Whether Court Has The Power To Remand A Surety In Prison For Failure To Produce An Accused Person

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CASE TITLE: NDUME v. FRN (2022) LPELR-58272(CA)

JUDGEMENT DATE: 10 JUNE 2022

JUSTICES:

HARUNA SIMON TSAMMANI, JCA

E.O. WILLIAMS-DAWODU, JCA.

DANLAMI ZAMA SENCHI, JCA

COURT DIVISION: ABUJA

PRACTICE AREA: CRIMINAL LAW & PROCEDURE

FACT:

This appeal is against the ruling of the Federal High Court, Abuja delivered on the 23rd day of November, 2020 by Hon. Justice O. E. ABANG.

Pursuant to a Summons to Admit to Bail filed on behalf of the 1st Defendant (Abdulrasheed Abdullahi Maina) in Charge No. FHC/ABJ/CR/258/2019, the trial Court admitted him to bail via a ruling delivered on 26th November, 2019. The trial Court further varied its order made on the Bail Conditions on 28th June, 2020 and the 1st Defendant was granted bail and released from custody after satisfying the Bail conditions.

​The Appellant was the surety of the 1st Defendant and he filed an Affidavit of Means in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments. Pursuant to the Respondent’s(Prosecution) Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him.

Pursuant to a prayer of the Appellant, the trial Court granted an adjournment to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail. The Appellant’s

counsel then wrote a letter addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence on behalf the surety.

In a Bench Ruling, the trial Court held that the Appellant should be remanded in the Correctional Centre Kuje pending compliance or fulfilment of some conditions.

Dissatisfied, the Appellant appealed.

 

ISSUES:

The appeal was determined upon consideration of the issues thus:

(1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020.

(2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody?

(3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited.

(4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody.

(5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.”

(6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted

 

DECISION/HELD:

The appeal succeeded and was allowed. The decision of the trial Court was accordingly set aside.

RATIOS

PRACTICE AND PROCEDURE – ADJOURNMENT

– Principles guiding the exercise of discretion of Court to grant or refuse an adjournment

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“Now as to the issue of whether to grant or not to grant an adjournment, it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly. The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application. Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed. An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.”

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CRIMINAL LAW AND PROCEDURE – BAIL

– Proper step for Court to take when an accused person who was granted bail fails to attend Court without reasonable explanation

“By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.”

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CONSTITUTIONAL LAW – RIGHT OF AN ACCUSED PERSON

– Constitutional right of a person charged with a criminal offence to adequate time and facilities for the preparation of his defence

“The attitude of the trial Court in denying the Appellant the documents requested for and the trial Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended). The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings. In other words, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence.”

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CRIMINAL LAW AND PROCEDURE – SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF PROPERTY

– Condition(s) to be satisfied for the enforcement of forfeiture bond sums

“The said Section 179(1) ACJA, 2015 provides:- “Where it is proved to the satisfaction of the Court by which a recognizance has been taken or, when the recognizance bond is for appearance before a Court and it is proved to the satisfaction of the Court that a recognizance has been forfeited, the Court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.” Section 179 (1) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.”

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CRIMINAL LAW AND PROCEDURE – BAIL

– Nature of bail; effect of granting bail

“the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.”

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CRIMINAL LAW AND PROCEDURE – BAIL

– Whether a trial Court is empowered to remand a surety for failure to produce an accused person standing trial in a criminal offence

“In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally. See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.”? If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence. The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant. A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional.”

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CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING

– Effect of proceedings conducted in breach of right to fair hearing

“a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever. In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

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