What surety means
A surety guarantees a defendant's attendance.
When a court grants bail, it usually requires the defendant to provide one or more sureties. The surety enters into a recognisance, an undertaking to the court, binding themselves in a stated sum to produce the defendant when required.
If the defendant attends as required, the obligation is discharged and nothing is paid. If they abscond, the court can order the sum forfeited, and the surety pays.
That is the essential point people miss. Standing surety is not signing a form. It is accepting a financial obligation conditional on somebody else's behaviour, and the person accepting it should understand what they are taking on.
The purpose is to secure attendance without keeping an unconvicted person in custody, which is why the constitutional presumption favours bail and why conditions must be reasonable.
How it is used
Courts set conditions when granting bail, and the surety requirements are part of them.
Common requirements are that the surety must be resident within the jurisdiction, must be gainfully employed or able to show means, must provide evidence of address and identification, and in more serious matters must own landed property within the jurisdiction and produce the title documents.
The surety attends court, is verified, and enters into the recognisance.
During the case, the surety's practical obligation is to know where the defendant is and to ensure they attend. A surety who loses contact with the defendant should tell the court rather than waiting, and can apply to be discharged from the recognisance.
If the defendant absconds, the court initiates forfeiture proceedings, and the surety is called upon to show cause why the sum should not be forfeited. A surety who genuinely could not prevent it and who cooperated may be treated more leniently than one who was indifferent.
The practical advice for anybody asked to stand surety is to consider whether you actually know the person well enough to be confident they will attend, because that is precisely what you are guaranteeing.
Key features
- Undertakes to produce a defendant released on bail
- Enters a recognisance binding them in a stated sum
- Nothing is paid if the defendant attends as required
- The sum can be forfeited if the defendant absconds
- Conditions commonly include residence, means and sometimes landed property
- A surety can apply to be discharged from the recognisance
How this works in Nigeria
Excessive bail conditions are a persistent Nigerian problem, and it is worth knowing that they are unlawful rather than merely unfair.
The Constitution and the Administration of Criminal Justice Act 2015 both address it. Bail conditions must not be excessive, and the Act provides that a person granted bail should not be subjected to conditions that are impossible to meet. Where conditions are so onerous that the defendant cannot satisfy them, the effect is to deny bail that was formally granted, and that is challengeable.
Requirements that a surety be a civil servant of a particular grade, or own property in a specific location, have been criticised as excluding defendants from bail they were entitled to.
A defendant who cannot meet conditions can apply to the court to vary them, and that application is the correct response rather than paying somebody to stand surety.
That brings the second Nigerian problem: professional sureties. People who stand surety for a fee, sometimes repeatedly, operate around court precincts. Using one exposes a defendant to a person with no real connection to them and no reason to ensure attendance, and courts disapprove of the practice.
For the surety, the practical warning is simple. The obligation is real, forfeiture proceedings do happen, and a person who stood surety for an acquaintance who then disappeared can find themselves before the court explaining why they should not pay.
Surety vs guarantor vs bail bond
Three related commitments in different contexts.
A surety in a criminal matter undertakes to the court to produce a defendant, binding themselves in a stated sum which can be forfeited if the defendant absconds. The obligation is to the court, not to a private party.
A guarantor in a commercial context promises a creditor that they will pay if the borrower does not. The obligation is contractual and it is enforced by the creditor.
A bail bond is the instrument recording the recognisance, setting out the sum and the conditions on which the defendant is released.
The common feature is standing behind somebody else's obligation. The critical difference is that a surety is answerable to a court for a person's attendance, which is not something the surety can control by paying anything in advance.
Limits and risks
The obligation is real and it is not always appreciated at the time, which is why forfeiture proceedings surprise sureties.
Conditions can also be excessive in practice, and challenging them requires an application that many defendants do not know they can make.
A surety has limited practical control. They cannot detain the defendant, and their only real remedy if they become uneasy is to apply for discharge.
And the system depends on people with means and standing being willing to come forward, which disadvantages defendants without such connections and is a recognised source of unequal access to bail.
Worth knowing
Do not stand surety for somebody you do not know well. The undertaking binds you in a stated sum, forfeiture proceedings are real, and a Nigerian surety whose defendant disappeared is left before the court explaining why they should not pay it.
Questions people ask
What does a surety do?
Undertakes to the court to produce a defendant released on bail, binding themselves in a stated sum. Nothing is paid if the defendant attends as required.
What happens if the defendant absconds?
The court can initiate forfeiture proceedings, calling on the surety to show cause why the sum should not be forfeited. A surety who cooperated and genuinely could not prevent it may be treated more leniently.
What conditions are usually imposed?
Residence within the jurisdiction, evidence of employment or means, identification and proof of address, and in more serious matters ownership of landed property within the jurisdiction with the title documents produced.
Are excessive bail conditions lawful?
No. The Constitution and the Administration of Criminal Justice Act 2015 address excessive conditions, and conditions so onerous that they cannot be met effectively deny bail that was granted. The remedy is an application to vary them.
Can a surety withdraw?
Yes. A surety who has lost contact with the defendant or become uneasy can apply to the court to be discharged from the recognisance rather than waiting for something to go wrong.
Should I use a professional surety?
No. People who stand surety for a fee have no real connection to the defendant and no reason to ensure attendance, courts disapprove of the practice, and it exposes the defendant to somebody they do not know.