The Nigerian government has added nine grounds of appeal to the four it hurriedly filed last year to block the release of Nnamdi Kanu, leader of the Indigenous People of Biafra (IPOB), from custody.
The Court of Appeal in Abuja ordered Mr Kanu’s release from the custody of the State Security Service (SSS), after dismissing the charges against Mr Kanu in October last year.
The treasonable felony and terrorism charges related to Mr Kanu’s campaigns for the secession of South-east Nigeria and other neighbouring places as the independent Republic of Biafra.
Mr Kanu, who initially fled the country around September 2017, pausing his trial that started in 2015, was apprehended in Kenya and brought back to Nigeria under controversial circumstances in June 2021.
The shady mode of bringing him back to Nigeria was cited by the Court of Appeal as the basis for dismissing the charges against him and ordering his release in October 2022.
But to block Mr Kanu’s release, the federal government hurriedly filed a four-ground notice of appeal against the Court of Appeal’s decision at the Supreme Court. It then approached the Court of Appeal to suspend the execution of the order for the release of Mr Kanu from custody pending the Supreme Court’s decision on the competence of the charges.
The court granted the federal government’s request allowing it to pursue its appeal at the Supreme Court while Mr Kanu remains in custody.
Having gained enough time to strengthen its appeal, the government has now filed nine additional grounds to the four it filed in the wake of the Court of Appeal’s 13 October 2022 decision discharging Mr Kanu.
Laying the basis for questioning the decision discharging Mr Kanu, the government said the Court of Appeal was wrong to have only considered the procedure of the IPOB leader’s extraordinary rendition from Kenya without examining the gravity of the alleged crimes he was being tried for.
Below are the highlights of the total 13 grounds of appeal on which the federal government anchored its appeal.
In ground 1, the government said the Court of Appeal erred in law by allegedly failing to consider the relevant provisions of the Administration of Criminal Justice Act (ACJA) 2015, a law that regulates criminal proceedings in federal courts.
Citing section 221 of the ACJA, the government argued that the Jummai Sankey-led five-member panel of the Court of Appeal failed to give legal effect to the law which “stops courts from entertaining preliminary objections to charges at an interlocutory stage.”
It added that the court’s decision caused “a miscarriage of justice.”
The government queried the appellate court’s decision on the basis that it refused to be “bound by established judicial precedent laid down by the Supreme Court on the mode of entry of defendant charged with the commission of an offence.”
The federal government contended that the Court of Appeal caused “a miscarriage of justice when it held that” Mr Kanu’s extradition from Kenya “is unlawful.”
Citing the case of Patrick Njovens & others V the state (1973), it said the appellate court’s decision was a clear departure from the precedent set by the apex court.
The government further said the Court of Appeal “misdirected itself when it relied on the manner (of Mr Kanu’s extradition) in robbing the trial court of its jurisdiction,” adding it was “inconsistent with the judicial precedent of” the Supreme Court
On another ground, the prosecution said the Appeal Court was wrong to have relied “heavily” on international legal instruments and cases decided “from foreign jurisdictions” in arriving at its decision freeing Mr Kanu.
It contended that the court’s reliance on foreign laws like the Organisation of African Union Charter on the Prevention and Combating of Terrorism as well as the African Charter on Human and People’s Rights was at the expense of laws governing criminal procedure in Nigeria.
“The court below misdirected itself when it gave binding force to treaties, conventions and foreign judgements that are inconsistent with our Nigerian legislation,” the government’s filing said.
The government complained of being denied a fair hearing by the Court of Appeal.
It said the appellate court justices failed to determine the competence of Mr Kanu’s preliminary objection to the competence of the charges against him, thereby denying the government the “right to fair hearing.”
“The nature of entry of the respondent (Mr Kanu) is not relevant in the determination of the merit of the charges,” the government submitted.
Contesting the court’s order releasing Mr Kanu, the government argued that the appellate court erred when it held that the Federal High Court lacked jurisdiction to try the IPOB leader because of his “extraordinary rendition” from Kenya.
“There was no evidence” led by Mr Kanu “before the court of first instance and the court below to show how he was allegedly abducted and rendered to Nigeria,” the government said.
Referencing section 94 of the ACJA and section 32 of the Terrorism Prevention Amendment Act 2013, the government argued that the Federal High Court was clothed with adequate jurisdiction to hear the case against the separatist leader.
It further argued that the mode of bringing Mr Kanu back to the country “cannot vitiate the criminal charges of treason, treasonable felony and terrorism pending against him.”
The government told the Supreme Court that the IPOB leader was standing trial at the Federal High Court, but “flouted” the orders of the court and “jumped bail.”
However, Mr Kanu blamed his absence from court on the Nigerian military’s invasion of his home in Abia State.
The government canvassed this ground to argue that the Court of Appeal did not consider the issues that predated Mr Kanu’s extraordinary rendition.
The IPOB leader, the government said, was standing trial for the “commission of offences of conspiracy, treasonable felony and terrorism before his escape.”
It said the appellate court failed to provide justice for the state whose laws and “normative values (were) broken and also provided no justice to the victims of” Mr Kanu’s “criminal act”.
On ground seven, the government said the Court of Appeal was wrong “when it failed to consider that it was the illegality of” Mr Kanu’s “act of jumping bail and his refusal to make himself available for trial that necessitated his return to Nigeria”.
The government argued that it was under “a legal duty to bring” the IPOB leader “before the trial court to answer to charges preferred against him.”
It explained that the trial judge, Binta Nyako, granted Mr Kanu bail on 25 April 2017, but on the following adjourned date of 11 and 12 July 2017, the IPOB leader was absent from court “having jumped bail and absconded outside the country.”
Citing section 104 of the ACJA, the government said it was its responsibility to bring Mr Kanu to court to face trial.
The government posited that the Jummai Sankey-led panel of the Court of Appeal “erred in law and occasioned grave injustice on the appellant (government) when it held that the extraordinary rendition of” Mr Kanu “robbed the trial court of the jurisdiction to entertain the charges pending before the court” even before the IPOB leader “jumped bail and absconded.”
It is the contention of the prosecution that the “Court of Appeal acted without jurisdiction when they entertained” Mr Kanu’s “appeal, the said decision of the Trial Court having been made without jurisdiction in breach of section 396 (2) of” the ACJA.
The government argued that the Justices of the Court of Appeal “erred in law when they relied on” Mr Kanu’s affidavit in support of his preliminary objection “to conclude that the respondent was illegally brought back to Nigeria.”
The government also said the appellate court was wrong when it held that the “failure of the appellant to respond” to some paragraphs “of the affidavit in support of” Mr Kanu’s “preliminary objection amounts to the appellant conceding to the facts therein.”
The government challenged the Court of Appeal’s jurisdiction to entertain Mr Kanu’s interlocutory appeal “which was filed without leave of the Federal High Court.”
It said the Federal High Court’s decision which Mr Kanu appealed against was interlocutory, that is, filed in the course of trial.
On this ground, the government argued that the Justices of the Court of Appeal were wrong “when they relied on the alleged non-compliance” of the federal government “with the provisions of the Extradition Act in concluding that” Mr Kanu ” was unlawfully brought into Nigeria and therefore the trial court lacked jurisdiction to continue his trial.”
In the court filings signed by the Director of Public Prosecution of the Federation (DPPF), Mohammed Abubakar, the government urged the court to grant its appeal and set aside the Court of Appeal’s judgement.
It further prayed to the Supreme Court to restore the charge against the IPOB leader for him to be tried at the Federal High Court.
Mr Kanu’s lead lawyer, Mike Ozekhome, a Senior Advocate of Nigeria (SAN), confirmed receipt of the filing on Thursday.
Mr Ozekhome, a law professor, disclosed that he was served with a copy of the court document on Wednesday, a day before Thursday’s proceedings during which the Supreme Court validated the additional filing by the federal government.
The Supreme Court granted leave to the federal government to update its filings with the additional grounds on Thursday.
The Inyang Okoro-led five-member panel of the court then adjourned proceedings until 11 May for a hearing.
Thursday’s proceedings set the stage for the full hearing of the appeal challenging the lower Court of Appeal’s October 2022 judgement that dismissed the charges against the IPOB leader.
Mr Kanu, who leads a separatist campaign for the secession of the mainly Igbo-speaking South-east states and parts of neighbouring states as the independent Biafra Republic, is being incarcerated at the headquarters of the State Security Service (SSS) in Abuja.
His trial on charges of treasonable felony and terrorism started after his arrest over his separatist activities in 2015. But the case went into a pause after he fled the country in the wake of a military invasion of his home in Afara-Ukwu, Abia State, while he was on bail in September 2017.
The IPOB leader was forcibly brought back from Kenya by the Nigerian government in June 2021 to face trial.
However, ruling on an application Mr Kanu later filed to challenge the entire 15 charges, the trial Federal High Court in Abuja dismissed eight of the counts it adjudged not to be inappropriate.
Displeased with the partial discharge handed down by the court, Mr Kanu proceeded on appeal to the Court of Appeal in Abuja to attack the rest of the seven counts.
The Court of Appeal acceded to his request by dismissing the remaining seven counts and ordering his release from custody in its judgement handed down on 13 October 2022.
The appellate court based its decision on its finding that the extraordinary rendition mode of returning Mr Kanu to Nigeria breached both local and international laws.