By Niyi Sijuade<\/p>\n
Anybody stopping short of reading just the caption of this piece would not
\nbe wrong to assume that Senator Enyinnaya Abaribe is on some kind of
\ncriminal trial for some offense. The reason such assumption won’t be wrong
\nis simple, and that is: Since October last year when Mazi Nnamdi Kanu
\nconsistently failed to appear on the scheduled dates of his trial, a
\nsection of the media has been reporting – in essence – that Senator Abaribe
\nis, on account of that, bound for prison. Well, that’s not true.<\/p>\n
Part of what is causing all the hoopla is a simple and straightforward
\nstory that every decent human being can easily understand. The issue is
\nthis: Nnamdi Kanu, the leader of IPOB was free on bail; and then without
\nany cause or authority of court, the Nigerian army launched military
\noperations against him at his home in Umuahia.<\/p>\n
It is agreed by many, and Amnesty International and others have confirmed
\nit, that the military assault resulted in casualties. Some credible
\neyewitness accounts also suggested that the army took away some people from
\nthe scene. So, in the circumstances, it is plausible that any of the fallen
\nor ‘captured’ could have included Nnamdi Kanu. I might add that the army
\nhas denied the attack even as it admitted chasing a ‘vehicle laden with
\nexplosives into Nnamdi Kanu’s house’.<\/p>\n
The details of the invasion and its aftermaths are what Senator Abaribe,
\nUchendu and Ben Madu (the sureties) have been straining to explain to
\nJustice Binta Nyako – the presiding judge in the case. But until very
\nrecently, their voices seemed to have been eroded by the louder
\nmisconceptions of the law advanced in court by prosecutors from the office
\nof the Attorney General of the Federation. Misconceptions that also seemed
\nto have imprisoned the court to the wrong procedure, but which – to its
\ncredit and that of the lawyers to the sureties – the court just corrected
\nrecently by ordering the AGF to serve the sureties with an enrolled Order
\nto Show Cause. This was on March 28, 2018.<\/p>\n
Yet, when these things are reported – even after the last hearing on March
\n28, 2018 – you get the impression of an Armageddon that is soon to consume
\nAbaribe. And in that whole gory cast, those traducing the ranking Senator
\nare careful or careless to exclude the other two sureties, thus misleading
\nthe general public that it is Abaribe alone that stands to the damning
\nperil they are baying. The truth is that all the three sureties stood in
\nbail in equal amounts of one hundred million each. So, zeroing on Abaribe
\nalone smacks of a fifth column and some mischief, to boot.<\/p>\n
In view of this whole maze of misleading reporting, it has become necessary
\nfor people familiar with the process of bond forfeiture to speak out in
\nrebuttal of what is beginning to look like an orchestrated attack on the
\ncharacter of the man, Senator Abaribe, if not a calculated but clumsy
\nattempt to scare him or damage his political and civic standing in society.
\nNow, for anybody who cares to know, below is the statutory due process that
\nmust be followed before a surety is imperiled enough to contemplate the
\nprospect of being jailed.<\/p>\n
When a Defendant fails to appear at his trial like in this case of Nnamdi
\nKanu, the court does not automatically or summarily revoke the bail or
\nissue orders of forfeiture of the bond amount, not to talk of even sending
\nthe Surety to jail. There is a process the court must follow. The process
\nis first a civil process which must be exhausted before the second phase
\n(criminal) can ever begin. It’s all enumerated under the Administration of
\nCriminal Justice Act (ACJA); which pertinent provisions I will indulge
\nreaders to permit me to reproduce below, verbatim.<\/p>\n
“Where it is proved to the satisfaction of the court by which a
\nrecognizance has been taken or, when the recognizance bond is for
\nappearance before a court and it is proved to the satisfaction of the
\ncourt that a recognizance has been forfeited, the court shall record the
\ngrounds of proof and may call on any person bound by the bond to pay the
\npenalty thereof or to Show Cause why it should not be paid” (Section 179
\n(1), ACJA).<\/p>\n
Anybody reading this – layman or lawyer – can see from above that the
\nprocess must first start with a written (not oral) Order to Show Cause,
\nwhich the sureties are yet to be served with till date. And for good
\nmeasure, it’s the duty of the Attorney General of the Federation to serve
\nsuch Order on the sureties personally at their respective addresses of
\nrecord. It is only after crossing this phase that a proper civil
\nproceedings on bond forfeiture begins. And, if I might add, such
\nproceedings is an arduous and painstaking process that can take months, and
\nunderstandably so because enormous property and liberty interests are
\nimplicated.<\/p>\n
It is after above proceedings that the next phase is triggered, as provided
\nin Section 170(2) ACJA which states that “Where sufficient cause is not
\nshown and the penalty is not paid, the court may proceed to recover
\nthe penalty from a person bound, or from his estate if he is dead,
\nin the manner laid down in this Act for the recovery of fines”. Anybody
\nfamiliar with the arcane rules on ‘recovery of fines’ will agree that they
\nbear some legal safeguards the sureties can take advantage of. In other
\nwords, it will take long before the question of any of them going to prison
\ncan arise.<\/p>\n
Now returning to the black letters of the preceding provisions, attention
\nneeds to be drawn to the use of the word ‘may’, which simply means that the
\ncourt is not bound to take the matter beyond this level. Instead, the court
\nis free to exercise sound discretion and hold harmless the sureties and
\ntheir principal (Nnamdi Kanu). But in the event that the court insists on
\nrecovery of the bond money, the next phase below (prison) kicks in.<\/p>\n
“When the penalty is not paid and cannot be recovered in the manner
\nprovided in this Act, the person bound shall be liable to imprisonment
\nfor a term not exceeding six months.” (Section 179(4) ACJA).<\/p>\n
As anybody can see, it is the above section that some otherwise respected
\nmedia have gone rogue and fringe on; and then proceeded to jump many hoops
\nto start proclaiming that ‘Judge has ordered that Abaribe must produce Kanu
\nor go to prison’. They are as wrong and bizarre as someone saying in the
\nmorning that night has come already.<\/p>\n
Still, prison is long in coming because there’s a further provision that
\ngives powers to the court to let everybody go scot-free. It’s in Section
\n180 ACJA which provides that “The court may at any time cancel or mitigate
\nthe forfeiture, on the person liable under the recognizance applying and
\ngiving security to the satisfaction of the court, for the future
\nperformance of the condition of the recognizance and paying, or giving
\nsecurity for the payment of the costs incurred in respect of the
\nforfeiture or on such other conditions as the court may consider just”.<\/p>\n
So, as you can see from above, the court has the unfettered discretion to
\ncancel or mitigate the bond, which means that no surety, including Abaribe,
\ngets to go to prison, after all or even get to losing a cent. In the same
\nvein, the court also has discretion to refuse any bench warrants against
\nKanu and ground its decision on the same rationale upon which it exculpated
\nthe sureties from any blame for Kanu’s nonappearance.<\/p>\n
Better yet, should the court insist on calling a civil default of the bond,
\nAbaribe and the others have an immediate right of appeal as provided under
\nSection 186 ACJA, which states that “An order of forfeiture made under this
\nAct shall be subject to appeal”. I don’t think that, while on appeal, any
\nof the sureties will be headed to jail. And one would postulate that the
\nright of appeal extends not only to the Court of Appeal but also to the
\nSupreme Court.<\/p>\n
Plus, there are other statutory safeguards. Order 26, Rule C of the Federal
\nHigh Court (Civil Procedure) Rules, which regulates proceedings on Orders
\nto Show Cause, provides that:<\/p>\n
“An order to show cause shall specify a day when cause is to be shown, to
\nbe called the return-day to the order, which shall ordinarily be not less
\nthan three days after service.<\/p>\n
“A person served with an order to show cause may, before the return-day,
\nproduce evidence to contradict the evidence used in obtaining the order, or
\nsetting forth other facts on which he relies to induce the Court to
\ndischarge or vary such order.<\/p>\n
“On the return-day, if the person served does not appear and it appears to
\nthe Court that the service on all proper parties has not been duly
\neffected, the Court may enlarge the time and direct further service or make
\nsuch other order as seems just.<\/p>\n
“If the person served appears, or the Court is satisfied that service has
\nbeen duly effected, the Court may proceed with the matter.<\/p>\n
“The Court may either discharge the order or make the same absolute, or
\nadjourn the consideration thereof, or permit further evidence to be
\nproduced in support of or against the order, and may modify the terms of
\nthe order so as to meet the merits of the case”.<\/p>\n
A plain reading of the foregoing will show that the process specified
\ntherein has not even started. It must begin and be followed to the letters
\nof the law before anybody can talk of the sureties losing their money or
\ntheir liberty. And in the course of this whole process, the court must
\nensure that the principle of fair hearing mandated by the Nigerian
\nConstitution is followed, in spirit and letters.<\/p>\n
What this whole saga will eventually boil down to is this: The sureties,
\npursuant to valid service of the Order to Show Cause, will finally be
\nendowed with the first and golden opportunity to put Nigerian Army on
\ntrial. At issue will be a full and adversarial evidentiary airing of the
\nmilitary operations vis-a-vis Nnamdi Kanu. It can be expected therefore
\nthat the Chief of Army Staff and other officers in the ‘command and
\ncontrol’ structure will be summoned to testify under penalty of perjury.
\nIt won’t be a pretty sight.<\/p>\n
In the end, the court will be tasked to make findings of facts and
\nconclusions of law, conceivably sustaining the proposition that the
\nmilitary invasion is a supervening event and therefore the lone proximate
\ncause of Nnamdi Kanu’s nonappearance. Lawyers call it: novus actus
\ninterveniens; and it’s a highly effective affirmative defense Abaribe and
\nhis co-sureties are entitled to in a situation like this.<\/p>\n
So, as everyone can see, neither Abaribe nor any of the other two sureties
\nare headed to prison anytime soon. Not just yet.<\/p>\n
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…<\/p>\n","protected":false},"author":1,"featured_media":44819,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[7],"tags":[],"class_list":["post-61411","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles-opinions"],"yoast_head":"\n