The Counsel to Senator Enyinnaya Abaribe applied to the Federal High Court to be discharged as the surety for Nnamdi Kanu whose trial came up for continuation in court. The facts leading to the application are well known, but what is not known is the grounds for the application. From reports in the media, it can be gleaned that the Judge declined the application and instead gave the counsel to the surety options of which the counsel reluctantly accepted that his client be given more time to produce the Defendant.
Opinions are divided about the likely whereabouts of the defendant in the trial, but it is common knowledge that shortly before the disappearance of the defendant, his village and home in Abia State was hosts to the almighty Nigerian Army. Between the Army and the Counsel to the Defendant, there has been accusations and counter accusations regarding the whereabouts of the defendant and I am informed that the matter has culminated in a civil law suit.
Section 177(1) of the Administration of Criminal Justice Act(ACJA) provides that,
“All or any of the sureties to a recognizance may at any time apply to the court which caused the recognizance to be taken to discharge the bond either wholly or so far as relates to the applicant”
Subsection (2) goes on to provide that the court will subsequently issue a warrant for the arrest of the defendant upon the above application being made.
The surety in this matter under review, realizing his responsibility in respect of the above discharged his duties by applying to the court by motion seeking a release from his obligations as a surety due to the seeming impossibilities in securing the appearance of the defendant.
This is more so because the matters surrounding the custody or otherwise of the defendant with the Nigerian army has become subjudice, if there is actually a live suit with the subject matter and the existence of the suit should have been brought to the knowledge of the court.
However, the court ought to have applied the provision of Section 177(2) ACJA to issue a warrant of arrest of the defendant upon the application of the surety to be discharged.
The successful arrest and appearance of the defendant, however, is the only condition provided by the ACJA that can discharge the surety wholly.
But as far back as 1975, Lord Denning laid down the principle for the court to consider when dealing with an application for forfeiture of recognizance of a surety In R vs. Southampton Justice (1975) 2 All ER 1073. These are
The means of the surety;The culpability of the surety.
The Culpability is more important at this stage because the means should have been considered before being appointed as surety in the first instance. Lord Denning held in the above mentioned case that,
“By what principles are the justices to be guided? They ought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely.”
I am of the opinion that what is before the court in the present case is a situation where the surety is not guilty of want of diligence. As a matter of fact, the Army operation within the village of the Defendant, during the period of the Surety is an intervening actor that will be deemed to have made it impossible for the surety to perform his responsibility to the court. The Surety has also exercised due diligence by applying to the court as that was the option available to him by law.
I am of the opinion that the court should have ordered the issuance of the warrant of arrest of the defendant; as the law enforcement agencies are in a better position to secure the arrest of the defendant given the resources available to them.
In conclusion, after a dispassionate review of the facts leading to the disappearance of Nnamdi Kanu, it will fly in the face of common law, and amount to injustice to hold Senator Enyinnaya Abaribe liable to produce Nnamdi Kanu in court.
Emeka Obegolu, Esq.
Vice President, West Africa.
Pan African Lawyers Union (PALU