Forfeiture of Recognizance

Introduction:

This note will discuss the meaning of forfeiture of recognizance and the procedure for the forfeiture of recognizance.

Meaning of Forfeiture of Recognizance:

The breach of the conditions of bail often result in a consequence known as forfeiture of recognizance. For example, if the accused fails to appear in court when needed, the recognizance may be forfeited.

Procedure for Forfeiture of Recognizance:

Recognizance is forfeited in accordance with Section 104 the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The Section reads:

(1) Whenever it is proved to the satisfaction of a Court by which a recognizance under this Code has been taken, or when the recognizance is for appearance before a Court, to the satisfaction of that Court, that the recognizance has been forfeited, the Court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover it by forfeiting any sum deposited in pursuance of section 99 or by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead.

(3) The warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorise the attachment and sale of any movable property belonging to such person without such limits, when endorsed by any Magistrate within the local limits of whose jurisdiction such property is found.

(4) If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment without hard labour for a term which may extend to six months.

(5) [Repealed by the Criminal Procedure Code (Amendment) Act, 2002 (Act 633), s. (8)].

(6) Where a surety to a recognizance dies before the recognizance is forfeited, his estate shall be discharged from all liability in respect of the recognizance.

(7) Where any person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the Court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the Court shall presume that offence was committed by him unless the contrary is proved.

The some of the provisions above are further explained below:

1. Proof of Forfeiture, Record of Proof, and Call to Surety to Pay Penalty:

Subsection 1 states that if the court is satisfied that a recognizance has been forfeited (e.g., the accused failed to appear in court as required), the court shall record the proof of forfeiture. The court may then call upon the person bound by the recognizance (who could be the surety or the accused in the case of self-recognizance) to pay the penalty or to show cause why it should not be paid.

2. Failure to Show Why the Penalty Should Not Be Paid:

If the person bound by the recognizance is unable to show why the penalty should not be paid, the court may recover the penalty by taking the money deposited by the person bound by the recognizance pursuant to Section 99. Said Section 99 allows for a person to deposit a sum of money as security for the performance of the conditions of the bail. If this deposit was not made, the court may also issue a warrant for the attachment and sale of the moveable property of the person bound by the recognizance.

If a warrant is issued for the attachment and sale of the movable property, subsection 3 makes provision on how the warrant may be executed.

3. Non-Payment of Penalty and Inability to Recover by Attachment and Sale:

Subsection 4 provided for the imprisonment of the person bound by the recognizance if the penalty is not paid and could not be recovered by way of attachment and sale of his movable property.

In the case of Kpebu (No. 1) v. Attorney-General Civil Appeal No. J1/7/2015 , the Supreme Court declared this provision unconstitutional. In the opinion of their lordships, there is no offence defined in Section 104(4) but only a penalty. In light of this absence of a defined offence but an imposition of a penalty, their lordships agree that “Article 19 (11) of the Constitution 1992, which provides that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for the offence also prescribed in a written law has been breached.” Upon failing to pay the penalty, a civil debt arises, which cannot be enforced by imprisonment.

4. Death of a Surety and Discharge of Liability in Respect of Recognizance:

If a surety dies before the bail condition has been breached, Subsection 6 provides that his estate shall be discharged of liability in respect of the recognizance. Thus, if the bail condition is breached afterwards, the estate of the surety will not be called to pay the penalty.