➥ CASE SUMMARY OF:
Nnamdi Kanu v Federal Republic of Nigeria (FRN) (2022) – CA
by “PipAr” B.C. Chima
➥ COURT:
Court of Appeal – CA/ABJ/CR/625/2022
➥ JUDGEMENT DELIVERED ON:
13th October 2022
➥ AREA(S) OF LAW
Extraordinary rendition.
Fair hearing.
Illegality.
➥ NOTABLE DICTA
⦿ WHILE DETERMINING INTERLOCUTORY DECISION, COURT SHOULD NOT DELVE INTO SUBSTANCE
It is indeed settled law that the court, in determining an interlocutory application or the issue of jurisdiction, should refrain from delving into or determining the issues in controversy in the substantive suit before deciding whether it has jurisdiction to entertain the entire proceeding. See Akinrinmisi v Maersk (Nig) Ltd (2013) 10 NWLR Part 1361 Page 73 at 86 Para A-C per Muntaka Coomassie JSC; James v INEC (2015) 12 NWLR Part 1474 Page 538 at 577 Para C-F per Kekere-Ekun JSC. — O. Adefope-Okojie, JCA.
⦿ ISSUE ON JURISDICTION MUST BE RESOLVED BEFORE ANY OTHER THING
Once the question of jurisdiction is raised, it must be resolved before any further step is taken in the proceedings as the jurisdiction of the Court to entertain the suit is fundamental to the competence of the Court, and has been described as the lifeblood of adjudication. See Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 47-48 Para H-F per M.D. Muhammad JSC; Central Bank of Nigeria v Rahamaniyya G.R. Ltd (2020) 8 NWLR Part 1726 Page 314 at 337 Para A-B per Okoro JSC. — O. Adefope-Okojie, JCA.
⦿ ALLEGATIONS RAISED MUST BE SPECIFICALLY DENIED TO NOT CONSTITUTE ADMITTANCE
On the manner of denial that would be sufficient to raise an issue of dispute, this Court held, in the case of Nickok Best Intl Ltd v UBA (2018) LPELR – 45239 (CA) per Mohammed Lawal Garba JCA (as he then was) at Page 9 Para B-E: “Where vital and material fact/s in a party’s case are not so specifically, frontally and categorically denied and disputed, they are deemed admitted by the other party. Dosunmu v. Dada (2002) 13 NWLR (783), NNPC v. Sele (2004) 5 NWLR (866) 379, Jadcom Limited v. OgunsElectrs (2004) 3 NWLR (859) 153. In that regard, general, obtuse, indistinct, unspecific and evasive averments in respect of specific, crucial, positive and distinct facts are considered not enough and not effective controversion or traverse to raise an issue of dispute that would warrant proof in a case”. — O. Adefope-Okojie, JCA.
⦿ ISSUES RAISED BUT NOT RESPONDED TO IS ADMITTED
The consequence of failing to respond to the adversary’s submissions on pivotal issues was amply stated by this Court, in Alhaji M. K. Gujba V. First Bank Of Nigeria Plc & Anor (2011) LPELR 8971 (CA) per Obande Ogbuinya JCA at Pages 42-43 Para B-A, where His Lordship held: “The learned Counsel for the Respondents, in his infinite wisdom, did not respond to the submissions of the learned counsel for the Appellant on this point. In law, that is a costly failure. The telling effect of that failure to answer to the Appellant’s counsel’s submissions is that the Respondents are deemed to have admitted them. On this principle of law, I draw on the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (pt.1209) 518 at 586, where Onnoghen, JSC, held:- ‘It is clear from the issues formulated and argued by learned senior counsel for the 1st and 2nd Respondents in their brief of argument do not include argument on appellant’s said issue No. 8. It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting party. I therefore, in the circumstance, hold that the 1st and 2nd Respondents by not reacting to the issue in question, have conceded the issue as formulatedand argued by the learned counsel for the Appellant.’ It follows that the Respondents played into the hands of the Appellant, on this issue, when they failed to join issues with the arguments of the Appellant therein. This omission, whether intention or inadvertent, makes the appellant hold an ace on this issue.” — O. Adefope-Okojie, JCA.
⦿ NIGERIAN COURTS WILL UPHOLD TREATIES AND CONVENTIONS RATIFIED
Our Courts apply strictly conventions and treaties entered into by this country. This was stated very forcefully by the Supreme Court, on the matter of compliance with the African Charter on Human and Peoples Rights, in the case of Abacha v Fawehinmi (2000) 6 NWLR Part 660 Page 228 at 289 Paragraph B-D per Ogundare JSC (of blessed memory), reading the leading judgment. where he held: “Where, however, the treaty is enacted into law by the National Assembly, as was the case with the African Charter which is incorporated into our municipal (i.e. domestic) law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990 (hereinafter is referred to simply as Cap. 10), it becomes binding and our courts must give effect to it like all other laws falling within the judicial powers of the courts. By Cap. 10 the African Charter is now part of the laws of Nigeria and like all other laws the courts must uphold it. The Charter gives to citizens of member states of the Organisation of African Unity rights and obligations, which rights and obligations are to be enforced by our courts, if they must have any meaning.It is interesting to note that the rights and obligations contained in the Charter are not new to Nigeria as most of these rights and obligations are already enshrined in our Constitution. See Chapter IV of the 1979 and 1999 Constitutions.” — O. Adefope-Okojie, JCA.
⦿ COURTS OF LAW HAS A DUTY TO PRONOUNCE ON ALL ISSUES RAISED
The Apex Court had occasion to emphasize the essentiality of lower courts pronouncing on all issues properly raised before them. It held, in the case of C.N. Okpala & Sons Ltd v Nigerian Breweries PLC (2018) 9 NWLR Part 1623 Page 16 at 28 Para G-H per Okoro JSC, as follows: “In several decisions of this court, it has been repeatedly held that all lower courts, as a general rule, must pronounce on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. There is therefore need for every court or tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so, as I said earlier, may result in a miscarriage of justice.” — O. Adefope-Okojie, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Oludotun Adefope-Okojie, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief Mike A.A. Ozekhome SAN.
⦿ FOR THE RESPONDENT
D.E. Kaswe, Assistant Chief State Counsel of the Department of Public Prosecutions, Federal Ministry of Justice.
➥ CASE HISTORY
The Appellant is the Defendant in Charge No: FHC/CR/383/2015 wherein a four-count amended charge was pending against him. However, upon his rendition from Kenya to Nigeria on the 27th day of June, 2021, he was brought before the Lower Court on the 29th day of June, 2021. A seven count amended charge was filed against him by the Respondent on the 13th October, 2021 and later amended on the 20th October, 2021. This Charge was further amended to a 15 Count Charge on the 17th of January, 2022.
Upon being served, the Appellant, on the 19th day of January, 2022, filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to try him on the 15-Count Amended Charge.
The Lower Court, in its Ruling delivered on the 8th Day of April, 2022 struck out Counts 6, 7, 9, 10, 11, 12, 13 and 14, and retained counts 1, 2, 3, 4, 5, 8 and 15 of the amended Charge.
It is this Ruling against which the Appellant has appealed.
➥ ISSUE(S) & RESOLUTION
I. Whether the lower court properly evaluated and ascribed probative value to the Appellant’s evidence, when it failed to consider, make finding of facts and accordingly pronounce on issue one raised for the trial court’s determination, relating to the extraordinary rendition of the Appellant?
RULING: IN APPELLANT’S FAVOUR.
A. “The contention of the learned Silk is that the lower Court has no jurisdiction to entertain these charges by reason of the fact that the Appellant was “extraordinarily renditioned” from Kenya and without the process of extraditing him by the Respondent. The Assistant Chief State Counsel, for the Respondent,however, contends that the question of whether the Appellant was properly brought before the trial Court is a matter to be established during the course of the trial and not at a preliminary stage, as would be delving into the substantive matter at an interlocutory stage.” … “In the instant case, however, the rendition of the Appellant from Kenya to Nigeria is not an issue to be determined in the substantive case before the lower Court. The substantive suit is for the determination of the culpability of the Appellant for the Amended 15 counts upon which he was arraigned. Thus, determining whether the Appellant was illegally rendered to this country, and which illegality divested the lower Court of jurisdiction to entertain the charges against him does not amount to a determination of the substantive suit at an interlocutory stage, I hold.”
B. “As is apparent from the Respondent’s Counter Affidavit, save a bare denial, there was no specific denial of the fact that the Appellant was in Kenya, was abducted therefrom and that there were no extradition proceedings undertaken prior to his forcible abduction. This is thus deemed an admission of those facts, I hold. Indeed, as also pointed out by the Appellant’s Counsel, there was no response whatsoever in the Respondents written address before the lower Court or in theRespondent’s Brief of Arguments in this Court, to the very copious submissions of the Appellant in respect of the unlawfulness of his rendition from Kenya and the failure of the Respondent to have undertaken extradition proceedings. The Respondent’s Counsel was ominously silent on this issue.”
C. “Having not responded to those facts, the Respondent, I hold, is taken to have conceded them. I thus agree with Chief Ozekhome SAN that the failure of the Respondent to contest, not only the Appellant’s affidavit but the copious submissions of the Appellant’s Counsel on the Appellant’s abduction from Kenya without extradition proceedings, and his extra ordinary rendition to Nigeria to answer to charges before the lower Court, are deemed conceded by the Respondent. I thereforehold that the Respondent, by not reacting to the issue in question, has conceded the issue of his abduction from Kenya and rendition to Nigeria.”
D. “It is clear from all these Conventions, Treaties and Guidelines that the Respondent, having removed the Appellant from another Country, without complying with the processes for his removal, was in flagrant violation of these laws and the fundamental human rights of the Appellant. It was incumbent on the Respondent, who was the arresting authority, to prove the legality of the Appellant’s arrest, abduction in this case. See Governor of Kaduna State v Makori (2020) LPELR – 50391 (CA) per Mohammed Baba Idris at Pages 29-30 Para A-B. This has however not been done by the Respondent.”
E. “Indeed Section 47(1) of the ACJA Act, with regard to the execution of a warrant of arrest issued in Nigeria, only allows the execution of the warrant within the borders of Nigeria. It provides: A warrant of arrest issued by a Federal High Court sitting anywhere in Nigeria may be executed in any part of Nigeria. As specifically stated in Principles and Guidelines on Human and Peoples’ Right while Countering Terrorism in Africa Supra “extraordinary rendition”, or any other transfer, without due process is prohibited.”
F. “The Respondent, it is clear, in the rendition of the Appellant to this country, failed to utilize the processes stipulated, not only in international treaties and conventions but also local laws, to wit Extradition Act Cap E25 Laws of the Federation 2004 and the Terrorism (Prevention) Act of 2011 amended by the Terrorism (Prevention) Act of 2013. The Courts must never shy away from calling the executive to order when they resort to acts of “executive lawlessness”. The duty of the Courts is to maintain a balance between ensuring that law and order is obeyed and the protection of the individual from oppressive actions by the executive.”
G. “The learned Silk has accused the lower Court of failing to evaluate the evidence of the Appellant as contained in its affidavit before the Court and make findings of fact therefrom. It was also in error, he said, to have failed to pronounce on the issue in question, which was similarly raised before it. I find this to be true. This issue, raised before the lower Court as the first issue for determination in the Appellant’s Written Address, was the following: Whether the Honourable Court has the requisite jurisdiction to try the Defendant on the 15-count amended charge, in view of the extraordinary and unlawful rendition of the said Defendant/Applicant? Similar arguments as presented before this Court in support of the 1st issue for determination were also presented before the lower Court. The trial Judge, save setting out the issues for determination distilled by the Appellant in his Written Address, made no further mention of this issue, neither was there any resolution of the same. The Ruling of the lower Court, as I have stated earlier on in this judgment, was merely on the other issues raised regarding the competence of the grounds.”
H. “By failing to consider and make findings in respect of issue No 1 raised before it for determination, regarding the extraordinary rendition of the Appellant, the lower Court, I hold, failed to properly evaluate the Appellant’s evidence, resulting in a breach of the Appellant’s right to fair hearing.”
.
.
.
✓ DECISION:
“The consequence of this section [Section 15 of the Extradition Act Cap E25 Laws of the Federation 2004], I hold, is that the Respondent is prohibited from being detained, tried or otherwise dealt with in Nigeria for or in respect of any offence allegedly committed by him before his extraordinary rendition to Nigeria. The lower Court thus has no jurisdiction, I further hold, to try the Appellant on Counts 1, 2, 3, 4, 5, 8 and 15 which were retained by it, being charges allegedly committed by the Appellant prior to his extraordinary rendition. In addition, by the forcible abduction and extraordinary rendition of the Appellant from Kenya to this country on the 27th day of June 2021, in violation of international and state laws, the lower Court or indeed any Court in this country is divested of jurisdiction to entertain charges against the Appellant and I so hold. … This appeal accordingly succeeds. The decision of Nyako J of the Federal High Court, Abuja, delivered on 8th April 2022 retaining Counts 1, 2, 3, 4, 5, 8 and 15 of the Amended Charge is set aside. The said charges are accordingly terminated and dismissed. The Appellant is, in consequence, discharged.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
OAU Convention on the Prevention And Combating of Terrorism.
Protocol to the OAU Convention on the Promotion and Combating of Terrorism.
Section 1A(2) of the Terrorism (Prevention) Amendment Act 2013.
Article 12 (4) of African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 LFN 2004.
Section 15 of the Extradition Act Cap E25 Laws of the Federation 2004.
➥ REFERENCED (CASE)
⦿ WHERE COURT LACKS JURISDICTION, IT CANNOT DETERMINE ANY ISSUE
Kekere-Ekun JSC in the case of James v INEC Supra, at Page 583-584 Para H-A: “…it is clear that where a court lacks jurisdiction to entertain a cause or matter, it lacks jurisdiction to determine any issue arising within that cause or matter. To attempt to do so would amount to delving into the merit of the case, which would amount to a nullity in the event that the court lacks jurisdiction to determine the suit.”
⦿ IT IS A FUNDAMENTAL BREACH NOT TO DETERMINE A PRELIMINARY OBJECTION
per Rhodes-VivourJSC in Isaac Obiuweubi v Central Bank (2011) 7 NWLR Part 1247 Page 465 at 494 Para D-F, and cited with approval in James v INEC Supra, “Any failure by the Court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further steps taken in the proceedings a nullity”.
R. v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42.
➥ REFERENCED (OTHERS)
“Extra Ordinary Rendition” was defined in Black’s Law Dictionary 10th Edition as: “The transfer, without formal charges, trial or court approval, of a person suspected of being a terrorist or supporter of a terrorist group to a foreign country for imprisonment and interrogation on behalf of the transferring country. When an innocent person is subjected to extraordinary rendition, it is also termed erroneous extradition. When a transfer is made to a country notorious for human rights violations, it may be colloquially termed torture by proxy or torture flight”