By virtue of Section 164 (1) of the Ondo State Administration of Criminal Justice Law of 2015, a Surety can at any time withdraw his bail bond for a defendant. It is imperative to state however, that before such surety can withdraw his bail bond, there are certain conditions to be met .
Bamidele Kolawole
The Administration of Criminal Justice Act 2015 under section 177(1) gives the surety right to withdraw his bond or recognizance to be taken to discharge the bond. Sub section 2 of the same section prescribes the procedure for such discharge.
However, the conditions upon which a surety can apply for such discharge is stated in section 178 of the Act and also in the case of Onyebuchi v FRN. These include; where the surety becomes insolvent or dies or where the recognizance is forfeited.
Now the point in which a surety can withdraw his bail bond is that, he can do so at anytime but before judgement is given in the matter.
A Surety is a person who undertakes to provide security in form of money or properties (bail bond) for the impermanent release of a principal or person accused of a crime.
A surety is a guarantee that the accused person will honour the bail conditions and will be present in court before the determination of his case. Section 167 ACJA provides, ”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 when required”.
A Surety can apply to court to be discharged as a surety. Section 177 of the ACJA, “All or any of the sureties to a recognizance may at any time apply to the court which caused the recognizance to be taken to discharge the bond either wholly or so far as relates to the applicant”.
Once a surety is not always a surety and upon such application for a discharge, the court can issue an order for the re-arrest of the defendant on whose behalf the recognizance was executed. The defendant can also provide for another surety in order to continue to enjoy the bail order in his favour.
The surety can apply for such withdrawal or discharge where he probably believes that he has no faith in the accused and hence he wants to withdraw his surety given by him in favour of the accused.
He can do this at any time before the determination of the case of the defendant. Section 165(3), “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”.
Thus, after such discharge is granted, he can stop acting as a surety for the defendant with a right to retrieve any money or bond entered on behalf of the defendant.
Perhaps, where he becomes suspicious of the defendant’s intention to jump bail, a surety can by way of an application to the court inform the court if he is aware that the defendant plans or seeks to leave the jurisdiction or district of the court which he is normally to appear or he intends to abscond from the country for the purpose of evading justice.
This can culminate to his decision for withdrawal as a surety for the defendant. See the case of EFCC V Fani-Kayode where the surety applies to withdraw.
The duty of a surety in criminal trial is to ensure that the Defendant attends Court for his trial regularly.
A surety will enter a recognizance with a promise to produce the defendant in court each time his attendance is required in Court otherwise, the surety will forfeit the amount stated in the bond or recognizance.
A surety will not have anything to worry about as long as the defendant is attending court regularly and whenever he is needed to face his trial.
The moment a Defendant failed to show up in court then attention will be shifted to the surety to produce the defendant in court.
The surety will then employ all legal means to produce the defendant in court. Having succeeded in bringing the defendant back to court, the surety can then withdraw his suretyship as he could no longer vouch for the defendant again.
By virtue of section 164 (1) of the Ondo State administration of Criminal Justice Law of 2015, a Surety can at any time withdraw his bail bond for a Defendant.
It is imperative to state however, that before such surety can withdraw his bail bond, there are certain conditions to be met and these include
Firstly, he/she has to bring an application for the discharge of his bail bond.
Secondly, the court shall issue a warrant for the arrest of the Defendant.
Thirdly, the arrest must be effected and such Defendant must appear in court.
Upon the fulfilment of the aforementioned conditions, the court shall go ahead to discharge the Surety as provided for in Section 164 (2) of the Ondo State Administration of Criminal Justice Law, 2015, which of course is akin to the grant of the withdrawal of the Surety’s bail bond for the Defendant.
What this entails is that all those conditions must met simultaneously otherwise, the Surety will not be discharged of his bail bond rather he would be under an obligation to show cause why his bail bond should not be forfeited. However, according to Section 166(2) & (3)of the Ondo State Administration of Criminal Justice Law, 2015, where he fails to show sufficient cause why his bail bond should not be forfeited, and also fails to pay the penalty, the court may proceed to recover the sum contained in the bail bond from the person bound (surety) or his estate where the surety dies after the bond had been forfeited.
“The relationship between the court and the surety 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 the bail bond is forfeited”
This notwithstanding, the bottom line is that a surety can at any time withdraw his bail bond for a Defendant upon the fulfilment of certain conditions previously mentioned at beginning of this discourse.
Bail is the process whereby a person accused or being charged for the commission of an offence is released by the constituted authority before whom he/she is being detained, on the condition that the accused/suspect appears or reports to the police station or court or other identified location in future whenever his/her presence is required or so ordered.
We have two broad types of Bail in Nigeria;
a) Police Bail- As the name suffices is mostly granted by the police based on Insufficient evidence against the suspect as at the time of arrest and in compliance to Section 35 (a)&(b) of the 1999 CFRN as amended, which makes it illegal and unconstitutional for a suspect to be detained for more than 48 hours without being charged to court or granted Bail.
2. Court Bail- This type of Bail is categorised into two, namely Bail Pending Trial and Bail Pending Appeal.
It is imperative to say both categorise of Court Bails are mostly granted in non-capital offences, and can be granted in capital offences at the discretion of the court. This is done in accordance with the provisions of Section 36(5) of the 1999 CFRN as amended.
Bail is not automatic, certain spelt our conditions must be met before an accused person or suspect can be granted Bail and one of it is production of a surety.
Mere appearance in court or at the police station on behalf of a defendant/accused person/suspect does not qualify one a surety. Anyone who wishes to stand as surety for another must do so by entering a bail bond.
A surety is a person who undertakes legal responsibility and security for the release of a defendant on the promise that such defendant(s) will honour the terms of bail agreement by appearing in court or police station as at when required.
The importance of bail cannot be overemphasised and sureties play crucial role in bail process.
A surety can withdraw his bail bond for a defendant in the following instances;
a) when the surety reasonably believes the accused person/suspect plans on jumping bail, either by leaving the country or the jurisdiction for court.
b) when the surety believes his life is in danger, by merely standing surety for the accused person/suspect.
c) A surety can at anytime request that he/she no longer desires to act as surety to an accused person/suspect, by making an application in writing to court or police station or law enforcement agency before whom the bail bond was entered, which must contain cogent reasons for the bail bond withdrawal.
The accused is always required to produce a surety, who will equally be required to enter into a bond in a specified amount of money usually in the sum to which the accused has bound himself – this is one of the conditions necessary for granting bail.
Bail is a constitutional right of the accused person which is subsumed in Sections 35 & 36(5) of the 1999 Constitution of the Federal Republic of Nigeria as amended (Right to personal liberty and presumption of innocence but the court has the discretion to grant or refuse bail.
Therefore, the surety by entering into this bond undertakes to pay the sum to which he is bound if the accused fails to appear in court or in a designated place unless he can show cause why he should not be made to pay. He / She signs some bail bond or papers in court, which depicts the identity and commitment to be bound.
Sufficiently, there is no special requirement to which someone can stand a surety, it has no requirement, for anyone to be qualified to stand a surety, the person only needs to be a :
Person of good character
Person of a known address
Person acceptable to court
Person of certain financial capacity
A woman must not be prevented to stand surety as well, this may be seen as a discrimination against the right of the womenfolk, however, if there is a specific demand from the court, the women can then be excused.
It is a primary duty of the surety to always ensure the presence of the accused in court at all times the court is sitting on the matter, if otherwise, the accused is absent in court, the surety may forfeit his bond, most especially, the bond sum but the surety is not to be remanded for the failure of the accused person in court.
However, the surety can withdraw before the determination of the suit, there is no law binding him/her till eternity or till the determination of the suit, the implication is just on the suspect, the suspect will have to provide another surety whose identity will be verified as soon as possible, otherwise, he / she will have to be remanded until another surety could be provided whose address would have been verified. This is because a suspect can be at large, that is, run away and avoid standing trial for the alleged offence committed.
A surety under Criminal Procedure, is someone to whom a defendant is released on Bail with conditions that,after entering Bond,the surety will ensure that the Defendant attend Court as at when required.
Section 155 of the Administration of Criminal Justice Law, of Ondo State 2015, provides for surety while Section. 163 talks about discharge of surety.
A Suretyship can be withdrawn either by operation of Law or by discontinuance. Withdrawal of surety by operation of Law can be by successful concluding trial or by the death of the defendant, or by forfeiture of Bond by the surety depending on the preceding event before the Legal determination of the Suretyship.
On the other hand Suretyship could be withdrawn by the surety during the Pendency of the trial before Judgment is entered in the case,if the surety approached the Open Court while proceeding in that very case is on going and announce the withdrawal to the court with reasons.
At that point, the earlier Bail granted to the Defendant on the basis of the surety is revoked, consequently, a new surety will be required to re-secure the Bail for the Defendant’s temporary freedom, to enable him or her prepare for the defense.
Summarily, withdrawal of surety must be before the conclusion of trial and Pronouncement of Judgment. otherwise, Pronouncement of Judgment will automatically discharge the surety.
A surety’s role is very important in a bail process because of the risk associated with an accused being set free while his case is pending. The surety is therefore a means of ensuring that the accused enjoys his rights under the Constitution with a reduced risk of the accused escaping prosecution. This role obviously then has a lot of rights associated with it, these rights include:
1. A surety can at anytime request that he no longer desires to act as surety to an accused person on bail. This right is contained under section 177 of the ACJA which provides that at any time within the duration of the case, a surety may request that he be discharged from the bail bond and after which the court will order for the re-arrest of the accused.
2. A surety has the right to retrieve any money or security deposited by said surety on behalf of an accused at the end of a trial so long as the accused abides by the terms of the recognizance. This is provided for under Section. 165(3) of the Act.
3. A surety has the right to be heard before the court forfeits his security according to Section. 179(1) which provides as follows:
Where it is proved to the satisfaction of the court by which a recognizance has been taken or, when the recognizance bond is for appearance before a court and it is proved to the satisfaction of the court that a recognizance has been forfeited, the court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or show cause why it should not be paid.
Even before the enforcement of the Act, there was sufficient case law that guaranteed this right, such as Amadu Tea v. Commissioner of Police (1963) N.N.L.R. 77, where the court held that courts must give a surety fair hearing before a bail bond can be forfeited.
4. A surety has the right to appeal an order of forfeiture if he is dissatisfied with the order of the court this is provided for under section 186 of the Act, which provides that “an order of forfeiture made under this Act shall be subject to appeal.”
5. The surety also has 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.
The role of a surety in a bail system was explained by the Nigerian Supreme Court in Suleman & Anor v. COP Plateau State (2008) LPELR-3126 (SC); (2008) 2-3 S.C (Pt. 1) 185, thus
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.
Thus, a surety is someone who agrees to take responsibility for a person accused of a crime while out on bail. Being a surety is a serious commitment. Either at the investigation stage, pre-trial level or at trial proper, bail is granted to a suspect or an accused person subject to terms and conditions specified for the bail.
A surety can withdraw his bail for a defendant under two of three situations. One, where the defendant appears in Court or before the security agency that granted him bail and the surety informed the Court that he is no more willing to continue as surety for the defendant or suspect for whatsoever reason.
However, the defendant must be in Court or produced before the security agent by the surety under this situation before he can withdraw his suretyship and get release from his bail bond.
Secondly, the surety can withdraw his suretyship and bail bond where the defendant is arrested for another offence and he is facing another trial before the same Court or the same agency. In that case, the surety will apply to the Court or the agency of government for the leave to withdraw his surety.
Thirdly, where the bail is cancelled because the defendant failed to appear to face his trial, and the surety show enough cause while his bail bond should not be forfeited. The proper procedure to be followed before a surety can be made to forfeit his bail bond has been judicially established. (See FRN v. Alh. Abubakar Maishanu (2019) supra, Ratio 11.) The procedure is as follows:
1. The order granting bail to the accused must be exhibited;
2. The bail bond executed by the surety must be exhibited;
3. The surety must be given an opportunity to show cause why the bail bond should not be forfeited i.e., he must be informed of exact nature of the breach complained of and given an opportunity to give evidence, call witnesses or give an explanation himself from the dock. Once he is clear ed by the Court, the surety can withdraw his suretyship and he will be released from the bail bond.
And where the surety proved to the satisfaction of the Court that the defendant has died: he is automatically relief of his suretyship and discharged from bail bond once he proved to the satisfaction of the court that the defendant has died. It is only the living that can face trial.
In conclusion, the only yardstick to measure the suitability of a citizen as a surety should be credibility, respectability and presumed responsibility to produce the defendant released on bail to appear whenever his appearance is required.
Because everything about suretyship is contractual, a surety can withdraw from the liability of suretyship provided he produced the defendant before the authority that granted the bail or is able to prove that the defendant is no longer existing.
A surety can withdraw his / her suretyship for a defendant at any point before judgment but such surety must ensure that he/ she must reproduce the defendant before the court before he or she can be allow to withdraw the suretyship.
Consequently, the defendant will have to produce the replacement will have to produce a replacement.
