The absence of the leader of the Indigenous People of Biafra (IPOB) and director of Radio Biafra, Nnamdi Kanu, at the resumed hearing of his case on Tuesday has raised issues on the role of sureties and the principles of bail bond in criminal trial.
Following the absence of Kanu, who is standing trial over alleged treasonable felony, unlawful possession of firearms and criminal defamation alongside Chidiebere Onwudiwe, Benjamin Madubugwu and David Nwawuisi on October 18, prosecution counsel Magaji Labaran applied to have the bail revoked while a bench warrant is issued against him.
The prosecutor asked the court to order the three sureties of Kanu to appear in court to show why the bail bond of N100 million each shall not be forfeited to the Federal Government or be committed in prison.
In her ruling, Justice Binta Nyako summoned Abaribe and the other sureties to Kanu including Jewish High Priest, Immanuu-El Shalom and Abuja-based chartered accountant, Tochukwu Uchendu, to appear to explain his whereabouts to the court.
When Kanu’s lawyer, Obiechie Ogbonna, informed the court that the senator has no information about Kanu’s whereabouts after the military operation in the South East, including an application that the lawmaker has filed an application to be discharged from his suretyship of the defendant, the judge gave three situations available to the senator as a surety. According to the judge, it is either the surety produces Kanu and withdraws, forfeits the bail bond, or requests for time to produce him.
Based on the Kanu experience, the judge further took a swipe at many persons who stood surety without understanding the implications. Section 158 of the Administration of Criminal Justice Act (ACJA), 2015 provides that “When a person suspected to have committed offence or accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this Act, be entitled to bail.”
Section 167 of the Act also puts a stop to the resentment of would be female sureties. The section provides that “A person shall be denied, prevented or restricted from entering into any recognition or standing as surety for any defendant or application on the ground only that the person is a woman.”
Perhaps, the judge’s assertion arose from the habit of ‘professional sureties’ who undertake to stand surety for defendants without knowing them very well. These sureties of fortune or commercial sureties, who are found mostly in courts of summary jurisdictions, often volunteer their identification card and landed property documents to secure the bail of defendants for a fee. Although in some instances, the documents belong to a relative or acquaintance of the defendant.
Though a suspect can also be released on administrative bail by an investigating agency before they are charged to court, once they are charged, the court can decide the conditions of the bail to be either surety bond, self-recognizance, or property bond.
“The surety does not need to go to jail if the defendant absconds,” said a lawyer, who pleaded anonymity. He explained that bails are made to ensure suspects are released to return at a later date to face their trial. And these bails are in form of bonds, which may entail a deposit of a sum of money,” he said.
In his contribution, Barr Hamid Jimoh breaks the responsibilities of a surety to include: 1), administrative bail; 2), court granted bail bond. He said the role of the suety is determined by the following:
“In respect of 1) above, he is to ensure that the suspect is always produced as at when required, else, he shall forfeit his surety and be issued warrant of arrest and, or given the opportunity to produce the suspect at an assigned date.
“And in respect of 2) above, he is to produce the accused person/defendant on the adjourned date, if already granted court’s bail, else, he forfeits his surety and a warrant of arrest might be issued against him where both of them never appeared in court on the adjourned date,” he said.
“So, in my view, a surety should always appear in court on adjourned date especially where the accused/ defendant will not be in court to avoid a bench warrant being issued against him.
“On the principles of bail bond, this varies from each state depending on whether the ACJA (FCT and federal offences) or the criminal procedure code/law of the state. However, generally, there are some principles from decided judicial precedents and legal books espoused,” he added.
Also speaking, Barr Kelechi Udeoyibo explained that a surety should be somebody who knows the defendant very well and undertakes to produce him whenever the court demands.
He said the bail bond provides the sum of money as a bond, titles of landed property, or both. While explaining that if the defendant jumped bail, the surety is held liable, he added that the surety may not be held liable if some intervening factors prevents their fulfilment of that obligation.
“Force majeure can apply if there is an act of God either by way of death or disaster. It could be a reason why the surety goes to court to say, ‘well ordinarily I should have produced this person, but for this thing that happened, I don’t know where he is.’ Let me give you an example, if you have a hurricane or landslide and some people are declared missing, and you strongly believe that an accused person is one of the missing persons, that is force majeure. So, you can go back to the court and say because of this disaster, the defendant may have died in the disaster, so that the court will understand that,” he said.
“The bond you are entering into is not presented to the court, it is in the event the person jumps bail and the court confirms that he had jumped bail and you are now compelled to pay that amount,” he added.
24 October, 2017