In deciphering the concept and practice of bail, two key words require definition. These are “surety” and “recognizance”. “Surety” means a formal assurance especially a pledge, bond, guarantee, or security given for the fulfillment of an undertaking “Recognizance” on the other hand is a bond or obligation, by which a person promises to perform some act or observe some condition, such as to appear when called, to pay a debt, or to keep the peace; specifically, an in-court acknowledgement of an obligation in a penal sum, conditioned on the performance or nonperformance of a particular act.
The definition ascribed to “bail” is combinative of the elements in the key words above. “Bail” is thus defined as the process by which a person is temporarily released from custody either on the undertaking of a surety or on his or her own recognizance. It is the release of a person in custody on security for a future appearance; especially the delivery of a person in custody to a surety.
In the case of Ojo v. F.R.N. (2006) 9 NWLR (Pt.984) pg. 103 the court defined “bail” thus: Bail, generally, is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties, and is accounted by law to be in their custody, though, they may, if they will surrender him to the court before the date assigned and free themselves from further responsibility. In the case of Onyebuchi v F.R.N & Ors. (2007) LPELR-4134(CA), the court defined it thus: Bail is the process by which an accused person is temporarily released from state custody to sureties on conditions given to ensure his attendance in the Court whenever he is required until the determination of the case against him.
Is Bail Free in Nigeria?
A common and vexed issue when it comes to bailing is this: is bail free? In other words, do you pay money for bail? The issue of (deposit of) money is mentioned in Section 165 (2)&(3) of the Administration of Criminal Justice Act 2015 thus:
(2) The court may require the deposit of a sum of money or other security as the court may specify from the defendant or his surety before the bail is approved. (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. The other time money issue may rear its head in the bail process is when the court orders a forfeiture of the recognizance under Section 179 of the Administration of Criminal Justice Act 2015, in which case the court may call upon any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid. Aside from the above provisions, there are no rules that make the payment of (nonrefundable) money a condition precedent before bail (whether police or court bail) is granted. It is not unlikely that in the course of fulfilling the bail conditions, the monetary expense could be incurred. It is thus opined that though bail is free, the perfection of bail is not necessarily free! This, of course, depends on the type of bail conditions.