NNAMDI KANU: THE DEFENDANTS ARE ENTITLED TO FAIR HEARING AS OF RIGHT

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 21^st 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 6^th day of April, 2017 when the matter came up last before the Court, the 1^st and 3rd Defendants informed the Court of their interlocutory applications already filed by their respective counsel and pending before the Court. For instance, the 3^rd 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 [3^rd 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 3^rd 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 6^th 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.