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KNOW YOUR RIGHTS SERIES: Is Bail Actually Free in Nigeria? *what to know*

 

The Meaning of Bail

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.

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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:

Section 165

(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.

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