Federal Republic Of Nigeria V. Alh. Abubakar Maishanu & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
BRAHIM TANKO MUHAMMAD, J.S.C.
Facts relevant to this appeal as gleaned from the Record of Appeal are that the 3rd respondent, as an accused person, was arraigned before the Federal High Court, holden at Gusau, on the 16th day of December, 2011 charged with money laundering offence punishable under Section 7 (2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006. He pleaded not guilty to the charge. On the 24th of January, 2012, the 3rd respondent was granted bail in the sum of N5m (Five Million Naira only) and two sureties, each, in the like sum.
The 1st and 2nd respondents, herein, stood sureties for the 3rd respondent and each entered into a Bail Bond in the stated sum of five million naira in fulfilment of the bail conditions. Upon execution of bail recognizance by the sureties (1st and 2nd respondents), the 3rd respondent was released from custody.
In the course of trial, the case came up on the 28th of March, 2013, for continuation but the 3rd respondent failed to appear in Court. Further, neither the 1st nor the 2nd of the respondents was in Court
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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 would better file a formal application to that effect, if desirable. The prosecution filed a Motion on Notice on 2/07/13 for forfeiture of the bail bond/recognizance and joined all the three present 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.
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The 3rd respondent was the deponent to his own counter affidavit in the matter. The learned trial judge refused to grant the application stating that its grant would cause delay in the proceedings. The learned trial judge dismissed the application for forfeiture of bail bond/recognizance filed by the appellant. Appellant appealed to the Court below against the two decisions of the trial Court. The Court below, in its judgment of 3rd December, 2014, dismissed the appeal and affirmed the judgment of the trial Court. The appellant now appealed to this Court on seven grounds of appeal as contained in its Notice of Appeal dated 31st December, 2014.
In compliance with this Court’s Rules, the parties settled their respective briefs of argument including appellant’s reply brief.
The appellant formulated the following issues for determination:
- “Whether the judgment of the Court of Appeal is supportable by the evidence contained in the printed record JUSTICES. (Grounds 5 and 6 of the ground of appeal)
- 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
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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. (Grounds 1, 2 and 4 of the ground of appeal).
- Whether the Court of Appeal correctly interpreted and rightly applied the provision of Section 107 of the Evidence Act, 2011 in the instant case. (Grounds 3 and 7 of the ground of appeal).
The respondent formulated one issue which reads:
“Whether having regard to the circumstances of this case and the totality of the facts in issue, the Court of Appeal is wrong in dismissing the appeal..” (Grounds 1, 2 and 3).
It is my observation that respondent’s sole issue is covered by appellant’s issue No. 2. Thus, the appeal will be considered in line with issues formulated by the appellant.
Issue No.1, is on whether the Court below’s judgment is supportable by the evidence in the Record of Appeal.
In making his submissions, learned counsel for the appellant, after setting out some portions of the Court below’s judgment, stated, inter alia that the Court did not properly and critically appraise the printed record before it,
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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 below, 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. Furthermore, the Court below, argued learned counsel for appellant, made a case for the respondent who did not complain about the issues raised suo motu by that Court.
Learned counsel for the appellant, argued on his second issue, that the case of A-G Federation v. Thadue Teixers Fraits & 2 Ors (CA/L/193/85) was distinguishable from the case on hand, yet the Court below wrongly applied the said decision to the case on hand. The Court below ought not to have relied on the A-G Federation’s case (supra). The Court below was equally wrong, it was argued further, 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). Learned counsel for the appellant urged this Court to set aside the judgment of the Court below.
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Appellant’s issue No. 3 is on whether the Court below correctly and rightly interpreted and applied the provision of Section 107 of the Evidence Act, 2011, in the case on hand. Learned counsel for the appellant 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 cited and relied on Section 215 (1) of the Evidence Act, 2011. He argued further that such a right is not restricted only to a situation whereby the evidence of the witness is an oral one. It is applicable even where the evidence is contained in a deposition as in an affidavit.
Learned counsel for the appellant 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. Learned counsel urged this Court to allow the appeal and set aside the judgment of Court below.
In his submissions, learned counsel for the respondent stated that both the Court below and the trial Court have concurred on the findings of facts that relate to this case. He submitted that the Supreme Court will not readily interfere
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with the concurrent findings of the lower Court. He cited the case of Okashetu v. State (2016) LPELR 40011; Ogundipe v. Awe (1988) 1 NWLR (Pt.88) 188; Akeredolu v. Akinremi (No.3) (1989) 3 NWLR (Pt.108) 164. Argued further is that the Court below 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 (Five Million Naira Only) each.
It is to be noted that the application for forfeiture of the bail bond entered was heard by the trial Court on 19th September, 2013 and it was refused. On that same date, and in the course of hearing that application, the appellant applied to the trial Court for an order compelling the appearance of the 3rd respondent to be cross-examined on the counter affidavit, deposed to by him in opposition to the appellant’s application for forfeiture of the bail bond. This application was also refused by the trial Court. On the 29th of October, 2013, the appellant
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filed a Notice of Appeal to the Court of Appeal containing four (4) grounds of appeal. At the hearing of the appeal, the Court was faced with a Notice of Preliminary Objection which it dismissed for lacking in merit.
In determining the appeal on the issue of forfeiture of the bail bond, the Court below agreed with the trial Court that due process was not followed by the applicant/appellant. The Court below stated:
“Thus, the appellant’s application before the trial Court without following the above procedures renders it incompetent and premature.
Even though, the appellant’s right to apply for the forfeiture of the recognizance or bail bond crystallizes the moment the accused person jumps bail but the procedural steps for such application must be satisfied. However, the moment a charge against an accused is dismissed or struck out for any reason, the obligation of a surety terminates with it. Refer to A-G Federation v. Thadue Teixera De. Fritas & Ors CA/L/193/85.
Thus, the forfeiture application in the instant case having been brought when the judgment on the substantive charge was finally delivered and the accused person thereby acquitted; the obligation of the sureties is terminated.”
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In his reasoning process before coming to his conclusion to agree with the learned trial judge’s decision, the learned justice of the Court below, U. L. shuaibu, JCA, stated as follows:
“In the instant case, the lower Court had revoked the bail and issued a bench warrant for the arrest of the accused person. Before the Court forfeits the surety’s bail bond, the following requirements must be satisfied:
I. The order granting bail to the accused must be exhibited.
ii. The bail bond eventually executed by the surety must be executed.
iii. The surety must be given an opportunity to show cause why the bail bond should not be forfeited.
From the printed record (pages 6-14) the appellant as applicant at the lower Court exhibited the recognizance entered by each surety and the ruling of the Court granting bail to the 3rd respondent. In Ahmadu Tea v. Commissioner of Police (1963) NWLR 77 the appellant was a surety person in a magistrate’s Court. The accused did not attend to stand trial. The recognizance was forfeited and the magistrate there upon ordered the surety to pay a
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penalty or be imprisoned for six months, On appeal, the appellate Court held inter alia that before a bail bond is forfeited by the trial Court; the bail bond and the facts causing the forfeiture must be proved. The surety must also be given a fair hearing.
Similarly, in Lamidi Abudu in Re A. K. Kotun v. Inspector General of Police (1961) LLR 83 the accused person absconded and the Court forfeited the bail bond without hearing the appellant who was the surety. On appeal, it was held that forfeiture of the bail bond without hearing the surety was premature and the ground for forfeiture was not proved.
By virtue of the provisions of Section 137 of the Criminal Procedure Act applicable to the trial Federal High Court, where it is proved to the satisfaction of a Court that a recognizance entered into under the Act has been forfeited the Court shall record the facts and by order declare the recognizance to be forfeited and that if it is proved to the satisfaction of a Court that a recognizance entered into under the Act has been forfeited, the Court shall record the facts and by order declare the recognizance to be forfeited.
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Whereas in the instant case, a recognizance entered into by a person is liable to be forfeited, he must be informed exactly what is the breach complained of and must be given an opportunity to give evidence, call witnesses or give explanation from the dock and the recognizance to be forfeited must be produced before the Court. See Vol. 25 Halsbury’s Laws of England, 3rd Edition para 461. Thus, the appellant application before the trial Court without following the above procedures renders it incompetent and premature.
Even though, the appellant’s right to apply for the forfeiture of the recognizance or bail bond crystallizes the moment the accused person jumps bail but the procedural steps for such application must be satisfied. However, the moment a charge against an accused is dismissed or struck out for any reason, the obligation of a surety terminates with it. Refer to A-G Federation v. Thadue Teixera De Fritas & Ors CA/L/193/85.
Thus, the forfeiture application in the instant case having been brought when the judgment on the substantive charge was finally delivered and the accused person thereby acquitted; the obligation of the sureties is terminated.”
This was concurred with by other panel members that heard the appeal. (pp. 175 – 177 of the Record of Appeal).
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I am in full agreement with the Court below. My full agreement with the Court below’s decision is based upon the decision of the trial Court and its reasoning thereof which I found good and reasonable. This is what the trial Court said, inter alia:
“In bringing this application, counsel to the applicant had placed reliance on Section 137 of the CPA and argued that, ‘the proof to the satisfaction of the Court’ contemplated by the above provision is simply to exhibit the bail recognizance. He placed reliance on the case of TEA V. C.O.P. (Supra).
For the avoidance of doubt, Section 137 of the CPA provides:
‘Where it is proved to the satisfaction of a Court that a recognizance entered into under chapter I to ll inclusive of this Act has been forfeited, the Court shall record the facts and by order declare the recognizance to be forfeited.’
With respect to the applicant counsel, the proof required under Section 137 of the CPA above cannot simply rest on the exhibition of the bail recognizance alone.
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The bond itself and the facts causing the forfeiture must be proved.
Needless to say strict proof is required before a surety may be penalised for breach of recognizance.
Therefore, proof required under Section 137 of the CPA, in my view, is not limited to the exhibition of the bail recognizance alone. TEA’S case only underscored the importance of exhibiting the recognizance in proving to the court that the recognizance ought to be forfeited as required by Section 137 of the CPA.
It is instructive to note that, when the 3rd respondent failed to appear in Court to attend his trial on the days mentioned above, the 1st and 2nd respondents who stood as his sureties were never called upon to produce the 3rd respondent whom they bound themselves to produce in case of this kind of eventuality.
The issue of forfeiture of the bail recognizance came up before this Court for the first time when the applicant filed this application on the 28/06/13, three months after the 3rd respondent jumped bail, after the bench warrant had been executed against him and judgment finally delivered on the charge.
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As submitted by counsel to the respondents, when the 3rd respondent failed to appear in Court on the 23/03/13, the proper thing was for the applicant to have moved the Court to summon the 1st and 2nd respondents and order them to produce the 3rd respondent and/or show cause why they should not be made to forfeit the recognizance. No such Notice or summons was served on the said 1st and 2nd respondents as required by law. See the case of John v. C.O. P. (supra).
In paragraph II of the affidavit in support of this application counsel had averred that the applicant had expended huge resources in executing Exhibit EFCC 4 (the bench warrant). Counsel did not give any particulars of the expenditure if any.
Now, Exhibit EFCC 4 was directed at the Nigeria Police who by law are saddled with the responsibility of executing same. The Court never imposed that responsibility on the applicant. It was rather the applicant counsel who, in open Court, requested to join the police in executing Exhibit EFCC 4 and the Court obliged him. Therefore, they cannot be heard complaining of incurring expenses in executing EFCC 4.
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Furthermore, such expenses even if proved cannot, in my view, be a reason for this Court to declare the recognizance forfeited.
As I have earlier mentioned, due process was not followed in this proceedings in that the 1st and 2nd respondents were never given the opportunity to produce the 3rd respondent.
In my view, it is after the 1st and 2nd respondents are given notice to produce the 3rd respondent and where they are unable to so produce him and cannot show any good cause when called upon to do so as to why they should not be made to forfeit the bail recognizance, then the applicants may properly put in motion or invoke the provision of Section 137 of the CPA as they are seeking to do now, certainly not after a bench warrant has been issued, executed and trial concluded with judgment delivered. This procedure cannot be the intendment of Section 137 of the CPA and I so hold. The applicant has therefore not satisfactorily proved to this Court why the recognizance should be forfeited. I cannot therefore in the circumstance of this case grant the orders sought by the applicant.
Consequently all the prayers on the motion paper are refused and the application is dismissed for lacking in merit.”<br< p=””
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It is a settled principle of law and in a community reading of the provisions of Sections 137, 141 and 143 of the Criminal Procedure Act (CPA), that when an accused person/defendant is granted bail and he jumps it, the trial Court may, upon noticing such a breach by the accused/defendant may:
i. revoke the bail,
ii. issue a bench warrant for his arrest,
iii. order the forfeiture of the bail bond, and
iv. upon forfeiture of the bail bond, order the surety (sureties) to (each) pay the sum stated in the bond into the Court’s Registry.
My lords, from the analysis given above from the decisions of the two lower Courts, it is clear that the two Courts are in concurrence on the finding that the appellant adopted wrong procedure in its application. Certainly, the law has its set out procedures in pursuance of applications relating to bail and perfection of bail bond and or its forfeiture as envisaged by Sections 137, 141 and 143 of the CPA or their similar provisions in other enactments. Therefore, an applicant for forfeiture of bail bond, such as in this matter, must do so timeously and should commence the procedure the
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moment the accused fails to appear in Court to attend to his trial. In the instant case, for instance, on the 28th March, 2013, appellant applied that the bail granted to the accused be revoked and bench warrant for his arrest be issued as he was absent from Court without explanation. The trial Court granted the prayers. It is to be noted, here too, that the appellant did not apply that summons be issued to the 1st and 2nd respondents who stood sureties to 3rd respondent to come and show cause why each of them should not forfeit the bail bond or recognizance he entered, for failure to produce the 3rd respondent in Court. The 3rd respondent was brought to Court under arrest on the day judgment was to be delivered. Thus, the 1st and 2nd respondents never knew that they were to forfeit the recognizance they entered with the trial Court. The snag here is that judgment on the main case involving criminal allegations which laid the basis for 3rd respondent’s admission to bail, was delivered on the 13/06/13, wherein the 3rd respondent was discharged and acquitted of the criminal allegations. The motion on Notice for forfeiture of the bail bonds was filed on the
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28/6/2013, i.e. after judgment had already been delivered. That of course, was what made the learned trial judge to observe that:
“The issue of forfeiture of the bail recognizance came up before this Court for the first time when the applicant filed this applicant (sic: application) on the 28/06/13, three months after the 3rd respondent jumped bail after the bench warrant had been executed against him and judgment finally delivered on the charge.”
The Court below, in my view was therefore quite correct in affirming the trial Court’s decision on the application for forfeiture of bail bond, that the application having been brought to that Court when judgment on the substantive charge was finally delivered and the accused person discharged and acquitted, the obligation of the sureties was terminated. I cannot agree more. Further, by the combined effect of Sections 119,120,122,127,128,137,141 and 143 of the Criminal Procedure Act, forfeiture of bail bond is contemplated during criminal trial and not after the discharge and acquittal of the accused person as in the instant case. Once judgment is delivered, resulting in conviction or discharge and
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acquittal of the accused person, the obligation of the surety terminates. Thus, an application for forfeiture, brought after judgment has been delivered with the accused person discharged and acquitted, is with respect, unknown to law. In the instant case, the obligation of the 1st and 2nd respondents ceased on the 29th of April, 2013 when the bail of the 3rd respondent was revoked and remanded into prison custody or at worst, on the 13th June, 2013 when the accused was discharged and acquitted of the charge levelled against him.
My lords, the point needs to be re-iterated again and again that the cardinal principle of fair hearing whether in relation to a civil or criminal matter is so sacroscent. The Latin maxim puts it this way: “Audi Alteram Partem” i.e. let the other party be heard. It simply means: hear the other side(s) in a dispute before reaching a decision. It is a constitutional requirement (Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This Court made several pronouncements that the principle of fair hearing has been incorporated in our jurisprudence that a man cannot be condemned without being heard.
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The principle is applicable in all cases in which a decision is to be taken in any matter, whether in a judicial, quasi-judicial or even in purely administrative proceeding involving a person’s interest in a property, right or personal liberty. Let the other party be heard! See: Adigun v. AG Oyo State (1997) NWLR (Pt. 678) page; Oyeyemi v. Commissioner of Local Government, Kwara State & Ors (1993) 6 NWLR (Pt. 299) 344.
In the case of FCSC V, Laoye (1989) 2 NWLR (Pt. 106) 265 at page 681, this Court, per Eso, JSC (Rtd. and now late), stated:
“The reasoning of this Court in fair hearing, is not only in accord with the law over the ages but agrees with common sense. Anyway, is there a reason the other side should not be heard before he is condemned Why should he not enjoy the rights conferred upon him by law as regards his employment Why should he not be protected by the Constitution and have criminal charges against him determined by the Courts or Tribunals set up by the Constitution itself I think it is admitted in every reasonable culture, even apart from the decisions of this Court, that a judge should hear both sides before determining the guilt or otherwise of a person.”
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Exactly! That is the true and correct position of the law irrespective of the subject matter under consideration. It is gratifying to note that even the learned counsel for the appellant, though on a different issue, agreed with the general position of the law on fair hearing. He stated, inter alia:
“However, where the Court feels some other issues ought to be determined, it must bring those issues to the notice of the parties and give them the opportunity of addressing the Court on it before deciding on the issue one way or the other. This is in line with the principle of fair hearing.”
In its judgment of 3rd December, 2014 relating to issue 2, the Court below while recapitulating the rights conferred by law generally, on a surety or a person who entered into a bond or recognizance in favour of an accused person who is admitted to bail, and which bond or recognizance is liable to forfeiture. This is what the Court below, per Shuaibu, JCA, said:
“Where as in the instant case, a recognizance entered into by a person is liable to be forfeited, he must be informed exactly what is the breach complained of and
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must be given an opportunity to give evidence, call witnesses or give explanation from the dock and the recognizance to be forfeited must be produced before the Court. See Vol. 25 Halsbury’s Laws of England, 3rd Edition para 461. Thus, the appellant application before the trial Court without following the above procedures renders it incompetent and premature.”
In the circumstances as expatiated above, I find no merit in this issue and it is decided against the appellant.
My Lords, I now take appellant’s issue No.2. It is on whether the justices of the Court below were right to have relied on Halsbury’s Laws of England (3rd edition) and the case of A-G Federation v. Thadue Teixera De Fritas & Ors (supra).
But before delving into appellant’s issue 2 and of course issue 3, permit me to observe, with respect, my lords, that the respondent did not respond to appellant’s issues 2 and 3. This is perhaps, he thought the sole issue formulated by him is comprehensive enough to cover these issues. However, throughout the length and breadth of the respondent’s brief of argument, appellant’s issues 2 and 3 were never reflected by the respondent.
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But, be that as it may, the primary objective of any Court of law is the attainment of justice irrespective of the disposition or approach of a party to the prosecution or in defence of the matter placed before the Court. It is the duty of the Court to state the correct position of the law on the subject matter placed before it without unnecessarily entering into the arena by making submissions on behalf of any of the parties.
Without mincing words, the Court below stated how it understood the said provision of the Evidence Act and it states:
“The above (i.e the Section as set out above) contemplates a situation where the civil proceeding is commenced other than by affidavit evidence and that a particular fact could only be received through an affidavit evidence. In such a case, the Court may accept affidavit evidence with or without the appearance of a deponent for cross-examination. However, where a party desires the attendance of such a deponent, he may apply to the Court and the Court shall grant the application unless doing so may lead to unjustifiable delay or expenses.
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The proceeding in the lower Court was by a motion on notice wherein the parties filed affidavit evidence. No oral evidence is called. The application was heard on the affidavit in support of the application and the affidavits which every party to the application proposes to use at the hearing. Thus, the affidavits constitute the evidence.
Where as in this case, the appellant desires to controvert or challenges the averments in the counter affidavit; the procedure is for him to file a further affidavit in support of his application. In some cases, Courts admit oral evidence to resolve contradictory affidavit evidence which is not the case here.”
Learned counsel for the appellant challenged the decision of the Court below in respect of the interpretation given to Section 107 of the Evidence Act by the trial Court. The appellant alleged further that the learned Justices of the court below introduced a new dimension to the dispute beyond what was placed before them by both parties and that their Lordships ought to justify their decision by holding that Section 107 of the Evidence Act, 2011 is only applicable where the proceedings is commenced by way of pleadings.
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Learned counsel for the appellant finally urged this Court to resolve the appellant’s 3rd issue in appellant’s favour and make consequential order discountenancing the 3rd respondent’s counter affidavit at the lower Court filed on 04/07/2013, as the appellant was not afforded the opportunity to cross-examine the deponent even after making an application to that effect.
Appellant’s issue two is on the “heavy” reliance said to have been made by the Court below on the case of A-G Federation v. De Fritas & Ors (supra).
That was the point at which the Court below made mention of the Haisbury’s Laws of England, 3rd edition and the Court of Appeal (Lagos Division) judgment in the case ofA-G Federation v. Thadue Teixera De Fristas & Ors CA/L/193/85 (supra).
Permit me, my Lords, to point out the fallacy in the arguments or submissions proffered by the learned counsel for the appellant on the “heavy” reliance of the Court below on a foreign statute in preference “to” Nigerian statute. To start with, since the beginning of independence, statutes enacted by the Nigerian Legislatures, Federal, Regional and or states or foreign ones which have been adopted and domesticated by Nigerian legislature enjoy the
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sacroscence and applicability with full force on any subject matter which is relevant to a particular statute. Other foreign statutes remain up to today of persuasive authority. Nothing stops reference being made to such a foreign statute for elucidation or comparative analysis.
In the case on hand, it is clear from the judgment of the trial Court which the Court below affirmed, the trial Court cited and relied on the provision of the Criminal Procedure Act (CPA) (a Nigerian statute) Section 137 thereof and the case ofJohn v. Commissioner of Police (2001) 2 ACLR 495 (Nigerian Court’s decision). In expertiation, the Court below had recourse to other provisions of the Criminal Procedure Act; Sections 137, 141 and 143 (page 166 of Record of Appeal) to state the consequences of jumping bail and what follows thereafter:
“When an accused person jumps Court bail, the Court may:
i. Revoke his bail,
ii. Issue a bench warrant for his arrest,
iii. Order the forfeiture of the bail bond; and
iv. Upon forfeiture of the bond, order the surety to pay the sum stated in the bond into the Court registry. See Sections 143, 137 and 141 of the Criminal Procedure Act.
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The 3rd respondent in the instant case had jumped bail on 28/3/2013 and upon the application of the prosecution the bail was immediately revoked. The bench warrant for his arrest was issued while the case was adjourned to 16/4/2013. The 3rd respondent was eventually arrested and produced in Court on 9/5/2013.”
The Court below went further to state the requirements which “must” be satisfied as follows:
i. “The order granting the bail to the accused must be exhibited
ii. The bail bond eventually executed by the surety must be executed.
iii. The surety must be given an opportunity to show cause why the bail bond should not be forfeited.”
The Court below followed up these requirements by citing several Nigerian cases in support such as: Ahmadu Tea v. COP (1963) NMLR 77; Lamidi Abudu in Re: A. K. Kotun v. IGP (1961) LLR 83; and Section 137 of the Criminal Procedure Act.
It was after all these that the Court below stated:
“Where as in the instant case, a recognizance entered into by a person is liable to be forfeited, he must be informed exactly what is the breach complained of and must be given an opportunity to
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give evidence, call witnesses or give explanation from the dock and the recognizance to be forfeited must be produced before the Court. See Vol. 25 Halbury’s Laws of England, 3rd edition para 461. Thus, the appellant’s application before the trial Court without following the above procedures renders it incompetent and premature.”
I do not see anything wrong with the Court below citing of Halbury’s Laws of England in elucidating the requirements set by law generally for forfeiture of bail bond/recognizance. Equally, the case of A-G Federation v. Hadue Teixera De Fritas & Ors CA/L/193/85 said to have been reported in the Guardian Law Report (unreferenced) and reproduced by my learned brother, Ejembi Eko, JSC, in his book – The Law of Bail (with incomplete referencing) pp 24 – 249 irrespective of names of the respondents, is a decided case by our Nigerian Court of Appeal, Court below. The decision of Court of Appeal binds itself. See: Brawal Shiping Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) at 406.
Thus, I see nothing wrong, here too, if the Court below decides to rely on its earlier decision. Accordingly, I find no merit in issue 2 which is determined against the appellant.
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Appellant’s issue No. 3 is on “whether the Court of Appeal correctly and rightly applied the provision of Section 107 of the Evidence Act, 2011 in the instant case.
I think I should set out the provision of Section 107 of the Evidence Act, 2011 (as amended):
“107. A Court may; in any civil proceeding make an order at any stage, of such proceeding directing that specific facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination.
Provided that where a party desires the attendance of such deponent for cross-examination the Court shall require his attendance for the purpose where this would not result in unjustifiable delay or expense.”
Without mincing words, the Court below stated how it understood this section of the Evidence Act. It stated:
“The above (i.e. the above section as set out) contemplates a situation where the civil proceeding is commenced other than by affidavit evidence and that a particular fact could only be received through an affidavit evidence. In such case, the Court may accept affidavit evidence
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with or without the appearance of a deponent for cross-examination. However, where a party desires the attendance of such a deponent, he may apply to the Court and the Court shall grant the application unless doing so may lead to unjustifiable delay or expenses.
The proceeding in the lower Court was by a motion on notice wherein the parties filed affidavit evidence. No oral evidence is called. The application was heard on the affidavit in support of the application and the affidavits which every party to the application proposes to use at the hearing. Thus, the affidavits constitute the evidence.
Whereas as in this case, the appellant desires to controvert or challenges the averments in the counter affidavit; the procedure is for him to file a further affidavit in support of his application. In some cases, Courts admits. (sic) oral evidence to resolve contradictory affidavit evidence which is not the case here.” (underlining supplied)
Where proceedings are commenced by a motion, that motion is thus, an originating motion in contradistinction to an ordinary motion which follows a substantive case/suit.
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The learned trial judge made a finding that “this proceeding is not a continuation of the criminal trial against the 3rd respondent in which trial is dispensed with by this Court. The 3rd respondent’s not put to trial against this proceeding can go on even in the absence of 3rd respondent. Usually, hearing is on affidavit in support and the counter affidavit by the respondent. There are exceptional situations where the motion may be set down and heard with witnesses or with leave, supplement the affidavit evidence beyond testimony. See: Akunnia v. A-G Anambra State & Ors (1977) 5 SC 161. Likewise in resolving contradictory evidence oral evidence may be allowed to resolve the conflict/contradiction: Section 107 of the Evidence Act, 2011 (as amended) provided that trial by affidavit may be done with or without the attendance of the deponent for cross-examination. it however, made a proviso, in the event a party desires the attendance of such deponent for cross-examination, the Court SHALL require his attendance for the purpose WHERE this would not result in UNJUSTI FABLE DELAY or EXPENSE.
Now, where the calling of oral evidence would result in unjustifiable delay or expenses the trial Court would refuse the application. The learned trial judge held:
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“In paragraph 11 of the affidavit in support of this application, counsel had averred that the applicant had expended resources in executing Exhibit EFCC 4 (the bench warrant). Counsel did not give any particulars of the expenditure if any. Now, Exhibit EFCC was directed to the Nigeria Police who by law are saddled with the responsibility of executing same. The Court never imposed that responsibility on the applicant. It was rather the applicant’s counsel who, in open Court, requested to join the police in executing Exhibit EFCC 4 and the Court obliged them. Therefore, they cannot be heard complaining of incurring expenses in executing EFCC 4.
Furthermore, such expenses even if proved cannot, in my view, be a reason for this Court to declare the recognizance forfeited.”
In his ruling, the learned trial judge found that the calling for oral evidence would occasion a delay. He did not qualify it as “Justifiable or unjustifiable”. The Court below agreed with him.
My Lords, a delay, whether justifiable or unjustifiable is a delay, although the two variants may attract different consequences.
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I do not find any cogent reason to disturb the concurrent decisions of the two lower Courts on this issue. The issue lacks merit and it is hereby decided against the appellant.
In the final result, this appeal is devoid of any merit. I hereby dismiss it and affirm the concurrent decisions of the two Courts below.
SC.51/2015
