ANALYSIS: Why Ndume Was Jailed For Being Maina’s Surety But Abaribe Wasn't As Nnamdi Kanu’s Surety
A review of the facts of how the cases played out in court reveals why the two senators’ similar journeys as sureties for high-profile defendants took them to different destinations.
Ali Ndume, the Borno South senator, knew he had got into trouble after Abdulrasheed Maina, the man he stood surety for, jumped bail.
But the senator must have ruled out going to jail as a possible consequence for his inability to fulfil his pledge to always produce Mr Maina for his N2 billion pension fraud trial.
Mr Ndume’s self-assurance was not unfounded; after all, his colleague in the Red Chamber, Enyinnaya Abaribe, the senator representing Abia South, who found himself in a similar situation three years earlier, did not go to jail.
Mr Abaribe was one of the three persons that stood surety for the bail granted the leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu, who was being prosecuted by the Attorney-General of the Federation’s office on treasonable felony charges.
The IPOB leader was granted bail by Binta Nyako of the Federal High Court in Abuja in April 2017 after Mr Abaribe and two others agreed to be his sureties with each of them staking N100 million worth of Abuja properties as security for the bail.
But in September of that same year, soldiers invaded Mr Kanu’s home in Afara-Ukwu, near Umuahia, the Abia State capital, creating a window for him to flee the country, first to Israel, and later to the United Kingdom where he is presumed to have been since then.
Although Mr Abaribe was arrested and detained by the State Security Service (SSS) for about four days in June 2018, it was reported that the secret police took him into custody for allegedly linking him to IPOB, not for his failure to produce Mr Kanu.
However, Mr Ndume, against expectation, was unlucky when fate put him in Mr Abaribe’s shoes some years later.
In November 2020, Okon Abang of the Federal High Court in Abuja remanded the Borno South senator in prison for losing Mr Maina, the chairman of the defunct Pension Reform Task Team (PRTT), who had escaped to the Republic of Niger ditching his trial back home in Nigeria.
Although Mr Maina was later rearrested, Mr Ndume spent five nights in prison before the trial judge granted him bail.
In contrast, Mr Kanu remains at large and even continues to dish out inflammatory remarks through his social media channels inciting violence in the South-east. Yet his bail guarantor, Mr Abaribe, was never jailed for losing him.
Politics or ethnicity?
Many Nigerians on Twitter had expressed their bewilderment at the seemingly conflicting outcomes of what they presumed to be identical cases.
Their newly found interest in the matter was stirred by the Deputy Speaker of the House of Representatives, Idris Wase, who in his submission on the floor of the House last Thursday, said Mr Abaribe ought to be in prison for his inability to produce Mr Kanu.
Reading a political meaning into the turn of events, Mr Wase, an All Progressives Congress (APC) member, added, “Ndume for bailing Maina was taken to prison for not producing him, but we allowed this man (Abaribe) to go as opposition person.”
While Mr Wase’s comment provides an insight into how much the judiciary and other public institutions are influenced by political considerations, he did not provide enough details to reconcile why the APC-controlled federal government would be eager to save Mr Abaribe, a top member of the opposition Peoples Democratic Party (PDP), and turn a blind eye when Mr Ndume, a member of the ruling party, was faced with a similar problem.
Some Twitter users latched on Mr Wase’s comment but were not convinced by the political perspective introduced to the matter by the lawmaker.
On his part, TRUELOVESEEKER tweeting via @True_loveseeker, gave the narrative an ethnic tint.
“At least he (Ndume) was kept in custody for some days… Why is the Abaribe case different? Is it bcos he’s an Igbo man? Does it mean he’s more Nigerian than Ndume?”
Another twitter user, Ibnusman tweeting via @mohamme63413575, highlights the unending concerns about the perceived unevenness of Nigerian courts’ decisions.
“Wase on point, Abaribe should be jailed just as Senator Ali Ndume when he failed to produce former chairman of Pension Reform Task Team (PRTT), Abdulrasheed Maina, who he stood for as surety,” his tweet read.
How the cases played out
Away from the motley views pouring out in the traditional and social media about the matter, a revisit of the facts of the cases as they played out in court provides an insight into how the two senators journeyed through similar routes but finished at different destinations.
In both cases, after it was clear that Messrs Maina and Kanu had jumped bail, the judges ordered their arrest and said their trials would proceed in absentia.
Both judges also took steps to hold the sureties accountable for their failure to fulfil their vows to always produce the defendants in court.
As a result, the judges ordered the sureties to “show cause” why they should not be made to forfeit the landed properties they used as securities for the bail granted the defendants.
In Mr Ababaribe’s case, the senator and two others entered into separate agreements for Mr Kanu’s bail with each of them staking N100 million worth of landed property in Abuja as the securities.
More than a year after Mr Kanu had disappeared, the judge, Mrs Nyako, on November 14, 2018, ordered the three sureties to forfeit their separate N100 million bail bonds.
In reaction, the sureties’ lawyers filed separate appeals against the court’s ruling, and then urged the judge to adjourn the forfeiture proceedings indefinitely in deference to the Court of Appeal which had then taken charge of the case.
The judge, in agreement with the lawyers, adjourned the proceedings indefinitely pending the Court of Appeal’s final pronouncement on the sureties’ appeals.
But for Mr Ndume, who stood surety for the N500 million bail granted Mr Maina with an Abuja property worth the bond provided as security, the process took a faster lane and landed him in prison.
On November 18, 2020, the prosecuting counsel for the Economic and Financial Crimes Commission (EFCC) urged the judge, Mr Abang, to order the forfeiture of Mr Ndume’s property for his failure to produce the former pension boss.
The judge, in a ruling that day, declined the request and adjourned the matter till November 23, ostensibly to afford the senator more time to find the fugitive.
But the judge dismissed the request, accusing the lawyer of not diligently pursuing his client’s case.
That same day, the judge remanded Mr Ndume in Kuje prison, ordering that the senator would remain in detention until he met any of three conditions – produce Mr Maina in court, pay the N500million bail bond, or have the property offered as security for the defendant’s bail sold and its N500 million proceeds paid to the Federation Account.
Although the senator appealed against the judge’s decision the following day, he remained in prison until he was granted bail by the judge on November 27.
Senior advocates fault detention of sureties
Expressing their thoughts on the controversy, senior lawyers interviewed by PREMIUM TIMES said it was wrong to send a surety to prison for his inability to produce a defendant he or she stood surety for.
Olalekan Ojo, a Senior Advocate of Nigeria (SAN), said jailing a surety is usually the “last stage” after the surety must have failed to pay the bail bond and attempts to proceed against the assets provided as security must have failed.
“If the surety cannot produce the money, then the court will proceed against the property. That is why it is usually required that the sureties are owners of landed assets with verifiable titles.
“It is after all those things have happened and the surety is still not able to pay the amount, that you can take the option of arrest. It is the last stage.
“If you look at it critically, he has not committed any offence. If a defendant jumps bail how can that translate into a criminal offence for the surety?” Mr Ojo queried.
Another SAN, Alex Izinyon, who was the lead prosecutor in the popular Charles Okah case, holds the view that a surety must be prepared to face the consequences of failing to produce a defendant in court, but explained that the first step that should be taken is getting the surety to forfeit the bond.
“It is only after that fails that the surety can be sent to prison,” Mr Izinyon added.
On his part, human rights lawyer, Femi Falana, who has also led the defence in many criminal cases, said “it is very wrong to imprison a surety for not being able produce a defendant, unless the surety says he or she lacks the capacity to pay the bail bond.”
Mr Falana added, “Even at that, judges must remember that we are operating a democracy. If you send a surety to prison for not being able to produce a defendant, are you going to keep him in prison forever in the event that the defendant is not rearrested?”
What the law says
But Rotimi Jacobs, a senior lawyer widely known as EFCC’s longstanding private prosecutor, said the provisions of the Administration of Criminal Justice Act (ACJA) are usually disregarded by both judges and prosecutors in their handling of cases of sureties jumping bail.
According to the senior advocate, although the law does not support jailing a surety as the first line of action when a defendant jumps bail, many courts including those who are not overcome by the temptation to imprison the surety, often act in disregard for the law.
Mr Jacobs said contrary to the practice of detaining sureties adopted by some judges, the procedures stipulated in section 40 and 80 of ACJA, in reality, provide protection for the sureties.
This, he said, is the reason why the surety does not come into the picture until attempts to proceed against the fleeing defendant or his assets have failed.
“The first step to be taken when a defendant jumps bail is for the prosecution to apply to the court to issue bench warrant against the defendant,” the senior lawyer said.
He added that if the bench warrant cannot be enforced, the prosecution is expected to go back to the court and get a public summons.
The public summons, according to the lawyer, will be served at the defendant’s known address or published in a newspaper, the versatile prosecutor said.
“What the prosecution is then supposed to do by section 80 (of AJA) is to get a forfeiture order against the defendant’s assets. And if the defendant still does not show up for one year, then those properties will be forfeited to the Federal Government.
“Instead of targeting the surety, the ACJA actually makes provision for the protection of the surety,” Mr Jacobs said.
As explained by the lawyer, the surety only becomes the target late in the process after the moves against the defendant have failed.
“Where the defendant does not have a property or the property is not enough to cater for the bail bond, it is then the court will proceed against the surety.
“The surety will be invited, he will make his own defence and all that. It is when he cannot pay the bail bond that he will now be arrested and remanded.”