Anybody stopping short of reading just the caption of this piece
would not be wrong to assume that Senator Enyinnaya Abaribe is on
some kind of criminal trial for some offense.
The reason such assumption won’t be wrong is simple, and that
is: Since October last year when Mazi Nnamdi Kanu consistently
failed to appear on the scheduled dates of his trial, a section of
the media has been reporting – in essence – that Senator Abaribe
is, on account of that, bound for prison. Well, that’s not
true.
Part of what is causing all the hoopla is a simple and
straightforward story that every decent human being can easily
understand. The issue is this: Nnamdi Kanu, the leader of IPOB was
free on bail; and then without any cause or authority of court, the
Nigerian army launched military operations against him at his home
in Umuahia.
It is agreed by many, and Amnesty International and others have
confirmed it, that the military assault resulted in casualties.
Some credible eyewitness accounts also suggested that the army took
away some people from the scene. So, in the circumstances, it is
plausible that any of the fallen or ‘captured’ could have included
Nnamdi Kanu. I might add that the army has denied the attack even
as it admitted chasing a ‘vehicle laden with explosives into Nnamdi
Kanu’s house’.
The details of the invasion and its aftermaths are what Senator
Abaribe, Uchendu and Ben Madu (the sureties) have been straining to
explain to Justice Binta Nyako – the presiding judge in the case.
But until very recently, their voices seemed to have been eroded by
the louder misconceptions of the law advanced in court by
prosecutors from the office of the Attorney General of the
Federation. Misconceptions that also seemed to have imprisoned the
court to the wrong procedure, but which – to its credit and that of
the lawyers to the sureties – the court just corrected recently by
ordering the AGF to serve the sureties with an enrolled Order to
Show Cause. This was on March 28, 2018.
Yet, when these things are reported – even after the last
hearing on March 28, 2018 – you get the impression of an Armageddon
that is soon to consume Abaribe. And in that whole gory cast, those
traducing the ranking Senator are careful or careless to exclude
the other two sureties, thus misleading the general public that it
is Abaribe alone that stands to the damning peril they are baying.
The truth is that all the three sureties stood in bail in equal
amounts of one hundred million each. So, zeroing on Abaribe alone
smacks of a fifth column and some mischief, to boot.
In view of this whole maze of misleading reporting, it has
become necessary for people familiar with the process of bond
forfeiture to speak out in rebuttal of what is beginning to look
like an orchestrated attack on the character of the man, Senator
Abaribe, if not a calculated but clumsy attempt to scare him or
damage his political and civic standing in society. Now, for
anybody who cares to know, below is the statutory due process that
must be followed before a surety is imperiled enough to contemplate
the prospect of being jailed.
When a Defendant fails to appear at his trial like in this case
of Nnamdi Kanu, the court does not automatically or summarily
revoke the bail or issue orders of forfeiture of the bond amount,
not to talk of even sending the Surety to jail. There is a process
the court must follow. The process is first a civil process which
must be exhausted before the second phase (criminal) can ever
begin. It’s all enumerated under the Administration of Criminal
Justice Act (ACJA); which pertinent provisions I will indulge
readers to permit me to reproduce below, verbatim.
“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), ACJA).
Anybody reading this – layman or lawyer – can see from above
that the process must first start with a written (not oral) Order
to Show Cause, which the sureties are yet to be served with till
date. And for good measure, it’s the duty of the Attorney General
of the Federation to serve such Order on the sureties personally at
their respective addresses of record. It is only after crossing
this phase that a proper civil proceedings on bond forfeiture
begins. And, if I might add, such proceedings is an arduous and
painstaking process that can take months, and understandably so
because enormous property and liberty interests are implicated.
It is after above proceedings that the next phase is triggered,
as provided in Section 170(2) ACJA which states that “Where
sufficient cause is not shown and the penalty is not paid, the
court may proceed to recover the penalty from a person bound, or
from his estate if he is dead, in the manner laid down in this Act
for the recovery of fines”. Anybody familiar with the arcane rules
on ‘recovery of fines’ will agree that they bear some legal
safeguards the sureties can take advantage of. In other words, it
will take long before the question of any of them going to prison
can arise.
Now returning to the black letters of the preceding provisions,
attention needs to be drawn to the use of the word ‘may’, which
simply means that the court is not bound to take the matter beyond
this level. Instead, the court is free to exercise sound discretion
and hold harmless the sureties and their principal (Nnamdi Kanu).
But in the event that the court insists on recovery of the bond
money, the next phase below (prison) kicks in.
“When the penalty is not paid and cannot be recovered in the
manner provided in this Act, the person bound shall be liable to
imprisonment for a term not exceeding six months.” (Section 179(4)
ACJA).
As anybody can see, it is the above section that some otherwise
respected media have gone rogue and fringe on; and then proceeded
to jump many hoops to start proclaiming that ‘Judge has ordered
that Abaribe must produce Kanu or go to prison’. They are as wrong
and bizarre as someone saying in the morning that night has come
already.
Still, prison is long in coming because there’s a further
provision that gives powers to the court to let everybody go
scot-free. It’s in Section 180 ACJA which provides that “The court
may at any time cancel or mitigate the forfeiture, on the person
liable under the recognizance applying and giving security to the
satisfaction of the court, for the future performance of the
condition of the recognizance and paying, or giving security for
the payment of the costs incurred in respect of the forfeiture or
on such other conditions as the court may consider just”.
So, as you can see from above, the court has the unfettered
discretion to cancel or mitigate the bond, which means that no
surety, including Abaribe, gets to go to prison, after all or even
get to losing a cent. In the same vein, the court also has
discretion to refuse any bench warrants against Kanu and ground its
decision on the same rationale upon which it exculpated the
sureties from any blame for Kanu’s nonappearance.
Better yet, should the court insist on calling a civil default
of the bond, Abaribe and the others have an immediate right of
appeal as provided under Section 186 ACJA, which states that “An
order of forfeiture made under this Act shall be subject to
appeal”. I don’t think that, while on appeal, any of the sureties
will be headed to jail. And one would postulate that the right of
appeal extends not only to the Court of Appeal but also to the
Supreme Court.
Plus, there are other statutory safeguards. Order 26, Rule C of
the Federal High Court (Civil Procedure) Rules, which regulates
proceedings on Orders to Show Cause, provides that:
“An order to show cause shall specify a day when cause is to be
shown, to be called the return-day to the order, which shall
ordinarily be not less than three days after service.
“A person served with an order to show cause may, before the
return-day, produce evidence to contradict the evidence used in
obtaining the order, or setting forth other facts on which he
relies to induce the Court to discharge or vary such order.
“On the return-day, if the person served does not appear and it
appears to the Court that the service on all proper parties has not
been duly effected, the Court may enlarge the time and direct
further service or make such other order as seems just.
“If the person served appears, or the Court is satisfied that
service has been duly effected, the Court may proceed with the
matter.
“The Court may either discharge the order or make the same
absolute, or adjourn the consideration thereof, or permit further
evidence to be produced in support of or against the order, and may
modify the terms of the order so as to meet the merits of the
case”.
A plain reading of the foregoing will show that the process
specified therein has not even started. It must begin and be
followed to the letters of the law before anybody can talk of the
sureties losing their money or their liberty. And in the course of
this whole process, the court must ensure that the principle of
fair hearing mandated by the Nigerian Constitution is followed, in
spirit and letters.
What this whole saga will eventually boil down to is this: The
sureties, pursuant to valid service of the Order to Show Cause,
will finally be endowed with the first and golden opportunity to
put Nigerian Army on trial. At issue will be a full and adversarial
evidentiary airing of the military operations vis-a-vis Nnamdi
Kanu. It can be expected therefore that the Chief of Army Staff and
other officers in the ‘command and control’ structure will be
summoned to testify under penalty of perjury. It won’t be a pretty
sight.
In the end, the court will be tasked to make findings of facts
and conclusions of law, conceivably sustaining the proposition that
the military invasion is a supervening event and therefore the lone
proximate cause of Nnamdi Kanu’s nonappearance. Lawyers call it:
novus actus interveniens; and it’s a highly effective affirmative
defense Abaribe and his co-sureties are entitled to in a situation
like this.
So, as everyone can see, neither Abaribe nor any of the other
two sureties are headed to prison anytime soon. Not just yet.
Anybody stopping short of reading just the caption of this piece
would not be wrong to assume that Senator Enyinnaya Abaribe is on
some kind of criminal trial for some offense.
The reason such assumption won’t be wrong is simple, and that
is: Since October last year when Mazi Nnamdi Kanu consistently
failed to appear on the scheduled dates of his trial, a section of
the media has been reporting – in essence – that Senator Abaribe
is, on account of that, bound for prison. Well, that’s not
true.
Part of what is causing all the hoopla is a simple and
straightforward story that every decent human being can easily
understand. The issue is this: Nnamdi Kanu, the leader of IPOB was
free on bail; and then without any cause or authority of court, the
Nigerian army launched military operations against him at his home
in Umuahia.
It is agreed by many, and Amnesty International and others have
confirmed it, that the military assault resulted in casualties.
Some credible eyewitness accounts also suggested that the army took
away some people from the scene. So, in the circumstances, it is
plausible that any of the fallen or ‘captured’ could have included
Nnamdi Kanu. I might add that the army has denied the attack even
as it admitted chasing a ‘vehicle laden with explosives into Nnamdi
Kanu’s house’.
The details of the invasion and its aftermaths are what Senator
Abaribe, Uchendu and Ben Madu (the sureties) have been straining to
explain to Justice Binta Nyako – the presiding judge in the case.
But until very recently, their voices seemed to have been eroded by
the louder misconceptions of the law advanced in court by
prosecutors from the office of the Attorney General of the
Federation. Misconceptions that also seemed to have imprisoned the
court to the wrong procedure, but which – to its credit and that of
the lawyers to the sureties – the court just corrected recently by
ordering the AGF to serve the sureties with an enrolled Order to
Show Cause. This was on March 28, 2018.
Yet, when these things are reported – even after the last
hearing on March 28, 2018 – you get the impression of an Armageddon
that is soon to consume Abaribe. And in that whole gory cast, those
traducing the ranking Senator are careful or careless to exclude
the other two sureties, thus misleading the general public that it
is Abaribe alone that stands to the damning peril they are baying.
The truth is that all the three sureties stood in bail in equal
amounts of one hundred million each. So, zeroing on Abaribe alone
smacks of a fifth column and some mischief, to boot.
In view of this whole maze of misleading reporting, it has
become necessary for people familiar with the process of bond
forfeiture to speak out in rebuttal of what is beginning to look
like an orchestrated attack on the character of the man, Senator
Abaribe, if not a calculated but clumsy attempt to scare him or
damage his political and civic standing in society. Now, for
anybody who cares to know, below is the statutory due process that
must be followed before a surety is imperiled enough to contemplate
the prospect of being jailed.
When a Defendant fails to appear at his trial like in this case
of Nnamdi Kanu, the court does not automatically or summarily
revoke the bail or issue orders of forfeiture of the bond amount,
not to talk of even sending the Surety to jail. There is a process
the court must follow. The process is first a civil process which
must be exhausted before the second phase (criminal) can ever
begin. It’s all enumerated under the Administration of Criminal
Justice Act (ACJA); which pertinent provisions I will indulge
readers to permit me to reproduce below, verbatim.
“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), ACJA).
Anybody reading this – layman or lawyer – can see from above
that the process must first start with a written (not oral) Order
to Show Cause, which the sureties are yet to be served with till
date. And for good measure, it’s the duty of the Attorney General
of the Federation to serve such Order on the sureties personally at
their respective addresses of record. It is only after crossing
this phase that a proper civil proceedings on bond forfeiture
begins. And, if I might add, such proceedings is an arduous and
painstaking process that can take months, and understandably so
because enormous property and liberty interests are implicated.
It is after above proceedings that the next phase is triggered,
as provided in Section 170(2) ACJA which states that “Where
sufficient cause is not shown and the penalty is not paid, the
court may proceed to recover the penalty from a person bound, or
from his estate if he is dead, in the manner laid down in this Act
for the recovery of fines”. Anybody familiar with the arcane rules
on ‘recovery of fines’ will agree that they bear some legal
safeguards the sureties can take advantage of. In other words, it
will take long before the question of any of them going to prison
can arise.
Now returning to the black letters of the preceding provisions,
attention needs to be drawn to the use of the word ‘may’, which
simply means that the court is not bound to take the matter beyond
this level. Instead, the court is free to exercise sound discretion
and hold harmless the sureties and their principal (Nnamdi Kanu).
But in the event that the court insists on recovery of the bond
money, the next phase below (prison) kicks in.
“When the penalty is not paid and cannot be recovered in the
manner provided in this Act, the person bound shall be liable to
imprisonment for a term not exceeding six months.” (Section 179(4)
ACJA).
As anybody can see, it is the above section that some otherwise
respected media have gone rogue and fringe on; and then proceeded
to jump many hoops to start proclaiming that ‘Judge has ordered
that Abaribe must produce Kanu or go to prison’. They are as wrong
and bizarre as someone saying in the morning that night has come
already.
Still, prison is long in coming because there’s a further
provision that gives powers to the court to let everybody go
scot-free. It’s in Section 180 ACJA which provides that “The court
may at any time cancel or mitigate the forfeiture, on the person
liable under the recognizance applying and giving security to the
satisfaction of the court, for the future performance of the
condition of the recognizance and paying, or giving security for
the payment of the costs incurred in respect of the forfeiture or
on such other conditions as the court may consider just”.
So, as you can see from above, the court has the unfettered
discretion to cancel or mitigate the bond, which means that no
surety, including Abaribe, gets to go to prison, after all or even
get to losing a cent. In the same vein, the court also has
discretion to refuse any bench warrants against Kanu and ground its
decision on the same rationale upon which it exculpated the
sureties from any blame for Kanu’s nonappearance.
Better yet, should the court insist on calling a civil default
of the bond, Abaribe and the others have an immediate right of
appeal as provided under Section 186 ACJA, which states that “An
order of forfeiture made under this Act shall be subject to
appeal”. I don’t think that, while on appeal, any of the sureties
will be headed to jail. And one would postulate that the right of
appeal extends not only to the Court of Appeal but also to the
Supreme Court.
Plus, there are other statutory safeguards. Order 26, Rule C of
the Federal High Court (Civil Procedure) Rules, which regulates
proceedings on Orders to Show Cause, provides that:
“An order to show cause shall specify a day when cause is to be
shown, to be called the return-day to the order, which shall
ordinarily be not less than three days after service.
“A person served with an order to show cause may, before the
return-day, produce evidence to contradict the evidence used in
obtaining the order, or setting forth other facts on which he
relies to induce the Court to discharge or vary such order.
“On the return-day, if the person served does not appear and it
appears to the Court that the service on all proper parties has not
been duly effected, the Court may enlarge the time and direct
further service or make such other order as seems just.
“If the person served appears, or the Court is satisfied that
service has been duly effected, the Court may proceed with the
matter.
“The Court may either discharge the order or make the same
absolute, or adjourn the consideration thereof, or permit further
evidence to be produced in support of or against the order, and may
modify the terms of the order so as to meet the merits of the
case”.
A plain reading of the foregoing will show that the process
specified therein has not even started. It must begin and be
followed to the letters of the law before anybody can talk of the
sureties losing their money or their liberty. And in the course of
this whole process, the court must ensure that the principle of
fair hearing mandated by the Nigerian Constitution is followed, in
spirit and letters.
What this whole saga will eventually boil down to is this: The
sureties, pursuant to valid service of the Order to Show Cause,
will finally be endowed with the first and golden opportunity to
put Nigerian Army on trial. At issue will be a full and adversarial
evidentiary airing of the military operations vis-a-vis Nnamdi
Kanu. It can be expected therefore that the Chief of Army Staff and
other officers in the ‘command and control’ structure will be
summoned to testify under penalty of perjury. It won’t be a pretty
sight.
In the end, the court will be tasked to make findings of facts
and conclusions of law, conceivably sustaining the proposition that
the military invasion is a supervening event and therefore the lone
proximate cause of Nnamdi Kanu’s nonappearance. Lawyers call it:
novus actus interveniens; and it’s a highly effective affirmative
defense Abaribe and his co-sureties are entitled to in a situation
like this.
So, as everyone can see, neither Abaribe nor any of the other
two sureties are headed to prison anytime soon. Not just yet.
Read more https://nairalaw.com/the-trial-of-senator-abaribe-by-niyi-sijuade/