BETWEEN
IN THE FEDERAL HIGH COURT OF NIGERIA HOLDEN AT ABUJA CHARGE No. FHC/ABJ/CR/383/2015 Motion No.
FEDERAL REPUBLIC OF NIGERIA
COMPLAINANT
AND 1. 2. 3. 4.
NNAMDI KANU CHIDIEBERE ONWUDIWE BENJAMIN MADUBUGWU DAVID NWAWUISI
DEFENDANT DEFENDANT DEFENDANT DEFENDANT
IN THE APPLICATION OF SENATOR ENYINNAYA HARCOURT ABARIBE TO BE DISCHARGED FROM THE SURETYSHIP, BOND, RECOGNISANCE AND THE INCIDENCE OF THE BAIL OF NNAMDI KANU IN CHARGE No. FHC/ABJ/CR/383/2015 SENATOR ENYINNAYA HARCOURT ABARIBE
APPLICANT
AND 1. FEDERAL REPUBLIC OF NIGERIA RESPONDENT 2. NNAMDI KANU RESPONDENT 3. CHIDIEBERE ONWUDIWE 4. BENJAMIN MADUBUGWU RESPONDENT 5. DAVID NWAWUISI RESPONDENT
1ST 2ND 3RD RESPONDENT 4TH 5TH
MOTION ON NOTICE BROUGHT PURSUANT TO SECTIONS 6 AND 36 OF THE 1999 CONSTUTION (AS AMENDED), SECTION 177 (1)OF THEADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015 AND THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
TAKE NOTICE that this Honorable court shall be moved on the ____day of __________________________2017 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel on behalf of the Applicant shall be heard praying the court for: 1. An Order of this Honorable Court discharging the Applicant as surety of the 1st Defendant/2nd Respondent, and discharging the recognizance entered into by the Applicant, and discharging the Applicant from the entire incidence of the bail of Nnamdi Kanu - the 1st Defendant/2nd Respondent in Charge No. FHC/ABJ/CR/383/2015: Federal Republic of Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
1
Nigeria v NNAMDI KANU, MADUBUGWU, DAVID NWAWISI
CHIDIEBERE
ONWUDIWE,
BENJAMIN
2. An Order discharging the bond executed by the Applicant for the bail of the 1st Defendant/2nd Respondent in Charge No. FHC/ABJ/CR/383/2015: Federal Republic of Nigeria v Nnamdi Kanu, CHIDIEBERE ONWUDIWE, BENJAMIN MADUBUGWU, DAVID NWAWISI and refunding the sum of N100,000,000.00(one hundred million naira only) or any other sum paid into this Honourable Court or undertaken to this Honourable Court sequel to the bail of the 2nd Respondent. 3. For Such otherOrders which this Honourable Court may deem fit to make in the circumstances of this application. The grounds upon which this application is brought are: 1. The Nigerian Army in the course of military operations in Abia State from 11th September, 2017 visited the residence of the 2nd Respondence who is the 1st Defendant in Charge No. FHC/ABJ/CR/383/2015. it was reported in the news media that there was shooting and fracas during the aforestated visit by the Nigerian Army to the residence of the 2nd Respondent whilst the 2nd Respondent was in his residence. 2. Since the aforestated visits of the Nigerian Army to the residence of the 1st Defendant from 11th September, 2017, the 2nd Respondent has not been seen again nor reached on phone by the Applicant, neither is he reported in any news media as seen by any person, nor made any statement on any issue. 3. No statement has also been reported in any news media as made by the 2nd Respondent since the stated incidence at the residence of the 2nd Respondent during the visit(s) by the Nigerian Army to the said residence. 4. Since 20th September, 2017 the report in the media is that the 1st Respondent has proscribed the Indigenous People of Biafra (IPOB) an organization led by the 2nd Respondent/1st Defendant and declared that organization a terrorist organization and security agencies of the 1st Respondent are reported to be interested in the 2nd Respondent. 5. The activities of the Nigerian Army as affecting the 2nd Respondent are matters of State Secret incapable of being unraveled by the Applicant which activities have put the 2nd Respondent out of the reach of the Applicant such that the Applicant cannot reasonably be expected to produce the 2nd Respondent before this court at any subsequent date. 6. The Applicant lacks capacity to produce a person stated by the 1st Respondent to be a member of a terrorist organization, or any person Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
2
whom the 1st Respondent is reported to be interested in his whereabouts including in the aftermath of the military operations in Abia State which commenced about 11th September, 2017. Date this th day of October, 2017. ________________________
For Service on: 1. The 1st Respondent/Complainant Federal Republic of Nigeria c/o Her Counsel LabaranShuaibu Federal Ministry of Justice Headquarters Shehu Shagari Way MaitamaAbuja.
OgechiOgbonnaEsq Counsel to the Applicant Wing B Suite 207 Fair Trade Business Complex 22 Kigoma Street Wuse Zone 7 Abuja 09-2916670, 08033510900
2. The 2nd Respondent/1st Defendant c/o His Counsel Ifeanyi Ejiofor Suite 122 Anbeez Plaza (1st Floor) (1st Floor, Right Wing) Ndola Square Wuse Zone 5Abuja 3.The 3rd Respondent/2ndDefendant c/o His Counsel AdogaInalegwu Liberty Chambers No.1 Adoga Street Jikwoyi - Abuja 4, The 4th Respondent/3rd Defendant Emmanuel Esene Emmanuel Esene& Co Suite 119 & 120 Anbeez Plaza Ndola Square Wuse Zone 5Abuja 5.The 5th Respondent/4th Defendant c/o His Counsel Maxwell Opara (08037427486) Maxwell Opara& Associates Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
3
Suite B402 Global Plaza Jabi DistrictAbuja IN THE FEDERAL HIGH COURT OF NIGERIA HOLDEN AT ABUJA CHARGE No. FHC/ABJ/CR/383/2015 Motion No. BETWEEN FEDERAL REPUBLIC OF NIGERIA
COMPLAINANT
AND 1. 2. 3. 4.
NNAMDI KANU CHIDIEBERE ONWUDIWE BENJAMIN MADUBUGWU DAVID NWAWUISI
DEFENDANT DEFENDANT DEFENDANT DEFENDANT
IN THE APPLICATION OF SENATOR ENYINNAYA HARCOURT ABARIBE TO BE DISCHARGED FROM THE SURETYSHIP, RECOGNISANCE AND THE INCIDENCE OF THE BAIL OF NNAMDI KANU. SENATOR ENYINNAYA HARCOURT ABARIBE
APPLICANT
AND 1. FEDERAL REPUBLIC OF NIGERIA RESPONDENT 2. NNAMDI KANU RESPONDENT 3. CHIDIEBERE ONWUDIWE 4. BENJAMIN MADUBUGWU RESPONDENT 5. DAVID NWAWUISI
1ST 2ND 3RD RESPONDENT 4TH 5TH RESPONDENT
AFFIDAVIT IN SUPPORT OF THE MOTION BY THE SURETY TO BE DISCHARGED FROM THE SURETYSHIPAND ENTIRE INCIDENCE OF THE BAIL OF NNAMDI KANU I, UCHENNA AWOM, Nigerian Citizen, male, of Suite 4.3.5, Senate New Building, National Assembly of the Federal Republic of Nigeria, Three Arms Zone, Abuja state on Oath as follows:
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
4
1. I am a journalist and Senior Legislative Aide to Senator EnyinnayaAbaribethe Senator representing Abia South Senatorial District in the National Assembly. 2. At a meeting held in our office Suite 4.35 New Senate Building, National Assembly, Abuja around 9.am on 11th October, 2017, I was informed by Senator EnyinnayaAbaribethe facts deposed in this affidavit and I truly believe him that: a. The 1st Defendant/2nd Respondent and the 3rd – 5th Respondents were charged, arraigned before this Honourable Court by the 1st Respondent and are standing trial in Charge No.FHC/ABJ/CR/383/2015 for alleged offences which the 1st Respondent alleged in the charge which it filed before this Honourable Court as allegedly committed by the 2nd Respondent and the 3rd – 5th Respondents. b. In the course of the trial of the charged preferred against the 2nd – 5th Respondent in Charge No. FHC/ABJ/CR/383/2015: Federal Republic of Nigeria v NNAMDI KANU, CHIDIEBERE ONWUDIWE, BENJAMIN MADUBUGWU, DAVID NWAWISI preferred against them by the 1st Respondent applied to be released on bail pending the hearing and determination of thecharge. c. The application for bail was granted by this Honourable Court on terms which included that a Senator of the Federal Republic of Nigeria shall stand surety for the bail of the 1st Defendant/2nd Respondent. d. He (Senator Abaribe)stood surety for the bail of the 2nd Respondent, in fulfillment of the terms of the bail granted the 2nd Respondent by this Honourable Court before which the 1st Defendant is standing trial and signed the bail bond dated 28th April, 2017.The 2nd Respondent was released upon the satisfaction of the conditions of his bail. e. Since 11th September, 2017 he has not heard from the 2nd Respondent whom he stood surety for in fulfillment of part of the conditions for his bail despite repeated phone calls to his phone by me. All his calls to the 2nd Respondent’s phone number which number is also stated on the recognizance which he signed before this Honourable Court are not going through. f. Since 11th September, 2017, he has made effort to contact the 2nd Respondent including by phone, and at the 2nd Respondent’s hometown at Afaraukwu, Ibeku,Umuahia, but have been unable to locate the 1st Defendant or get any information about his whereabout.
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
5
g. The Nigerian Armymade public that they would military operations in the South – Eastern part of Nigeria from 15th September, 2017 which they code named operation Python Dance (Egwu Eke) II. h. On 11th September, 2015 the Nigeria Army for reasons known to them commenced military operations in Abia State, against targets known to them. i. j.
The actions of the army in the course of their operations affected the Indigenous People of Biafra (IPOB) of which the 2nd Respondent is a member. Information available to him from the reports in the news media is that in the course of the military operations in Abia State by the Nigerian Army which commenced around 11th September, 2017 and was later stated in the media as namedby the authorities of the Nigerian Army as Operation Python Dance (Egwu Eke) II, the Nigerian Armyin the course of this military operation, made visit(s) to the 2nd Respondent’s father’s compound at IsiamaAfaraukwu, Ibeku, Umuahia, Abia State where the 2nd Respondent, His father Eze Israel Kanu, and other members of his family reside.
k. It was reported in the news media that there was shooting,fracasduring theaforestatedvisit of the Nigerian Army tothe 2nd Respondent’s father’s compound at AfaraukwuIbekuUmuahia, Abia State (the village of the 1st Defendant)and that the 2nd Respondent was within the aforestated compound at the time of the visit by the Nigerian Army, shooting, and fracas. l.
Since the aforestatedreported shooting and fracas at the home of the 2nd Respondentin the course of military operations carried out by the Nigerian Army in Abia State, reported in the news media in the course of the operations by the Nigerian Army in Abia State from 11th September, 2017, he has neither heard from nor seen the 2nd Respondent.
m. Since the aforestatedshooting and fracas at the home of the 2nd Respondent, the 2nd Respondent has not been heard from nor seenin public, seen nor heard from by Senator Abaribeand that his whereabouts are unknown to him. n. Since the aforestatedshooting and fracasreported in the news media, the whereabouts of the 2nd Respondenthas not been reported in any news media. o. The Report in the news media is that Eze Israel Kanu and his wife (both parents of the 2nd Respondent)have not been seen nor heard from since the aforestated shooting and fracas during the visit of the Nigerian Army Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
6
to their compound where the 2nd Respondent also reside and was within during the visit by the Nigerian Army on 11th September, 2017. p. Since the aforestated reported shooting and fracas at the residence of the 2nd Respondent on 11th September, 2017, he has neither seen the 2nd Respondent nor heard of any reports in the news media credited to the 2nd Respondent. q. No information is available to himsince the aforestedshooting and fracas reported in the news media as having taken place about whether the 2nd Respondent is alive, or detained by the military authorities, or has fled to anywhere. r. The Federal Government of Nigeria (FGN) has designated the Indigenous People of Biafra (IPOB) a terrorist organization,that IPOB has been proscribed. Information in the media is that the Federal Government is interested in the 2nd Respondent. s. Prior to the military operation in Abia State from 11th September, 2017 and the operation Python Dance (Egwu Eke) II, the 2nd Respondent was seen in public and statements stated to have been made by the 2nd Respondent were reported in the news media. t. Prior to the visit of the Nigerian Army to the residence of the 2nd Respondent and the shooting and fracas reported in the media that took place at the residence of the 2nd Respondent at AfaraukwuIbeku on 11th September, 2017during the visit by the Nigerian Army whilst the 2nd Respondent was within that residence, the 2nd Respondent was seen in public and also repeatedly informed him that he shall be available to stand trial at any time that his criminal charge is fixed for hearing by this Honourable Court. u. On 23rd August, 2017 Senator Abaribe and the entire South – East Senate Caucus had a meeting with the 2nd Respondentat the Senator’s village in Ohuru,ObingwaLocal Government Area, Abia State wherethe 2nd Respondent assured them that he will abide by the conditions of his bail and shall present himself for his pending trial before this Honourable Court on any date(s) fixed by this Honourable Court. The 2nd Respondent also assured them that the Indigenous People of Biafra (IPOB) will remain non – violent, and that there agitation for Biafra was by a referendum. The above stated facts were also reported in different news media includingat page 2 of the Guardian Newspaper of 24th August, 2017. Attached as Exhibit 1 is the CTC of the report of the statement to the press in page 2 of the Guardian Newspaper of 24th August, 2017.
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
7
v. He does not have the capacity to provide the 2nd Respondent who the Nigerian Army is stated to be interested. The organization to which the 2nd Respondent is stated to belong and for which he is being tried the Indigenous People of Biafra(IPOB) have stated has been designated a terrorist organization by the Federal Government of Nigeria FGN. Thesecurity agencies of the Federal Government of Nigeria are reported in the news media to be interested in the 2nd Respondent. w. The activities of the Nigerian Armyfrom 11th September, 2017 affecting the 2nd Respondent as deposed – the shooting and fracas at the home of the 2nd Respondent while he was within the compound on 11th September, 2017, were not neither foreseeable nor withinhis contemplation as at the time he stood surety for the bail of the 2nd Respondent. x. The activities of the Nigerian Army from 11th September, 2017 affecting the 2nd Respondent as deposed, cannot be reasonably expected to be within his contemplation as at the time hestood surety for the 1st Defendant. y. The activities of the Nigerian Army as affecting the 2nd Respondent are matters of State Secret incapable of being unraveled by the Applicant. The said activities of the Nigerian Army including Operation Python Dance (Egwu Eke) II have put the 2nd Respondent out of his reach such that he cannot reasonably be expected to produce the 2nd Respondent before this Honourable Court to stand trial. z. The 2ndRespondent was available to stand trial before this Honourable Court prior to the visit and operations of the Nigeria Army to 2nd Respondent on 11th September, 2017, Operation Python Dance (Egwu Eke) II. aa. Traditional Rulers Council of Ibeku Clan in Umuahia, Abia State are also reported in the news media to be lamenting that they have neither seen, heard, nor know nor heard anything about the whereabouts of their colleague and father of the 2nd Respondent - His Royal Highness Eze Israel. O.Kanusince the aforestated visit(s) by the Nigerian Army to his Palace at Afaraukwu, Ibeku, UmuahiaAbia State from 11th September 2017 and the shooting and fracas that occurred during those visit(s). bb. The Traditional Rulers Council of Ibeku Clan are reported to have asked the Nigerian Army to produce EzeIsrael .O. Kanu at a press Conference in Umuahia, Abia State addressed by their Chairman, EzeHenry.C. EzekwemAttached as Exhibit 2 is the report of the aforestatedpress conference and demand at page 40 of DailySun Newspaper of Friday 22nd September, 2017.
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
8
cc. To the best of his knowledge Eze Israel. O. Kanu has not been reported to be seen anywhere till date. dd. Since the military operations by the Nigerian Army in the location of nd the 2 Respondent from 11th September, 2017, the Operation Python Dance (Egwu Eke) II, Senator Abaribe has neither seen nor heard from the 2nd Respondent despite several search and effort to locate the 2nd Respondent on phone, and at his residence at AfaraukwuIbeku, Umuahia, Abia State. ee. Since the military operations by the Nigerian Army in the location of the 2nd Respondenton September 11, 2017, the Operation Python Dance (Egwu Eke) II,he has neither seen nor heard from the parents and family of the 2nd Respondent including his father Eze Israel.O.Kanu whose colleagues at the Ibeku Traditional Rulers Clan have asked the Nigerian Army to produce. 3. I depose to this affidavit in good faith according to the Oaths Act currently in force.
Sworn to at the Federal High Court Abuja This ____ day of _________ 2017.
_______________________ Deponent
Before Me
Commissioner for Oaths
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
9
IN THE FEDERAL HIGH COURT OF NIGERIA HOLDEN AT ABUJA CHARGE No. FHC/ABJ/CR/383/2015 Motion No.
BETWEEN FEDERAL REPUBLIC OF NIGERIA
COMPLAINANT
AND 1. 2. 3. 4.
NNAMDI KANU CHIDIEBERE ONWUDIWE BENJAMIN MADUBUGWU DAVID NWAWUISI
DEFENDANT DEFENDANT DEFENDANT DEFENDANT
IN THE APPLICATION OF SENATOR ENYINNAYA HARCOURT ABARIBE TO BE DISCHARGED FROM THE SURETYSHIP, BOND, RECOGNISANCE AND THE INCIDENCE OF THE BAIL OF NNAMDI KANU. SENATOR ENYINNAYA HARCOURT ABARIBE
APPLICANT
AND 1. FEDERAL REPUBLIC OF NIGERIA 2. NNAMDI KANU RESPONDENT 3. CHIDIEBERE ONWUDIWE 4. BENJAMIN MADUBUGWU 5. DAVID NWAWUISI
1STRESPONDENT 2ND 3RDRESPONDENT
4THRESPONDENT
5THRESPONDENT
WRITTEN ADDRESS IN SUPPORT OF THE MOTION ON NOTICE FILED BY THE APPLICANT
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
10
INTRODUCTION 1. This written address is filed in support of the Motion filed by the Applicant – the Surety of the 2nd Respondent – Nnamdi Kanu to be release and discharged from all incidence of the suretyship on grounds that performance of that obligation has been frustrated by events unforeseen, unforseable and unanticipated by the parties. 2. My Lord, the application is by the Motion on Notice dated 11thOctober, 2017 and thereafter filed at the Registry of this Honourable Court praying this Honourable Court for: a. An Order of this Honorable Court discharging the Applicant as surety of the 2nd Respondent, and discharging the recognizance entered into by the Applicant and discharging the Applicant from the entire incidence of the bail of Nnamdi Kanu - the 1st Defendant/2nd Respondent in Charge No. FHC/ABJ/CR/383/2015: Federal Republic of Nigeria v Nnamdi Kanu, ChidiebereOnwudiwe, Benjamin Madubugwu, David Nwawuisi. b. An order discharging the bond executed by the Applicant for the bail of the 1st Defendant/2nd Respondent in Charge No. FHC/ABJ/CR/383/2015: Federal Republic of Nigeria v Nnamdi Kanu, ChidiebereOnwudiwe, Benjamin Madubugwu, David Nwawuisiand refunding the sum of N100,000,000.00 (one hundred million naira only) or any other sum paid into this Honourable Court or undertaken to this Honourable Court sequel to the bail of the 2nd Respondent. c. For such other orders which this Honourable Court may deem fit to make in the circumstances of this application. 3. My Lord the grounds upon which this application which are stated on the Motion include that: a. The Nigerian Army in the course of military operations in Abia State from 11th September, 2017 visited the residence of the 2nd Respondent and it was reported in the news media that there was shooting and fracas during the aforestated visit by the Nigerian Army to the residence of the 2nd Respondent whilst the 2nd Respondent was there. b. Since the aforestated visits of the Nigerian Army to the residence of the 2nd Respondent from 11th September, 2017, the 2nd Respondent has not been seen again nor reached on phone by the Applicant, neither is he reported in any news media as seen by any person, nor made any statement on any issue. Since the aforestated visit both parents of the 2nd Respondent have also neither been seen nor heard from including by their fellow traditional chiefs. Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
11
c. The activities of the Nigerian Army as affecting the 2nd Respondent are matters of State Secrete incapable of being unraveled by the Applicant which activities have put the 2nd Respondent out of the reach of the Applicant such that the Applicant cannot reasonably be expected to produce the 2nd Respondent before this court at any subsequent date. d. The Applicant lacks capacity to produce a person stated by the 1st Respondent to be a member of a terrorist organization or any person whom the 1st Respondent is reported to be interested in his whereabouts for cause, in the aftermath of the military operations in Abia State which commenced about 11th September, 2017. 4. My Lord the Applicant is supported by a three – (3) paragraph affidavit deposed to by the Applicant. We rely on all the paragraphs of the affidavit in support especially paragraphs 2(a) – 2(ee). FACTS My Lord the Applicant humbly apply to adopt the entire facts deposed to in the affidavit in support and that they be deemed incorporated them into this written address. ISSUE FOR DETERMINATION Whether the contract between the Applicant and State arising from standing surety for the bail of the 1st Defendant – Nnamdi Kanu has been frustrated,thereby making the Applicant incapable of performing that obligation, and thus a ground to hold that contract terminated and discharge the Applicant from all incidence of that contract. ARGUMENT 1. My Lord we humbly submit that bail is one of the discretions granted by our law to enable an accused to stand trial for an offence for which such an accused is charged. 2. My Lord where the terms of the bail include sureties, a contractual relationship known to law is created between the State and the surety. My Lord our authority is the decision of the Supreme Court in Adamu Suleiman v Commissioner of Police Plateau State [2008] 8 NWLR part 1089 page 298 at 322 paragraph D”the right of bail, a constitutional right, is contractual in nature”. (emphasis mine).
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
12
3. My Lord all contracts entered to under our law are terminated when events occur which make performance of any obligation assumed under such contract impossible. 4. We humbly urge My Lord to take judicial notice of the records of this Honourable Court which includes the terms of bail which this Honourable Court granted the Defendant. 5. My Lord one of the terms was that a surety who shall be a serving Senator shall enter a bond for the Defendant/2nd Respondent. 6. My Lord it is in line with the terms of the bail that the Applicant stood surety for the Defendant and entered into the recognizance/bond with the State for the bail of the 2nd Respondent. 7. Before My Lord is affidavit evidence in support of this application that: a. Neither the 2nd Respondent, his father, nor his mother have been seen by the Applicant nor in public since after the shooting and fracas that occurred at the residence/family compound of the 2nd Respondent on 11th September, 2017who lives the therein. b. The Nigerian Army is interested in the 2nd Respondent. c. The 2nd Respondent has also not been seen nor heard in public nor made any public statement. d. The 2nd Respondent has neither been seen nor heard from by the Applicantnor his whereabout known to the Applicant since the military operations in Abia State including the operation Python Dance (Egwu Eke) II. e. The 2nd Respondent had publicly stated that he shall abide by all agreements pertaining to him, stand his trial, but shall achieve Biafra by referendum f. Since September 11, 2017 It has also been reported in news media that the 2nd Respondent has been seen nor heard from, nor his whereabouts known g. The 2nd Respondent is also recorded as saying that IPOB shall remain non-violent and realize its agitation for Biafra through referendum his agitation non - violent, and also assured the of his availability to stand trial and to ensure peace and order. h. IPOB has been proscribed and declared a terrorist organization.
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
13
i.
j.
The Applicant has neither seen, nor heard from the 2nd Respondent and does not know whether the 2nd Respondent is dead, alive, held in detention, or has fled. The Applicant lacks capacity and is not in a position to produce any person in this case the 2nd Respondent whom the Nigerian military are stated to be interested in.
8. My Lord in view of the evidence in support of this application, we humbly submit that the performance of the obligations assumed by the Applicant sequel to standing surety for the 2nd Respondent has been frustrated, become incapable of performance. Hence, we pray that this Honourable Court should discharge the Applicant from all incidence of the bailincluding on the grounds that frustration has set-in to prevent the performance the suretyship and all the incidence of same. 9. My Lord ”frustration” is defined at page 694 Blacks Law Dictionary 8th Edition by Gardiner as “the prevention or hindering of the attainment of a goal”. 10. My Lord under our law frustration of an undertaken, agreement, obligation, contract like the suretyship of the 2nd Respondent by the Applicant is deemed to arise where there is occurrence of an intervening event or change of circumstances fundamental and striking at the root of the agreement or undertaken which was not contemplated at the time of the agreement or undertaken. My Lord our authority includes the decisions of the Supreme Court in: a. Mazin Engineering Limited v Tower Aluminum (Nig) Ltd [1993] 5 NWLR part 295 page 526 at page 534 paragraph E – F b. Attorney General of Cross River State v Attorney General of the Federation [2012] 16 NWLR Part 1327 page 425 at page 479 paragraph G“…It is the premature determination of an agreement between parties lawfully entered into and which is in the course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by law both as striking at the root of the agreement and entirely beyond what was contemplated by the parties when they entered into the agreement”. 11. My Lord under our law frustration excuses the performance of an obligation and absolves the parties from any liability. Our authority is the Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
14
decision in Nigerian Bank for Commerce and Industry v Standard Nigeria Engineering Company Limited [2002] 8NWLR part 978 page 104 at page 125 paragraph C“where there is frustration the question of breach will not arise, as none of the parties can be held responsible…” 12. My Lord the situation leading to this application is willingness and readiness of a Surety to perform a contract, but that the contract has become impossible and incapable of being performed by the occurrence of fundamental factors not contemplated and not within the contemplation of the parties at the time the obligation. 13. My Lord the military operations in Abia State including at the residence of the 2nd Respondent or in the vicinity of the residence of the 2ndRespondence, shooting and fracas at the residence of the 2nd Respondent, Operation Python Dance (Egwu Eke) II, the reported loss of lives following the foregoing events including to the extent that the 2nd Respondent has neither been been seen nor heard of, his parents with whom the 2nd Respondent residences not been seen nor heard of since the foregoing enumerated events are not contemplated nor within the contemplation of the parties at the time the Applicant stood surety for the bail of the 2nd Respondent and assumed obligation(s) sequel to the same bail. 14. My Lord we humbly submit that issue(s) which we have before this Honourable Court is not a situation of a Defendant jumping bail, but rather the Surety who is willing to perform his obligation under a contract applying to this Honourable Court to be released in the interest of justice, and based ondoctrine of frustration, to be discharged from the contract which arose from his being surety for the bail of the 2nd Respondent by bringing before this Honourable Court unforeseen, unforeseeable, and unanticipated events that have it impossible, impracticable for the Surety to perform bail obligations to this Honourable Court and also the administration of justice. 15. My Lord under our law the doctrine of frustration applies to all types of contracts. Our authority is the decision of the Supreme Court in Attorney General of Cross River State v Attorney General of the Federation (supra) at page 479 paragraph G“the doctrine of frustration is applicable to all categories of contracts….” Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
15
16. My Lord we humbly submit that possibility of the Surety applying to the Honourable Court under certain circumstances to be discharged from all incidence of the suretyship and recognizance for the bail of a Defendant standing trial which is the situation that led to this application had been forseen by our law, hence the law provides in Section 177 (1) Administration of Criminal Justice Act 2015 that“(1) All or any of the sureties to a recognizance may at any time apply to the court which caused the recognizance to be taken to discharge the bond either wholly or so far as relates to the applicant�. 17. We humbly urge My Lord to invoke the provisions of Section 177(1) ACJA, and the inherent powers of this Honourable Court to grant this application and to discharge the Applicant from the entire incidence of the suretyship, recognizance, bond, etc entered into by the Applicant for the bail of the 2nd Respondent and the entire incidence of the bail of the 2nd Respondent. 18. The foregoing prayer is predicated upon the current reality and circumstances which has made it impracticable and incapable for the Applicant to further perform the obligations as surety bail for the bail granted to the 2nd Respondent by this Honourable Court in the interest of justice in the exercise of discretion, powers conferred by law. 19. We are most grateful. Date thisth day of October, 2017.
________________________
OgechiOgbonnaEsq Counsel to the Applicant Wing B Suite 207 Fair Trade Business Complex 22 Kigoma Street Wuse Zone 7 Abuja 08033510900 For Service on: 1. The 1st Respondent/Complainant Federal Republic of Nigeria c/o Her Counsel LabaranShuaibu Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
16
Federal Ministry of Justice Headquarters Shehu Shagari Way Maitama – Abuja. 2. The 2nd Respondent/1st Defendant c/o His Counsel Ifeanyi Ejiofor Suite 122 Anbeez Plaza (1st Floor) (1st Floor, Right Wing) Ndola Square Wuse Zone 5Abuja 3.The 3rd Respondent/2nd Defendant c/o His Counsel AdogaInalegwu Liberty Chambers No.1 Adoga Street JikwoyiAbuja 4. The 4th Respondent/3rd Defendant Emmanuel Esene Emmanuel Esene& Co Suite 119 & 120 Anbeez Plaza Ndola Square Wuse Zone 5 Abuja 5.The 5th Respondent/4th Defendant c/o His Counsel Maxwell Opara Maxwell Opara& Associates Suite B402 Global Plaza Jabi District Abuja 08037427486
Application by Sen. EnyinnayaAbaribe Re: Charge No. FHC/ABJ/CR/383/2015
17