*Says Bail Must Not Be Used as Restitution, Compensation or Punishment, and Rules That Conditions So Onerous They Cannot Be Fulfilled Are “Indistinguishable from a Refusal of Bail”
The Court of Appeal sitting in Asaba, Delta State, has set aside a ruling of the Federal High Court, Warri Division, which varied the bail conditions of a defendant, Peter Mario Efenyumi, by requiring him to deposit the sum of N50 million at the court’s registry as a condition for enjoying bail already granted, holding that the condition amounted to presuming the defendant guilty before trial, contravened the constitutional presumption of innocence guaranteed by Section 36(5) of the 1999 Constitution, and constituted an improper exercise of judicial discretion that effectively punished the appellant before conviction.
The judgment, delivered on February 11, 2026, in Appeal No. CA/AS/20C/2025, was written by Justice Asma’u M. Mainoma, JCA, and unanimously endorsed by Justices James Gambo Abundaga, JCA, and Olukayode Adegbola Adeniyi, JCA, each of whom delivered concurring opinions that reinforced the lead judgment’s reasoning with additional legal analysis on the philosophy of bail, the limits of judicial discretion, and the constitutional boundaries within which bail conditions must operate.
The ruling establishes important principles on the relationship between bail conditions and the constitutional presumption of innocence, the limits of Section 165(2) of the Administration of Criminal Justice Act (ACJA) 2015, and the circumstances in which appellate courts will intervene to correct excessive bail conditions imposed by trial courts.
The appellant, Peter Mario Efenyumi, was arraigned along with six other co-defendants before the Federal High Court, Warri Division, on a 32-count charge that was subsequently amended to a four-count charge. The specific offences were not detailed in the appellate judgment, but the case involved allegations that the complainant “parted with over N500,000,000 (Five Hundred Million Naira).”
Prior to appearing before the trial judge whose ruling was appealed, the appellant had been arraigned and granted bail on two separate occasions by different judges who were subsequently elevated to the Court of Appeal. The appellant had perfected the bail conditions imposed on both occasions and had been complying with the terms of his bail.
However, upon a fresh arraignment before Justice A. Nganjiwa of the Federal High Court, Warri, the bail conditions were varied. While the trial judge was not averse to granting bail, he invoked Section 165(2) of the ACJA 2015 to impose an additional requirement that each defendant deposit the sum of N50 million with the Deputy Chief Registrar of the court as security, giving them 30 days to comply.
In his ruling, Justice Nganjiwa stated: “The defendants were earlier granted bail and have been coming. The victim of the alleged offence charged parted away with over N500,000,000.00. Section 165(2) of the Administration of Criminal Justice Act 2015 in the circumstances urged the court to invoke the provision in addition to the terms and conditions imposed for the Defendants, they be made to deposit or their sureties part as security.”
The appellant challenged this variation at the Court of Appeal, arguing that the N50 million deposit condition amounted to an abuse of discretion, violated the constitutional presumption of innocence, and was unreasonable in the circumstances.
Justice Mainoma, delivering the lead judgment, began by resolving a preliminary objection raised by the respondent (the Inspector General of Police) that the appeal was incompetent because the appellant had not obtained leave of court before filing the interlocutory appeal. The Court of Appeal struck out the preliminary objection on the ground that the respondent’s counsel had failed to argue the objection in the respondent’s brief of argument as required by Order 10, Rule 1 of the Court of Appeal Rules, 2021.
Turning to the substantive appeal, Justice Mainoma blended the appellant’s three issues into a single question: whether the trial judge improperly exercised his discretion by imposing a bail condition requiring the deposit of N50 million, and whether this amounted to a presumption of guilt contrary to Section 36(5) of the Constitution.
The court restated the settled principles governing bail in Nigerian law. The grant or refusal of bail is a matter of discretion, with each case decided upon its unique circumstances. There is no binding precedent in bail matters, and a court cannot be compelled by a previous decision when exercising its discretion. However, the discretion must be exercised “judicially and judiciously,” meaning it must be based on what is fair under the circumstances and guided by the rules and principles of law.
The most important consideration, the court held, is whether the defendant will eventually appear for trial and not escape justice.
Justice Mainoma found that the trial judge’s primary consideration in imposing the N50 million deposit was the sum of money the complainant allegedly lost (N500 million), rather than the question of whether the defendant would appear for trial.
“Learned counsel to the appellant opined that what weighed more on the mind of the judge is the sum of money which the victim lost, that is N500 million,” the court observed. “Irrespective of that, Judges have wide discretion in setting bail terms but the critical question is whether the discretion is exercised judiciously and judicially by considering an applicant’s financial means to avoid punitive detention.”
The court then delivered its central finding: “The demand for the sum of N50 million from an average person contravenes the spirit of Section 36(5) of the 1999 Constitution as this effectively punishes the Appellant before conviction, if at all, and makes his liberty contingent upon wealth and not legal criteria.”
Justice Mainoma identified the fundamental error in the trial court’s approach: “The lack of judicious and judicial exercise of discretion occurs not from the requirement of cash deposit, but from setting the amount at such a level that it seems the purpose of bail is defeated and presumption of innocence, meaningless.”
The court agreed with the appellant’s submission that “this varied bail condition amounts to presuming the appellant guilty even before the trial, and it does not amount to a judicial exercise of discretion, especially in the modern times where the society is almost moving to a cashless one.”
Justice Abundaga, in a concurring opinion, described the trial court’s approach in even more forceful terms.
“The variation of the order of his predecessors who had been elevated to this court, whereby the appellants were directed to deposit N25 million to secure their bail is presumptive of guilt and punitive. It amounts to giving with one hand and taking away with another,” Justice Abundaga stated.
“The appellant stands charged with bailable offences and should not be denied bail under the guise of deposit of humongous amount of money. The lower court’s discretionary power in matter of bail, in my view was not judiciously and judicially exercised and cannot be allowed to stand,” he added.
Justice Adeniyi, in the most detailed of the concurring opinions, provided a comprehensive analysis of the philosophy of bail and the constitutional limits on bail conditions.
He began by restating the fundamental purpose of bail: “Bail is not granted as a reward, nor is it refused as punishment. Bail is a mechanism designed to secure the attendance of an accused defendant at trial while preserving his constitutional liberty pending determination of guilt or innocence. The primary purpose is therefore not to impose hardship, but to ensure that the accused will not evade justice.”
He cited the Supreme Court’s decision in Suleman v. COP, Plateau State (2008), where Justice Tobi held that the criterion of ensuring the accused’s presence at trial “is the cynosure of all the criteria. It is the centre-piece. And is regarded as not only the omnibus ground for granting or refusing, but the most important.”
Justice Adeniyi then identified the trial court’s fundamental error: “The trial Court linked the deposit condition to the alleged financial loss of the complainant. With respect, that approach revealed a misconception of the governing philosophy of bail.”
He explained why bail must not be confused with restitution or compensation: “While the seriousness of the offence and the nature of the charge are relevant considerations, the bail process is not intended to mirror restitution, compensation, or punishment. The alleged loss of N500,000,000, though significant, remains an allegation until proved. It cannot become the pivot upon which the accused defendant’s liberty is suspended.”
Justice Adeniyi then articulated a principle that carries significant implications for bail practice across Nigerian courts: “A bail condition that effectively requires a defendant to procure and deposit cash, without evidence that he possesses such means, creates a practical situation where bail exists in theory but is impossible in reality. This is precisely the mischief the Constitution intends to prevent. A bail term that is so onerous that it cannot reasonably be fulfilled by the accused becomes indistinguishable from a refusal of bail.”
He clarified that the law does not prohibit cash deposits as a condition for bail, but that “the discretion to impose such deposits must be guided by reasonableness, proportionality, and fairness. Bail conditions must not be punitive, oppressive, excessive, or unrealistic. Such conditions offend the spirit of bail jurisprudence and erode public confidence in the administration of criminal justice.”
Having set aside the trial court’s variation, the Court of Appeal restored the appellant’s earlier bail conditions with the following terms: bail in the sum of N60 million with one surety in like sum who must be the owner of a landed property in either Warri or Asaba, Delta State, with a Statutory Certificate of Occupancy to be verified by the Principal Registrar II of the Federal High Court, Warri Division, at the Lands Registry. The prosecution, through the Investigating Police Officer, is to ascertain the residence of the surety and confirm whether the surety is the owner of the property pledged as security. The appellant is to remain in the Correctional Centre pending when the conditions are perfected.
The judgment establishes or reinforces several important principles for bail practice in Nigeria.
First, the primary purpose of bail is to ensure the defendant’s appearance at trial, not to impose hardship, secure restitution, or punish the accused before conviction.
Second, while Section 165(2) of the ACJA 2015 gives courts the discretion to require cash deposits as a condition of bail, this discretion must be exercised within the constitutional framework established by Section 36(5) of the 1999 Constitution, which guarantees the presumption of innocence. The ACJA cannot override the Constitution.
Third, bail conditions must be assessed against the defendant’s financial means. A condition that requires a defendant to deposit an amount of money without evidence that the defendant possesses such means creates a situation where “bail exists in theory but is impossible in reality,” which is constitutionally impermissible.
Fourth, the amount of the complainant’s alleged loss is not the appropriate basis for determining bail conditions. Linking bail deposits to the alleged loss conflates bail with restitution and effectively presumes the defendant’s guilt before trial.
Fifth, bail conditions that are “punitive, oppressive, excessive, or unrealistic” offend the spirit of bail jurisprudence, erode public confidence in the administration of criminal justice, and will be set aside on appeal.
