Bail

Before Their Lordships

Between

AND

…………………….A…………………….

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal of the appellant against the decision of the Abia State High Court sitting at Umuahia delivered on 9/2/2017.

Before Their Lordships

Between

AND

Before Their Lordships

Between

AND

In his submissions on issue 1, learned counsel for the appellant argued that the concurrent findings of fact of both courts below as to threat to National Security cannot stand in the face of available evidence. He stated further that what is called “threat to National Security” can only be distilled from paragraph 5(d) of the respondent’s counter affidavit at the trial court.” These, he argued further, were just depositions without nothing more to Support them when the burden is on the prosecution to prove why bail should not be granted. Bail pending trial, learned counsel submitted, is a Constitutional right and there is a presumption of innocence of the individual. He cited and relied on the cases of Enebeli v. Chief of Naval Staff(2000) 9 NWLR (Pt. 671) 119 at 124-125; Ani v. State (2002) 1 NWLR (Pt. 747) 217 at 30. Learned counsel stressed the point that it was not the duty of the Court of Appeal to believe or not to believe anything at this stage of the proceedings when exhibits have not been tendered at the trial. It was a grave error for that court to prejudice the appellant by believing that he actually granted an interview contained in a newspaper cutting which was part of a bundle of papers given to the appellant’s counsel (but not filed along with the charge, purportedly as proof of evidence). Learned counsel urged this Court to interfere with the finding of fact of the Court as it violated the known principle of law that an accused is presumed innocent until proved guilty. He urged this court to resolve issue No.1 in favour of the appellant.

In his submissions on issue No.2, the learned counsel for the appellant stated that a mere allegation of threat to National Security cannot automatically suspend the provisions of Chapter 4 of the 1999 Constitution which includes section 35 thereof, on right to bail. In disagreeing with the Court of Appeal in its reasoning process, learned counsel for the appellant argued that the only time human rights can take a second place is not when a mere charge relating to threat to National Security is brought against anyone, but when a formal declaration of a State of emergency is proclaimed in line with the provision of the Constitution. It was argued further for the appellant that if “threat to National Security” is to be taken as a factor to consider in the grant or refusal of bail, the court must still have recourse to the competing depositions in the affidavit as filed by both parties and see whether the prosecution has successfully discharged this burden to show that there is a threat to National Security. Even if it is, it does not preclude altogether the consideration of that right to bail as enshrined in the Constitution. Learned counsel referred to the case of Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155. He urged this court to resolve issue No.2 in favour of the appellant. Learned counsel finally urged us to allow the appeal and admit the appellant to bail.

The learned Director of Public Prosecution for the respondent submitted that the trial court took into consideration all the relevant criteria for the grant of bail as have been laid down in a plethora of cases and the court rightly held that all the requisite conditions for the grant of bail did not co-exist. He cited and relied on the cases of Anajemba v. Federal Government of Nigeria (2004) 13 NWLR (Pt. 890) 267; (2005) 1 NCC 390 at page 398]; Ani v. State (2002) 1 NWLR (Pt. 747) 217 at page 230 A-C; Nakutama Likita v. C.O.P (2002) 11 NWLR (Pt. 777) 145 at page 160 E-; 161 – B. It was his further submission that there is a strong probability of guilt of the accused and that there is a likelihood of the accused person interfering with the cause of justice if released on bail. He relied on the affidavit evidence as well as the interim Police Investigation Report; the accused person’s confessional statement; communique of meeting held at Samsy Hotel, Benin City, Edo State and the press interview. Learned Director of Public Prosecution cited the case of Bamaiyi v .State (2001) 8 NWLR (Pt. 715) 270 at 291.

…………………….C…………………….

It was the learned Director of Public Prosecution’s submission that refusing bail to the appellant is not in anyway inconsistent with the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999. The learned Director of Public Prosecution drew this court’s attention to the fact that there are concurrent findings of the two lower courts against the appellant which were adequately supported by credible affidavit evidence adduced before the trial court. The attitude of this court, he argued further, to such concurrent findings is that this court will not disturb such findings without any substantial error apparent on the record of proceedings or that such findings are perverse. He stated that the onus is on the appellant to demonstrate by showing the existence of special circumstances to justify why this court should interfere with the findings of fact made by the two lower courts. This, the appellant has woefully failed to do.

Further submission made on behalf of the respondent are that where an offence carries a sentence exceeding 3 years imprisonment, bail in such a case is not a mere matter of course, but rather, at the discretion of the court which must be exercised judicially and judiciously as has been done in this case. The learned Director of Public Prosecution cited section 118(2) of the Criminal Procedure Act (CPA). The charges against the appellant carry a maximum sentence of life imprisonment. It is in the interest of justice to refuse the appellant bail and uphold the concurrent findings of the two lower courts. The learned Director of Public Prosecution urged this court to dismiss the appeal.

When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial Court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include, among others, the following:

(i) the nature of the charge;
(ii) the strength of the evidence which supports the charge;
(iii) the gravity of the punishment in the event of conviction;
(iv) the previous criminal record of the accused if any;
(v) the probability that the accused may not surrender himself for trial; the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
(vii) the likelihood of further charge being brought against the accused;
(viii) the probability of guilt;
(ix) detention for the protection of the accused;
(x) the necessity to procure medical or social report pending final disposal of the case.

See: Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Ani v. State (2002) 1 NWLR (Pt. 747) 217; Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 171; Eyu v. State (1988) 2 NWLR (Pt. 78) 602.

The criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide the required guideline to a trial court in the exercise of its discretion on matters of bail pending trial. My learned brother, Uwaifo, JSC, has this to say on these factors:

“In that regard it is proper to consider the nature of the offence, the nature of the evidence in support of it, and the severity of the punishment which conviction will entail. The learned trial Judge took this critical factor as to availability to stand trial into consideration … These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial but they are certainly worthy to be taken into account in an application for bail pending trial.”
See the case of Bamaiyi v. State (supra) at page 292.

In his contribution in the above case at pg 294, Ogbuegbu, JSC, stated:
The court has in most cases, discretion to admit an accused person to bail pending trial, but in the exercise of the discretion, the nature of the charge, the evidence by which it is supported, the sentence which by law may be passed in the event of conviction, the probability that the appellant will appear to take his trial, are the most important ingredients for the guidance of the court and where these are weighty, an appellate court will not interfere. See: In the matter of Etienne Barronent v. Edmond Allian I. E. and B. I. (1852) Dears 51; 118 E. R. K.B. 337 and Re Robinson (1854) 23 L.J.Q.B 286.”

…………………….D…………………….

As the appellant is facing criminal charges at the trial court it is very pertinent for me at this juncture for clarity sake, to set out in full the counts for which the appellant is standing trial. They read as follows:

“CHARGE

COUNT 1
That you: (i) Alhaji Mujahid Dokubo Asari ‘m’ 41 years old of No. 13 Agudama Street, D-Line, Port Harcourt; and others (presently at large) on about 28th August, 2005 at Samsy Hotel, Benin City, Edo State within the jurisdiction of the Federal High Court did conspire among yourselves to commit felony to wit: treasonable felony; by forming an intention to:

(a) remove during his term of office otherwise than by Constitutional means, President Olusegun Obasanjo as Head of State of the Federation and Commander-in -Chief of the Armed Forces thereof: and

(b) levy war in order by force, constraint, to compel the President to change his measures, counsel and manifested such intention by overt acts; and you thereby committed an offence contrary to section 41 and punishable under section 516 of the Criminal Code Act Chapter 77, Laws of the Federation of Nigeria, 1990.

COUNT 2
That you: (1) Alhaji Mujahid Dokubo Asari ‘m’ 41 years old of No. 13 Agudama Street, D-Line, Port Harcourt; and others (presently at large) on or about 28th August, 2005 at Samsy Hotel, Benin City, Edo State within the jurisdiction of the Federal High Court did commit treasonable felony against the Federal Republic of Nigeria by respectively belonging to Militant Groups known as the Niger Delta People Volunteer Force (NDPVF); Congress for the Liberation of Ikwere People (COLIP) and Chikoko Movement which threatened to take up arms in order to intimidate and overawe the President and Government of the Federal Republic of Nigeria and manifested such intention by overt acts and you thereby committed a felony contrary to and punishable under S. 41 of the Criminal Code Act Chapter 77 Laws of the Federation of Nigeria 1990.

COUNT 3
That you: (i)Alhaji Mujahid Dokubo Asari ‘m’ 41 years old of No. 13 Agudama Street, D-Line, Port Harcourt; and others (presently at large) on or about 28th August, 2005 at Samsy Hotel, Benin City, Edo State within the jurisdiction of the Federal High Court formed, managed and assisted in the management of unlawful societies of more than ten persons respectively known and called “Niger Delta Peoples Volunteer Force” (NDPVF), Congress for the liberation of Ikwere People (COLIP) and Chikoko Movement with the objective of:
(a) levying war on the government of the Federal Republic of Nigeria
(b) encouraging the killing and injuring of persons;
(c) destroying, injuring and encouraging the destruction and injuring of property;
(d) subverting or promoting the subversion of the Government of the Federal Republic of Nigeria and its officials;
(e) committing, inciting acts of violence and intimidation;
(f) interfering with resisting encouraging interference with or resistance to the administration of law: and
(g) disturbing and encouraging the disturbance of peace and order in the Niger Delta States of Rivers; Delta; Edo of the Federal Republic of Nigeria contrary to section 62(2)(1) and punishable under section 63 of the Criminal Code Act Capt. 77, LFN, 1990.

COUNT 4
That you: (i)Alhaji Mujahid Dokubo Asari ‘m’ 41 years old of No. 13 Agudama Street, D-Line, Port Harcourt; and others (presently at large) on about 28th August, 2005 at Samsy Hotel, Benin City, Edo State within the jurisdiction of the Federal High Court published a statement, rumour, report which is likely to cause fear and false alarm to the public knowing or having reason to believe that such statement, rumour, report, is false and thereby committed an offence contrary to and publishable under section 59 of the Criminal Code Act Chapter 77 LFN 1990.

COUNT 5
That you: (i) Alhaji Mujahid Dokubo Asari ‘m’ 41 years old of No. 13 Agudama Street, D-Line, P0I1 Harcourt; and others (presently at large) between year 2004 and 2005 at Port Harcourt, Rivers State, Nigeria within the jurisdiction of the Federal High Court are members of unlawful societies respectively called:
(1) “Niger Delta Peoples Volunteer Force” (NDPVF)
(2) Congress for the Liberation of Ikwere People (COLIP); and
(3) Chikoko Movement and you thereby committed a felony contrary to and punishable under section 64 of the Criminal Code Act Chapter 77 LFN 1990.
OVERT ACTS OF THE OFFENCES OF COUNTS I AND II
1. That you: (I) Alhaji Mujahid Dokubo Asari; and others presently at large respectively formed the following organization: Niger Delta Peoples Volunteer Force (NDPVF); Congress for the Liberation of Ikwere People (COLIP); and Chikoko Movement; all of whom want Nigeria to disintegrate so that its ethnic nationalities, particular the Ijaw and Ikwere people, would create their own nations;
2. That you: (l)Alhaji Mujahid Dokubo Asari; and others presently at large, attended a meeting of “The Pan Niger Delta Action Conference/ Council (PANDAC)”; the meeting was attended by leaders and members of representative nationality organizations, militant formations, youth and civil society organizations from Niger Delta region, including the Niger Delta Peoples Volunteers Force (NDPVF), Chikoko Movement, Great Commonwealth of the Niger Delta (GCND), Movement for the Survival of Ogoni People (MOSOP), Ijaw youth Council (IYC), Itsekiri National Youth Council, National Youth Council of Ogoni People (NYCOP), Civil Liberties Organization (CLO), Niger Delta Women for Justice (NDWJ), Congress for the Liberation of Ikwere People (COLIP) Supreme Egbesu Assembly (SEA), Delta Stakeholder Today Peoples Council, Socialist Workers Party, Federated Niger Delta Ijaw Communities (FINDIC), National Association of Ijaw Female Students, People with Disability Action Network (PEDANET) among others on or about August 28,2005 at Samsy Hotel Benin City Edo State of Nigeria and issued a communique:

…………………….E…………………….

“COMMUNIQU OF THE STRATEGY AND MOBILIZATION MEETING OF THE PAN NIGER DELTA ACTION CONFERENCE/ COUNCIL (PANDAC) AT THE SAMSY HOTEL, BENIN CITY, EDO STATE ON SUNDAY, AUGUST, 28, 2005.”
3. That in the said communique referred to in paragraph 2 above and signed by Alhaji Mujahid Dokubo Asari, you alleged that the irresponsible Governors of the Niger Delta, Local Goverment Chairmen and NDDC Directors in connivance with the Federal Government of Nigeria looted the oil revenue accruing to the people of Niger Delta while pursuing their personal projects and aggrandizement, and therefore threatened to take up on this against the Government of the Federal Republic of Nigeria;
4. That at the said meeting of August 28, 2005 at Samsy Hotel, Benin City, Edo State of Nigeria
you: (1) Alhaji Mujahid Dokubo Asari: and others presently at large planned to cause civil disorder that would lead to the overthrow of what you called “the dictatorial government of Chief Olusegun Obasanjo” and replace same by a Provisional Government of National Unity.
5. That you: (1) Alhaji Mujahid Dokubo Asari; granted interview to the Independent Newspaper that was published on September 10, 2005 in which you said:

‘Nigeria is an evil entity. It has nothing to stand on and I will continue to fight and try to see that Nigeria dissolves and disintegrates and I am ready to hold on to the struggle see to this till the day I will die. I do not see any reason why I should continue to live with people that have no relationship with me whatsoever.”
DATED THIS …. 4TH DAY ….. OF OCTOBER 2005
CHIEF BAYO OJO (SAN) Hon. Attorney-General of the Federation and Minister of Justice.”

It is thus clear that all the counts are of criminal nature. The offences were all created by the Criminal Code Act and punishable by same.

The various offences set out above, if proved will each, attract a punishment of not less than three years of imprisonment. See the various section under which the offences are punishable i.e. sections 41, 59, 63, 64 and 516 of the Criminal Code Act Cap. 77, Laws of the Federation of Nigeria, 1990.

Section 118(2) of the Criminal Procedure Act (CPA) Cap. 80, LFN, 1990 provides as follows:
“Where a person is charged with any felony other than a felony punishable with death, the court may, if it thinks fit admit him to bail.” (italics supplied for emphasis) The interpretative section, section 2 of the CPA assigns the following interpretation to the word “felony” –

“felony’ means an offence on conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony.” (italics supplied for emphasis)

Section 118(2) of the CPA, in my view, makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial Judge. Furthermore, where an offence carries a sentence of imprisonment for a period of three years or more, grant of bail is not a mere matter of course. It is a settled principle of law that except where a miscarriage of justice has been established or that there is a violation of some principles of law or procedure; or that the discretion is known to have been wrongly exercised, or where the exercise was tainted with some illegality or substantial irregularity, an appeal court seldom interferes with the learned trial Judge’s exercise of discretion.This is because discretion is of the trial Court and not of the appellate court hence it cannot substitute its own discretion. See the case of Efetiroroje v. Okalefe II (1991) 5 NWLR (Pt. 193) 517; Royal Exchange Assurance (Nig.) Ltd. v. Aswani Textiles Ltd. (1992) 3 NWLR (Pt. 227) 1 at page 5; Resident, The lbadan Province & Anor: v. Mamudu Lagunju (1954) 14 WACA 549 at page 522; Anyah v. A.N.N. Ltd. (1992) 6 NWLR (Pt. 247) 319; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124 and University of Lagos v. Aigoro (1985) 1 NWLR(Pt.1) 143.

In Saraki v. Kotoye (1990)4 NWLR(Pt.143) 144 at page 171, Obaseki, JSC, put in this way:
“The proper role of a Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the appellate court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the Appeal Court.”
It is worthy of note as well, that on a question of exercise of discretion authorities are not of much value. No two cases are exactly similar and even if they are, the court cannot be bound by a previous decision to exercise its way because that would be putting an end to discretion.
No discretion in one case can be a precedent to another. See: the holding of Kay, L.J. in the case of Jenkins v. Bushby (1891) 1 Ch. 484, at page 485; see also Kudoro v. Alaka (1956) 1 FSC 82 at page 383, (1956) SCNLR 255; Solanke v. Ajibola (1968) 1 All NLR 46 at page 51.

…………………….F…………………….

It is clear in this appeal that at the close of oral arguments by the parties before it and after considering all the submissions made by the learned counsel for the respective parties, the court below, per Rhodes-Vivour, JCA; made the following conclusion:

“In the light of the above the learned trial Judge was right in refusing the application for bail by the appellant. This court will not interfere with the decision of the learned trial Judge.” The practice of the appeal courts generally, and this has been on for quite sometime, is that where there is a concurrent finding of two lower courts, the appeal court hardly interferes with it except on exceptional circumstances. See Igogo v. The State (1999) 12 SCNJ 140, (1999) 14 NWLR (Pt. 37) 1; Dogo & Ors. v. The State (2001) 1 SCNJ 315; (2001) 3 NWLR (Pt. 699) 192. This principle of concurrent findings/decisions of two lower courts not to be ordinarily disturbed by the higher court is respected by the courts because it is founded on the understanding that the facts that have been deliberated on by two courts carefully before they arrived at certain conclusions can be supported from the evidence laid before them particularly if much of the findings or conclusions depend on the trial court having heard and seen vital witnesses testify. In this regard it is an exclusive preserve of the trial court and an appellate court certainly lacks power to interfere. But, where the evaluation of evidence is only through documentary evidence, an appellate court has liberty to evaluate the affidavit evidence with a view to either affirming or reversing the trial court’s decision depending on the substantiality of the dispositions made by the parties. In the appeal on hand the court below made some findings of fact on the affidavit evidence. Below is what the court said:

“Evidence available to the trial Judge and to us shows beyond doubt the threat to National security. A close scrutiny of the charge and documentary evidence available reveals offences that are a real threat to National security.”
The evidence available before the two lower courts was that of the affidavit evidence. The appellant as applicant before the trial court deposed to the following facts in support of his application for bail, through Daniel Nuesiri:
“1. That I am a litigation officer in Festus Keyamo Chambers, solicitors to the accused/applicant
2. That I have consent of the applicant and my employers to depose to this affidavit.
3. That I was informed by the accused/applicant and I verily believe that:
a. That on Monday, September 19, 2005 the applicant received a phone call from the Commissioner of Police, Rivers State, to report at the Police State Command.
b. That on getting there he was asked whether he knew anything about the threat to blow up oil installations over the arrest of the Baylsa State Governor which he answered in the negative.
c. That he was then told that his attention was needed in Abuja after which he was whisked away through the back gate of the command without the knowledge of his associates and friends who accompanied him to the Police Headquaters.
d. That from the 19th of September, 2005, the applicant was in detention until 6th of October, 2005, when he was arraigned before this Honourable Court on a five-count charge.
e. That the accused has no criminal record and has never been tried for any offence before.
f. That the accused will not commit any similar offence or any at all if granted bail.
g. that the accused will not impede any further investigation if granted bail.
h. That the accused will not jump bail and will make himself available for trial.
i. That the accused is worthy enough to be granted bail in self recognizance and alternatively can provide credible sureties for his bail.
(4) That there is no prima facie evidence that the accused has committed the offences for which he is charged.
(5) That it will be in the interest of justice to grant this application.
(6) That I depose to this affidavit in good faith.”
The respondent filed a counter affidavit. It was sworn to by one Y. S. Abubakar who averred to the following facts:
“1 . That I am a senior Police Officer of Nigeria Police, Force Headquarters, Abuja – FCT
2. That I am also one of the officers that investigated this case.
3. That by virtue of my said position, I am sufficiently conversant with the facts, which I herein depose.
4. That I have the consent and authority of the complainant/respondent to depose to this counter affidavit.
5. That I was informed by the Hon. Attorney-General of the Federation and Minister of Justice on Tuesday, October 11, 2005, at 1200 hrs in his office at Federal Ministry of Justice, Federal Secretariat Complex, Abuja and I verily believe him as follows:

…………………….G…………………….

(a) That if the accused/applicant is released on bail, the prosecution of the charge against him will
be at risk,
(b) That most other suspects in this case are still at large.
(c) That the available evidence against the accused applicant so far is over whelming.
(d) That the accused/applicant is a militant leader of a dangerous, armed and unlawful society
called the Niger Delta People’s Volunteer Force (NDPVF).
(e) That the accused/applicant have had access to and can on grant of bail, have access to
dangerous weapons.
(f) That the accused/applicant is from the riverine area of the Niger Delta of Nigeria.
(g) That the Niger Delta is an area consisting of mangrove swamp, numerous creeks and is an
extremely difficult terrain to access.
(h) That if granted bail the accused/applicant will commit similar offences, interfere with the
investigation of the case and not make himself available for trial.
6. That after the arrest of the accused/applicant, his statement was obtained wherein he confessed to the commission of the crimes.
7. That I was also informed by the Hon. Attorney-General of the Federation and Minister of Justice on Tuesday, October 11, 2005, at 1200 hrs in his office at Federal Ministry of Justice, Federal Secretariat Complex Abuja, and I verily believe him that the accused/applicant has not shown any special circumstances warranting the grant of this application.
8. That the accused/applicant is healthy and he is being taken care of by the State as was seen from his entire appearance when he was arraigned before the court.
9. That the complainant/respondent will do all in its power to ensure a very speedy trial of the substantive case.
10. That it will be prejudicial to national security to grant bail to the accused/applicant.
11. That it will be in the interest of justice to refuse this application.
12. That I do solemnly and sincerely declare that I make this declaration conscientiously believing same to be true and by virtue of the provisions of the Oath Act.”
In a reply to the counter-affidavit, Festus Keyamo, learned counsel for the appellant, deposed to the following facts:
“1. That I am the counsel to the accused person.
2. That I have the consent and authority of the accused person to deposed to this affidavit.
3. That the appellant himself could not depose to this affidavit because he is remanded in custody but he informed me and I verily believe the under-mentioned facts.
4. That no other person has been declared wanted by the Federal Government in relation to this charge.
5. That there is no proof of evidence filed with this charge as such the court has nothing upon which to decide about the nature of the evidence in this case.
6. That the accused/applicant has no access to dangerous weapons.
7. That the accused/applicant is prepared to provide sureties from Rivers State who know the creeks, mangrove swamps and who can locate him anytime, even though he is not prepared to escape from his trial.
8. That the accused/applicant has never confessed to the commission of any offence.
9. That the accused/applicant was never found committing any offence or arrested in the course of committing any offence as he voluntarily went to the State Command, Rivers State on invitation and he was arrested.
10. That I swear to this affidavit in good faith.”

The court below commented on the affidavit evidence and other processes placed before the trial court. The trial court considered these processes in arriving at its decision. This is what the Court below said.
“Indeed the depositions in the affidavit and interview granted the independent Newspaper on 10/9/05 are ominous and very disturbing. For example the appellant granted interview to the press wherein he says that he will continue to fight until Nigeria disintegrates. Evidence available to the trial Judge and to us shows beyond doubt the threat to National Security. A close scrutiny of the charges and documentary evidence available reveals offences that are a real threat to National Security. They involve creating a situation where the government of the Federal Republic of Nigeria could yield to force or expose the public to serious danger. Indeed paragraph 10 of the counter affidavit supports that fact. It states that it would be prejudicial to National Security to grant bail. I agree. This deposition easily covers all the counts against the appellant.”

From the above, it is clear to me that the court below was right in its conclusion that there was evidence which the trial court accepted to show the existence of threat to National Security. For instance, in his statement to the Police, signed by him the appellant made strong statements. It suffices to quote the following statements:

…………………….H…………………….

“The objective of Pronaco is to organize a sovereign National Conference. The conference will kick off in October, 2005. The Niger Delta Sovereign National Conference is a mini conference of the Pronaco People’s National Conference. Because General Olusegun Obasanjo manipulated himself to power through massive rigging of the 2003 election. The people must seize power through the process of democratic, progressive mass action that will lead to the formation of a provisional government of National Unity. We can achieve peace without fighting by going our separate ways like the Czechoslovakia experience. If there is no peace the process leading to armed struggle cannot be ascertain (sic) as I am not God. The Niger Delta People’s Volunteer Force (NDPVF) which I led have (sic) totally disarmed. Hence, armed struggle will predicate on the actions and activities of the regime of the Nigerian State. I will pursue the course of the disintegration of Nigeria through the process of the Peoples National Conference….The Government of General Obasanjo is illegitimate. It retain (sic) power through the manipulation of the electoral process. This is a negation of elementary principle of democratic governance. No man with self respect will allow his right of choice taking away (sic) from him by a regime claiming to be democratic. This has made me and others like me to resent the government of the regime of general Obasanjo. When Nigeria eventually disintegrate (sic) the Ijaws will form a country of their own …. if the struggle outlive (sic) me. I will be grateful to God for other better than myself such as Isaac Adakaboro, Ken Saro-Wiwa had gone before me.”

These statements were neither denied nor controverted. They were made by the appellant. In fact in paragraph 10 of the counter-affidavit the deponent averred that it will be prejudicial to National Security to grant bail to the accused/applicant. No reply to this averment by the appellant when he filed a reply. It thus stands to be an uncountered averment which in law is deemed admitted. See: Ex parte Adesina (1996) 4 SCNJ 111; (1996) 4 NWLR (Pt. 442) 254. Attorney-General of Anambra State v. Okeke (2002) 5 SCNJ 318; (2002) 12 NWLR (Pt. 782) 575; Stephen Lawson-Jack v. The Shell Petroleum Development Company of Nigeria Ltd. (2002) 7 SCNJ 121; (2002) 13 NWLR (Pt. 783) 180.

Secondly, in a communique of the strategy and mobilization meeting of the Pan Niger-Delta Action Conference/Council (PANDAC) held at the Samsy Hotel Benin City, Edo State on Sunday August 28, 2005, which was released to the media on August 31, 2005 and which formed part of interim Police Investigation Report, it was alleged that the irresponsible Governor, Local Government Chairmen and NDDC Directors in connivance with the Federal Government of Nigeria looted the oil revenue accruing to the people of Niger Delta while pursuing their personal projects and aggrandizement. This, they felt, had left the people in a state of abject poverty and neglect. The PANDAC called on the peoples of Nigeria to act towards overthrowing the Current dictatorship and replacing it with a provisional government of National Unity and a National Conference that will structure Nigeria and restore sovereignty to its people. The communique was jointly singed by the appellant and two others. Although these documents i.e. the appellant’s statement to the Police and the communique just referred to above were not tendered as evidence, yet they formed part of the Police Diary. They also formed part of the proof of evidence. Although the defendant/applicant/appellant denied in paragraph 5 of its reply that proof of evidence was filed by the prosecution/respondent and that the trial court had nothing upon which to decide the nature of the evidence in the cases, there is evidence of receipt of proof of evidence with controverted appellant’s averment in his paragraph 5 of the reply referred to above. One Mr. Aniku, a legal practitioner and one of the defence counsel deposed as follows:
“2. That attached as exhibits A, B and C are the letter received to collect proof of evidence, the proof of evidence received and the acknowledgement of the proof respectively.”

The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail the trial Judge is bound to consider the weight of facts pleaded to in an affidavit evidence placed before him. Other considerations enumerated earlier such as the strength of the evidence which supports the charge, the gravity of the punishment in the event of conviction, the likelihood of the accused interfering with proposed witnessed or may suppress any evidence that may incriminate him; the likelihood of further charge being brought against him and the probability of guilt are weighty issues in this case that the trial court cannot gloss over. See Mamuda Dantata v. Police (1958) NRNLR 3; Abacha v. The State (2001) 3 NWLR (Pt. 699) 35; Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt. 370) 155. What assurances are put in place such that the appellant if released on bail, will not eventually translate into action his threat of continued “armed struggle” which in his words “cannot be ascertain (sic)” as he was not God, if there was no “peace”, ‘peace’ may be taken in the context of what he meant, to be a relative term. Even the Devil cannot know or draw inference in what that unpredictable and soft oscillating organ in human body called heart/mind, conceals. The applicant in my view has failed to meet the minimum demands for the grant of bail, looking at the totality of the circumstances surrounding his case. I resolve issue 1 in favour of the respondent.

…………………….I…………………….

Appellant’s issue No.2 touches on appellant’s right to bail as enshrined in section 35 of the 1999 Constitution. It is the contention of learned counsel for the appellant that a mere allegation of threat to National Security cannot automatically suspend the provisions of Chapter 4 of the 1999 Constitution, which includes the right to bail. This, learned counsel further argued, was the major plank upon which the Court of Appeal based its decision to uphold the ruling of the trial court. The effect of this holding is to erroneously suspend section 35 of the 1999 Constitution of the Federal Republic of Nigeria – a section which guarantees the right of bail whenever any charge is preferred against anyone, including a charge of treasonable felony. Learned counsel equated the pronouncement of the Court of Appeal on section 35 of the Constitution to that of suspending a part of the Constitution through a judicial pronouncement. Learned counsel for the appellant went on to submit that the only time human rights can take a second place is not when a mere charge relating to threat to National Security is brought against anyone but when a formal declaration of a State of Emergency is proclaimed in line with the provisions of the Constitution. Learned counsel went on to cite the Constitutional provisions relating to period of emergency which would justify derogation from the provision of section 35(4) of the Constitution.

Let me observe from the outset, that although the respondent did not advert its mind to fully address the appellant’s issue, I must draw the attention of learned counsel for the appellant that the main discourse of his submission on issue two is on state of emergency. I think this is an unnecessary voyage in a world of fantasy. What is the relationship between grant of bail or refusal thereof with the suspension of a part of the Constitution i.e. section 35 of that Constitution? What brought about the provisions of the Constitution which relate to the declaration of emergency? If refusal of bail to any person accused to have committed a crime will amount to jettisoning some part of the Constitution, or will invoke the declaration for a period of emergency, then this country, which I believe, is populated by majority of law abiding citizens, who always carry out their normal day to day life without instilling any fear or causing any havoc to anyone, at any time, will be doomed. The reference made by learned counsel to provisions on emergency situations is nothing other than mere concoction of facts to whip-up sentimental sympathy. The learned counsel is aware that courts do not make laws. They interpret laws. Courts cannot amend the Constitution. Courts cannot suspend the Constitution or any part thereof. See: the case of Attorney-General of Bendel State v. Attorney General of Federation & Ors. (1981) 10 SC 1 at 134 (1981) NSCC 314; (1982) 3 NCLR 1. However, if, in its role of interpretation, a court makes a pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the court must find Support from the same Constitution or any other statute of equal force. The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of.

This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.

Now, let me turn to the provisions of section 35 of the Constitution. These provisions in the first place are not absolute. The relevant provisions of the section are as follows:

“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(c) For the purpose of bringing him before a Court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of:
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail.
he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(7) Nothing in this section shall be construed –
(a) in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the Federation, or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the Armed Forces of the Federation or of the Nigeria Police Force, in respect of an offence punishable by such detention of which he has been found guilty.” (italics supplied for emphasis)
The above provisions of section 35 of the Constitution leave no one in doubt that the section is not absolute.

…………………….J…………………….

Personal liberty of an individual within the contemplation of section 35(1) of the Constitution is a qualified right in the context of this particular case and by virtue of subsection (1)(c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, lightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of section 35 of the Constitution to escape lawful detention then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquillity of the society. I find support in so saying from Irikefe’s JSC (as he then was) earlier pronounced in the case of Echeazu v. Commissioner of Police (1974) NMLR 308 at page 314.

I entirely agree with the court below that a charge of treasonable felony is a very serious offence and is prejudicial to national security. I believe neither the appellant nor his counsel would sit down to fold up his arms, if on the seat of power, to allow any citizen to put his reign into terror and utter hopelessness or despondency while dancing to the music of a citizen who plots a coup detat against him. He will certainly fight it to the end. I resolve issue No.2 in favour of the respondent. Finally, I find no merit in this appeal. Same is hereby dismissed by me.

A. I. KATSINA-ALU, J.S.C: I have read in draft, before now, the judgment delivered by my learned brother Muhammad, JSC in this appeal. I agree with his reasoning and conclusion. I also dismiss the appeal.

N. TOBI, J.S.C: The applicant was arraigned at the Federal High Court, Abuja on 6th October, 2005. It was a five-count charge of conspiracy to commit treasonable felony, treasonable felony, forming, managing and assisting in the management of unlawful societies, publishing a statement, rumour or report likely to cause fear and false alarm to the public and membership of unlawful societies. The appellant filed a summons on notice with an affidavit in Support asking for bail. The prosecution opposed bail. The learned trial Judge refused bail. Olayiwola, J said at page 50 of the record:

“In the matter on hand, a five-count treason charge has been preferred against the applicant; count 2 of the charge attracts life imprisonment. In my view, this is weighty enough for court to exercise due care in the exercise of its discretion especially in the light of exhibit (b) the interim Police investigation report which in the word of the counsel to the applicant, the prosecution intends to rely upon as proof of evidence when it is filed eventually … In my view, the security fear envisaged by the prosecution in this case has not been assuaged by the accused in the application and it also weighs in the mind of the Court in the light of the other circumstances highlighted above. The court would therefore refuse the applicant to bail pending trial.”

On appeal to the Court of Appeal, that Court dismissed the appeal, thus refusing the appellant bail pending trial. In his judgment, Rhodes- Vivour, JCA, said at page 138 of the record:

“A close scrutiny of the charge and documentary evidence available reveals offences that are a real threat to National Security. They involve creating a situation where the government of the Federal Republic of Nigeria could yield to force or expose the public to serious danger. .. My Lords, where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual rights of those responsible take second place. Human rights or individual rights must be suspended until the National security can be protected or well taken care of.”

Dissatisfied, the appellant has come to this court. He formulated two related issues in respect of the threat to national security as held by the Court of Appeal. The respondent formulated a single issue for determination on whether the trial Judge was right in refusing the appellant bail and whether the Court of Appeal was right in confirming the decision of the trial Judge.

The general criteria for granting bail at the trial court are as follows:

(a) The availability of the accused to stand trial.
(b) The nature and gravity of the offence.
(c) The likelihood of the accused committing offence while on bail.
(d) The criminal antecedents of the accused.
(e) The likelihood of the accused interfering with the course of justice.
(f) Interference with investigations.
The above apart, the criteria for granting bail by the trial court include
(a)Likelihood of further charge being made.
(b) The probability of guilt.
(c) Detention for the protection of the accused.
(d) The necessity to procure medical or social report pending a final disposal of the case.

…………………….K…………………….

The main function of bail is to ensure the presence of the accused at the trial. See R. v. Jammal 16 NLR 54; State v. Okafor(1964) ENLR 96; R. v. Rose (1898) 18 Cox C.C. 717; R. v. Robinson (1854) 23 LJ QB 286; Ex parte Milburn 34 US 704 (1835); US v. Ryder 110 US 729; Stack v. Boyle 342 US 1 (1951). Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above.

Dealing with the criterion, the working party on bail procedure in Magistrates’ Courts in the United Kingdom, said in paragraph 22 of the report:

“There are a number of other considerations to be taken into account in deciding a bail application, but in general they are not in themselves reasons for granting or refusing bail, but indicatory of the likelihood or otherwise of the defendant’s appearance.”

As a matter of fact, all other criteria are parasitic on the omnibus criterion of availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the greater the incentive to jump bail although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the Court than one charged with a misdemeanor, like affray. The distinction between capital and non-capital offence in one way crystallised from the realisation that the atrocity of the offence is directly proportional to the probability of the accused person absconding. But the above is subject to the qualification that there may be less serious offences in which the court may refuse bail, because of its nature. This does not however apply in this case because the appellant is charged with treasonable felony, a heinous offence carrying a prison term of life.

It does not appear that learned counsel for the appellant has examined the confessional statement of the appellant. I should quote some extracts from that statement:

“The Niger Delta People Volunteer Force (NDPVF) which I led have totally disarmed. Hence aimed struggle will predicate on the activities of the regime of the Nigerian State. I will pursue the course of the disintegration of Nigeria through the process of the Peoples National Conference …. The government of General Obasanjo is illegitimate. It retains power through the manipulation of the electoral process … This has made me and others like me resent the government of the regime of General Obasanjo. When Nigeria eventually disintegrate the Ijaws will form a country of their own.”

I clearly see signs of “war” from the above. I therefore agree with the Court of Appeal that there is a threat to national security. There is instability in the Niger Delta area and I do not think the appellant will assist in reducing the instability and turbulence there. On the contrary, it is clear from his statement that there is every likelihood for him to foment or instigate more trouble. This is certainly not in the interest of the region and Nigeria as a whole. The appellant should therefore be where he is to take his trial. He could be discharged and acquitted. He could be sentenced. That is for the trial court. For now, all the criteria for granting trial bail are against him.

I therefore agree with my learned brother, Muhammad, JSC, that the appeal should be dismissed. I accordingly dismiss the appeal.

F. F. TABAI, J.S.C: I have had the privilege of reading in advance the leading judgment by Muhammad, JSC and I agree that the appeal lacks merit and ought to be dismissed and is accordingly also dismissed by me.

P. O. ADEREMI, J.S.C: I agree with my brother, Muhammad, JSC whose views for judgment I have been privileged with a preview. The facts and the law applicable have been exhaustively articulated by my learned brother in the leading judgment. As I have nothing useful to add, I join him in saying that the judgment of the Court of Appeal, Abuja Division, is unassailable and I equally affirm it. This appeal, in my judgment, is unmeritorious and it is accordingly dismissed.

Appeal dismissed.

Appearances

AND

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J. Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020.

The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions. ​The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation.

On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail.

The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:- “Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders – (1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions- (a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.

Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal) Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.

The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows: GROUND ONE The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.

GROUND TWO The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant. GROUND THREE The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.

GROUND FOUR The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015. GROUND FIVE The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V.

Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223. GROUND SIX The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.

GROUND SEVEN The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million. GROUND EIGHT The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.

GROUND NINE The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted. GROUND TEN The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction. GROUND TWELVE The judgment is unreasonable and unwarranted and should be set aside. The Record of Appeal was transmitted to this Court on 03/12/2020. The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised: (1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1) (2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6). (3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4) (4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11). (5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10) (6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12) In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus: Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court.

He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45. Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted.

He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter.

He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc.

He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V.

UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard.

Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure.

He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account.

Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice.

Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41.

Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V.

MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal.

In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder. ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6 At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case.

He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings.

The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020. On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings.

According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020. Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:- “My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court.

That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal) Then the trial Court in its Bench Ruling held thus:- “This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:- “We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.

We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom. It is in the light of the above that we humbly apply for certified true copies of the under listed documents. i. bail bond, ii. recognizance, iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail, iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.” (see pages 194 – 195 of the Record of Appeal) The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:- “A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA.

In fact there is no provision in ACJA that supports the letter. Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:- (9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court.

He shall then be released from custody. Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No.

KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody: Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” ​ Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit.

The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.

The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.

Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.

An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume.

By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:- “The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court.

The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant.

See Section 353 (4) ACJA.” By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume.

And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:- “although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation.

However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.” By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice.

The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel.

However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended).

The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings.

In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence. The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:- “Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders- (1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria.

That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody. (b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court.

The said Section 179(1) ACJA, 2015 provides:- “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) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed.

And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.” If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional. Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums.

It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:- Paragraph (7) provides:- “That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant Paragraph (8)- The property used in the fulfillment of the Bail term belongs to me personally Paragraph (9)- That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default” Paragraph (10)- That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria. I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause.

The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223.

This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever.

In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed. The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto. No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA. ​ My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court.

That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae. It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein. ​ I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J. Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020.

The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions. ​The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation.

On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail.

The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:- “Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders – (1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions- (a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.

Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal) Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.

The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows: GROUND ONE The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.

GROUND TWO The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant. GROUND THREE The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.

GROUND FOUR The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015. GROUND FIVE The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V.

Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223. GROUND SIX The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.

GROUND SEVEN The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million. GROUND EIGHT The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.

GROUND NINE The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted. GROUND TEN The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction. GROUND TWELVE The judgment is unreasonable and unwarranted and should be set aside. The Record of Appeal was transmitted to this Court on 03/12/2020. The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised: (1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1) (2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6). (3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4) (4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11). (5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10) (6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12) In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus: Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court.

He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45. Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted.

He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter.

He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc.

He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V.

UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard.

Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure.

He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account.

Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice.

Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41.

Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V.

MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal.

In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder. ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6 At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case.

He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings.

The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020. On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings.

According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020. Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:- “My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court.

That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal) Then the trial Court in its Bench Ruling held thus:- “This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:- “We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.

We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom. It is in the light of the above that we humbly apply for certified true copies of the under listed documents. i. bail bond, ii. recognizance, iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail, iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.” (see pages 194 – 195 of the Record of Appeal) The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:- “A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA.

In fact there is no provision in ACJA that supports the letter. Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:- (9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court.

He shall then be released from custody. Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No.

KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody: Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” ​ Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit.

The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.

The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.

Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.

An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume.

By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:- “The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court.

The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant.

See Section 353 (4) ACJA.” By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume.

And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:- “although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation.

However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.” By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice.

The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel.

However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended).

The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings.

In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence. The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:- “Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders- (1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria.

That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody. (b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court.

The said Section 179(1) ACJA, 2015 provides:- “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) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed.

And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.” If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional. Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums.

It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:- Paragraph (7) provides:- “That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant Paragraph (8)- The property used in the fulfillment of the Bail term belongs to me personally Paragraph (9)- That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default” Paragraph (10)- That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria. I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause.

The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223.

This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever.

In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed. The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto. No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA. ​ My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court.

That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae. It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein. ​ I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.