In this piece, STEPHEN UBIMAGO reflects the opinions of seasoned lawyers, all of whom in unison maintain that except Senator Eyinnaya Abaribe and others, who stood surety for Nnamdi Kanu, take certain legal steps, he risks going in for it for failing to produce the separatist leader in court for his trial….
At his trial before Justice Binta Murtala Nyako of a Federal High Court sitting in Abuja on Tuesday, October 17, leader of the separatist Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, failed to appear in court, a development that seemingly frustrated the judge to no end.
In light of the development, Nyako sought from Kanu’s counsel, Ifeanyi Ejiofor, explanations as to his whereabouts or indeed his absence in court.
Responding to the judge, Ejiofor said, “My lord, I don’t know where my client is. Ever since the Army raided his home on 11thand 14th September, 2017, we have not seen the 1st defendant. I cannot tell if he is dead or alive.”
He added that the military was in the best position to tell his whereabouts, and that on that score he had filed an application for an order of Habeas Corpus ad subjiciendum, commanding the Chief of Army Staff, Lt. Gen. Tukur Buratai, to produce him.
Nyako also directed same question to Ogechi Ogbonna, counsel to the Senator representing Abia South, Eyinnaya Abaribe, who together with Jewish priest Emmanuel Shalum Oka Ben Madu and Tochukwu Uchendu, stood surety for Kanu.
Ogbonna however had no answer to the judge’s demand, but had only brought an application asking the court to excuse him from the obligation of suretyship, which he had entered as a security for Kanu’s April 25 release on bail.
In her riposte to Ogbonna, Nyako gave Abaribe’s lawyer three options from which to choose, saying, “It’s either Senator Abaribe remains a surety or produce the 1st defendant in court and hands off from being his surety.”
The second option was for Abaribe to forfeit N100m bail bond if he cannot produce Kanu; and thirdly, the court said it would give Abaribe time to produce Kanu, for which, after a careful study, Ogbonna settled for the third option.
Nyako ruled that the sureties should appear before the court to show cause why bench warrant of arrest should not be issued against them.
She maintained that Abaribe can only be reclused from his suretyship obligation if he produces Kanu in court on the next adjourned date of the trial, November 20, or risked forfeiting the N100m bail bond.
In light of these developments, INDEPENDENT approached four seasoned lawyers, namely Mallam Yusuf Ali, a Senior Advocate of Nigeria (SAN); Olusina Fasugba; Emeka Obegolu, and Zik Obi with the question that given allegations to the effect that the Army did raid Kanu’s Umuahia country-home on September 14, for which 28 deaths were reportedly recorded, whether the development has frustrated the capacity of the sureties to discharge their obligation of presenting Kanu in court?
In his response, Ali (SAN) said, “If you stand surety for an accused person who is on trial, what you are saying is that ‘I will produce his at all time.’
“So, that is you obligation, your problem, so to speak; there is nothing like current event frustrating your ability to produce an accused person for whom you are standing surety.
“What you are basically saying upon assuming the obligation of a surety is that I will produce him, otherwise I will stand in his stead. So you only stand surety for people who you are very sure of.
“Even when the person you stood surety for dies, you must produce evidence or certificate in respect of his death.
“The court will never take it for granted that the accused person is dead. Proof must be produced, otherwise every accused person will just run off on one flimsy excuse or the other, and the criminal justice system will be in jeopardy.
“On claims that the Army raided Kanu’s house, has Senator Abaribe’s lawyers given evidence to that effect in court? Courts don’t act on newspaper reports.
“The judge has not done anything out of the ordinary. The duty of the court is to ensure that the surety produces in court whoever the surety stands surety for, except you produce contrary information backed by facts before the court.”
Ali’s position was also corroborated by Barrister Emeka Obegolu, who maintained that so long as Abaribe has not brought any information before the court evidencing circumstances that have frustrated his capacity to discharge his suretyship obligation in respect of Kanu, he is duty bound to produce him.
He said, “The position of the law is that if the surety fails to produce the defendant in court on the day of trial, the surety will enter in his place at the pain of forfeiting the bail bond.
“In my view, the options open to Kanu’s sureties, apart from the three other options presented to Abaribe’s counsel by the court, is that if he sincerely believes that the Nigerian Army is holding onto Kanu, he can take out an action asking the Nigerian Army to produce the accused person.
“Now, if he has not done that, he cannot rely on the suit filed by Kanu’s lawyer asking the Army to produce Kanu in court.
“He is the one that has undertaken before the court to produce Kanu for his trial at anytime his presence in court is required.
“If he believes that a third party is holding on to Kanu, he can go back to the court asking it to grant an order directing the third party to produce him in court.
“Abaribe’s lawyer should file a separate application in this regard. It is this separate application that he can now annex in his defence that until this suit is determined, I cannot be asked to produce Kanu in court because I am asking the court to direct the Army to produce him.
“That can only be his defence against forfeiting his N100m or his risk of arrest or detention.
“So it depends on what Abaribe believes, because nobody knows exactly where Kanu is. What we have is essentially allegations and speculations.
“If I were Abaribe’s lawyer, I will ask him where he believes Kanu may be. If he says he believes he is in the custody of the Nigerian Army, then I will advise him that we should take the course of action I have here stated.
For Barrister Olusina Fasugba, Obegolu’s position reflects the law. According to him, “The action of the judge is very much in order. It is in accordance with the Administration of Criminal justice Act.
“The implication of standing as surety when you want to secure somebody on bail before the court, is that the surety must have given an undertaking to produce the accused person in court anytime his presence is required in court.
“The sureties in the instant case have failed in this obligation, given that apparently the accused person has taken flight.
“However, on the allegation by Kanu’s lawyer that since the Army raided Kanu’s country-home and ever since nobody has set eyes on him, the doctrine of audi alterem patem would apply in the sense that the judge cannot just pass judgment on the sureties without hearing from them.
“Let them deposed to an affidavit and address the court accordingly that subsequent to the raid of his home, Kanu is nowhere to be found. And that they have serious apprehension that he might have been harmed or kidnapped or killed by the Army.
“The inability of the surety to discharge their obligation under their suretyship must be brought to court by way of an affidavit averring that pursuant to the invasion of the Kanu’s house by the Army, he could not be found, with a serious apprehension that something untoward might have happened to him either by way of he being kidnapped by the troops or injured or killed.
“Then the court will look at those facts dispassionately and also take into consideration the averments of the prosecution.
“In that wise, the court will then exercise its discretion one way or the other.
“But thus far the position of the judge is quite in order, because the judge cannot just say ‘yes, I read from the newspaper and heard from the TV that troops raided Kanu’s house and on that score recluse the sureties from their obligation.”
In his own submission, which mutatis mutandis corroborates the views of his colleagues, Barrister Zik Obi said, “We were told that Senator Abaribe’s lawyers have filed a Motion to discharge him as surety.
“Under the Administration of Criminal Justice Act, 2015 if you a surety wants to be discharged, the first thing to do is to produce the accused person or the defendant in court and then the court can cancel the bail and discharge you.
“We can understand why Nnamdi Kanu wasn’t in court. His lawyer has filed a Motion saying that the Army raided his home and stole him and that’s why he is not in court.
“We also understand that Kanu’s brother had also stated that Kanu was in the house when the Army invaded the house and thereafter Kanu has not been seen ever since.
“Under these circumstances, there is no way in my view that the sureties will be able to produce Kanu in court.
“And I think that the lawyers of Abaribe did well in accepting the last option of being given time to find Kanu.
“My view is that if on the next adjourned date they have not found Kanu, Senator Abaribe’s lawyer and the other sureties could file a Motion in which they will tell the court clearly that they were unable to produce Kanu because the Army or the Federal Government has custody of him.
“And they can get Kanu’s brother, who said he was there when the Army invaded the house, to do an affidavit stating specifically that Kanu was taken away by the military.
“If the court refuses to accept that or reject the Motion, Abaribe could go on appeal. If he does that, he would not stand to forfeit the bail bond until the appeal court decides on the appeal one way or the other.”