Common Terms Used in Discussing Bail:
Introduction:
This note will discuss some common terms used in discussing bail. The terms are surety, principal party, bail bond, and recognizance.
1. Surety: This is a person who guarantees or gives an undertaking that an accused person will appear in court whenever needed. If the accused fails to appear in court, the surety often forfeits a sum of money.
In the Practice Direction (Determination of Bail and Consequential Matters), 2019 issued by Chief Justice Sophia A. B. Akuffo, surety was defined as “a person who executes a bond for the release of an accused person on bail.”
Black’s Law Dictionary, 9th ed., defines a surety broadly as follows:
A person who is primarily liable for paying another's debt or performing another's obligation.
In the context of bail, the surety becomes liable if the accused fails to appear before the court when needed.
2. Principal Party:
This refers to the accused person for whom the surety gives an undertaking to ensure their appearance in court. The principal party is the primary subject of the bail process.
3. Bail Bond:
This is a written deposition signed by an accused or a surety, as security for ensuring that the accused reappears in court at a later date.
It is a written agreement stating the terms under which bail is granted, including the obligations of the accused and the sureties. These obligations may include periodic reporting to the police, surrendering travel documents, or other conditions imposed by the court.
Per Black’s Law Dictionary, a bail bond is:
A bond given to a court by a criminal defendant's surety to guarantee that the defendant will duly appear in court in the future and, if the defendant is jailed, to obtain the defendant's release from confinement. • The effect of the release on bail bond is to transfer custody of the defendant from the officers of the law to the custody of the surety on the bail bond, whose undertaking is to redeliver the defendant to legal custody at the time and place appointed in the bond. - Also termed appearance bond; recognizance.
4. Recognizance:
In the case of Kpebu (No. 1) v. Attorney General (supra) , the Supreme Court, in defining recognizance, referred to Black’s Law Dictionary, 9th edition, where recognizance was defined as follows:
Most commonly, a recognizance takes the form of a bail bond that guarantees an unjailed criminal defendant’s return for a court date. Recognizances are aptly described as contracts made with the crown in its judicial capacity.”
A recognizance is a writing acknowledge by the party to it before a Judge or officer having authority for the purpose, and enrolled in a court of record. It usually takes the form of a promise with penalties for the breach of it, to keep the peace, to be of good behaviour, or to appear at the assizes…
In that same case, Gbadegbe JSC also cited with approval the definition of recognizance by Barron’s Law Dictionary (Fifth Edition) as follows:
An obligation of record, entered into before a court or other officer duly authorized for that purpose, with a condition to do some act required by law, upon failure of which the recognizor is oblige pay a specific sum to the court or a party 46 NW 988, 989.
For instance in criminal law, a recognizance is an undertaking entered into before a court of record by the defendant and his sureties by which they bind themselves to pay a sum of money to the court unless the defendant appears for trial.
In the Practice Direction (Determination of Bail and Consequential Matters), 2019, a recognizance was defined to includes bail bond.
Summarily, a recognizance may be defined as a formal written undertaking by an accused person (or their surety) to appear in court as required. It also includes a commitment to pay a specified sum of money if the accused fails to appear or violates bail conditions.