Published On: Wed, Oct 18th, 2017

Law, Abaribe And Kanu’s Bail – By Tony Okafor

Law, Abaribe And Kanu’s Bail – By Tony Okafor

Law, Abaribe And Kanu’s Bail – By Tony Okafor

Kanu was supposed to appear before  Justice Binta Nyako of the Abuja Federal High Court on Tuesday October 17, to be re-arraigned on an amended five-count charge alongside four other pro-Biafra agitators, namely Chidiebere Onwudiwe, Benjamin Madubugwu, David Nwawuisi and Bright Chimezie.

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However, Kanu’s whereabouts has remained unknown, a development that has placed his sureties, including a serving Senator, Enyinnaya Abaribe and a Jewish High Chief Priest, Immanuel El-Shalom, at risk of punishment.

It will be recalled that Justice Nyako had in a ruling on April 25, released Kanu on bail after he had spent a year and seven months in detention.

Both Abaribe who is representing Abia South Senatorial District, El-Shalom and a Chartered Accountant residing in Abuja, Mr. Tochukwu Uchendu, had on April 28, entered an undertaken to produce Kanu before the court to face his trial, and deposited the sum of  N100million each.

Senator Eyninnaya Abaribe, who is one of the three persons standing as sureties for the leader of the proscribed Indigenous People of Biafra, Nnamdi Kanu, ‎on the resumed hearing  was reported to have pleaded with the Federal High Court  to give him more time to produce the IPOB leader.

According to a newspaper report,‎Abaribe, who told Justice Binta Nyako that he had no information about Kanu’s whereabouts, was forced to request for time to produce the defendant in court.

Mr. Ogechi Ogunna, a lawyer, who appeared for Abaribe was reported to have  informed the judge that the senator had filed a motion seeking to be discharged as a surety for the defendant(Kanu)

But the judge in response said the senator had three options .

One of the options was for Abaribe to produce the defendant in court and then apply to be discharged as a surety.

The other option the judge gave was for Abaribe to be ready to forfeit his N100m bail bond.

The third option ‎was for  Abaribe  to ask to be given time to produce the defendant.

The media report said Abaribe’s lawyer initially rejected the three options but the judge insisted tha‎t Abaribe must opt for one of the three options.

With the judge’s insistence, Abaribe through his lawyer opted to be given time to produce Kanu.

The position of the law is very clear to the effect that when a defendant jumps bail, his surety is made to pay for the offence upon which the trial was made. This principle is trite and settled in law.

But in my opinion, this principle of law cannot apply in the circumstance.

This is because this principle of law has been overtaken by  the supervening circumstance of September 14 attack of Kanu’s house by soldiers.

With that development, the burden to produce Kanu has shifted to the  army/ police, moreso since his IPOB members have declared him missing.The army/police should now look for Kanu  and bring him to court as appropriate. Abaribe has become a fonctus officio in the case.

This is so because he did not contemplate that Kanu’s house would be attacked by soldiers and Kanu either killed in the invasion or ran away for his life, leaving 28 persons allegedly dead and many taken away  by security men.

Abaribe and co can no longer be punished for the offence of not producing Kanu before the court because the circumstance of Kanu’s unavailability was beyond them because it was not contemplated when they pledged to produce him in  court when required.

Section 24 of the criminal code is clear and unambiguous about this. It states : “A person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident. This is  further enunciated in the principle of Actus reus and mens rea( guilty act and mental guilt/act).

The supreme court in Maiyaki V. State held as follows “An event is said to be accidental where the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought in the circumstance in which it is done, to take reasonable precautions against it”.

It is important to note that the position of the law is that no matter how reckless the conduct of  an accused might be, so long as the conduct that resulted from his act was not intended his offence is mitigated.

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