EXPLAINER: How monetary bail works in Nigeria and where all the money goes

EXPLAINER: How monetary bail works in Nigeria and where all the money goes

Hardly a week passes without the arraignment of a defendant in criminal-related cases in a Nigerian court.

From corruption and money laundering cases to terrorism and cybercrime prosecutions, courts often admit defendants to bail in sums running into tens or even hundreds of millions of naira.

Over the years, Nigerians have witnessed the arraignment of several prominent persons who have been granted bail on stringent terms, including high monetary conditions.

Recently, Abubakar Malami, former attorney-general of the federation, was granted bail in the sum of N500 million in his money laundering trial.

Godwin Emefiele, former Central Bank of Nigeria (CBN) governor, was admitted to N300 million bail in one of the corruption cases against him. Yahaya Bello, former Kogi governor, was granted N500 million bail in his alleged N80.2 billion fraud trial, with each defendant required to produce sureties in like sums.

The figures often dominate headlines and spark public debate. When a court fixes bail at N500 million or N1 billion, many assume the defendant must immediately pay that amount into the court’s account.

But what really happens when a defendant is granted monetary bail?

BAIL AND CONDITIONS

According to Black’s Law Dictionary, to bail is “to obtain the release of (oneself or another) by providing security for a future appearance in court”.

Simply put, bail is the temporary release of a defendant from custody pending the determination of a criminal case. Its purpose is to secure the defendant’s attendance in court while preserving the constitutional presumption of innocence.

Although the 1999 Constitution of the Federal Republic of Nigeria does not provide for bail in express terms, Section 35(1) is often invoked, which guarantees the right to personal liberty. Similarly, Section 36(5) of the Constitution states that: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

 

The Administration of Criminal Justice Act (ACJA) 2015 provides the framework for granting bail in federal criminal cases. Section 158 of ACJA stipulates 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.”

Although bail and the terms attached to it are at the court’s (judge’s) discretion, that discretion must be exercised judicially and judiciously. This simply means that the court must consider the facts of every case and the materials which have been placed before it by the accused before deciding whether or not to grant the accused person bail.

Most times, a defendant admitted to bail may be required to produce such a surety or sureties who undertake to ensure that the defendant appears in court whenever required.

And a bail bond (financial guarantee) is often attached to the conditions.

 

DOES A DEFENDANT PAY THE BAIL BOND?

Contrary to widespread belief, defendants do not usually pay the bail bond fixed by the court.

Where a judge grants monetary bail, the court expects the defendant to produce one or more sureties whose financial worth corresponds to the amount fixed.

Courts may also impose additional conditions, including ownership of landed property within the court’s jurisdiction, tax clearance certificates, verification of addresses or other documents demonstrating financial capacity that is equivalent to the bail bond.

Albert Akaahs, a litigation lawyer, said, “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 the bail bond is simply to ensure that the surety “is creditworthy to the tune of whatever amount that the court sets”.

“So, that person is creditworthy and can forfeit that amount in the event that the defendant is not available to answer to his charges.”

The lawyer noted that the court verifies sureties by examining the documents they submit to ensure they are genuine and meet the bail conditions set by the judge. Court officials, usually the registrar or other court staff, review the sureties’ identification, financial records, and any supporting documents.

“To assess a surety’s financial capacity, the court may consider bank statements, investments, or ownership of valuable assets such as property. Where the bail conditions require a property owner with a Certificate of Occupancy (C of O) within the court’s jurisdiction, the surety must prove ownership of a verifiable property that is still registered in their name and has not been sold,” he said.

However, there are rare exceptions where a court may demand that the money be paid in an account that won’t be touched pending the determination of the case.

Legal practitioners say cash deposits are more common in lower courts or in cases where the judge specifically considers such a condition necessary.

According to Igho Ogedegbe, a legal practitioner who heads the Abuja office of J.E Ogedegbe and Associates, such scenarios exist.

“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.

If the defendant complies with all bail conditions and appears throughout the trial, the security or bond, if deposited, is returned at the end of the case, whether or not the defendant is convicted.

WHEN IS THE BAIL BOND FORFEITED AND WHERE DOES IT GO?

Where a defendant fails to appear in court without lawful justification, the court may revoke the bail and issue a warrant for the defendant’s arrest.

Contrary to common misconceptions, a surety is not liable to arrest when a defendant jumps bail.

He or she is only required to forfeit the security or bond entered into for the defendant. Even at that, the forfeiture is not automatic.

The court summons the surety to explain why the security or bond should not be forfeited.

If the court is not satisfied with the explanation, it may order the forfeiture of the money or other security pledged by the surety (Section 179 of ACJA).

The surety may, however, be liable for arrest and may be docked if he or she fails to show up in court or to make the forfeiture. He also stands the risk of imprisonment for up to six months.

Also, when the bond is forfeited, the money goes to the federal government treasury or state treasury depending on where the case is heard.

THE MAINA/NDUME EXAMPLE

In June 2020, Ali Ndume, senator representing Borno south, stood surety for Abdulrasheed Maina, former chairman of the Pension Reform Task Team, who was facing corruption charges.

As part of the bail conditions, Ndume entered into a N500 million bail bond and presented a house in Abuja’s Asokoro district as security.

Maina eventually stopped showing up in court in September 2020 and later fled the country.

On October 2, 2020, Ndume told the court that he did not know the whereabouts of the defendant. The judge gave Ndume 21 days to produce the defendant or face the consequences.

In November 2020, the court ordered that the senator be remanded in Kuje prison until he produced Maina or sold his N500 million worth of property in Abuja, which was used as the guarantee for the bail bond.