Senior lawyers have expressed divergent views on the fate of three persons who stood as sureties for Indigenous People of Biafra (IPOB) leader, Nnamdi Kanu.
Kanu has not been seen publicly since soldiers invaded the Southeast in a show tagged Operation Python Dance. His lawyers claim they have been unable to reach him.
Director of Defence Information, Maj-Gen. John Enenche, denied that Kanu was in the military’s custody.
“Nnamdi Kanu is not in the custody of the military,” he said.
Another dimension was added to the saga when former Abia State Governor Orji Uzor Kalu claimed that Kanu was hiding in London and had escaped through Malaysia.
He said: “Kanu was not taken away by the military. Kanu went to Malaysia from where he travelled to the United Kingdom.
“Nnamdi Kanu is in London right now as we speak. He was not arrested by anybody. He left the country on his own.”
Kanu has a date in court on October 17, leaving observers to wonder what fate awaits those who stood as surety for him if he fails to turn up.
A surety is a person who takes responsibility for another’s performance of an undertaking, for example, their appearing in court.
The surety signs a bond and undertakes to forfeit a certain amount of money in the event that the accused does not attend court as required (recognizance)
If the suspect jumps bail and there is a surety, then the surety would forfeit the recognizance, and the courts have the power to arrest a surety who refuses to pay the agreed sum.
This is unless the surety can provide satisfactory evidence that he is not to blame for the accused person jumping bail, and did everything in his/her power to prevent this from happening.
Last April 25, Justice Binta Nyako of the Federal High Court in Abuja granted Kanu bail on stringent conditions.
He was asked to provide three sureties, who must agree to forfeit N100 million each. One of the sureties must be a senior highly placed person of Igbo extraction such as a senator, while the other must be a highly respected Jewish leader.
One of Kanu’s sureties is the Chairman, Senate Committee on Mining, Power and Metallurgy, Enyinnaya Abaribe, who represents Abia South.
Kanu’s is expected to appear at the Federal High Court, Abuja on October 17 for a resumption of his trial on a five-count charge of treasonable felony among others, but the IPOB leader has not been seen since last September 11 following a military exercise near his home in Umuahia.
Abaribe reportedly said could not be held responsible if Kanu fails to appear in court.
The senator said he had not been able to speak with Kanu since the incident occurred, because the phone number he used to reach him had been switched off.
Senior Advocates of Nigeria (SAN) who spoke on the issue held divergent views.
Mr Rotimi Jacobs, Mr Seyi Sowemimo and Mr Festus Keyamo, said the law on suretyship was clear that where a defendant who is on bail fails – without lawful excuse – to attend his trial, his sureties will be required to produce him.
According to them, if the sureties are unable to do so, the court may order them to pay the penalty which may be a forfeiture of their bail bond or a jail term, or to show sufficient cause why the penalty should not be paid.
But Mr Ahmed Raji and Dr Paul Ananaba, both SANs, believe Kanu’s situation was slightly unique.
Jacobs said: “The court will first of all invite the sureties to let them know of the defendant’s failure to appear for trial. It can also lead to jail if they don’t pay the bond covered by the cognizance that they entered into.”
Sowemimo noted that although the sureties would normally be liable to forfeit their bond, a new dimension had been introduced to the situation by IPOB’s allusion to military interference as the reason for Kanu’s disappearance.
He said: “Usually, if you don’t produce the person you stood surety for, they may either say the person will forfeit a certain amount which the person entered into a bond for or maybe the person may be sent to jail. Usually there’s an amount which a person enters a bond for which you will forfeit if the defendant defaults.
“However, the situation here is a bit tricky because you have people who are alleging that soldiers took Nnamdi Kanu away. Although it is not proven, it is a good pretext for them which may put the court in a quandary as to what to do.
“But generally, if there’s a bail bond, a surety has to forfeit whatever penalty is stated on the bail bond. Sometimes it is an amount, sometimes the surety may go to jail.
“I don’t know on what terms the men stood as Nnamdi Kanu’s sureties, but ordinarily they would be liable – if they don’t produce him – to criminal sanctions from the court and it’s now left for them to convince the court that matters are beyond their control.
“It appears that in this particular case, the soldiers have played into the hands of the IPOB people, who may now be contesting, although they may not have proof that it was soldiers that took him away.”
For Keyamo, IPOB’s excuse holds no water in law.
He said: “The law has provisions to take care of every situation. Nobody can be cleverer than the law.
“In a situation where someone alleges that a person that is on bail has been abducted and is missing and all that, there must be an eye witness account; the person must be ready to depose to an affidavit before the court.
“In the absence of a clear cut eyewitness account as to what happened, who took him, the names of the officers, the name of the battalion that took him, the court cannot act on speculation.
“All we’re hearing now is speculation, such as ‘it may have been this, it may have been that’. No court of law acts on speculation. There must be a clear eyewitness account.
“That eyewitness must be prepared to swear to an affidavit before the court, must be prepared to be cross-examined because such a person can be invited before the court to be cross-examined and the person risks going to jail in future, if it is found that the person lied before the court.
“In the absence of that clear eyewitness account as to what happened, the court will do the needful; the court will not act on speculation. The court will do the needful regarding the sureties and the defendant who is on bail.”
Keyamo advised people to stand as sureties for only people they can produce in court.
“This is perhaps a very big lesson and the court must teach that lesson that people should not stand as surety lightly before a court of law. It is a very serious process. They should not do it because of political expediency, etc.
“If you know you cannot account for someone’s movements or whereabouts, if someone is not fully under your control and custody, don’t stand as a surety for that person. Suretyship is a very serious process before a court of law, don’t tribalise it, and it is time the courts should make a lesson of those who tribalise it.
“No matter the status of the person, as a matter of fact, the higher the person’s status, the more careful that person should be about standing as someone’s surety. We should be careful not to tribalise issues of surety in this country. The courts must set an example, nobody has a right to take this country for granted,” he said.
Raji advocated the use of dialogue in resolving the issues rather than further complicating the issues by ordering the sureties’ arrest.
He said: “As President Olusegun Obasanjo advised, the best way out is dialogue. We don’t want to create any prisoner of conscience, which will keep creating problems for the nation. That is not to say that anybody who tries to go overboard should not be curtailed. They should be curtailed, but we should rely more on dialogue.
“I think the case should be adjourned. When the dialogue goes well, wherever Kanu is, he will surface. I don’t doubt the Army that they don’t have him.
“The matter should be adjourned while a lasting solution is found to the underlying problem. Let us forget about the after-effects. Suretyship is an after-effect. It’s not what led to the problem.
“By attacking the surety, you will be treating the effect without looking at the root cause. So, in the interest of justice let the matter be adjourned,” he said.
Ananaba said the issue of the sureties’ fate should be left to the judge to decide.
“There is no issue, because the day he is supposed to appear in court has not reached. It is when he is not in court that the issue of what happens to the sureties will arise.
“He is a free person; he can go anywhere he wants. He has a date in court. When the day comes, then judge can ask about his whereabouts,” Ananaba said.
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