Thursday, 31 May 2018

Standing Surety: Caveat For Lawyers Against Standing Surety For A Client

Brilliant Post By: Hameed Ajibola Jimoh Esq.

Hameed Ajibola Jimoh

In criminal proceedings, one of the conditions for the grant of a bail of a suspect is the production of a surety subject to the qualities laid down by the authority granting such bail, though a bail is not to punish the suspect and should be reasonable.

In fulfilling the conditions of the bail, some lawyers have been alleged and or reported to have been standing surety for their client(s). Some of those lawyers might have continued to stand surety for their client(s) because no negative consequences have been encountered. The writer of this paper had at several occasions been faced with dilemma and the influence of standing as surety for his client either by the police or by the sympathy for the client not to be detained in police custody, but it took a great determination, courage, steadfastness and God’s support for him to defeat all pressures and influences around him by not standing surety for such client. That is why the writer of this paper decided to write this paper as a caution for co-lawyers to desist and resist all temptations and pressures within and above compelling them to stand as surety for any of their clients no matter the circumstance because, it might look just nice and simple to stand surety for a client but the consequence sometimes, might be very destructive.

The provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- has guaranteed the right to bail of any person alleged to have committed an offence, within a reasonable time, by section 35(4) and (5) of the Constitution. Also, section 30 and 31 of the Administration of Criminal Justice Act, 2015-herein after referred to as ACJA- has also guaranteed same in respect of police/law enforcement agencies’ administrative bail, where the offence charged is not a capital offence.

Furthermore, when a suspect has been arrested and brought before a police station, the next step is for the suspect to make provisions to secure a surety to bail him. What the writer of this paper has experienced in practice is that at many times, securing a surety is accompanied with challenges. Sometimes, the suspect might not have any family member to stand as surety for him or they might be available but are not qualified to stand as surety. So, they have to seek an external person to help.

Though, most importantly, no one ought to stand as surety for someone unknown to him because of the consequences where the bailed suspect jumps bail or refuses to comply with bail the conditions. However, perhaps the economic challenges associated with majority of Nigerians have compelled some individuals to be available as prospective sureties, thereby turning the surety to a business venture. Some of them have landed property with valid documents, some of them are civil/public servants, some are corporate bodies or non-governmental agencies, among others.

When consulted, some of them request for a very high sum of money to stand surety in order to bail the suspect, such as N50,000.00, and above, which the suspect might not be able to afford. Sometimes, the suspect is charged to court the next day he was bailed out and that marks the end of the bail, so, he has to seek the surety or another surety who fulfils the conditions for bail laid down by the court, and thereby double-pay within a short time, else, he would be remanded in prison. So, because of the urgency involved, and the fact that generally, no one would like to be detained in cell or prison custody or to sacrifice his freedom because of money, and since the persons rendering the surety-services are also aware of this fact, their charges are always at the high side accompanied with rude and intimidating manners, as displayed by some of them, that if they are not paid the amount charged, then, they would not stand or would withdraw their surety.

Furthermore, at some occasions, a lawyer representing the suspect at such police station is appealed to either by the suspect or his family members or the police to stand as surety for his client and that he will only tender the photocopy of his call to bar certificate and bring the original for sighting and that that will be okay. Also, sometimes or many times, in a bid to win the heart of the lawyer or to influence his dilemma condition already created, the lawyer is informed that the life and freedom of his client lies on him and even ask him whether he does not trust his client?! Then, the temperature of such lawyer rises high! And the police also go to the extent of misinforming the suspect and his relatives of the importance of the lawyer as the last hope for the realization of the suspect’s freedom, without educating them of the consequences of the lawyer standing as a surety perhaps so that the police will have the opportunity to harass a lawyer or have a record of detaining a lawyer in their cell!. Many of these occasions, especially, where the lawyer declines to stand, the suspect and or his relatives look at the lawyer as a wicked person and continue to appeal to him to yield to their request. In fact, the relationship with such suspect becomes unfriendly! And sometimes, the police will inform a lawyer who is not smart enough that he should just endorse ‘the surety is known to me’ then he ‘counter-signs’ or ‘the suspect is known to me’ and he ‘counter-signs’!

Nevertheless, the writer of this paper is of the plea to lawyers not to submit themselves to any of those pressures from either the police or the suspect or the suspect’s relatives in relation to surety, as it is not the business of a lawyer to concern himself with the surety of his client. It is the duty of the client to provide who he intends to stand as his surety. The lawyer will then act within his professional duties to ensure that the Rule of law prevails in all of those circumstances.

Most importantly, the Rules of Professional Conducts for Legal Practitioners, 2007-herein after referred to as RPC- is clear on the issue of a lawyer acting as surety for his client in Rule 37(1) of the RPC thus’ 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 he shall not stand or offer to stand bail for a person for whom he or a person in his law firm is appearing’. (Underlining is the writer’s for emphasis). From this provision of the RPC, it is submitted that it is unethical and unprofessional for a lawyer to stand or offer himself as a surety for a person for whom he or a person in his law firm (whether lawyer or non-lawyer staff) is appearing. It is also a form of misconduct by Rule 55(1) of the RPC. And it is submitted that it remains the professional duty of any lawyer who observes such breach to report same to the appropriate authority pursuant to Rule 55(2) of the RPC.

This in the view of the writer of the writer is to the safe-guard of a lawyer placing the liability of his client who he does not know than in relation to his professional services to him and no more, and then, bring such liability on himself as a lawyer and then put himself and his family members in avoidable troubles arising from the crimes or offence of his client. The police will even inform the lawyer in a way of calming his tension that some other lawyers do stand surety, which is very unprofessional and unethical! Also, law offices/firms, should make the issue of standing a surety as a last warning to all their staff both lawyers and non-lawyers, including those on the National Youth Service Corps Primary Assignment and law school students attached to the law office/firm, as they carry out their official duties to the law offices/firms against standing as a surety, a core principle of the office!

Finally, it is the submission of the writer of this paper that any lawyer who stands or offers himself as a surety (whether for payment or non-payment) has committed a professional misconduct and such might be liable to be punished by the Disciplinary Committee of the legal profession (whether there is negative consequence arising from the act or not) and such person after having been warned, is absolutely on his own where any consequence arises from such voluntary decision. So, this is a caveat for all lawyers-young and senior- including all their staff in office!

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