right to an indemnity only when he actually pays the debt but where the surety pays the debt before it was due, he cannot claim against the debtor until the due date. In the eye of the law, when the surety pays the creditor, he is subrogated to the rights of the creditor against the debtor in respect of the debt in question.
The surety also has a right and is entitled to have assigned to him every judgement, specialty or other security which shall be held by the creditor in respect of the debt. All these rights are recognised to protect the surety from prejudice and unpalatable repercussions.
Under the legal principle based on the law of restitution, if there are two or more co-sureties and one of them pays more than his share, he is entitled to claim against the other (or others) for their shares. Hence, if the sureties are severally (separately) liable for only a portion of the debt, they cannot be made by the creditor to pay more than their share; but if one does pay the other surety’s share, he can also claim a contribution.
The surety’s name cannot be used to secure another agreement or substituted for another surety without the express consent of the surety.
Another right of the surety is to counterclaim where the breach of contract by the creditor does not discharge the debtor but gives him a right to counterclaim for damages. The surety has a right to be released from suretyship if the creditor is guilty of conduct that prejudices the rights of the surety.
When claiming for payment against a surety, the surety has a right to demand for and be given copies of all documents upon which the agreement between the creditor and the debtor are based.
The right of the surety to be given copies of certain documents is to ensure that the creditor cannot obtain a greater benefit by claiming from a surety (or indemnifier) than he would get if the debtor fulfilled his obligations.
Finally, Nigerian law recognised that there are three parties in a contract of guarantee namely the creditor, the principal debtor and the secondary debtor or guarantor; and that the liability of the guarantor arises either where the guarantor may not primarily undertake to discharge the liability but only if the principal debtor failed in his obligation in which case the principal debtor has to default before the liability of the guarantor would arise; or the guarantor by his undertaking makes himself the real debtor in which case the principal debtor drops out and the guarantor replaces him and becomes solely liable for the debt or obligation. Surety is thus an assurance that a contract or legal act will be carried out.
Who is a Surety?, a surety is someone who stands in for another person or let me say a defendant in the law court who stands in for someone as a guarantor or someone who is standing in, that no matter what happens that he will produce the offender.
Peradventure that person fails to come, or peradventure I fail to produce him, I will forfeit some things, probably money, that is what we call bond.
For example, in the case of Baba Ijesha, the said level 10 officer and N500,000 bond, means that if today Baba Ijesha jumped bail, that man will pay N500,000.
The right now is that you can’t just pick him and put him in jail, no, the first thing is let the surety come and show cause, why he should not be detained, why he should not pay N500,000 bond.
A good example is when Nnamdi Kanu was charged to court and was granted bail and Abaribe came in as the surety, and when he could not produce Kanu, they asked him to show cause why he should not pay the bond on this and he said, truly, he was at a place at a point in time but the military men went there and bombarded the place and he said as at that particular time he could not say anything about him. Bring in the military men, let them come and tell us if they went there or not, and they were the last person that saw him, let them come and talk, and that is why Abaribe is free today.
So that is the meaning of come and show course that because of this, I won’t be bound on all these again because the military men went there, maybe they killed him, captured him, I don’t know, let them come and tell us. So that’s the right, you cannot just bundle them, most of the time you just see the police hurdling at the court, they will just go and arrest somebody and lock him/her up. Laws say that, you bring them before the court, there is a form you fill for them.
The first thing is for them to come and tell us, where is this person that you stood as a surety in the court for? Come and produce him. The surety may say, am sorry sir, you can give me some time to look for him, the last time I spoke with him, I was told that he was sick and because of that, you first come and tell us that sir, this man, I saw him this morning, he is on sick bed at General Hospital Akure. Sir I wouldn’t mind if the police can follow me to the place, okay please go there, go and verify and on getting to the place they saw him, what’s the next thing, they would come back to court and say sir, I went to the place with the police, the police officer saw him on the sick bed, would you now say I should come and pay N500,000?
Another area is this, I stood for someone as a counsel, a man was the surety, and he gave us information that unfortunately, when this man was travelling, he was involved in an accident and he died, what is the next thing?
You bring the death certificate, immediately he tenders the death certificate what happens to the case? The case is already dead because as the man died the case is also dead. It is only if it is civil you can now say okay, let me sue the civil of this person or you may not even put civil, you may sue the estate of that person, it is not that as the man is dead you have to pay, no, you can’t pay because they have their own rights under the law.
A guarantor/Surety is technically a debtor because where the principal debtor fails to pay a debt, the guarantor will be called upon to pay the loan he/she guaranteed. The guarantor can however, be saved from liability if he/she can show that the principal debtor has paid the loan.
”In matters of guarantee of this nature, there is sometimes the need to recognize the three parties, namely: the creditor, the principal debtor and the secondary debtor or guarantor. Either of two situations could thus arise. One is that the guarantor may not primarily undertake to discharge the liability but only if the principal debtor failed in his obligation. There is the other situation where a person by his undertaking makes himself the real debtor.”
“It is settled that the liability of a guarantor becomes due and mature immediately the debtor/borrower becomes unable to pay its/his outstanding debt. The guarantor’s liability is then said to have crystallised. A Surety or Guarantor, is bound by the written agreement it/he entered into.”
“The fact that the obligation of a guarantor arises only when the principal has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal or from the surety or give notice to the surety before the creditor can proceed against the surety. Nor does he have to commence proceedings against the principal, whether civil or criminal unless there is an express term in the contract requiring him to do so.”
“A creditor is entitled to proceed against a guarantor immediately the debtor or borrower becomes unable to pay his outstanding debt. The guarantor is bound by the written agreement he entered into.”
In summary, when you stand or sign as a guarantor for any person, you have accepted to bear the liabilities and debts that such a person owes or may owe someone else. And, once the person you guaranteed fails to pay, it becomes your duty to pay and going to court against you is an option. A guarantor is never free until the person he guaranteed pays all debts guaranteed or he pays such himself.
My authorities are the judgements of the Supreme Court and Court of Appeal in the following cases;
1. CROWN FLOUR MILLS LTD. V. OLOKUN (2007) ALL FWLR (PT. 393) 24 AT 62, PARAS. G – H (CA)
2. FORTUNE INTERNATIONAL BANK PLC V. PEGASUS TRADING OFFICE (GMBH) & ORS. (2004) LPELR-1288(SC)
3. CHIEF PETER AMADI NWANKWO & ANOR V. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U.A(2007) LPELR-2108(SC)
4. AFRICAN INSURANCE DEV. CORP. V. NIGERIAN LIQUIFIED NATURAL GAS LTD. (2000) 4 NWLR (PT. 653) 494.
5. ALHAJI IBRAHIM GAJIMI v. FIRST BANK OF NIGERIA PLC (2018) LPELR-43996(CA)
A surety is a person who undertakes to take responsibility for a person accused of a crime not to violate the terms of their bail.
In fulfilling the conditions for a bail, a surety may be required to provide security in form of money/properties known as bail bond in order to secure the temporary release of the suspect, and to guarantee that the accused will honour the terms of bail agreement by appearing in court when required, and fulfilling any other condition stipulated.
A surety or all sureties in a recognizance may apply at any time to discharge themselves from a bail agreement.
Thus, it is possible to stop acting as a surety for an accused person if you so desire. The implication of this is that the defendant will be re-arrested to find other sufficient sureties or meet some other conditions.
At the end of a trial a surety has a right to retrieve any money or security they may have deposited on behalf of an accused person as long as the accused person abides by the terms of the recognizance.
Section 165(3) of the ACJA states that the money or security deposited shall be returned to the defendant or his surety or sureties, as the case may be, at the conclusion of the trial or on an application by the surety to the court to discharge his recognizance.
A surety has a right to be heard before the court forecloses his security. Thus, before a bail bond can be forfeited as a penalty, you have a right to make a case before the court why it should not be forfeited. A surety has the right to appeal to a higher court if he is dissatisfied with the order of forfeiture made by the lower court.
If the accused jumps bail or breaks any of the terms stated in the recognizance, the surety is obliged to pay the sum stated in the recognizance/ bail bond. If the surety fails to pay the penalty, the court may proceed to recover the penalty proceedings for recovery of fines in the ACJA. If the surety fails to pay the penalty and cannot be recovered from the surety, the surety shall be liable to imprisonment for a term not exceeding six months.
If the surety dies after he or she is liable to pay the bail, his estate becomes liable for the amount to be paid. Therefore, if the surety dies before any form of liability arises, the court may order the re-arrest of the accused or that fresh recognizance be made with or without sureties.
When talking about surety especially within the context of what is obtainable in our court, there are rights and obligations.
A surety plays a huge role in bail agreement as the provision of sureties may be one of the conditions to fulfil in the process of securing the release of an accused.
Section 167 of the Administration of Criminal Justice Act states that a defendant admitted to bail may be required to produce such surety or sureties as, in the opinion of the court, will be sufficient to ensure his appearance as and when required.
Before you stand as surety in court, you are told of the consequences of what you want to do and once the contrary happens, you face the consequences.
Before we go into whether a surety has rights under our law or not there is the need to understand who a surety is under the law, particularly the criminal law.
Black’s Law Dictionary (10th Edition) defines “surety” as “… someone who is primarily liable for paying another’s debt or performing another’s obligation”.
In the case of bail, the surety undertakes to provide security for the release of the accused and the promise that the accused honours the terms of the bail agreement by appearing in court as required.
If the accused absconds or “jumps bail” then the surety forfeits the security he provided for the bail.
In Nigeria, whenever an accused person or defendant “jumps bail” the police usually resort to arresting the surety and hurriedly arraign him before the court. In some instances, even without being allowed to explain himself he is sent to jail meanwhile the proper order to be made by the court ought to be the forfeiture of the bond or money he undertake to pay if the accused jumped bail.
In line with the above legal anathema, there is the need to state the rights of a surety under the law. First and foremost, if the accused person or defendant misbehaves or no longer trustworthy, a surety can at anytime request that he no longer desires to act as surety to such an accused person on bail. The Court is bound to grant such application and discharge the surety from all obligations pertaining to the accused person’s bail.
Secondly, a surety has the right to retrieve any money or security deposited by him on behalf of an accused at the end of a trial so long as the accused abides by the terms of the recognizance and did not jump bail. Thirdly, a surety has the right to be heard before the court forfeits his security. This shows that the surety’s right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended must be respected.
Furthermore, a surety has the right to appeal an order of forfeiture if he is dissatisfied with the order of the court. Finally, a surety also have all the rights guaranteed in the 1999 Constitution of the Federal Republic of Nigeria(as amended) including the rights to freedom of movement and personal liberty. He cannot be detained for his inability to produce the accused person. The law will have to take its full course before he could lose those rights mentioned above.