By Niyi Sijuade
Nnamdi Kanu, Sen. Enyinnaya Abaribe
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.