By Niyi Sijuade
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.