For years, many Nigerians, who are arrested by the police or standing trial in court, often encounter bail as a condition to get a temporary release from the clutches of the law.
Recently, a social media user on X, @Chudy_jnr, asked what would happen if a person with a court case and a N5 million bail charge was found not guilty and acquitted.
The X user asked whether he would be refunded the bail money, whether the money would still belong to the court, or whether whoever sued him would pay it back to him.
As part of DUBAWA’s commitment to Media and Information Literacy (MIL) and the promotion of factual information, we wrote this article to dissect the issue and the law’s stance concerning it.
What does the law say about bail?
Bail may be described as the temporary release of a person arrested or detained for an alleged offence from the custody of the police or court of law. It is usually secured by paying a stipulated amount of money or by a promise or guarantee that an accused will appear whenever he is needed in the course of an investigation or trial. If the person fails, the money can be forfeited.
If someone is granted bail, they are either released on a surety or on personal recognisance, with conditions set by the police or the court, as the case may be.
Bail also falls into three types: bail by the police pending investigation, bail by the court pending trial, and bail by the court pending appeal.
DUBAWA checked the provisions of the 1999 Nigerian Constitution, and found that Sections 34 and 35 of the principal law provide for the freedom of the human person and personal liberty for all Nigerian citizens.
Additionally, a review of multiple journal articles shows that the right to bail is derived from the Constitution, particularly its Section 36(5), which states that every person charged with a criminal offence shall be presumed innocent until proved guilty.
In response to the X user’s question, DUBAWA’s further research establishes that, whether it is administrative police bail or court bail, once an accused person is found not guilty and acquitted, the money that forms part of their bail terms is refunded. Such a person could contact the leadership of the police command or the court’s registry to seek a refund.
What lawyers say
Ifeoluwa Olayiwola, a lawyer in Abuja, said that Nigerian laws provide a timeframe for the release of persons arrested by the police without a warrant during an investigation. Ifeoluwa said the timeframe is usually between 24 and 48 hours.
“It has become almost impossible to detain an arrested person beyond the time allowed by the law. If the police arrest someone, they have to arraign them in court if the court is within a reasonable radius of their station. Otherwise, the police must grant them bail,” she told DUBAWA.
The lawyer also mentioned that bail by the police, pending investigation, is free, as the law stipulates; however, in practice, it is not.
“In Nigeria, the law says that bail is free. You are not entitled to pay any money to anyone because of bail, but you know how Nigeria is, you know how we play politics around things. There’s no way you’ll go to the police without paying a dime.”
Speaking further, Ifeoluwa said that a person standing trial in court may be released if he fulfils the bail conditions in his warrant. She added that if the person jumps bail, the law will require him to forfeit the money he paid, and his surety will be held liable.
“It means that the money would become a state property if the person jumps bail. And this money does not go to any court official but the government,” she explained.
When can bail money be recovered or forfeited?
Reacting, Mustapha Toheeb, a Lagos-based lawyer, said that an acquitted person can recover the money paid as part of his bail condition once the purpose for which it was deposited has been fulfilled.
He said the purpose of bail is not to punish an accused person or to generate revenue for the government, but to ensure the accused person’s attendance at trial.
“Once he attends court as required, and the criminal proceedings come to an end, whether by acquittal, discharge, striking out of the charge or otherwise, the money deposited as bail should be returned to the person entitled to it, provided there has been no order of forfeiture because a bail bond is not intended to become state property,” he said.
Mustapha banked on Section 32(2) of the Administration of Criminal Justice Act (ACJA); Jim-Jaja v. Commissioner of Police and Augustine Eda v. Commissioner of Police (1982), where Nigerian courts have repeatedly condemned the collection of money for bail in the nation.
However, the lawyers told DUBAWA that there are instances where bail money can become state property through forfeiture.
According to the lawyers, the bail money may be forfeited if the accused jumps bail, fails to appear in court without a lawful excuse, or the court invokes its powers to forfeit the recognisance or bail bond.
They noted that Nigerian courts have the power under the various criminal procedure laws and the ACJA 2015 to forfeit bail bonds when conditions attached to such bail are breached.
Another lawyer, Kawthar Omisore, an associate at Afe Babalola & Co., stated that an individual who has been compelled to pay money to obtain police bail can seek remedies to recover the money, as the practice contradicts legal principles.
These remedies include: seeking a court’s order directing the refund of any money unlawfully collected by the police, filing complaints with the Police Service Commission for disciplinary action against the officer(s) involved, and lodging a complaint with the Public Complaints Response Unit (PCRU) of the forces.
“The practice [of demanding money by the police to bail a person] itself is unlawful and contrary to established legal principles. It is well-known in law that where there is a wrong, there is a remedy,” Kawthar said.
Conclusion
DUBAWA’s findings show that Nigerian law treats bail as free. Hence, it should not attract any unauthorised payments. The legal experts said a person from whom money was unlawfully collected as a condition for bail may either demand a refund from the relevant police command or file a complaint with the forces’ complaints unit.
Additionally, our research establishes that bail security deposits should be refunded when bail obligations are fully met.