The Implication of being a Surety and the Responsibility Attached Thereto

CASE TITLE:  FAROTIMI v. FRN & ORS (2023) LPELR-60607(CA)

JUDGMENT DATE: 23RD JUNE, 2023

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: EBIOWEI TOBI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on extent of liability of a surety to a defendant who absconded.

FACTS:

The appeal is against the decision of the High Court of Lagos State, Ikeja, coram: Justice M.A. Dada.

The 1st Respondent filed a motion and sought the following prayers:

An order forfeiting the recognizance entered’ into by the Respondent in the sum of N208,134,774. 013 (Two Hundred and Eight Million, One Hundred and Thirty Four Thousand, Seven Hundred and Seventy Four Naira, Thirteen Kobo Only) as surely to the Defendants (at large) in this case.

An order committing the Respondent to the prescribed term of imprisonment unless the amount due under the recognizance is paid.

The 1st Respondent wanted the Appellant to forfeit the recognizance he entered into in the sum of N208,134,774.13 as a surety for the 2nd Respondent.

Appellant filed a counter-affidavit. The Court, after listening to the arguments of counsel, granted the application, ordering the Appellant to forfeit the recognizance he entered in the sum of N208,134,774.13 as surety for the 2nd Respondent. The Appellant was further ordered to do so within 3 months or be kept in prison until the sum is paid. Dissatisfied, the appellant appealed.

ISSUES FOR DETERMINATION:

The issues for determination were:

“1. Whether there was indeed and in law a valid recognizance before the lower Court that is capable of triggering the jurisdiction of the said Court to hear and determine the motion for forfeiture dated the 24th day of April 2018.

2. Whether the 1st Respondent has satisfied the requirements imposed by law for an order of forfeiture to issue in respect of the recognizance purportedly entered into by the Appellant.

3. Whether the Appellant’s reasons for non-production of the 2nd Respondent before the lower Court do not constitute a justifiable ground strong enough to show cause why the recognizance ought not to have been forfeited.

4. Whether the sentence imposed by the trial Judge is not unlawful bearing in mind the provisions of Section 319 of the Administration of Justice Law, 2011 of Lagos State.”

DECISION/HELD:

Having resolved issue three in favour of the appellant, the Court of Appeal allowed the appeal. ​

RATIOS:

• ACTION- CIVIL ACTION: Whether Court has jurisdiction to entertain an application for recognizance and forfeiture in a civil transaction/action
• CASE LAW- FOREIGN DECISION: Attitude of Court to reliance on foreign decisions
• CRIMINAL LAW AND PROCEDURE- BAIL: Whether a surety automatically forfeits the recognizance if an accused person fails to attend proceedings; condition for same
• CRIMINAL LAW AND PROCEDURE- BAIL: Duty of law enforcement and surety in ensuring that a suspect/accused person on bail attends Court proceedings
• CRIMINAL LAW AND PROCEDURE- BAIL: Whether a trial Court is empowered to remand a surety for failure to produce an accused person standing trial in a criminal offence
• CRIMINAL LAW AND PROCEDURE- BAIL: Effect of breach of recognizance and procedure for recovery of consideration/money; whether the surety will be automatically imprisoned
• EVIDENCE- ESTOPPEL BY CONDUCT: Principles of estoppel by conduct and instance when same will apply
• EVIDENCE- AFFIDAVIT EVIDENCE: Content of an affidavit; Effect of an affidavit that does not comply with the provision of the Evidence Act
• EVIDENCE- UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of an unchallenged/uncontroverted evidence
• JUDGMENT AND ORDER- ORDER OF FORFEITURE: Procedure to be followed/conditions precedent in the grant of an order of forfeiture on recognizance

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