NDUME v. FRN (2022)

NDUME v. FRN

(2022)LCN/17198(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 10, 2022

CA/ABJ/CR/1059/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

SENATOR MOHAMMED ALI NDUME APPELANT(S)

And

THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.
The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:-
“Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application. Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.”
It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed. An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power. PER SENCHI, J.C.A.

THE POSITION OF LAW ON THE NATURE OF BAIL

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J.

Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020. The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions.

The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation. On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail. The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:-
“Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders –
(1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions-
(a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.
Or
(b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.
Or
The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal)

Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.
The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows:
GROUND ONE
The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.
GROUND TWO
The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant.
GROUND THREE
The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.
GROUND FOUR
The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015.
GROUND FIVE
The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V. Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223.
GROUND SIX
The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.
GROUND SEVEN
The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million.
GROUND EIGHT
The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.
GROUND NINE
The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted.
GROUND TEN
The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN
The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction.
GROUND TWELVE
The judgment is unreasonable and unwarranted and should be set aside.

The Record of Appeal was transmitted to this Court on 03/12/2020.

The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION
In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised:
(1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1)
(2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6).
(3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4)
(4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11).
(5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10)
(6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12)

In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus:
Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
APPELLANT’S ISSUE ONE
At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court. He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45.

Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted. He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO
At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter. He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc. He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V. UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE
At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard. Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR
At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure. He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account. Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE
At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice. Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41. Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX
At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS
At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V. MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal. In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES
This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder.

ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6
At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case. He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings. The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020.

On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings. According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020.

Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:-
“My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court. That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal)
Then the trial Court in its Bench Ruling held thus:-
“This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:-
“We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.
We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom.
It is in the light of the above that we humbly apply for certified true copies of the under listed documents.
i. bail bond,
ii. recognizance,
iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail,
iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and
vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.”
(see pages 194 – 195 of the Record of Appeal)

The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:-
“A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA. In fact there is no provision in ACJA that supports the letter.
Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:-
(9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:-
(a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court. He shall then be released from custody.
Or
(b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No. KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody:
Or
The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.”

Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.
The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:-
“Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application. Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.”
It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed. An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume. By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:-
“The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold
The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court. The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant. See Section 353 (4) ACJA.”

By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:-
“Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.”
Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume. And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:-
“although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation. However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.”

By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice. The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel. However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended). The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings. In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence.

The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:-
“Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders-
(1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions-
(a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody.
(b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.
Or
The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.”

This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court. The said Section 179(1) ACJA, 2015 provides:-
“Where it is proved to the satisfaction of the Court by which a recognizance has been taken or, when the recognizance bond is for appearance before a Court and it is proved to the satisfaction of the Court that a recognizance has been forfeited, the Court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.”
Section 179 (1) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:-
(a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:-
“The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code. The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.”

In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally. See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.”
If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence. The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant. A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional.

Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums. It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:-
Paragraph (7) provides:-
“That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant
Paragraph (8)-
The property used in the fulfillment of the Bail term belongs to me personally
Paragraph (9)-
That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default”
Paragraph (10)-
That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria.

I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause. The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223. This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever. In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed.

The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto.
No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA.

My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court. That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae.

It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein.

I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.