In criminal law and procedures, the right to bail either in the custody of any of the law enforcement agencies or in court or pending appeal is both a constitutional right and a statutory right pursuant to the provisions of the Administration of Criminal Justice Act, 2015-herein after referred to as ACJA. and several judicial authorities of courts too are on this subject matter of bail. Therefore, one of the conditions of bail has been that the suspect or the Defendant as the case might be shall produce a ‘surety’. Many times, some persons stand by as commercial surety who charge as much as N300,000.00 (less or more) before they can stand as surety. They achieve standing as surety with a lot of lies narrating to the law enforcement agency how they are related to the suspect or Defendant, whereas, they are not, while some who stand surety are either the suspect’s/defendant’s counsel representing him (which is unethical and unprofessional) or family relatives of such suspect/defendant. In some circumstances, the person that was suretied stands to jump bail (i.e. by absconding or running away from being found) and then the problem starts for his surety as the law enforcement agency continues to hunt him to produce the suspect/defendant and where he fails, he is even charged to court and or prosecuted. Such surety is even granted bail to produce surety to bail himself pending his trial in court. Then, he becomes a surety in need of surety! This paper is of the humble advice that it is high time for whoever that is called upon or that intends to stand as surety for a suspect/defendant to always reason or reflect on the negative consequences should the suspect or defendant jump bail, as even money cannot buy the freedom that would be missed or sacrificed in this kind of ugly and unfortunate situation.
First and foremost, the word ‘surety’ according to the Webster on-line Dictionary, means 1) Money that you give as a guarantee that you will do what you are legally required to do (such as to appear in court) 2.) Someone who agrees to be legally responsible if another person fails to pay a debt or to perform a duty’. Also see: the Black’s Law Dictionary Eighth Edition, at pages 1482 and 1483’.
From the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, section 35 is clear on the fundamental right of every suspect (or defendant as the case might be) to his bail thus ‘(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law — (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty ; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law ; (c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence ; (d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare ; (e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community ; or (f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto. Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence. (4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of— (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail ; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail ; he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. (5) In subsection (4) of this section, the expression ”a reasonable time” means— (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day ; and (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.’. And the relevant provisions of the ACJA are section 31(1) and Part 19 of the ACJA and there are judicial precedents on the issue of surety/bail too.
Furthermore, as earlier submitted that it is unethical and unprofessional for a lawyer to stand or offer himself as a surety for a person for whom he or a person in his law firm (whether lawyer or non-lawyer staff) is appearing, the provisions of the Rules of Professional Conducts for Legal Practitioners, 2007-herein after referred to as RPC in Rule 37(1), provides thus’ Where a lawyer undertakes the defence of a person accused of a crime, he shall exert himself, by all fair and honourable means, to put before the court all matters that are necessary in the interest of justice, but he shall not stand or offer to stand bail for a person for whom he or a person in his law firm is appearing’. (Underlining is mine for emphasis). It is also a form of misconduct by Rule 55(1) of the RPC. And it is submitted that it remains the professional duty of any lawyer who observes such breach to report same to the appropriate authority pursuant to Rule 55(2) of the RPC and in my humble view, this includes lawyers in the service of any of the law enforcement agencies or who is the prosecutor to report this unethical act of the lawyer for the suspect/defendant who stands surety for his client or who places himself out as a commercial surety depositing his call to bar certificates and other personal particulars to the appropriate authorities for necessary disciplinary measures.
Having said the above, it then shows that considering the repercussion or the consequences likely associated with standing as surety for a suspect or defendant, one needs to be very careful. Also, family or parents should now be able to train their children well as they grow up in life so that a brother will not put his merciful brother into trouble of needing surety just because he stood as a surety for his own biological or blood brother. At least, a word is enough for the wise!
Finally, it is important to state that I do not intend by this article to discourage anyone from standing as surety for another person, it is just to advise that care, consequential reasoning and deep thought should be considered before volunteering for this great task of surety in order to avoid finding oneself in a situation where there is trouble resulting from such surety that would make oneself to regret and be under the pressure of securing the surety of another surety so that he is not jailed. Also, some might think that they will scale through the questioning stage when the suspect/defendant is not found or jump bail. It might be very unfortunately sometimes that that surety’s family will have to be put through emotional and psychological trauma resulting from such irrational act of the surety who is their own relative and who has not committed any offence but is facing criminal prosecution because he suretied a suspect or defendant who has jumped bail. In fact, some might even lose their life in the course. So, it is enough and important to heed this good advice, with due respect!