For many Nigerians, the mention of a criminal case often brings another figure into focus alongside the charges — the amount attached to the defendant’s bail, which can run into hundreds of millions of naira.
Recent cases involving former Attorney-General of the Federation, Abubakar Malami, former Central Bank of Nigeria governor, Godwin Emefiele, and former Kogi State governor, Yahaya Bello, have drawn attention to monetary bail conditions of N500 million, N300 million and N500 million respectively.
Such figures, however, do not necessarily mean that defendants are expected to hand over the stated amounts to the court before they can regain their freedom.
At its core, bail is a temporary release from custody pending the determination of a criminal case, with the conditions designed principally to secure the defendant’s attendance whenever the court requires it.
Black’s Law Dictionary defines bail as “to obtain the release of (oneself or another) by providing security for a future appearance in court”.
The principle also operates alongside the constitutional presumption of innocence, with Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria providing that: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
Although the Constitution does not expressly provide for bail, Section 35(1), which protects personal liberty, is often invoked in matters concerning detention and release.
The Administration of Criminal Justice Act 2015 provides the framework for bail in federal criminal cases, and Section 158 states that “when a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this part, be entitled to bail.”
While a judge exercises discretion when determining whether to grant bail and what conditions should accompany it, that discretion is required to be exercised judicially and judiciously after considering the circumstances and materials placed before the court.
A defendant granted bail may therefore be required to provide one or more sureties who undertake to ensure that the accused returns to court whenever necessary.
What a monetary bail condition really means
A monetary figure attached to bail generally represents the financial obligation that a surety must be capable of meeting if the defendant fails to honour the conditions of release.
Litigation lawyer, Albert Akaahs, explained that the stated amount does not ordinarily have to be paid when the bail is being perfected.
“If the court makes a monetary demand or gives a monetary condition, it is not necessary that at the time of perfecting the bail that money be paid,” Akaahs said.
According to him, the essential requirement is that the surety must be financially capable of standing behind the amount fixed by the court.
“So, that person is creditworthy and can forfeit that amount in the event that the defendant is not available to answer to his charges.”
Courts may require evidence of financial capacity, including bank statements, investments, landed property, tax clearance certificates and verification of residential addresses, depending on the conditions imposed.
Where a property is required as security, the surety may have to demonstrate ownership of a verifiable property within the court’s jurisdiction, including proof that the property remains registered in the surety’s name and has not been sold.
The court’s registry or designated officials examine the documents presented by sureties before determining whether the conditions have been satisfied.
When cash may actually be deposited
There are circumstances in which a court may specifically direct that the monetary amount be deposited into an account pending the conclusion of the case.
Legal practitioner, Igho Ogedegbe, who heads the Abuja office of J.E Ogedegbe and Associates, said he had encountered such situations, particularly in area courts.
“I have seen such a scenario, especially in area courts,” he said.
“The court said they should deposit the money into an account provided by the registry of the court. So they would have to deposit the money. Once the obligation of appearing in court has been discharged, then of course the bail bond is also discharged alongside,” the lawyer said.
Where the defendant observes the bail conditions and attends court as required, any security or deposited bond is returned at the conclusion of the case, irrespective of whether the defendant is ultimately convicted.
What happens when bail is breached?
The consequences become different when a defendant fails to appear without lawful justification, as the court may revoke the bail and issue a warrant for the defendant’s arrest.
A surety is not automatically arrested simply because the defendant has absconded, but the financial security or bond entered into on behalf of the defendant may become liable to forfeiture.
The process requires the court to summon the surety and give the person an opportunity to explain why the bond should not be forfeited.
If the explanation is rejected, the court may order forfeiture of the money or other security under Section 179 of the ACJA.
A surety who fails to appear before the court or comply with an order to make the forfeiture may face arrest, be docked and risk imprisonment for up to six months.
Where forfeiture is ordered, the money is paid into the federal government treasury or the state treasury, depending on where the case was heard.
The Maina-Ndume case
A notable illustration came in the corruption case involving former chairman of the Pension Reform Task Team, Abdulrasheed Maina, in 2020.
Senator representing Borno South, Ali Ndume, stood as surety for Maina in June 2020 and entered into a N500 million bail bond, backed by a house in Abuja’s Asokoro district.
Maina stopped attending court in September 2020 and subsequently fled the country, leaving the court to demand an explanation from his surety.
On October 2, 2020, Ndume told the court that he did not know Maina’s whereabouts, after which the judge gave him 21 days to produce the defendant or face the consequences.
By November 2020, the court ordered that Ndume be remanded in Kuje prison until he produced Maina or sold the N500 million worth of property in Abuja that had been provided as security for the bail bond.
The case illustrates the practical significance of a bail bond: it is not simply a figure attached to a defendant’s release, but a financial undertaking designed to encourage compliance with the court’s requirement that an accused person remains available to face the charges against them.
