Reported by: Oahimire Omone Precious | Edited by: Oravbiere Osayomore Promise.
The Court of Appeal sitting in Asaba, Delta State, has delivered a landmark judgment that sets aside a Federal High Court ruling requiring a criminal defendant to deposit N50 million at the court’s registry as a condition for bail. In a unanimous decision delivered on February 11, 2026, the appellate court held that such an onerous cash deposit condition amounts to presuming the defendant guilty before trial, violates the constitutional presumption of innocence guaranteed by Section 36(5) of the 1999 Constitution, and constitutes an improper exercise of judicial discretion that effectively punishes the accused before conviction. The judgment, delivered in Appeal No. CA/AS/20C/2025, was written by Justice Asma’u M. Mainoma and concurred with by Justices James Gambo Abundaga and Olukayode Adegbola Adeniyi, each of whom added powerful reinforcing opinions that have sent a clear warning to trial courts across the country about the limits of judicial discretion in bail matters.
The appellant, Peter Mario Efenyumi, had been arraigned along with six other co-defendants before the Federal High Court, Warri Division, on charges that the complainant had allegedly parted with over N500 million. Prior to the ruling that became the subject of the appeal, the appellant had been arraigned and granted bail on two separate occasions by different judges who were subsequently elevated to the Court of Appeal. He had perfected the bail conditions imposed on both occasions and had been fully complying with the terms of his bail. However, upon a fresh arraignment before Justice A. Nganjiwa of the Federal High Court, Warri, the trial judge, while not averse to granting bail, invoked Section 165(2) of the Administration of Criminal Justice Act (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.
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. After resolving a preliminary objection raised by the respondent, the court turned to the substantive appeal. Justice Mainoma blended the appellant’s 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, emphasizing that while the grant or refusal of bail is a matter of judicial discretion, that 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.
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, rather than the question of whether the defendant would appear for trial. “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. “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.” The court agreed with the appellant’s submission that the varied bail condition amounted to presuming the appellant guilty even before trial and did not amount to a judicial exercise of discretion, especially in a modern society that is rapidly moving toward a cashless economy.
Justice Abundaga, in his 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.” Justice Adeniyi provided the most detailed concurring opinion, offering 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.”
Justice Adeniyi identified the trial court’s fundamental error as linking the deposit condition to the alleged financial loss of the complainant, a misconception of the governing philosophy of bail. “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.” He then articulated a principle with profound 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.”
The court 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: 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 judgment was delivered on February 11, 2026, and has now become a significant authority cited by legal practitioners challenging excessive bail conditions across Nigeria.
The judgment establishes or reinforces several important principles for bail practice. 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. 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. 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. 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. Where a trial court fails to exercise its discretion judicially and judiciously in bail matters, the appellate court is entitled to intervene and substitute appropriate conditions.
The judgment addresses a practice that has drawn increasing criticism from lawyers and defendants in Nigerian courts: the use of enormous cash deposit requirements as bail conditions that effectively transform bailable offences into situations of indefinite pretrial detention. The Court of Appeal’s unequivocal statement that such conditions are indistinguishable from a refusal of bail provides appellate authority for challenging similar conditions across all courts. Justice Adeniyi’s observation that modern society is almost moving to a cashless one also introduces a contemporary dimension to bail jurisprudence, suggesting that courts must consider the practical realities of the modern economy when imposing financial conditions on bail.
The Nigerian Bar Association has since condemned the growing pattern of excessive and unrealistic bail conditions, with NBA President Afam Osigwe stating that Section 165(1) of the ACJA 2015 requires that bail conditions not be excessive. He urged courts to keep bail terms fair, reasonable and achievable, warning that bail must not become a privilege for the wealthy or well connected. The Court of Appeal’s decision in the Efenyumi case provides the judicial authority needed to push back against that trend, establishing a clear principle that bail exists to secure a defendant’s appearance at trial, not to lock up the poor before they have been proven guilty.
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