➥ CASE SUMMARY OF:
Federal Republic of Nigeria v Alh. Abubakar Maishanu & Ors. (2019) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.51/2015
➥ JUDGEMENT DELIVERED ON:
Friday, 25th January, 2019
➥ AREA(S) OF LAW
Forfeiture of bail bond.
➥ NOTABLE DICTA
⦿ APPLICANT FOR FORFEITURE OF BAIL BOND MUST DO SO TIMEOUSLY
It is a settled principle of law and in a community reading of the provisions of Sections 137, 141 and 143 of the Criminal Procedure Act (CPA), that when an accused person/defendant is granted bail and he jumps it, the trial Court may, upon noticing such a breach by the accused/defendant may: i. revoke the bail, ii. issue a bench warrant for his arrest, iii. order the forfeiture of the bail bond, and iv. upon forfeiture of the bail bond, order the surety (sureties) to (each) pay the sum stated in the bond into the Court’s Registry. My lords, from the analysis given above from the decisions of the two lower Courts, it is clear that the two Courts are in concurrence on the finding that the appellant adopted wrong procedure in its application. Certainly, the law has its set out procedures in pursuance of applications relating to bail and perfection of bail bond and or its forfeiture as envisaged by Sections 137, 141 and 143 of the CPA or their similar provisions in other enactments. Therefore, an applicant for forfeiture of bail bond, such as in this matter, must do so timeously and should commence the procedure the moment the accused fails to appear in Court to attend to his trial. — I.T. Muhammad, JSC.
⦿ APPLICATION FOR FORFEITURE OF BAIL BOND BROUGHT AFTER JUDGEMENT IS UNKNOWN TO LAW
Further, by the combined effect of Sections 119, 120, 122, 127, 128, 137, 141 and 143 of the Criminal Procedure Act, forfeiture of bail bond is contemplated during criminal trial and not after the discharge and acquittal of the accused person as in the instant case. Once judgment is delivered, resulting in conviction or discharge and acquittal of the accused person, the obligation of the surety terminates. Thus, an application for forfeiture, brought after judgment has been delivered with the accused person discharged and acquitted, is with respect, unknown to law. — I.T. Muhammad, JSC.
⦿ CARDINAL PRINCIPLE OF FAIR HEARING IS SACROSANCT
My lords, the point needs to be re-iterated again and again that the cardinal principle of fair hearing whether in relation to a civil or criminal matter is so sacroscent. The Latin maxim puts it this way: “Audi Alteram Partem” i.e. let the other party be heard. It simply means: hear the other side(s) in a dispute before reaching a decision. It is a constitutional requirement (Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This Court made several pronouncements that the principle of fair hearing has been incorporated in our jurisprudence that a man cannot be condemned without being heard. The principle is applicable in all cases in which a decision is to be taken in any matter, whether in a judicial, quasijudicial or even in purely administrative proceeding involving a person’s interest in a property, right or personal liberty. Let the other party be heard! See: Adigun v. AG Oyo State (1997) ? NWLR (Pt. 678) page; Oyeyemi v. Commissioner of Local Government, Kwara State & Ors (1993) 6 NWLR (Pt. 299) 344. — I.T. Muhammad, JSC.
⦿ FOREIGN STATUTES REMAIN PERSUASIVE IN NIGERIA
Permit me, my Lords, to point out the fallacy in the arguments or submissions proffered by the learned counsel for the appellant on the “heavy” reliance of the Court below on a foreign statute in preference “to” Nigerian statute. To start with, since the beginning of independence, statutes enacted by the Nigerian Legislatures, Federal, Regional and or states or foreign ones which have been adopted and domesticated by Nigerian legislature enjoy the sacroscence and applicability with full force on any subject matter which is relevant to a particular statute. Other foreign statutes remain up to today of persuasive authority. Nothing stops reference being made to such a foreign statute for elucidation or comparative analysis. — I.T. Muhammad, JSC.
⦿ ONCE JUDGEMENT IS DELIVERED, THE OBLIGATION OF SURETY CEASES
It need be examined the extent of duty and responsibility of the 1st and 2nd respondents as sureties to the 3rd respondent who was standing trial before the Court of trial and that obligation is to ensure that the 3rd respondent attended trial from the inception of trial to judgment delivery and that is what the bail bond entails. Therefore by the effect of the combined provisions of Sections 119, 120, 122, 127, 128, 137, 141 and 143 of the Criminal Procedure Act, the forfeiture of the bail bond is contemplated during the criminal trial and not after a discharge and acquittal of the accused/3rd respondent. This is because once judgment is delivered resulting either in conviction or discharge and acquittal, the obligation of the surety ceases to exist. The implication is that the application for forfeiture which the appellant brought after the judgment which culminated in the discharge and acquittal of the 3rd respondent cannot be explained within any law known in our nation since by that time the exercise of jurisdiction of the trial Court over the matter that had to do with the charge on which the 3rd respondent faced had terminated. What I am trying to say is that the appellant was trying by the Motion for forfeiture of the bail bond to resurrect a dead and buried process which the Court lacked the jurisdiction to entertain. — M.U. Peter-Odili, JSC.
⦿ COURT IS FUNCTUS OFFICIO IN RESPECT OF MATTERS IT HAS CONCLUDED
The law is trite and well settled too, that a Court becomes functus officio in respect of a matter once it has concluded, accomplished or fulfilled its function in respect to that matter. It thereupon lacks potency to review, reopen, or revisit the matter, as it is thereupon bereft of Jurisdiction to reopen the issue except perhaps in proceedings such as in relation to abuse of Court process. See Ukachukwu vs UBA (2005) 18 NWLR (pt 956)1; Anyaegbunam vs AG Anambra State (2001) 6 NWLR (pt. 710) 532; Mohammed v Husseini (1998)14 NWLR (pt. 584) 108; First Bank of Nigeria Plc vs TSA Industries Ltd (2010) 15 NWLR (pt. 1216) 247. — A. Sanusi, JSC.
⦿ FUNCTUS OFFICIO MEANS “TASK PERFORMED”
The Court becomes functus officio when its task or the task before it is completely performed. Functus officio, a Latin term, means “task performed”. It means, as this Court stated in MOHAMMED v. HUSSEINI (1998) 14 NWLR (pt. 584) 108 at pages 163 164, that the judge or the Court cannot give a decision twice or make an order on the matter twice. In other words, once a Court or judge makes a final order on a matter, it (or he) no longer has the competence or jurisdiction to give another decision or order on the same matter. — E. Eko, JSC.
⦿ APPLICATION TO ENFORCE BAIL BOND IS INTERLOCUTORY
The application to enforce bail bond or recognisance is ordinarily interlocutory. Of course, an interlocutory application is an application or motion for an equitable or legal relief sought before a final decision. The appropriate time to bring such application, ordinarily, is during the pendency or subsistence of the substantive criminal proceedings; an interlocutory application being one for interim or temporary relief. I have read Sections 137 and 140 of the Criminal Procedure Act, and I am of the firm view that the interlocutory application for the forfeiture of recognisance or bail bond must be made during the pendency of the matter and at the time the trial Court has “jurisdiction over the matter”. Once the trial Court becomes functus officio in the matter of the criminal proceedings it ceases thenceforth to have jurisdiction over the matter. — E. Eko, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Tanko Muhammad, J.S.C.
⦿ FOR THE APPELLANT
M. S. Abubakar (DCLO-EFCC).
⦿ FOR THE RESPONDENT
Adeleke Agboola, Esq.
➥ CASE HISTORY
Facts relevant to this appeal as gleaned from the Record of Appeal are that the 3rd respondent, as an accused person, was arraigned before the Federal High Court, holden at Gusau, on the 16th day of December, 2011 charged with money laundering offence punishable under Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006. He pleaded not guilty to the charge. On the 24th of January, 2012, the 3rd respondent was granted bail in the sum of N5m (Five Million Naira only) and two sureties, each, in the like sum. The 1st and 2nd respondents, herein, stood sureties for the 3rd respondent and each entered into a Bail Bond in the stated sum of five million naira in fulfilment of the bail conditions. Upon execution of bail recognizance by the sureties (1st and 2nd respondents), the 3rd respondent was released from custody.
In the course of trial, the case came up on the 28th of March, 2013, for continuation but the 3rd respondent failed to appear in Court. Further, neither the 1st nor the 2nd of the respondents was in Court to explain the absence of the 3rd respondent. Thereafter, the operatives of the Economic and Financial Crimes Commission (EFCC) in execution of the arrest warrant granted by the trial Court, arrested the 3rd respondent and took him to Court on the 29th of April, 2013. The trial Court ordered the 3rd respondent to go back to custody. He remained in custody until judgment was delivered on the 13th day of June, 2013, whereby he was discharged and acquitted of the charge preferred against him.
The 3rd respondent was the deponent to his own counter affidavit in the matter. The learned trial judge refused to grant the application stating that its grant would cause delay in the proceedings. The learned trial judge dismissed the application for forfeiture of bail bond/recognizance filed by the appellant. Appellant appealed to the Court below against the two decisions of the trial Court. The Court below, in its judgment of 3rd December, 2014, dismissed the appeal and affirmed the judgment of the trial Court. The appellant now appealed to this Court on seven grounds of appeal as contained in its Notice of Appeal dated 31st December, 2014.
➥ ISSUE(S) & RESOLUTION
I. Whether the Court below’s judgment is supportable by the evidence in the Record of Appeal?
RULING: IN RESPONDENT’S FAVOUR.
A. The lower Court held thus, “Whereas in the instant case, a recognizance entered into by a person is liable to be forfeited, he must be informed exactly what is the breach complained of and must be given an opportunity to give evidence, call witnesses or give explanation from the dock and the recognizance to be forfeited must be produced before the Court. See Vol. 25 Halsbury’s Laws of England, 3rd Edition para 461. Thus, the appellant application before the trial Court without following the above procedures renders it incompetent and premature. Even though, the appellant’s right to apply for the forfeiture of the recognizance or bail bond crystallizes the moment the accused person jumps bail but the procedural steps for such application must be satisfied. However, the moment a charge against an accused is dismissed or struck out for any reason, the obligation of a surety terminates with it. Refer to A-G Federation v. Thadue Teixera De Fritas & Ors CA/L/193/85. Thus, the forfeiture application in the instant case having been brought when the judgment on the substantive charge was finally delivered and the accused person thereby acquitted; the obligation of the sureties is terminated.” This was concurred with by other panel members that heard the appeal. (pp. 175 177 of the Record of Appeal). I am in full agreement with the Court below.
B. “In the instant case, for instance, on the 28th March, 2013, appellant applied that the bail granted to the accused be revoked and bench warrant for his arrest be issued as he was absent from Court without explanation. The trial Court granted the prayers. It is to be noted, here too, that the appellant did not apply that summons be issued to the 1st and 2nd respondents who stood sureties to 3rd respondent to come and show cause why each of them should not forfeit the bail bond or recognizance he entered, for failure to produce the 3rd respondent in Court. The 3rd respondent was brought to Court under arrest on the day judgment was to be delivered. Thus, the 1st and 2nd respondents never knew that they were to forfeit the recognizance they entered with the trial Court. The snag here is that judgment on the main case involving criminal allegations which laid the basis for 3rd respondent’s admission to bail, was delivered on the 13/06/13, wherein the 3rd respondent was discharged and acquitted of the criminal allegations. The motion on Notice for forfeiture of the bail bonds was filed on the 28/6/2013, i.e. after judgment had already been delivered. That of course, was what made the learned trial judge to observe that: ‘The issue of forfeiture of the bail recognizance came up before this Court for the first time when the applicant filed this applicant (sic: application?) on the 28/06/13, three months after the 3rd respondent jumped bail after the bench warrant had been executed against him and judgment finally delivered on the charge.’ The Court below, in my view was therefore quite correct in affirming the trial Court’s decision on the application for forfeiture of bail bond, that the application having been brought to that Court when judgment on the substantive charge was finally delivered and the accused person discharged and acquitted, the obligation of the sureties was terminated. I cannot agree more.”
C. “In the instant case, the obligation of the 1st and 2nd respondents ceased on the 29th of April, 2013 when the bail of the 3rd respondent was revoked and remanded into prison custody or at worst, on the 13th June, 2013 when the accused was discharged and acquitted of the charge levelled against him.”
II. Having regard to the peculiar circumstances of this case, whether the learned justices of the Court of Appeal were right to have relied on the Halsbury’s Laws of England (3rd edition) and the judicial authority of A. G. Federation v. Thadue Teixera De Fritas & Ors (CA/L/193/85) to dismiss the appeal?
RULING: IN RESPONDENT’S FAVOUR.
A. “In the case on hand, it is clear from the judgment of the trial Court which the Court below affirmed, the trial Court cited and relied on the provision of the Criminal Procedure Act (CPA) (a Nigerian statute) Section 137 thereof and the case of John v. Commissioner of Police (2001) 2 ACLR 495 (Nigerian Court’s decision). In expertiation, the Court below had recourse to other provisions of the Criminal Procedure Act; Sections 137, 141 and 143 (page 166 of Record of Appeal) to state the consequences of jumping bail and what follows thereafter; I do not see anything wrong with the Court below citing of Halbury’s Laws of England in elucidating the requirements set by law generally for feiture of bail bond/recognizance. Equally, the case of A-G Federation v. Hadue Teixera De Fritas & Ors CA/L/193/85 said to have been reported in the Guardian Law Report (unreferenced) and reproduced by my learned brother, Ejembi Eko, JSC, in his book The Law of Bail (with incomplete referencing) pp 24 249 irrespective of names of the respondents, is a decided case by our Nigerian Court of Appeal, Court below. The decision of Court of Appeal binds itself. See: Brawal Shiping Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) at 406.”
III. Whether the Court below correctly and rightly interpreted and applied the provision of Section 107 of the Evidence Act, 2011, in the case on hand?
RULING: IN RESPONDENT’S FAVOUR.
A. The learned trial judge made a finding that “this proceeding is not a continuation of the criminal trial against the 3rd respondent in which trial is dispensed with by this Court. The 3rd respondent’s not put to trial against this proceeding can go on even in the absence of 3rd respondent. Usually, hearing is on affidavit in support and the counter affidavit by the respondent. There are exceptional situations where the motion may be set down and heard with witnesses or with leave, supplement the affidavit evidence beyond testimony. See: Akunnia v. A-G Anambra State & Ors (1977) 5 SC 161. Likewise in resolving contradictory evidence oral evidence may be allowed to resolve the conflict/contradiction: Section 107 of the Evidence Act, 2011 (as amended) provided that trial by affidavit may be done with or without the attendance of the deponent for cross-examination. It however, made a proviso, in the event a party desires the attendance of such deponent for cross-examination, the Court SHALL require his attendance for the purpose WHERE this would not result in UNJUSTIFABLE DELAY or EXPENSE. Now, where the calling of oral evidence would result in unjustifiable delay or expenses the trial Court would refuse the application.”
The learned trial judge held: “In paragraph 11 of the affidavit in support of this application, counsel had averred that the applicant had expended resources in executing Exhibit EFCC 4 (the bench warrant). Counsel did not give any particulars of the expenditure if any. Now, Exhibit EFCC was directed to the Nigeria Police who by law are saddled with the responsibility of executing same. The Court never imposed that responsibility on the applicant. It was rather the applicant’s counsel who, in open Court, requested to join the police in executing Exhibit EFCC 4 and the Court obliged them. Therefore, they cannot be heard complaining of incurring expenses in executing EFCC 4. Furthermore, such expenses even if proved cannot, in my view, be a reason for this Court to declare the recognizance forfeited.”
“In the final result, this appeal is devoid of any merit. I hereby dismiss it and affirm the concurrent decisions of the two Courts below.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ APPLICATION TO FORFEIT BAIL BOND MUST BE PROVED
✓ In Ahmadu Tea v. Commissioner of Police (1963) NWLR 77 the appellant was a surety person in a magistrate’s Court. The accused did not attend to stand trial. The recognizance was forfeited and the magistrate there upon ordered the surety to pay a penalty or be imprisoned for six months, On appeal, the appellate Court held inter alia that before a bail bond is forfeited by the trial Court; the bail bond and the facts causing the forfeiture must be proved. The surety must also be given a fair hearing.
✓ In Lamidi Abudu in Re A. K. Kotun v. Inspector General of Police (1961) LLR 83 the accused person absconded and the Court forfeited the bail bond without hearing the appellant who was the surety. On appeal, it was held that forfeiture of the bail bond without hearing the surety was premature and the ground for forfeiture was not proved.
➥ REFERENCED (OTHERS)