IN THE COURT OF APPEAL OF NIGERIA
ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON ……….., THE …………. DAY OF ……….., 2022
APPEAL NO: CA/ABJ/CR/625/2022
CHARGE NO: FHC/ABJ/CR/383/2015
BEFORE THEIR LORDSHIPS:
HON. JUSTICE JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL
HON. JUSTICE OLUDOTUN ADEFOPE-OKOJIEJUSTICE, COURT OF APPEAL
HON. JUSTICE EBIOWEIU TOBI JUSTICE, COURT OF APPEAL
BETWEEN
NNAMDI KANU……………………………………………….APPELLANT
AND
FEDERAL REPUBLIC OF NIGERIA………………………….RESPONDENT
JUDGMENT
(DELIVERED BY OLUDOTUN ADEFOPE-OKOJIE, JCA)
This is an appeal against part of the decision of the Federal High Court, Abuja Judicial Division, delivered on the 8th day of April, 2022, by His Lordship, Hon. Justice B.F.M. Nyako, in which the Court (hereinafter referred to as the “Lower Court”/“Trial Court”), in its Ruling on the Appellant’s Preliminary Objectionseeking the quashing/dismissal of the 15 Count Amended Charges preferred against the Appellant, retained Counts 1, 2, 3, 4, 5, 8 and 15 of the amended Charges filed on the 17th of January, 2022, while striking out Counts 6,7,9-14 of the same.
The Appellant, dissatisfied with the part of the decision of the Lower Court retaining Counts 1, 2, 3, 4, 5, 8 and 15, filed a five (5) ground Notice of Appeal on 29/4/2022. Subsequent to the transmission of the Record of Appeal to this Court on 15/6/2022, his Counsel, Chief Mike A.A. Ozekhome SAN, filed an Appellant’s Brief of Arguments on 20/6/2022, in which five (5) issues were distilled for the Court’sdetermination, namely:
1. 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?
2. Whether the lower court has the jurisdiction to try the Appellant for alleged offences committed in vacuo or which situs was not stated?
3. Whether the Appellant can be prosecuted for an offence which its validity is the subject matter of an appeal?
4. Whether the lower court has the jurisdiction to try the Appellant for alleged offences committed outside its territorial jurisdiction?
5. Whether the Appellant can be tried for offences which the proof of evidence in support thereof does not disclose a prima facie case against him?
In response, D.E. Kaswe, Assistant Chief State Counsel of the Department of Public Prosecutions, Federal Ministry of Justice, on behalf of the Hon.Attorney-General of the Federation, filed the Respondent’s Brief of Arguments on the 3rd day of August 2022 but deemed properly filed by this Court on 13/9/2022 upon Counsel’s application. The issues formulated by the Appellant’s learned Counsel were adopted by the Respondent’s Counsel in the Respondent’s Brief of Arguments.
In response, the Appellant’s Counsel filed an Appellant’s Reply Brief on 25/8/2022, consequentially deemed as properly filed on 13/9/2022.
I shall accordingly adopt the issues for determination formulated by the Appellant.
BRIEF FACTS OF THE CASE
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 20thOctober, 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.
The 1st issue for determination is:
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?
Appellant’s Submissions
The learned Silk for the Appellant submits that the Appellant was abducted from Kenya and extraordinarily rendered to Nigeria without being first subjected to extradition proceedings in Kenya, in violation of extant international conventions and treaties, as submitted before the lower Court. He couldthus not be arraigned and tried on the 15-count Amended Charge, having not been properly brought before the Court. He contended that the Respondent, in its affidavit evidence, did not challenge or controvert the fact of the Appellant’s abduction or extraordinary rendition to Nigeria nor did he lead credible and cogent evidence to show that the rendition of the Appellant was lawful and in accordance with due process of law and all international instruments, which burden was on it, being the arresting authority. He cited Gov Kaduna State v Maikori (2020) LPELR – 50391 (CA). The lower Court was thus in error to have upheld the submission of the Respondent’s Counsel that the Bench Warrant earlier issued by the trial Court was sufficient authority to “abduct” the Appellant from Kenya, as the Administration of Criminal Justice Act 2015, upon which they relied, does not authorize the execution of a warrant of arrest by the Federal High Court outside Nigeria.
He submitted that the unlawful and extraordinary rendition, without any form of hearing or due process, is in violation of a plethora of international laws, to which the Respondent is a State Party, inclusive ofArticles 9 and 14 of the International Covenant on Civil and Political Rights; Article 12(4) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9, LFN 2004; Article/Part 5 (A) of the African Charter’s Principles and Guidelines On Human and Peoples’ Rights while Countering Terrorism in Africa; and Article 13 of the UDHR, 1984.
Section 15 of the Extradition Act Cap E25 Laws of the Federation of Nigeria 2004, he said, prohibits the Appellant from either being detained, tried or otherwise dealt with in Nigeria for or in respect of an offence allegedly committed by him before his surrender to Nigeria. The lower Court thus does not have jurisdiction to try him on the Counts retained by it, having been allegedly committed by the Appellant before his forceful rendition and surrender to Nigeria. He cited in support British, American and South African authorities, submitting that prosecuting the forcibly abducted Appellant on these amended charges would be allowing them to benefit from their illegality.
The learned Silk further submitted that the failure of the Lower Court to pronounce on the issue ofextraordinary rendition of the Appellant, which was properly raised before it in the Appellant’s Preliminary Objection, is a gross violation of the Appellant’s Right to fair hearing, citing the case of Dasuki VS F.R.N. & ORS (2018) LPELR-43897 SC.
Respondent’s Submissions
The Assistant Chief State Counsel, in a combined response to issues 1 and 2 formulated by the Appellant, commenced by alluding to interlocutory applications filed by the Appellant, which he alleged had delayed the speedy hearing of the matter, contrary to the Administration of Criminal Justice Act 2015 (ACJA).He submitted that the issue 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 this preliminary stage, as it is trite that the law forbids a court from delving into substantive matters when considering a Preliminary Objection, citing the cases of Attorney General of the Federation v. A. G. Abia State (2001) 11 NWLR (Part 725) Page 689; Akinrinmisi v. Maersk (Nig) Ltd. (2013) 10 NWLR (Part 1361) Page 73; James v. INEC (2015) 12 NWLR (Part 1474) Page 538.
Appellant’s Reply Brief
The learned Silk accused the Respondent’s Counsel of failing to address the issues of the extraordinary rendition of the Appellant and the jurisdiction of the lower Court to entertain the amended charges against the Appellant, which must be determined first, before the Court can assume jurisdiction to entertain the matter. These facts, not having been controverted connote concession of the same, citing Order 19 Rule 4(2) of the Court of Appeal Rules, 2021; Adeyeye & Ors v. Governor, Ekiti State & Anor (2011) LPELR-8974 (CA); Alhaji M.K Gujba v. First Bank of Nigeria PLC (2011) LPELR-8971 (CA).
Oral Submissions of Counsel:
Appellant
At the hearing of the appeal on 13/09/2022 the learned Silk reiterated his submission on the duty of the lower Court to have struck out the counts retained, having being filed illegally without following the due process of the law and without the authority and consent of the Kenyan Authority, as these counts were allegedly committed before Appellant’s forceful rendition from Kenya to Nigeria. He cited, in addition, the case of Ezeze v. State (2004) LPELR-5659 (CA) and S. 2 (3) of the Terrorism Prevention Amendment Act.
Respondent
The Assistant Chief State Counsel, urging the Court to dismiss the appeal, reiterated that the Appellant was brought in by due process of law, citing S. 3, 4, & 5 the Administration of Criminal Justice Act Supra, with respect to the Extradition Treaty.
RESOLUTION
The Notice of Preliminary Objection filed by the Appellant, the resolution in part of which has led to the filing of this appeal, is at Page 137 of the Record.
The Preliminary Objection sought the following:
1. AN ORDER striking out/quashing and or dismissing the 15 – count Amended Charge, specifically, counts 1 to 15 preferred against the Defendant/Applicant in the Amended Charge NO:FHC/ABJ/CR 383/2015, for the reason that the counts, as constituted, are incompetent and thus, deprive the Honourable Court of the jurisdiction to entertain the same.
2. AN ORDER of the Honourable Court discharging and acquitting the Defendant/Applicant of all the counts in the 15 Count Amended Charge preferred against the Defendant/Applicant, upon the same being struck out/quashed and or dismissed.
3. AND FOR SUCH further order or orders as this honourable court may deem fit to make in the circumstances.
The Grounds for the Objection are thirty-four (34) and complain about the incompetence of the grounds, the failure of the Respondent to comply with international treaties on terrorism and the contravention of international conventions and treaties on extradition, thus divesting the lower Court of jurisdiction to entertain the charges. The thirty-nine (39) paragraph affidavit in support and further affidavit, in addition to deposing to the incompetence of the grounds, also deposed to the extraordinary rendition of the Appellant from Kenya by the Respondent.
In the twenty (20) paragraph Counter Affidavit of the Respondent at Pages 179-181 of the Record, the charges were stated to be competent.
The lower Court, in its Ruling at Pages 267-285 of the Record, set out the Preliminary Objection of the Appellant, the grounds thereof and the contents of the affidavit in support of the Preliminary Objection. It also set out the Counter Affidavit of the Respondent,referred to the Further Affidavit of the Appellant, as well as the written addresses of both parties. The Court then proceeded to examine the fifteen counts upon which the Appellant was arraigned “to see if they disclose the commission of any offence known to law.”
It held itself “not concerned with whether the counts of charge disclose any prima facie case but whether they are well framed within the provisions of the law”.
It held that “Counts 6, 7, 9, 10, 11, 12, 13 and 14 have not disclosed an offence as framed and some are even duplicates. Counts 1, 2, 3, 4, 5, 8 and 15 show some semblance of allegations of offence on which the Court can proceed to trial. Consequently, the counts 6, 7, 9, 10, 11, 12, 13 and 14 are hereby struck out and the Court shall proceed on trial on Counts 1, 2, 3, 4, 5, 8 and 15.”
The seven (7) charges retained by the lower Court, out of the 15 count amended charges, are the following:
COUNT ONE
That you Nnamdi Kalu, Male, Adult, of Afaranukwu Ibeku, Umuahia North Local Government Area of Abia State sometimes in 2021 being a member and the leader of Indigenous People of Biafara. IPOB, a proscribed Organisation, did commit an act in furtherance of an act of Terrorism against the Federal Republic of Nigeria and the People of Nigeria by a making a broadcast received and heard in Nigeria within the jurisdiction of this Honourable Court, with intent to intimidate the population and you threatened that people will die, the whole world will stand still and you thereby committed an offence punishable under Section 1(2)(b) of the Terrorism Prevention Amendment Act, 2013.
COUNT TWO
That you Nnamdi Kalu, Male, Adult, of AfranukwuIbeku, Umuahia North Local Government Area of Abia State sometimes in 2021 did commit an act in furtherance of an act of Terrorism against the Federal Republic of Nigeria and the people of Nigeria made a broadcast received and heard in Nigeria within the Jurisdiction of this Honourable Court, with intent to intimidate the population, you issued a deadly threat that anyone who flouted your sit-at-home order should ‘’write his/her Will’’ as a result Banks, School, Markets, Shopping Mails, Fuel Stations domiciled in the Eastern States of Nigeria were not opened for business, citizens and vehicular movements in the Eastern State of Nigeria were grounded within the Jurisdiction of this Honourable Court and you thereby committed an offence punishable under Section 1(2)(b) of the Terrorism Prevention Amendment Act. 2013.
COUNT THREE
That you Nnamdi Kalu, Male, Adult, of Afaranukwu Ibeku, Umuahia North Local Government Area of Abia State on diverse dates between 2018 and 2021 within the Jurisdiction of this Honourable Court, professed yourself to be a member and leader of the Indigenous People of Biafara IPOB, a proscribed organisation in Nigeria and that you thereby committed an offence contrary to and punishable under Section 16 of the Terrorism Prevention Amendment Act, 2013.
COUNT FOUR
That you Nnamdi Kanu, Male, Adult, of Afaranukwu Ibeku, Umuahia North Local Government Area of Abia State on diverse dates between 2018 and 2021 made a broadcast received and heard in Nigeria within the Jurisdiction of this Honourable Court, in furtherance of an act of terrorism against the Federal Republic of Nigeria and the people of Nigeria in which you incite members of the Public in Nigeria to hunt and kill Nigerian security personnel and that you thereby committed an offence punishable under Section 1(2)(b) of the Terrorism Prevention Amendment Act, 2013.
COUNT FIVE
That you Nnamdi Kanu, Male, Adult, of Afaranukwu Ibeku, Umuahia North Local Government Area of Abia State on diverse dates between 2018 and 2021 made a broadcast received and heard in Nigeria within the Jurisdiction of this Honourable Court, in furtherance of an act of terrorism against the Federal Republic of Nigeria and the people of Nigeria in which you incite members of the Public in Nigeria to hunt and kill families of Nigerian security personnel and that you thereby committed an offence punishable under Section 1 (2) (h) of the Terrorism Prevention Amendment Act, 2013.
COUNT EIGHT
That you Nnamdi Kanu, Male, Adult, of Afaranukwu Ibeku, Umuahia North Local Government Area of Abia State on diverse dates between 2018 and 2021 made a broadcast received and heard in Nigeria within the Jurisdiction of this Honourable Court, in furtherance of an act of terrorism against the Federal Republic of Nigeria and the people of Nigeria in which you directed members of the Indigenous People of Biafara IPOB, A proscribed organization to manufacture Bombs and you there by committed an offence punishable under section 1 (2) (f) of the Terrorism (Prevention) (Amendment) Act, 2013.
COUNT FIFTEEN
That you Nnamdi Kanu, Male, Adult, of Afaranukwu Ibeku, Umuahia North Local Government Area of Abia State on diverse dates between the month of March and April 2015 imported into Nigeria and kept in Ubulisiuzor in Ihiala Local Government Area of Anambra State within the jurisdiction of this Honourable Court, a Radio Transmitter known as Tram 50L concealed in a container of used household items which you declared as used household items, and you thereby committed an offence contrary to section 47 (2) (a) of Criminal Code Act. Cap, Laws of the Federation of Nigeria 2004’.
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.
It is thus necessary, before going into the merits of this appeal, to determine this contention of the Respondent.
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.
In the case of James v INEC Supra cited by the Respondent’s Counsel, one of the issues that the Courtwas required to determine in the suit was whether the election of 26th April was cancelled, abandoned or postponed. The Court held that the determination of whether the election was cancelled and a new electionscheduled would knock the bottom out of the case. It would thus be wrong for the Court, in determining the issue of jurisdiction to delve into one of the issues in controversy in the suit and to determine same before deciding whether or not it has jurisdiction to entertain the entire proceeding.
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.
Indeed, as was held by the same learned jurist, 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.”
As also held by the Supreme Court, 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”.
I hold likewise. Delving into the trial of the Appellant, without a determination of whether the Court has jurisdiction to entertain the charges against the Appellant would render further steps taken in the proceedings a nullity, I hold. 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.
Entertaining the Preliminary Objection, in the instant case, before the trial of the Appellant, would not have involved delving into the substantive matter, I hold.
Having dispensed with the contention of the Respondent’s Counsel, I now proceed with the objection of the Appellant’s Counsel 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 facts relating to this contention were deposed to in Paragraphs 19-25 of the Appellant’s affidavit in support of the Preliminary Objection, at Pages 149-150of the Record as follows:
19.That Section 1(A)(2) of the Terrorism (Prevention Amendment)
Act, 2013 imposes an obligation on the Attorney General of the
Federation, to maintain International co-operation for compliance with International Treaties on terrorism.
20.That the International co-operation and compliance envisaged in the said Section 1(A)(2) of the Act, presupposes, amongst other things that due process of law must be followed at all times, which also includes, that the Defendant in the instant charge must be rendered lawfully from any territory outside Nigeria.
21.That the Defendant was forcibly abducted from Kenya without due process and consequently extraordinarily rendered to Nigeria, without firstly subjecting him to extradition proceedings in Kenya, in violation of all known international conventions and treaties on extradition.
22.That the Defendant cannot be arraigned and tried on the 15-count Amended Charge, when he was not lawfully rendered to Nigeria and, consequently lawfully brought before the Court.
23.That prosecuting the Defendant on the 15-count Amended Charge, would amount to allowing the Complainant to benefit from its illegality and wrongdoing.
24.That he who comes to equity must come with clean hands, and no party should be allowed to benefit from his wrong doing, as the prosecution now attempts to do.
25.That the extraordinary renditionof the Defendant, robs the Honourable Court of the requisite jurisdiction to try him on the 15-Count Amended Charge.
In response to these averments, the Respondent averred as follows, at Para 14-16 of its counter affidavit as follows:
14.That paragraphs 15, 16, 17, 18, 19, 20, 28, 29, 30, 32, 33, and 36 of the affidavit in support of the notice of preliminary objection are objections, prayer and conclusions or legal arguments.
15.That paragraphs 21, 23, 24, 25, and 27 of the affidavit in support of notice of preliminary objections are not true.
16.That paragraph 22, 29, and 34 of the affidavit in support of notice of preliminary are not true.
The learned Silk has argued that these denials by the Respondent do not constitute sufficient traverse of theabduction and extraordinary rendition of the Appellant from Kenya to Nigeria and amount to an admission of the same.
On the manner of denial that would be sufficient to raise an issue of dispute, this Court held, in the case ofNickok 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”. Emphasis Mine
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.
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 oralpresentation, 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.”
Underlining Mine
As also submitted by the learned Silk, this failure contravened Order 19 Rule 4 (2) of the Court of Appeal Rules 2021 which stipulates:
“The Respondent’s Brief shall answer all material points of substances contained in the Appellant’s Brief and contain all points raised therein which the Respondent wishes to concede …”
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.
The follow-up question is whether this “abduction” and rendition to Nigeria, without extradition proceedings was unlawful and whether it deprived the lower Court of jurisdiction to entertain the action.
The OAU Convention on the Prevention AndCombating of Terrorism (hereafter referred to as the “OAU Convention”) provides as follows in Articles 7, 8 and 11 thereof, on the manner of rendition of a person from a member state:
Article 7:
1. “Upon receiving information that a person who has committed or who is alleged to have committed any terrorist act as defined in Article 1 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its national law to investigate the facts contained in the information.
2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its national law so as to ensure that person’s presence for the purpose of prosecution.
3. Any person against whom the measures referred to in paragraph 2 are being taken shall be entitled to:
a. communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled, to protect that person’s rights or, if that person is a stateless person, the State in whose territory that person habitually resides;
b. be visited by a representative of that State;
c. be assisted by a lawyer of his or her choice;
d. be informed of his or her rights under sub-paragraphs (a), (b) and (c).
4. The rights referred to in paragraph 3 shall be exercised in conformity with the national law of the State in whose territory the offender or alleged offender is present; subject to the provision that the said laws must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended”
PART IV
EXTRADITION
Article 8:
1. “Subject to the provision of paragraphs 2 and 3 of this article, the States Parties shall undertake to extradite any person charged with or convicted of any terrorist act carried out on the territory of another State Party and whose extradition is requested by one of the States Parties in conformity with the rules and conditions provided for in this Convention or under extradition agreements between the States Parties and within the limits of their national laws.
2. Any State Party may, at the time of the deposit of its instrument of ratification or accession, transmit to the Secretary General of the OAU the grounds on which extradition may not be granted and shall at the same time indicate the legal basis in its national legislation or international conventions to which it is a party which excludes such extradition. The Secretary General shall forward these grounds to the State Parties.
3. Extradition shall not be granted if final judgement has been passed by a component authority of the requested State upon the person in respect of the terrorist act or acts for which extradition is requested. Extradition may also be refused if the competent authority of the requested State has decided either not to institute or terminate proceedings in respect of the same act or acts.
4. A State Party in whose territory an alleged offender is present shall be obliged, whether or not the offence was committed in its territory, to submit the case without undue delay to its component authorities for the purpose of prosecution if it does not extradite that person.”
Article 11:
Extradition requests shall be in writing, and shall be accompanied in particular by the following:
a. an original or authenticated copy of the sentence, warrant of arrest or any order or other judicial decision made, in accordance with the procedures laid down in the laws of the requesting State;
b. a statement describing the offences for which extradition is being requested, indicating the date and place of its commission, the offence committed, any convictions made and a copy of the provisions of the applicable law; and
c. as comprehensive a description as possible of the wanted person together with any other information which may assist in establishing the person’s identity and nationality.
Underlining Mine
The ‘OAU Convention’ was adopted by the member states of the OAU (Organisation of African Unity) on July 1st1999 and ratified by this country on 28th of April 2002.
The ‘Protocol to the OAU Convention on the Promotion and Combating of Terrorism’, which was adopted by the 3rd Ordinary Session of the Assembly of the African Union in Addis Ababa on 8th July 2004, provides in Article 3 as follows:
“States Parties commit themselves to implement fully the provisions of the Convention”.
In addition to this, The Principles and Guidelines on Human and Peoples’ Right while Countering Terrorism in Africa, adopted by the African Commission on Human and Peoples’ Rights, during its 56th Ordinary Session in Banjul, Gambia (21 April to 7 May 2015), were developed on the basis of Article 45of the African Charter on Human and Peoples Rights, which Nigeria ratified on the 22nd June 1983. Thismandates the Commission to formulate standards, principles, and rules on which African governments can base their legislation.
Under Part 5 of the said Principles and Guidelineson Human and Peoples’ Right while Countering Terrorism in Africa Supra, the act of transferring or expulsion of a person from one state to another was circumscribed as follows:
“PART 5
Transfers Of Individuals
Transfers: A State may not “transfer” [e.g., deport, expel, remove, extradite] an individual to the custody of another State unless it is prescribed by law and in accordance with due process and other international human rights obligations. All transfers are subject to the principle of non-refoulement. Transfers shall not be a justification for loss or revocation of nationality or to make an individual stateless. Deportation, expulsion, and removal cannot be used to circumvent criminal justice processes, including extradition procedures. Extraordinary rendition, or any other transfer, without due process is prohibited.
Explanatory Note: The forced transfer of an individual from the custody of one State to another entity necessarily requires the deprivation of liberty. For this reason, the process through which the transfer takes place must be provided for by law and not arbitrary. See Principle 3(A), Prohibition of Arbitrary Detention; Organization of African Unity Convention on the Prevention and Combating of Terrorism, Articles 8(1) and 11; and Explanatory Note to Principle 5(A)(ii), Non-Refoulement and Principle 9(A), Prohibition against Statelessness.’’
Underlining Mine
By Section 1 A (2) of the Terrorism (Prevention) Amendment Act 2013, there was a duty on this countryto ensure conformity of its policies with international standards and United Nations Conventions on Terrorism. The section provides:
“The Attorney-General of the Federation shall be the authority for the effective implementation and administration of this Act; and shall strengthen and enhance the existing legal framework to ensure-
(a) conformity of Nigeria’s counter-terrorism laws and policies with international standards and United Nations Conventions on Terrorism;
Underlining Mine
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.
The Assistant Chief State Counsel has justified the Respondent’s actions by citing Sections 3-5 of the Administration of Criminal Justice Act Supra (ACJA)which provides:
3.A suspect or a defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of this Act, except otherwise provided in this Act.
4. In making an arrest, the police officer or other persons making the arrest shall actually touch or confine the body of the suspect, unless there is a submission to the custody by word or action.
5.A suspect or defendant may not be handcuffed, bound or be subjected to restraint except:
(a) there is reasonable apprehension of violence or an attempt to
escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court.
These sections, however deal with the arrest of a suspect. They provide no justification for the removal of the Appellant from another country to this countryto answer charges without the engagement of any legal process in that other country.
The issue of a warrant of arrest issued in Nigeria against the Appellant to answer to charges in Nigeria isthus no justification, as clearly stated in Part 5 of the Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa Supra, for circumventing extradition proceedings or the criminal justice processes.
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.
“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”
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 andPeoples 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.”
Article 12 (4) of African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 LFN 2004 provides as follows:
A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.
This was not done. By the extra ordinary rendition of the Appellant to this country, there was a clear and egregious violation by the Respondent of International Conventions, Protocols and Guidelines, to which this country was bound, I hold.
Instructive is the decision of the House of Lords in R. v Horseferry Road Magistrates Court, ex parteBennett [1994] 1 AC 42, [1993] 3 WLR 90, where, in a majority decision of four to one, per Lord Griffiths, Lord Bridge of Harwich, Lord Lowry, Lord Slynn of Hadley with Lord Oliver of Aylmerton dissenting, it was held that where a Defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the Defendant had been found, the Courts in the United Kingdom should take cognisance of those circumstances and refuse to try the Defendant; and that, accordingly, the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the Defendant.
In coming to this decision, the House of Lords referred, inter alia, to the decision of the South African Court of Appeal in S. v. Ebrahim, 1991 (2) S.A. 553, the headnote of which reads:
“The appellant, a member of the military wing of the African National Congress who had fled South Africa while under a restriction order, had been abducted from his home in Mbabane, Swaziland, by persons acting as agents of the South African State, and taken back to South Africa, where he was handed over to the police and detained in terms of security legislation. He was subsequently charged with treason in a Circuit Local Division, which convicted and sentenced him to 20 years’ imprisonment. The appellant had prior to pleading launched an application for an order to the effect that the court lacked jurisdiction to try the case inasmuch as his abduction was in breach of international law and thus unlawful. The application was dismissed and the trial continued. The court, on appeal against the dismissal of the above application, held, after a thorough investigation of the relevant South African and common law, that the issue as to the effect of the abduction on the jurisdiction of the trial court was still governed by the Roman and Roman-Dutch common law which regarded the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area as tantamount to abduction and thus constituted a serious injustice. A court before which such a person was brought also lacked jurisdiction to try him, even where such a person had been abducted by agents of the authority governing the area of jurisdiction of the said court. The court further held that the above rules embodied several fundamental legal principles, viz. those that maintained and promoted human rights, good relations between states and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of states had to be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The state was bound by these rules and had to come to court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the state was involved in the abduction of persons across the country’s borders. It was accordingly held that the court lacked jurisdiction to try the appellant and his application should therefore have succeeded. As the appellant should never have been tried by the court, the consequences of the trial had to be undone and the appeal disposed of as one against conviction and sentence. Both the conviction and sentence were accordingly set aside.” Underlining Mine
Citing this case with approval, Lord Griffiths, in the case of R v Horseferry Supra held:
“The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it…….. Let us consider the position in the context of extradition. Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country. Thus sufficient evidence has to be produced to show a prima facie case against the accused and the rule of speciality protects the accused from being tried for any crime other than that for which he was extradited. If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another countrythey would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit. It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by; I echo the words of Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1354: “The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.” The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.
Lord Bridge of Harwich contributing, put the poser quite starkly, when he questioned:
“My Lords, this appeal raises an important question of principle. When a person is arrested and charged with a criminal offence, is it a valid ground of objection to the exercise of the court’s jurisdiction to try him that the prosecuting authority secured the prisoner’s presence within the territorial jurisdiction of the court by forcibly abducting him from within the jurisdiction of some other state, in violation of international law, in violation of the laws of the state from which he was abducted, in violation of whatever rights he enjoyed under the laws of that state and in disregard of available procedures to secure his lawful extradition to this country from the state where he was residing?”
Answering this question, Lord Bridges held:
“Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself.When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisanceof that circumstance. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view. Having then taken cognisance of the lawlessness it would again appear to me to be a wholly inadequate response for the court to hold that the only remedy lies in civil proceedings at the suit of the defendant or in disciplinary or criminal proceedings against the individual officers of the law enforcement agency who were concerned in the illegal action taken. Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted. ……It is apt, in my view, to describe these circumstances, in the language used by Woodhouse J. in Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, 476, as an “abuse of the criminal jurisdiction in general” or indeed, in the language of Mansfield J. in United States v. Toscanino, 500 F.2d 267, as a “degradation” of the court’s criminal process. To hold that in these circumstances the court may decline to exercise its jurisdiction on the ground that its process has been abused may be an extension of the doctrine of abuse of process but is, in my view, a wholly proper and necessary one.”
Emphasis Mine
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.
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.
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.”
See also Dasuki v FRN (2018) 10 NWLR Part 1627 Page 320 at 343 Para D per Eko JSC where the effect was held to be a “breach of the right to fair hearing”.
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.
The learned Silk has contended and sought in his reliefs in the Appellant’s Notice of Appeal, that the Respondent be prohibited from detaining, trying or otherwise dealing with the Appellant in respect of any offences allegedly committed by him before his surrender to Nigeria by reason of Section 15 of the Extradition Act Cap E25 Laws of the Federation Supra. The Respondent’s Counsel proffered no arguments to counter this submission. The lower Court, I note, also failed to make any finding thereon.
Section 15 of the Extradition Act Cap E25 Laws of the Federation 2004 provides:
“Where, in accordance with the law of any county within the Commonwealth or in pursuance of an extradition agreement between Nigeria and another country (whether within the Commonwealth or not), any person accused of or unlawfully at large after conviction of an offence committed within the jurisdiction of Nigeria is surrendered to Nigeria by the county in question, then, so long as he has not had a reasonable opportunity of returning to that country, that person shall not be detained (whether under this Act or otherwise), tried or otherwise dealt with in Nigeria for or in respect of an offence committed by him before his surrender to Nigeria other than-
(a) the offence for which he was surrendered or any lesser offence which may be proved by the facts on which his surrender granted; or
(b) any other offence (being one corresponding to an offence described in section 20 of this Act) of the same nature as the offence for which he was surrendered: Provided that a person falling within this section shall not be detained or tried for an offence by virtue of paragraph (b) of this section without the prior consent of the country surrendering him.”
Underlining Mine
The consequence of this section, 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 Appellantand I so hold.
I accordingly resolve Issue Number One in favour of the Appellant.
The resolution of this issue in favour of the Appellant disposes of this appeal, I hold, making a resolution of the other issues merely an academic exercise.
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.
