Supreme Court

FRN v. MAISHANU & ORS (2019) LPELR-46380 (SC)

In the Supreme Court of Nigeria
ON FRIDAY, 25TH JANUARY, 2019
Suit No: SC.51/2015

Before Their Lordships:
IBRAHIM TANKO MUHAMMAD, JSC
MARY UKAEGO PETER-ODILI, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
AMIRU SANUSI, JSC
EJEMBI EKO

Between

FEDERAL REPUBLIC OF NIGERIA – Appellant
And
ALH. ABUBAKAR MAISHANU & ORS – Respondent

LEAD JUDGMENT DELIVERED BY IBRAHIM TANKO MUHAMMAD, J.S.C.
FACTS OF THE CASE

The 3rd respondent, was arraigned before the Federal High Court, holden at Gusau, on the 16th day of December, 2011 charged with money laundering offence punishable under Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006. He pleaded not guilty to the charge. He was granted bail in the sum of N5m (Five Million Naira only) and two sureties, each, in the like sum.

The 1st and 2nd respondents, stood sureties for the him and each entered into a Bail Bond in the stated sum of Five Million Naira in fulfilment of the bail conditions and he was released from custody.

In the course of trial, the case came up on the 28th of March, 2013, for continuation but the 3rd respondent failed to appear in Court. Neither the 1st nor the 2nd of the respondents was in Court to explain the absence of the 3rd respondent. Thereafter, the operatives of the Economic and Financial Crimes Commission (EFCC) in execution of the arrest warrant granted by the trial Court, arrested the 3rd respondent and took him to Court on the 29th of April, 2013. The trial Court ordered the 3rd respondent to go back to custody. He remained in custody until judgment was delivered on the 13th day of June, 2013, whereby he was discharged and acquitted of the charge preferred against him.

Meanwhile, the prosecution made an instant oral application for the forfeiture of the bail bond. The learned trial judge directed, however, that the prosecution should file a formal application to that effect. The prosecution filed a Motion on Notice on 2/07/13 for forfeiture of the bail bond/recognizance and joined all the three respondents as respondents to the application.

In the course of hearing, the said application (of 28/6/13), the appellant’s learned counsel applied to the learned trial judge to order for the appearance of the 3rd respondent for cross-examination.

The 3rd respondent was the deponent to his own counter affidavit in the matter. The learned trial judge refused to grant the application stating that its grant would cause delay in the proceedings. The learned trial judge (B. Abubakar J.) also dismissed the application for forfeiture of bail bond/recognizance filed by the appellant.

Dissatisfied, Appellant appealed to the Court of Appeal against the two decisions of the trial Court. The Court of Appeal, Coram Shu’aibu, Belgore JJCA and Galumje (as he then was) in its judgment, dismissed the appeal and affirmed the judgment of the trial Court. Further dissatisfied, Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION
The Apex Court determined the appeal on the following issues:
1. “Whether the judgment of the Court of Appeal is supportable by the evidence contained in the printed record before their lordships.
2. Having regard to the peculiar circumstances of this case, whether the learned justices of the Court of Appeal were right to have relied on the Halsbury’s Laws of England (3rd edition) and the judicial authority of A. G. Federation v. Thadue Teixera De Fritas & Ors (CA/L/193/85) to dismiss the appeal.
3. Whether the Court of Appeal correctly interpreted and rightly applied the provision of Section 107 of the Evidence Act, 2011 in the instant case.

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, Counsel for the Appellant quoted some portions of the judgment of the Court of Appeal and submitted that the Court did not properly and critically appraise the printed record before it, otherwise it would have found that the Appellant’s application before the trial Court substantially complied with all the requirements set out in the judgment of the Court of Appeal, such as informing the respondents exactly what the breach complained of was; giving opportunity to the respondent to give evidence, call witnesses or give explanation.

On issue two, Counsel argued that the case of A-G Federation v. Thadue Teixers Fraits & 2 Ors (CA/L/193/85) was distinguishable from the case in hand, yet the Court of Appeal wrongly applied the said decision to the case in hand. He further argued that the Court of Appeal was equally wrong, to place reliance on Halsbury’s Laws of England (3rd ed.) to arrive at the decision appealed against, over and above the provisions of the Criminal Procedure Act, (CPA).

On the third issue, Counsel relied on Section 215(1) of the Evidence Act and submitted that it is an intrinsic right of an opposing party in a case to cross-examine a witness who gives evidence in the proceedings. He argued further that such a right is not restricted only to a situation whereby the evidence of the witness is an oral one. That it is applicable even where the evidence is contained in a deposition as in an affidavit. Learned counsel argued that the refusal of the trial judge to grant Appellant’s application for cross-examination of the deponent is against the principles of fair hearing.

The Apex Court was urged to allow the appeal and set aside the judgment of Court of Appeal.

RESPONDENT’S COUNSEL SUBMISSIONS
For the Respondent, relying on the case of Okashetu v. State (2016) LPELR 40611 (SC) amongst others it was submitted that the trial Court and the Court of Appeal are in accord in their findings of fact that relates to this case and that the Supreme Court will not readily interfere with the concurrent findings of the lower Courts.

It was further argued that the Court of Appeal rightly applied the law in its consideration of the appeal of the appellant when it affirmed the position of the trial Court that the appellant failed to follow the proper procedure under law in its application via motion on Notice for the forfeiture of bail recognizance of the 1st and 2nd respondents which was in the sum of N5m each.
The Apex Court was urged to dismiss the appeal and uphold the judgment of Court of Appeal.

RESOLUTION OF ISSUES 
In resolving issue one, the Apex Court per IBRAHIM TANKO MUHAMMAD, J.S.C. considered the decision of the Court of Appeal and that of the trial Court and agreed that both decisions are valid and that they reflect the true position of the law.
The Court held that a community reading of the provisions of Sections 137, 141 and 143 of the Criminal Procedure Act (CPA), that when an accused person/defendant is granted bail and he jumps it, the trial Court may, upon noticing such a breach by the accused/defendant may:
i. revoke the bail,
ii. issue a bench warrant for his arrest,
iii. order the forfeiture of the bail bond, and
iv. upon forfeiture of the bail bond, order the surety (sureties) to (each) pay the sum stated in the bond into the Court’s Registry.

The Supreme Court held that, from the analysis of the decisions of the two lower Courts, it is clear that the two Courts are in concurrence on the finding that the appellant adopted wrong procedure in its application. It was held that the law has its set out procedures in pursuance of applications relating to bail and perfection of bail bond and or its forfeiture as envisaged by Sections 137, 141 and 143 of the CPA or their similar provisions in other enactments. Therefore, an applicant for forfeiture of bail bond, such as in this matter, must do so timeously and should commence the procedure the moment the accused fails to appear in Court to attend to his trial.

The Apex Court said that in the instant case, for instance, on the 28th March 2013, appellant applied that the bail granted to the accused be revoked and bench warrant for his arrest be issued as he was absent from Court without explanation a prayer that was granted by the trial Court. It was also noted, that the appellant did not apply that summons be issued to the 1st and 2nd respondents who stood sureties to 3rd respondent to come and show cause why each of them should not forfeit the bail bond or recognizance he entered, for failure to produce the 3rd respondent in Court. That the 3rd respondent was brought to Court under arrest on the day judgment was to be delivered thus, the 1st and 2nd respondents never knew that they were to forfeit the recognizance they entered with the trial Court. It was stated that the snag here is that judgment on the main case involving criminal allegations which laid the basis for 3rd respondent’s admission to bail, was delivered on the 13/06/13, wherein the 3rd respondent was discharged and acquitted of the criminal allegations. The motion on Notice for forfeiture of the bail bonds was filed on the 28/6/2013, i.e. after judgment had already been delivered.

The Apex Court then held that the Court of Appeal was therefore quite correct in affirming the trial Court’s decision on the application for forfeiture of bail bond. That once judgment is delivered, resulting in conviction or discharge and acquittal of the accused person, the obligation of the surety terminates. Thus, an application for forfeiture, brought after judgment has been delivered with the accused person discharged and acquitted, is unknown to law. The issue was resolved against the Appellant.

On issue 2, the Court stated that since the beginning of independence, statutes enacted by the Nigerian Legislatures, Federal, Regional, States or Foreign ones which have been adopted and domesticated by Nigerian Legislature enjoy the sacrosanct and applicability with full force on any subject matter which is relevant to a particular statute. That other foreign statute remains up to today of persuasive authority and nothing stops reference being made to such a foreign statute for elucidation or comparative analysis. The Court then held that there was nothing wrong with the Court of Appeal citing Halsbury’s Laws of England in elucidating the requirements set by law generally for forfeiture of bail bond/recognizance. This issue was also resolved against the Appellant.

On issue 3, the Apex Court considered the provisions of Section 107 of the Evidence Act, 2011 (as amended) and resolved the issue against the Appellant.

HELD 
Having resolved all the two issues against the Appellants, the Court found the appeal lacking in merit and it was dismissed.

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