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FEDERAL REPUBLIC OF NIGERIA V ALH. ABUBAKAR MAISHANU & 2 ORS

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FEDERAL REPUBLIC OF NIGERIA V ALH. ABUBAKAR MAISHANU & 2 ORS

 

Legalpedia Electronic Citation: LER [2018]SC.51/2015

SC.51/2015

AREAS OF LAW:

Appeal, Court, Criminal Law And Procedure, Fair Hearing, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS

The Accused Person/3rd Respondent was arraigned before the Federal High Court, for the offence of money laundering punishable under Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006. He pleaded not guilty to the charge and was consequently 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 in fulfillment of the bail conditions.  Upon execution of the bail recognizance by the sureties, the 3rd Respondent was released from custody.  When the case came up for continuation of trial, the 3rd Respondent was absent in court likewise the 1st and 2nd Respondents. 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 who 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 and all three Respondents were joined as parties to the application.  In the course of hearing the 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 trial court refused to grant the application stating that its grant would cause delay in the proceedings. The court dismissed the application for forfeiture of bail bond/recognizance filed by the Appellant. The Appellant appealed to the lower court against the decisions of the trial court. The Court below, in its judgment dismissed the appeal. The Appellant has further appealed to this court.

HELD

Appeal Dismissed 

ISSUES FOR DETERMINATION

  • Whether the judgment of the Court of Appeal is supportable by the evidence contained in the printed record before their lordships. (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 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).

RATIONES

BAIL – OPTIONS AVAILABLE TO THE COURT WHERE AN ACCUSED PERSON JUMPS BAIL

“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:

  1. revoke the bail,
  2. issue a bench warrant for his arrest,

iii.       order the forfeiture of the bail bond, and

  1. upon forfeiture of the bail bond, order the surety (sureties) to (each) pay the sum stated in the bond into the court’s Registry”. PER I.T.MUHAMMAD, J.S.C

 

PRINCIPLE OF FAIR HEARING – EXTENT OF THE APPLICABILITY OF THE CARDINAL PRINCIPLE OF FAIR HEARING

“The cardinal principle of fair hearing whether in relation to a civil or criminal matter is so sacrosanct. 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. 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”. PER I.T.MUHAMMAD, J.S.C

COURT – OBJECTIVE OF A COURT OF LAW

“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”. PER I.T.MUHAMMAD, J.S.C

AFFIDAVIT EVIDENCEWHETHER TRIAL BY AFFIDAVIT MAY BE DONE WITH OR WITHOUT THE ATTENDANCE OF THE DEPONENT FOR CROSS EXAMINATION

“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.”

  • PER I.T.MUHAMMAD, J.S.C

AFFIDAVIT EVIDENCE – WHETHER THE ATTENDANCE OF A DEPONENT FOR CROSS EXAMINATION IS MANDATORY IN A TRIAL COMMENCED BY AFFIDAVIT EVIDENCE

“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 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 UNJUSTIFABLE DELAY or EXPENSE”. PER I.T.MUHAMMAD, J.S.C

CONCURRENT FINDINGS OF FACTS – ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS BY LOWER COURTS

“It needs be restated that what is before this court are concurrent findings of facts and conclusions emanating thereby and it is now trite that the Supreme Court cannot interfere with the findings of the Lower courts except where the findings are perverse or not in line with laid down principles of law. See Okashetu v State (2016) LPELR – 40011 (SC) per Ogunbiyi JSC; Amadi v Nwosu (1992) 6 SCNJ 59; Onwujuba v Obienu (1991) 4 NWLR (Pt.188) 16; Ogundipe v Awe (1988) 1 NWLR (Pt.88) 188; Akeredolu v Akinremi (NO.3) (1989) 3 NWLR (Pt.108) 164”.PER M.U. PETER-ODILI, J.S.C

FUNCTUS OFFICIO – MEANING OF FUNCTUS OFFICIO

“The Court becomes functus officio when its task or the task before it is completely performed. Functus officio, a Latin term, means “task performed”. It means, as this Court stated in Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108 at pages 163 – 164, that the judge or the Court cannot give a decision twice or make an order on the matter twice. In other words, once a Court or judge makes a final order on a matter, it (or he) no longer has the competence or jurisdiction to give another decision or order on the same matter. The Court or the Judge, once it gives final judgment on a matter, it (or he) from thenceforth becomes functus officio”. PER E.EKO, J.S.C

COURT – REQUIREMENT FOR AN EXERCISE OF THE JUDICIAL POWER OF A COURT

“It is of course, trite that the Court is competent when, among other things, the suit is initiated by due process of the law and upon fulfillment of conditions precedent for the Court to exercise jurisdiction: Madukolu v. Nkemdilim (1962) LPELR – 24023 (SC). Where a Court has no jurisdiction, with respect to any matter before it, the jurisdicai basis for the exercise of any power with respect to such matter is also absent. The Court’s judicial power can only be exercised where it has the jurisdiction: Bronik Motors Ltd v. Wema Bank Ltd (1983) 6 SC 158; Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172 at 17”. PER E.EKO, J.S.C

INTERLOCUTORY APPLICATION – APPROPRIATE TIME TO FILE AN INTERLOCUTORY APPLICATION

“Of course, an interlocutory application is an application or motion for an equitable or legal relief sought before a final decision. The appropriate time to bring such application, ordinarily, is during the pendency or subsistence of the substantive criminal proceedings; an interlocutory application being one for interim or temporary relief”. PER E.EKO, J.S.C

COURT – DUTY OF A COURT WHERE A RECOGNISANCE IS ADJUDGED TO BE FORFEITED

“Once the trial Court becomes functus officio in the matter of the criminal proceedings it ceases thenceforth to have jurisdiction over the matter. In support of this view the provisions Sections 137 and 140 are hereinbelow reproduced, to wit:

  1. Where it is proved to the satisfaction of a Court that a recognisance entered into under Chapter 1 to 11 inclusive of this Act has been forfeited the Court shall record the facts and by order declare the recognisance to be forfeited.
  2. Where any recognisance is declared or adjudged to be forfeited, the Court having jurisdiction over the matter of the complaint may, forthwith or at any time after such declaration, issue a warrant of commitment against any person liable, whether as principal or surety under such recognisance, for any term not exceeding the term prescribed in respect of a like sum in the scale of imprisonment set forth in Section 390 of this Act, with or without hard labour, unless the amount due under such recognisance is sooner paid.

PER E.EKO, J.S.C

COURT – WHEN DOES A COURT BECOME FUNTUS OFFICIO?

“The law is trite and well settled too, that a court becomes functus officio in respect of a matter once it has concluded, accomplished or fulfilled its function in respect to that matter. It thereupon lacks potency to review, reopen, or revisit the matter, as it is thereupon bereft of Jurisdiction to reopen the issue except perhaps in proceedings such as in relation to abuse of court process. See Ukachukwu vs UBA (2005) 18 NWLR (pt 956)1; Anyaegbunam vs AG Anambra State (2001) 6 NWLR (pt 710) 532; Mohammed v Husseini (1998)14 NWLR (pt 584) 108; First Bank of Nigeria Plc vs TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247. PER A. SANUSI, J.S.C

BAIL BOND – PROPER PROCEDURE TO BE FOLLOWED BEFORE A SURETY CAN BE MADE TO FORFEIT HIS BAIL BOND

“I am also in agreement with the court below that the proper procedure to be followed before a surety can be made to forfeit his bail bond is as follows:

  1. The order granting bail to the accused must be exhibited;
  2. The bail bond executed by the surety must be exhibited;
  3. The surety must be given an opportunity to show cause why the bail bond should not be forfeited i.e. he must be informed of exact nature of the breach complained of and given an opportunity to give evidence, call witnesses or give an explanation himself from the dock.

See: John & Anor. Vs C.O-P (2001) 2 ACLR 495: Amadu Tea Vs COP (1963) ANLR 502”. PER K.M.O. KEKERE-EKUN, J.S.C

STATUTES REFERRED TO:

Advance

  FEDERAL REPUBLIC OF NIGERIA V ALH. ABUBAKAR MAISHANU & 2 ORS

SC.51/2015

AREAS OF LAW:

Appeal, Court, Criminal Law And Procedure, Fair Hearing, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS

The Accused Person/3rd Respondent was arraigned before the Federal High Court, for the offence of money laundering punishable under Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006. He pleaded not guilty to the charge and was consequently 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 in fulfillment of the bail conditions.  Upon execution of the bail recognizance by the sureties, the 3rd Respondent was released from custody.  When the case came up for continuation of trial, the 3rd Respondent was absent in court likewise the 1st and 2nd Respondents. 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 who 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 and all three Respondents were joined as parties to the application.  In the course of hearing the 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 trial court refused to grant the application stating that its grant would cause delay in the proceedings. The court dismissed the application for forfeiture of bail bond/recognizance filed by the Appellant. The Appellant appealed to the lower court against the decisions of the trial court. The Court below, in its judgment dismissed the appeal. The Appellant has further appealed to this court.

HELD

Appeal Dismissed

 

 

ISSUES FOR DETERMINATION

  • Whether the judgment of the Court of Appeal is supportable by the evidence contained in the printed record before their lordships. (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 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).

RATIONES

BAIL – OPTIONS AVAILABLE TO THE COURT WHERE AN ACCUSED PERSON JUMPS BAIL

“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:

  1. revoke the bail,
  2. issue a bench warrant for his arrest,

iii.       order the forfeiture of the bail bond, and

  1. upon forfeiture of the bail bond, order the surety (sureties) to (each) pay the sum stated in the bond into the court’s Registry”. PER I.T.MUHAMMAD, J.S.C

 

PRINCIPLE OF FAIR HEARING – EXTENT OF THE APPLICABILITY OF THE CARDINAL PRINCIPLE OF FAIR HEARING

“The cardinal principle of fair hearing whether in relation to a civil or criminal matter is so sacrosanct. 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. 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”. PER I.T.MUHAMMAD, J.S.C

COURT – OBJECTIVE OF A COURT OF LAW

“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”. PER I.T.MUHAMMAD, J.S.C

AFFIDAVIT EVIDENCEWHETHER TRIAL BY AFFIDAVIT MAY BE DONE WITH OR WITHOUT THE ATTENDANCE OF THE DEPONENT FOR CROSS EXAMINATION

“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.”

  • PER I.T.MUHAMMAD, J.S.C

AFFIDAVIT EVIDENCE – WHETHER THE ATTENDANCE OF A DEPONENT FOR CROSS EXAMINATION IS MANDATORY IN A TRIAL COMMENCED BY AFFIDAVIT EVIDENCE

“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 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 UNJUSTIFABLE DELAY or EXPENSE”. PER I.T.MUHAMMAD, J.S.C

CONCURRENT FINDINGS OF FACTS – ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS BY LOWER COURTS

“It needs be restated that what is before this court are concurrent findings of facts and conclusions emanating thereby and it is now trite that the Supreme Court cannot interfere with the findings of the Lower courts except where the findings are perverse or not in line with laid down principles of law. See Okashetu v State (2016) LPELR – 40011 (SC) per Ogunbiyi JSC; Amadi v Nwosu (1992) 6 SCNJ 59; Onwujuba v Obienu (1991) 4 NWLR (Pt.188) 16; Ogundipe v Awe (1988) 1 NWLR (Pt.88) 188; Akeredolu v Akinremi (NO.3) (1989) 3 NWLR (Pt.108) 164”.PER M.U. PETER-ODILI, J.S.C

FUNCTUS OFFICIO – MEANING OF FUNCTUS OFFICIO

“The Court becomes functus officio when its task or the task before it is completely performed. Functus officio, a Latin term, means “task performed”. It means, as this Court stated in Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108 at pages 163 – 164, that the judge or the Court cannot give a decision twice or make an order on the matter twice. In other words, once a Court or judge makes a final order on a matter, it (or he) no longer has the competence or jurisdiction to give another decision or order on the same matter. The Court or the Judge, once it gives final judgment on a matter, it (or he) from thenceforth becomes functus officio”. PER E.EKO, J.S.C

COURT – REQUIREMENT FOR AN EXERCISE OF THE JUDICIAL POWER OF A COURT

“It is of course, trite that the Court is competent when, among other things, the suit is initiated by due process of the law and upon fulfillment of conditions precedent for the Court to exercise jurisdiction: Madukolu v. Nkemdilim (1962) LPELR – 24023 (SC). Where a Court has no jurisdiction, with respect to any matter before it, the jurisdicai basis for the exercise of any power with respect to such matter is also absent. The Court’s judicial power can only be exercised where it has the jurisdiction: Bronik Motors Ltd v. Wema Bank Ltd (1983) 6 SC 158; Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172 at 17”. PER E.EKO, J.S.C

INTERLOCUTORY APPLICATION – APPROPRIATE TIME TO FILE AN INTERLOCUTORY APPLICATION

“Of course, an interlocutory application is an application or motion for an equitable or legal relief sought before a final decision. The appropriate time to bring such application, ordinarily, is during the pendency or subsistence of the substantive criminal proceedings; an interlocutory application being one for interim or temporary relief”. PER E.EKO, J.S.C

COURT – DUTY OF A COURT WHERE A RECOGNISANCE IS ADJUDGED TO BE FORFEITED

“Once the trial Court becomes functus officio in the matter of the criminal proceedings it ceases thenceforth to have jurisdiction over the matter. In support of this view the provisions Sections 137 and 140 are hereinbelow reproduced, to wit:

  1. Where it is proved to the satisfaction of a Court that a recognisance entered into under Chapter 1 to 11 inclusive of this Act has been forfeited the Court shall record the facts and by order declare the recognisance to be forfeited.
  2. Where any recognisance is declared or adjudged to be forfeited, the Court having jurisdiction over the matter of the complaint may, forthwith or at any time after such declaration, issue a warrant of commitment against any person liable, whether as principal or surety under such recognisance, for any term not exceeding the term prescribed in respect of a like sum in the scale of imprisonment set forth in Section 390 of this Act, with or without hard labour, unless the amount due under such recognisance is sooner paid.

PER E.EKO, J.S.C

COURT – WHEN DOES A COURT BECOME FUNTUS OFFICIO?

“The law is trite and well settled too, that a court becomes functus officio in respect of a matter once it has concluded, accomplished or fulfilled its function in respect to that matter. It thereupon lacks potency to review, reopen, or revisit the matter, as it is thereupon bereft of Jurisdiction to reopen the issue except perhaps in proceedings such as in relation to abuse of court process. See Ukachukwu vs UBA (2005) 18 NWLR (pt 956)1; Anyaegbunam vs AG Anambra State (2001) 6 NWLR (pt 710) 532; Mohammed v Husseini (1998)14 NWLR (pt 584) 108; First Bank of Nigeria Plc vs TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247. PER A. SANUSI, J.S.C

BAIL BOND – PROPER PROCEDURE TO BE FOLLOWED BEFORE A SURETY CAN BE MADE TO FORFEIT HIS BAIL BOND

“I am also in agreement with the court below that the proper procedure to be followed before a surety can be made to forfeit his bail bond is as follows:

  1. The order granting bail to the accused must be exhibited;
  2. The bail bond executed by the surety must be exhibited;
  3. The surety must be given an opportunity to show cause why the bail bond should not be forfeited i.e. he must be informed of exact nature of the breach complained of and given an opportunity to give evidence, call witnesses or give an explanation himself from the dock.

See: John & Anor. Vs C.O-P (2001) 2 ACLR 495: Amadu Tea Vs COP (1963) ANLR 502”. PER K.M.O. KEKERE-EKUN, J.S.C

STATUTES REFERRED TO:

Advance Free Fraud and Other Related Offences Act, 2006

Criminal Procedure Act

Evidence Act, 2011

Free Fraud and Other Related Offences Act, 2006

Criminal Procedure Act

Evidence Act, 2011

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