3PLR – AMADU TEA V. COMMISSIONER OF POLICE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

AMADU TEA

V.

COMMISSIONER OF POLICE

COURT OF APPEAL (NORTH)

18TH JANUARY, 1963

APPEAL NO. K/45 CN 1961

3PLR/1963/113 (CA-N)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

HURLEY, C.J.

BATE, J.,

MAIN ISSUES

Criminal Law Procedure-Bail-Surety-Forfeiture of bond-Bond not exhibited – Whether forfeiture proved – Recovery of penalty – Imprisonment when lawful- Criminal Procedure Code ss. 304, 354.

CASE REFERRED TO:

McGarry, 30 Cr. App. R. 187.

LAW REFERRED TO:

Criminal Procedure Code, ss. 304,354.

CRIMINAL APPEAL.

REPRESENTATION

Thomas, for the appellant.

Corcoran, Crown Counsel, for the respondent.

BATE, J. -We have allowed this appeal and will now give our reasons.

The appellant was a surety for an accused person who was granted bail by a Chief Magistrate. The accused did not attend to stand his trial. The appellant, after being called upon to show cause, was ordered to forfeit his recognisance and to pay £100 or be imprisoned for six months. He appeals against this order on two grounds. The first ground of appeal is that it was wrong to estreat the recognisance without calling upon the appellant to produce the accused and without asking the appellant to show cause why the recognisance should not be estreated. Counsel for the appellant frankly admitted at the outset that the record showed that the appellant had been called upon to show cause and abandoned the last part of his first ground.

The second ground is that the breach of the recognisance has not been strictly proved.

The law relating to the forfeiture of a bond is contained in section 354 of the Criminal Procedure Code. The circumstances in. which imprisonment may be ordered are set out in subsection (4) which provides that “If the penalty is not paid and cannot be recovered in manner aforesaid, the person bound shall be liable by order of the court which issued the warrant under section 304 to imprisonment which may extend to six months.” In the present case, when imprisonment was ordered, no attempt had been made to recover the penalty in the manner prescribed. Consequently the order for imprisonment was unlawful.

There remains however the order to pay a penalty of £100. Counsel for the appellant confined himself to the second ground of appeal and argued that strict proof is required before a surety may be penalised for breach of a recognisance and that no such proof had been given. He was assisted in his argument by the fact that the bond was not exhibited either in this court or in the court below and, although we adjourned the appeal for a day and a half to enable a search to be made in the registry of the Chief Magistrate’s Court, it was not found. The learned Crown Counsel contended that the absence of the bond was immaterial. He argued that the bond was part of the record before the magistrate and that it was therefore unnecessary that it should have been exhibited to him, and that it was sufficient for this court to know that the magistrate had found that there had been a breach of the recognisance.

We are unable to agree with Counsel for the respondent. It was held in McGarry, 30 Cr. App. R. 187, that the recognisance must be before the court which is trying the issue whether it should be estreated even though the recognisance was taken in that court. In that case the recognisance was not before the court and the sentence which it imposed for breach of recognisance was set aside “because the Court had no material at all on which to form the opinion that he had broken any term of the recognisance which was not before the Court”. In the present appeal there is no evidence that the recognisance was before the learned magistrate and we cannot assume that it was.

But even if it is assumed that the recognisance was before the learned magistrate, the fact that it is not before us must be fatal to the respondent’s case. Without seeing the recognisance we are not in a position to say whether or not we agree with the learned magistrate finding that there was a breach of it. We cannot make any assumption that we would take the same view as the learned magistrate.

The appeal is allowed and the order of the learned magistrate estreating the recognisance and imposing a penalty of £100 or a sentence of six months’ imprisonment is set aside.

Appeal Allowed.