23/08/2019
FEDERAL REPUBLIC OF NIGERIA vs. MAISHANU & ORS.(2019)LPELR-46380(SC)
ISSUE: BAIL: Principles guiding the grant/refusal of an application for the forfeiture of bail recognizance/bond
PRINCIPLE:
"It is to be noted that the application for forfeiture of the bail bond entered was heard by the trial Court on 19th September, 2013 and it was refused. On that same date, and in the course of hearing that application, the appellant applied to
the trial Court for an order compelling the appearance of the 3rd respondent to be cross-examined on the counter affidavit, deposed to by him in opposition to the appellant's application for forfeiture of the bail bond. This application was
also refused by the trial Court. On the 29th of October, 2013, the appellant filed a Notice of Appeal to the Court of Appeal containing four (4) grounds of appeal. At the hearing of the appeal, the Court was faced with a Notice of Preliminary
Objection which it dismissed for lacking in merit.
In determining the appeal on the issue of forfeiture of the bail bond, the Court below agreed with the trial Court that due process was not followed by the applicant/appellant. The Court below stated:
"Thus, the appellant's 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." In his
reasoning process before coming to his conclusion to agree with the learned trial judge's decision, the learned justice of the Court below, U. L. shuaibu, JCA, stated as follows:
"In the instant case, the lower Court had revoked the bail and issued a bench warrant for the arrest of the accused person. Before the Court forfeits the surety's bail bond, the following requirements must be satisfied:
I. The order granting bail to the accused must be exhibited.
ii. The bail bond eventually executed by the surety must be executed.
iii. The surety must be given an opportunity to show cause why the bail bond should not be forfeited.
From the printed record (pages 6-14) the appellant as applicant at the lower Court exhibited the recognizance entered by each surety and the ruling of the Court granting bail to the 3rd respondent. 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.
Similarly, 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.
By virtue of the provisions of Section 137 of the Criminal Procedure Act applicable to the trial Federal High Court, where it is proved to the satisfaction of a Court that a recognizance entered into under the Act has been forfeited the Court
shall record the facts and by order declare the recognizance to be forfeited and that if it is proved to the satisfaction of a Court that a recognizance entered into under the Act has been forfeited, the Court shall record the facts and by order
declare the recognizance to be forfeited. 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. My full agreement with the Court below's decision is based upon the decision of
the trial Court and its reasoning thereof which I found good and reasonable. This is what the trial Court said, inter alia:
"In bringing this application, counsel to the applicant had placed reliance on Section 137 of the CPA and argued that, 'the proof to the satisfaction of the Court' contemplated by the above provision is simply to exhibit the bail recognizance.
He placed reliance on the case of TEA v. C.O.P. (Supra).
For the avoidance of doubt, Section 137 of the CPA provides:
'Where it is proved to the satisfaction of a Court that a recognizance entered into under chapter I to ll inclusive of this Act has been forfeited, the Court shall record the facts and by order declare the recognizance to be forfeited.'
With respect to the applicant counsel, the proof required under Section 137 of the CPA above cannot simply rest on the exhibition of the bail recognizance alone. The bond itself and the facts causing the forfeiture must be proved.
Needless to say strict proof is required before a surety may be penalised for breach of recognizance.
Therefore, proof required under Section 137 of the CPA, in my view, is not limited to the exhibition of the bail recognizance alone. TEA'S case only underscored the importance of exhibiting the recognizance in proving to the court that the
recognizance ought to be forfeited as required by Section 137 of the CPA.
It is instructive to note that, when the 3rd respondent failed to appear in Court to attend his trial on the days mentioned above, the 1st and 2nd respondents who stood as his sureties were never called upon to produce the 3rd respondent
whom they bound themselves to produce in case of this kind of eventuality.
The issue of forfeiture of the bail recognizance came up before this Court for the first time when the applicant filed this 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. As submitted by counsel to the respondents, when the 3rd respondent failed to appear in Court on the 23/03/13, the proper thing was for the applicant to have moved the
Court to summon the 1st and 2nd respondents and order them to produce the 3rd respondent and/or show cause why they should not be made to forfeit the recognizance. No such Notice or summons was served on the said 1st and 2nd
respondents as required by law. See the case of John v. C.O.P. (supra).
In paragraph II of the affidavit in support of this application counsel had averred that the applicant had expended huge resources in executing Exhibit EFCC 4 (the bench warrant). Counsel did not give any particulars of the expenditure if
any.
Now, Exhibit EFCC 4 was directed at 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 counsel who, in open Court,
requested to join the police in executing Exhibit EFCC 4 and the Court obliged him. 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.
As I have earlier mentioned, due process was not followed in this proceedings in that the 1st and 2nd respondents were never given the opportunity to produce the 3rd respondent.
In my view, it is after the 1st and 2nd respondents are given notice to produce the 3rd respondent and where they are unable to so produce him and cannot show any good cause when called upon to do so as to why they should not be
made to forfeit the bail recognizance, then the applicants may properly put in motion or invoke the provision of Section 137 of the CPA as they are seeking to do now, certainly not after a bench warrant has been issued, executed and trial
concluded with judgment delivered. This procedure cannot be the intendment of Section 137 of the CPA and I so hold. The applicant has therefore not satisfactorily proved to this Court why the recognizance should be forfeited. I cannot
therefore in the circumstance of this case grant the orders sought by the applicant.
Consequently all the prayers on the motion paper are refused and the application is dismissed for lacking in merit." 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. 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 (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. 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. 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.
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, quasi-judicial 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.
In the case of FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 265 at page 681, this Court, per Eso, JSC (Rtd. and now late), stated:
"The reasoning of this Court in fair hearing, is not only in accord with the law over the ages but agrees with common sense. Anyway, is there a reason the other side should not be heard before he is condemned? Why should he not enjoy
the rights conferred upon him by law as regards his employment? Why should he not be protected by the Constitution and have criminal charges against him determined by the Courts or Tribunals set up by the Constitution itself? I think it
is admitted in every reasonable culture, even apart from the decisions of this Court, that a judge should hear both sides before determining the guilt or otherwise of a person." Exactly! That is the true and correct position of the law
irrespective of the subject matter under consideration. It is gratifying to note that even the learned counsel for the appellant, though on a different issue, agreed with the general position of the law on fair hearing. He stated, inter alia:
"However, where the Court feels some other issues ought to be determined, it must bring those issues to the notice of the parties and give them the opportunity of addressing the Court on it before deciding on the issue one way or the
other. This is in line with the principle of fair hearing."
In its judgment of 3rd December, 2014 relating to issue 2, the Court below while recapitulating the rights conferred by law generally, on a surety or a person who entered into a bond or recognizance in favour of an accused person who is
admitted to bail, and which bond or recognizance is liable to forfeiture. This is what the Court below, per Shuaibu, JCA, said:
"Where as 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."
In the circumstances as expatiated above, I find no merit in this issue and it is decided against the appellant.
My Lords, I now take appellant's issue No.2. It is on whether the justices of the Court below were right to have relied on Halsbury's Laws of England (3rd edition) and the case of A-G Federation v. Thadue Teixera De Fritas & Ors.
(supra).
But before delving into appellant's issue 2 and of course issue 3, permit me to observe, with respect, my Lords, that the respondent did not respond to appellant's issues 2 and 3. This is perhaps, he thought the sole issue formulated by him
is comprehensive enough to cover these issues. However, throughout the length and breadth of the respondent's brief of argument, appellant's issues 2 and 3 were never reflected by the respondent. But, be that as it may, the primary
objective of any Court of law is the attainment of justice irrespective of the disposition or approach of a party to the prosecution or in defence of the matter placed before the Court. It is the duty of the Court to state the correct position of
the law on the subject matter placed before it without unnecessarily entering into the arena by making submissions on behalf of any of the parties.
Without mincing words, the Court below stated how it understood the said provision of the Evidence Act and it states:
"The above (i.e the Section as set out above) contemplates a situation where the civil proceeding is commenced other than by affidavit evidence and that a particular fact could only be received through an affidavit evidence. In such a
case, the Court may accept affidavit evidence with or without the appearance of a deponent for cross-examination. However, where a party desires the attendance of such a deponent, he may apply to the Court and the Court shall grant
the application unless doing so may lead to unjustifiable delay or expenses. The proceeding in the lower Court was by a motion on notice wherein the parties filed affidavit evidence. No oral evidence is called. The application was heard on
the affidavit in support of the application and the affidavits which every party to the application proposes to use at the hearing. Thus, the affidavits constitute the evidence.
Where as in this case, the appellant desires to controvert or challenges the averments in the counter affidavit; the procedure is for him to file a further affidavit in support of his application. In some cases, Courts admit oral evidence to
resolve contradictory affidavit evidence which is not the case here."
Learned counsel for the appellant challenged the decision of the Court below in respect of the interpretation given to Section 107 of the Evidence Act by the trial Court. The appellant alleged further that the learned Justices of the court
below introduced a new dimension to the dispute beyond what was placed before them by both parties and that their Lordships ought to justify their decision by holding that Section 107 of the Evidence Act, 2011 is only applicable where
the proceedings is commenced by way of pleadings. Learned counsel for the appellant finally urged this Court to resolve the appellant's 3rd issue in appellant's favour and make consequential order discountenancing the 3rd respondent's
counter affidavit at the lower Court filed on 04/07/2013, as the appellant was not afforded the opportunity to cross-examine the deponent even after making an application to that effect.
Appellant's issue two is on the "heavy" reliance said to have been made by the Court below on the case of A-G Federation v. De Fritas & Ors. (supra).
That was the point at which the Court below made mention of the Halsbury's Laws of England, 3rd edition and the Court of Appeal (Lagos Division) judgment in the case of A-G Federation v. Thadue Teixera De Fristas & Ors.
CA/L/193/85 (supra).
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.
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 expatiation, 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:
"When an accused person jumps Court bail, the Court may:
i. Revoke his bail,
ii. Issue a bench warrant for his arrest,
iii. Order the forfeiture of the bail bond; and
iv. Upon forfeiture of the bond, order the surety to pay the sum stated in the bond into the Court registry. See Sections 143, 137 and 141 of the Criminal Procedure Act. The 3rd respondent in the instant case had jumped bail on 28/3/2013
and upon the application of the prosecution the bail was immediately revoked. The bench warrant for his arrest was issued while the case was adjourned to 16/4/2013. The 3rd respondent was eventually arrested and produced in Court on
9/5/2013."
The Court below went further to state the requirements which "must" be satisfied as follows:
i. "The order granting the bail to the accused must be exhibited
ii. The bail bond eventually executed by the surety must be executed.
iii. The surety must be given an opportunity to show cause why the bail bond should not be forfeited."
The Court below followed up these requirements by citing several Nigerian cases in support such as: Ahmadu Tea v. COP (1963) NMLR 77; Lamidi Abudu in Re: A. K. Kotun v. IGP (1961) LLR 83; and Section 137 of the Criminal Procedure
Act.
It was after all these that the Court stated:
"Where as 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 Halbury's Laws of England, 3rd edition, para 461. Thus, the appellant's application before the trial Court without following the above procedures renders it incompetent and premature."
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 forfeiture 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 Shipping Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) @ 406.
Thus, I see nothing wrong here too if the Court below decides to rely on its earlier decision. Accordingly, I find no merit in issue 2 which is determined against the appellant." Per MUHAMMAD, JSC.(Pp.7-28,Paras D-F).
