NNAMDI
KANU: THE DEFENDANTS ARE ENTITLED TO FAIR HEARING AS OF RIGHT
We
start by recalling the long settled cardinal principle of law to the effect
that it
is the duty of a court, whether of first instance or appellate to consider all
the issues that have been joined by parties and raised before it for
determination. If the court failed to do so, without a valid reason, then it
has certainly failed in its duty, for in our judicial system, it is a
fundamental principle of administration of justice that every court has a duty
to hear, determine and resolve such questions,
so held the Nigerian Supreme Court in Irolo v. Uka (2002) 14 NWLR (Pt.786) 195 at 250.
THE
FACTUAL BACKGROUND:
That the Worldwide
Leader of the Indigenous People of Biafra (IPOB), Maazi Nnamdi Kanu (alongside
three other Defendants), is standing criminal trial before the Federal High
Court sitting in Abuja is no longer news. Indeed if an example is sought for a
criminal trial in this 21st century that has the potency of
re-defining the fortune of a nation and re-drawing its geographical boundary,
KANU’S trial will surely rank first ahead of others globally. What is rather news
is the unsettling manner in which the presiding judge, Justice Nyako, has been
handling this extremely sensitive matter given the defining impact the outcome
of the entire exercise would have on the overall Nigerian system. Without any
scintilla of equivocation, it must be stressed straight away that Justice Nyako
of the Federal High Court Abuja, has not given the Defendants before her their
just entitlements to the extent that the Constitutional safeguard most
eloquently enshrined for the benefit of an accused person under our criminal
justice regime is concerned.
The view expressed
above is not at large neither is it in the realms of conjecture or speculation.
Without any further delay, we proceed with aplomb to condensate to particulars
by tying our assertion to specifics. One glaring example will be sufficient to
buttress our stand.
JUSTICE
NYAKO’S REFUSAL TO HEAR A MOTION BEFORE THE COURT
On the 6th
day of April, 2017 when the matter came up last before the Court, the 1st
and 3rd Defendants informed the Court of their interlocutory applications
already filed by their respective counsel and pending before the Court. For
instance, the 3rd Defendant, through his Counsel prayed the Court
for some reliefs aimed at having his different properties seized from him by
the SSS returned. For the records, it is important to emphasize that none of
the items which the Applicants prayed for their return is exhibited before the
court in the proof of charge to be relied on at trial. In fact in the proof of charge accompanying
the charge, there is an affidavit by the prosecutor affirming that
investigation has been concluded in respect of the charge before the Court.
The Learned defence
Counsel [3rd Defendant’s Counsel] informed the Court of the pending
motions. The Judge first expressed her indisposition to hear such a motion as
it was a mere ‘distraction’ to the proceedings. Following subtle persuasions
of the defence team, the Judge queried the reasons why the items were needed by
the applicants. In a rather bizarre twist of event, the Judge erratically
‘ordered’ the prosecutor to return the “wedding ring and medical eyeglasses” to
the 3rd Defendant. The purported “order”, with the greatest respect, is bizarre
and erratic for two clear reasons. First, the reliefs for the return of wedding
ring and eyeglasses were never prayed for by the 3rd Defendant. The Court
thereby granted reliefs not prayed for by a party before it. Another bizarre and
confounding aspect of the purported “order” is that it was by a mere “word of
mouth “against being in writing as prescribed by the Nigerian Constitution. In
the end, all the entreaties on the Judge to hear and dispose of the motions on
their merits as required by extant laws fell on deaf ears. With unusual
intimidation and browbeating, the Court of Justice Nyako harassed the Defence
team out of the seat of justice and cowed them into silence. Aggrieved by the
blatant and unjustified refusal of the Court to allow his counsel move their
applications, the 3rd Applicant motioned to his counsel as to why
the court would shut him out. The Judge reacted to the 3rd Defendant’s action
with a stern warning to him that he would be barred from appearing for his
trial until the entire proceedings comes to an end if he ever talked again.
This way, by such an unwarranted exhibition of naked judicial power, the
counsel and their clients were put in fear of the court. It is indeed of
greater curiosity to note (going by the Court’s records) that the Prosecutor
(the Federal Government of Nigeria) did not put up any challenge to the prayers
tabled before the Court by the Applicants. Any sincere person who was present
and witnessed the proceedings of 6th April, 2017, would readily
confirm this factual account. With the above factual background in view, we
shall now turn to the meat of the matter.
WHAT
THEN DOES THE LAW PROVIDE?
The Court of Appeal, speaking through our Father in
the law, Late Justice Tobi, thought us that;
“A
court of law or a tribunal has a legal duty to hear any court process,
including a motion before it. The process may be downright stupid,
unmeritorious or even an abuse of court process. The court must hear the party
or parties and rule one way or the other. Judge, whether of a court of
law or tribunal, has no jurisdiction to come to a conclusion by resorting to
his wisdom outside established due process that a motion cannot be heard
because it has no merit. That does not lie in the mouth of a Judge in our
adversary system of adjudication.”
See Eriobunah
v. Obiorah (1999) 8 NWLR (pt. 616) C.A. 622 at 642.
Confirming this position, the same Court, in the
case of Asamu vs. Lawanson had this to say;
“The position of the law on pending processes
before the court as explained by the Supreme Court is sufficient to resolve the
issue. In Akpan vs. Bob (2010) 17 NWLR part 1223 p.421 the Supreme Court stated
thus: "The position of the law is that where there are pending processes
before a court, such as motions or other applications, such issues have to be
dispensed with before a final decision is taken on the main action or
appeal." It is therefore wrong for the trial judge not to have taken the
appellants' pending motion on notice before his Ruling which was final in
nature. Having said so, I must add that an application may not be heard not
because a court deliberately refuses to hear it but as a result of oversight.
It is therefore the duty of counsel to draw the attention of the court to any
pending application before a final decision. It is when such attention has been
drawn and the court refuses to consider the application that the action of the
court can be justly deprecated. As pointed out in Akpan vs. Bob (supra) it
would be wrong of a court whose attention has been drawn to a pending process
to proceed when such process has not been pronounced upon”
True indeed, the Nigeria Supreme Court in the case
of Akpan
vs. Bob (2010) 17 NWLR part 1223 p.421 affirmed this position with a
tone of finality thus;
“The
trite position of the law is that where there are pending processes before a
court, such as motions or other applications, such issues have to be dispensed
with before a final decision is taken on the main action or appeal.”
In a related case of Eke vs. Ogbonda, Justice
Mahmud of the Supreme Court taught us that;
“The trite position of the law is
that where there are pending processes before a court, such as motions or other
applications, such issues have to be dispensed with before a final decision is
taken on the main action or appeal.”
What is more, the
corollary of the foregoing irresistibly points to the long established
principle of law that it is the abiding duty of every court in Nigeria to hear
all/any motion properly filed before it and deliver its ruling on the motion
one way or the other.
WAS
JUSTICE NYAKO RIGHT IN GRANTING RELIEFS NOT ASKED FOR?
In the Supreme Court
case of Wing Commander Shekete vs. Nigerian Air Force (2002) 18 NWLR (Pt.
798)129. 2, (2002) 12 S.C (Pt.II) 52, the ever-indomitable Niki Tobi (now
of blessed memory)handed down this noteworthy warning to all Nigerian Courts in
the very language which we would now most respectfully reproduce for the
benefit of Justice Nyako and we implore her to hear this;
“It is elementary law that a court
of law cannot grant a party relief not sought. A court of law cannot grant an
applicant prayer not sought. A court of law can only grant a relief or prayer
sought. The moment a court of law grants a relief or prayer not sought by the
party, it expands the boundaries of the litigation and unnecessarily instigates
more litigation to the detriment of the parties and for no reason at all. The
litigation is for the parties and not the court. Therefore the court has no
jurisdiction to extend or expand the boundaries of the litigation beyond what
the parties have indicated to it. In other words, the court has no jurisdiction
to set up a different or new case for the parties.”
In Aqua vs. Archibong & 3 Ors
(2012) LPELR-9293 (CA), the court re-affirmed this perduring principle.
According to Justice Lawal Garba, “The law is common
knowledge now that a court of law not being a charitable institution but one of
facts and the law, does not grant to a party what he himself did not claim or
seek, in a case.”
Delivery the
leading judgment for the Court of Appeal in the case of Olawoye vs. Bello (2015) LPELR-24475
(CA), Justice Ndukwe-Anyanwu, observed thus;
“I must however emphasise that trial
courts must restrict itself to the evidence before it and not to grant reliefs
which were neither pleaded or evidence led to sustain it. The courts have held
in a plethora of cases, that the court is not a Santa Claus. Courts of law are
not created as charitable institutions engratia….In the same vein, the court
which is not a "Father Christmas" or a social welfare institution
should not grant to a party an order, or relief or declaration in excess of or
outside what he claimed or sought for". The rational of the rule, which
forbids such gratuitous award by the court contrary to the rule of practice and
pleadings, is to avoid surprises during proceedings and to ensure fair hearing
to the parties without showing favour to one or the other. The rule against
unsolicited or gratuitous awards by court is of general application to all
cases as it affects or robs the court of jurisdiction to make such awards”
Indeed, the case laws on this point are legion and
we can go on and on to cite them in their hundreds but for economy of space. It
is therefore an unsettling puzzle for one to fathom or reconcile how and why
Justice Nyako arrived at her decision to grant reliefs not sought by the
Applicant despite the avalanche of authorities (at her disposal) disapproving
of such condemnable practice. It is this kind of practice that makes an Hausa
man to exclaim ‘haaba’ in shocking disbelief.
Elsewhere in this
piece, we noted that the Federal Government of Nigeria (the Complainant) did
not file any counter-affidavit in opposition to the application of the
Applicants as contained on the face of their motion paper. This, in law, has a
profound implication both on the application itself, the Court and the
respondent to the application. What then are these weighty implications, one
may then ask?
In Dalhatu
vs. Attorney-General of Katsina State (2007) LPELR – 8460 (CA), the
answer is provided thus;
“It is trite law that unchallenged facts in
an affidavit or counter affidavit are deemed admitted and should be believed
and relied on by the Court”
In case of The Honda Place Ltd. vs. Globe Motors Ltd.
(2005) 14 NWLR (Pt. 945) 273, the Supreme Court, per Edozie J.S.C. espoused
this age-long legal proposition thus;
“The position of the law is that when in a
situation in which facts are provable by affidavit, one of the parties deposes
to certain facts, his adversary has a duty to swear to an affidavit to the
contrary, if he disputes the facts. Where such a party fails to swear to an
affidavit to controvert such facts, they may be regarded as duly established…Since
the respondent did not file a counter-affidavit to controvert the appellants
averment referred to above, that averment was deemed admitted and it was a
material fact before the trial court upon which to reach a decision on the
issue.”
In his contributory
judgment, Katsina-Alu, J.S.C. intoned as follows:
“The Law is that where the facts
in an affidavit remain unchallenged and uncontroverted, the court is bound to
accept those facts as established as those facts were deemed to have been
admitted.” See Nwabuoku v. Ottih
(1961) 2 SCNLR 233”
In Registered Trustees of Eket Commercial
Motorcycle Association vs. Eket Local
Government Council & Ors (2013) LPELR-21998(CA), the position was
succinctly captured thus;
“I observe that there was no counter
affidavit to challenge the averments that there was an emergency meeting of the
trustees of the association on the 15th of March, 2010 at which the resolution
to discontinue the action was reached. The absence of a challenge to the fact
means in law that it is deemed to be correct and established.”
From whichever angle we
or one may choose to look at the whole situation, there will be no escaping the
conclusion that justice Nyako, contrary to all known judicial norm and binding
authorities, decided to go out of her way to aid the case of the Federal Government
of Nigeria (the Respondent ) even when the Government did not deem it fit to
join issues with the Applicants signaling its intention to admit all the
averments in the Applicants’ affidavit thereby leaving the Learned trial Judge
with the only duty of affirming the establishment of the already admitted facts
entitling the Applicants to the Court’s judgment.
INTIMIDATION
OF DEFENCE COUNSEL AND THE DEFENDANTS
Elsewhere in this
piece, we noted with grave concern the unwarranted exhibition of sheer naked
judicial powers by Justice Nyako who indulges in the vice of intimidating both
the defence lawyers and the defendants with the ease and frequency with which
the Englishman sips his coffee on his breakfast table. Has she got the powers
to do that? Now, let us go to the authorities. In F.R.N. v. Akabueze
[2010] 17 NWLR (Pt. 1223) S.C. 525 at page 540, Justice Fabiyi of the
Supreme Court sternly warned that “it is not part of the duty of a Judge
to operate in terrorem”
In Okoduwa v. The State [1988] 1 N.S.C.C.
vol. 19, the Supreme Court strongly emphasized that in our adversary
system of administration of justice the freedom of counsel to put across his
client’s case without fear or favour, is a most important ingredient.
SUMMATION
What is more, it is now left
for fair-minded members of the society to raise the relevant posers on what
could have actuated the strange trend of proceedings being adopted by Justice
Nyako against Pro-Biafrian members standing trials before her Court especially
when such mode of trial runs parallel to established judicial authorities
thereby challenging her fidelity to the Constitution to which she owes
unqualified allegiance and which she is under obligation to defend and promote
especially in the light of her judicial oath to administer justice to all
manner of people who come before her without fear or favour, affection or ill
will. Without doubt, it is patently wrong, both in law and conscience, for a
Judge to pick and choose which motion to hear or worse still to dismiss such
motion without hearing the Applicants on the merit or otherwise of such
application. Equally wrong is the intimidation and harassment of lawyers and
the defendants to cow them into silence and undermine the freedom of counsel to put across his client’s
case without fear or favour, which the Supreme Court acknowledges as a most
important ingredient of free and fair trial.
In signing off this piece, it is of great
importance to place on record the fact that the application before the court merely
seeks to enforce the Constitutional right to own properties guaranteed by the
Nigerian Constitution under sections 43 & 44. The Administration of
Criminal Justice Act, 2015 (ACJA) evinces the same intent. For instance,
Section 153 (3) & (4) of the ACJA under which the application was
brought amply provide as follows;
153(3) Where a defendant is charged to court with an offence or no
appeal or further proceedings is pending in relation to an item recovered
during a search, the police shall:
A.
Restore to the person
who appears to be entitled to them, and;
B.
Where he is the
Defendant, caused to be restored him or his legal practitioner or to such other
person as the Defendant may direct.
153(4) The
police or any other agency carrying out the search is authorized or required by
law to dispose of the items seized in accordance with the provisions of section
153 of this Act, the police or the agency shall release the proceeds of the
disposal of the seized items to the person entitled to it.
In the circumstances amplified above, it is
only fitting for us to recall this powerful and illuminating pronouncement of
Lord Atkin in the celebrated English case of Liversidge vs. Anderson
[1942] A.C. 206. Listen to this;
“I view with apprehension the attitude of judges who on a mere question of
construction when face to face with claims involving the liberty of the subject
show themselves more executive minded than the executive…. In this country,
amid the clash of arms, the laws are not silent. They may be changed, but they
speak the same language in war as in peace. It has always been one of the
pillars of freedom, one of the principles of liberty for which on recent
authority we are now fighting, that the judges are no respecters of persons and
stand between the subject and any attempted encroachments on his liberty by the
executive, alert to see that any coercive action is justified in law. In this
case I have listened to arguments which might have been addressed acceptably to
the Court of King’s Bench in the time of Charles I.”
I think I can stop here.
NNAMDI KANU: THE DEFENDANTS ARE ENTITLED TO FAIR HEARING AS OF RIGHT
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Monday, April 24, 2017
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