Should Lawyers Stand As Sureties For Their Clients? By: Abdulrasheed Ibrahim

There is this on-going debate among lawyers on whether it is
appropriate or not for lawyers to stand as sureties for their
clients.

This debate was brought to life by the recent face off between
Mr. Monday Ubani, a former Vice-President of the Nigerian Bar
Association (NBA) and the Economic and Financial Crime Commission
(EFCC). Mr. Ubani along with a former Senator of the Federal
Republic of Nigeria, Hon. Christopher Enai was detained by the
Commission for their failure to produce one absconded Dr. Ngozi
Olejeme, a former Chairman of the Nigeria Social Insurance Trust
Fund (NSITF) who was said to be involved in a N6.4 billion fraud
allegation her by the EFCC. The duo were said to have stood as
sureties for the woman now on flight.

For the benefit of the lay men, we must first and foremost look
at what BAIL, SURETY are all about. According to Mrs Oluwatoyin
Doherty, the learned author of the book : CRIMINAL PROCEDURE IN
NIGERIA- LAW & PRACTICE:

“Bail is the procedure by which a person arrested for an offence
is released, on security being taken for his appearance on a day
and place certain. The issue of of bail arises at three points in
the process of administration of criminal justice.Firstly, it
arises after a person arrested with or without a warrant of arrest
is taken to the police station.The officer in charge of the police
station may admit the suspect to bail pending further investigation
This is known as police bail. Secondly, it arises after a suspect
has been charged to court accused of committing an offence .The
accused may be admitted to bail by the court pending the final
determination of the case against him. This is known as court bail.
Thirdly, it arises after an accused person convicted of an offence
has filed an appeal against his conviction .The convicted person
may apply for bail pending the determination of his appeal.This is
known as court bail pending appeal.”

It must be noted that whenever the bail is granted, it always
goes with some certain conditions that must be fulfilled by the
accused person or defendant in which a surety must be involved.Our
leaned teacher and author continues:

“A person may be admitted to bail on conditions that he produces
one or more persons to enter into a bond for the stated sum.Such
person is known as a SURETY.The surety undertakes to pay the money
by which he is bound, if the person admitted to bail fails to
appear at the designated place.Bail granted on condition that the
person admitted to bail enter into a bond or provide sureties or
both,is known as bail on recognisance.”

It becomes very clear from the above like the day light that any
lawyer that offers to stand as surety for anybody or his client
should know for sure that he may be embarking on a journey of no
return because if the accused or the defendant he stands for
disappears into the thin air, he will surely blame himself for
rendering such assistance to such client.

On this issue involving Mr. Ubani, there has been a cold war
between the NBA and the EFCC after the arrest and detention of its
former Vice President who along with his co-surety engaged a lawyer
to file suit on their behalf for the enforcement of their
fundamental rights having being detained for several days without
being charged to court by the EFCC.An order of court subsequently
came ordering the EFCC to either charge them to court or release
them on bail. Until few days ago the EFCC seemed to be dragging its
legs to comply with the court order. According to the NBA in a
release:

“It has been 3 days after the order of the court was made and
the EFCC has characteristically shown daring disobedience to the
order of court by refusing to release Monday Ubani on bail or
charge him to court….The agency’s penchant for disobedience to
orders of court is an ominous threat to rule of law and impacts
negatively on Nigeria’s investment environment”

The EFFC on its part also did not maintain sealed lips as it
also fired back at the NBA that the association should review the
facts of the case rather than castigating it.That the order in
question was obtained ex-parte by Mr. Ubani’s counsel while their
were three pending applications to be argued before the court..
Citing Rule 37(1) of the Rule of the Professional Conduct which
says:

“Where a lawyer undertakes the defence of a person accused of a
crime, he shall exert himself, by all fair and honourable means, to
put before the court all matters that are necessary in the interest
of justice, but shall not stand or offer to stand bail for a person
for whom he or a person in his law firm is appearing”

Based on this provision of RPC, the EFCC said the NBA ought to
punish Ubani for what he did rather than vilifying it.With the
release of Mr. Ubani from the EFCC’s detention, he said the reason
for standing surety for his said client was because of the fact
that he was the one that advised her to return to the country to
honour the EFCC’s invitation and that the EFCC had done everything
to frustrate the bail of her client who ran away when the EFCC
invaded her residence.

This issue of Mr. Ubani standing surety for his client has
continued to generate controversies among lawyers. According to Mr.
Ubani and Senator Enai’s lawyer, Chief Mike Ozekhome,SAN in his
write up titled : “Monday Onyekachi Ubani and Hon. Christopher
Enai: When State apparatus is wrongly deployed to Persecute
Innocent Citizens”:

“…Mr. Ubani, a lawyer of many years standing .had in the course
of his professional duties and as a responsible man, stood surety
for his client as specifically demanded by the Acting Chairman of
the EFCC, Mr Ibrahim Magu, who had rejected two Civil Servants
earlier demanded by the same EFCC….Standing surety for a client who
has absconded without the surety’s knowledge is not a crime, but a
civil matter.To underscore that this is a civil case , the EFCC has
itself filed a motion before the same Justice Orji, to compel Ubani
and Hon. Christopher Enai to forfeit the bail bond of N1
Billion,they signed on behalf of their client.The present situation
is therefore akin to persecution and not prosecution…”

While some lawyers have argued that there is no big deal in
standing as sureties for their clients, some have held contrary
views and I must confess I belong to the latter school of
thought.Why must I stick my neck for a client in that
circumstances?Can you trust a client or anybody to that extent that
if you stand surety for him or her , he or she will not abscond and
put your own personal liberty at stake? Can you afford being
detained for 48 hours or more because your client whom you have
stood surety for has disappeared into the thin air? Can you afford
developing High Blood Pressure (HBP) and collapsing in detention
and subsequently rushing to the hospital to save your life? God
forbids, if surety gives up the ghost in that circumstance, will
the absconded client on flight not continue to breath on the
surface of the earth and continue to enjoy himself or herself ?
Where do I have such huge amount of money to forfeit to the EFCC?
Standing surety for a client in the course of my professional
duties, please count me out. Why? Because this is one of the things
that I learnt from one of the great law teachers of all times, Mrs
Oluwatoyin Doherty (supra) when she said in her book (supra)
that:

“As a rule of practice, counsel appearing for the accused is not
allowed by court to stand as surety for his client.Counsel is only
permitted to recommend to the court suitable persons to be admitted
as sureties for the accused.”

I think this is one of the hazards in the profession that
lawyers must seriously avoid. We have on this platform in the past
discussed some others hazards which if care is not taken may affect
lawyers in the course of discharging their professional duties. If
you can remember vividly, a senior was sent to jail for trying to
influence his client’s case to be assigned to a particular
judge.Another senior lawyer was debarred for many years while
struggling to gain political victory for his client while the other
two judges involved got compulsory retirement from service.
Fortunately for the said senior lawyer the Supreme Court has
recently set aside his debarment. Can you imagine what he would
have got through in those years of debarment? Do you remember
another case discussed on this platform, where a lawyer was sent to
jail for contempt in the course of discharging his professional
duties to his client.We can go on and on to cite several other
examples, these are not meant to ridicule anybody but for us to
great learn lessons of life and exercise restraint and caution
whenever it become necessary in the course of discharging our
profession duties.

Let me end this segment by quoting from the paper titled : “The
Nigerian Law and the Challenge of Nation Building-2019 and Beyond”
, delivered by Vice Chancellor of the Lagos State University,
Professor Olanrewaju Fagbohun,SAN during the 1st Pa Tunji Gomez
Memorial Lecture held recently :

“…We are daily confronted with the constant presence of
corruption and misconduct alleged either against legal
practitioners or judges .Unlike yesteryears when lawyers were seen
as the conscience of the nation,today,there is a crisis of
consciousness, a crisis of integrity, character and
competence.Today ,the legal profession that is supposed to be
venerated by members of the society is now the subject of satirical
poems bordering on reprehensible conducts.By training ,lawyers are
engineered to induce the personal consciousness of others to enable
to reach the ideal.Regrettably ,the false consciousness that is now
seriously haunting and hurting her…”

The present generation of the practitioners of law must reflect
on this.

HON JUSTICE MAMMAN NASIR (GCON) GOES HOME

On 13th April 2019, Hon. Justice Mamman Nasir, Galadiman Katsina
was eventually visited by what is certain for every human being and
as such took his exit from the world.The demise of Justice Nasir
marks an end of an era having lived for 90 years on the surface of
the earth. Justice Nasir was called to the bar at the Lincoln’s Inn
in 1956. He later joined the Northern Nigeria Ministry of Justice
as crown counsel and rose through the rank to later become the
Minister of Justice for the Northern Nigeria.In 1967 he became the
Director of Public Prosecution (DPP) and later Solicitor General
for the North Central State . In 1975 he was elevated to the
Supreme Court as a Justice of that court. Upon the death on the
bench of Hon. Justice Dan Ibekwe as the first President of the
newly created Court of Appeal, Justice Nasir was seconded to the
Court of Appeal to succeed late Justice Ibekwe as the President of
that court and remained there until he retired in 1992.

Justice Nasir while serving on the bence contributed immensely
along with the other Justices of the Supreme Court to see to the
peaceful co-existence among the Nigerian people as mentioned in the
book titled: LEGAL LUMINARIES:

“In 1978, when there was a debate among members in the
Constituent Assembly over the establishment of a Federal Sharia
Court of Appeal to run parallel with the Federal Court of Appeal
.While the Muslims supported the proposal, the Non Muslims opposed
the proposal and the situation then nearly led to serious crisis as
Muslim members walked out of the Constituent Assembly and the
situation became very tense. Justice Bello along with Justice
Mamman Nasir and Justice Buba Ardo came out with a workable
solution and compromise that instead of having a separate Federal
Sharia Court of Appeal, a division should be created under the
Federal Court of Appeal to be known as Sharia Division to be manned
by Justices learned in both Sharia and Common Law. This arrangement
was accepted, saved the situation and subsequently led to the
appointment and elevation of Justices Basir Wali and Uthman
Muhammed to the Court of Appeal.”

The late legal icon demonstrated his brilliant knowledge of law
through various judgments he delivered both at the Supreme Court
and while presiding at the Court of Appeal as its President. These
judgments can be found in the many Law Reports. With the departure
of Justice Mamman Nasir, we pray God to give his family, Nigeria as
a whole particularly the Legal Profession, the fortitude to bear
the great loss. May Allah bless the soul of Justice Mamman Nasir
!

REMARKABLE PRONOUNCEMENT ON STATEMENT OF ACCUSED
PERSON

“In the case at hand there is no evidence cogent enough to
warrant our choosing the accuracy of one witness as against the
other. On this score also we are of the view that the prosecution
has not been able to prove the charge beyond reasonable doubt. In
conclusion, we are of the opinion that this appeal should succeed.
As the learned trial judge had laid emphasis in the judgment on the
statement of the appellant we should express an opinion on this
statement. In reading the record we noticed that the procedure
followed when the accused persons were giving evidence was for each
one of them to adopt the statement he made to the police earlier.
For example the appellant in his evidence- in- chief said: “I made
the statement to the police. Exhibit, I adopt Exhibit 4 as part of
my defence. I have something to add to Exhibit 4. There were
certain things I told the police but which they did not include in
Exhibit 4” .We consider this procedure to be irregular and
unhelpful to the court and certainly unhelpful to the accused
himself.”

Per NASIR, JSC (as he then was) in William Vs The State (1975)
NSCC Vol. 9 Pg. 403 Lines 1-17

THE SETTLED PRINCIPLE OF LAW

On discretionary power of court to grant bail to an accused
person

“It is trite that the decision on whether or not to release or
admit to bail an accused person standing or facing trial for a
criminal offence is within the discretion of the trial court before
which the application for bail is made or brought. The discretion
like all other judicial discretion is not exercised arbitrarily but
is required to be judiciously and judicially exercised based on
some established principles.”

See IBEKWE Vs F.R.N (2004) ALL FWLR (Pt. 213) Pg. 1804 Paras
F-G

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14th April 2019