Whether Arrest Warrant Justifies Circumventing Extradition Proceedings or Criminal Justice Processes
In the Court of Appeal of Nigeria
Abuja Judicial Division
Holden at Abuja
On Thursday, the 13th Day of October, 2022
Before Their Lordships
Jummai Hannatu Sankey
Oludotun Adefope-Okojie
Ebiowei Tobi
Justices, Court of Appeal
APPEAL NO: CA/ABJ/CR/625/2022
CHARGE NO: FHC/ABJ/CR/383/2015
Between
NNAMDI KANU APPELLANT
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT
(Lead Judgement delivered by Honourable Oludotun Adebola Adefope-Okojie, JCA)
Facts
The Appellant was standing trial before the Federal High Court on a four-count Amended Charge for conspiracy to commit treasonable felony, treasonable felony, publication of defamatory matter (contrary to Sections 516, 41(c) and 375 of the Criminal Code Act, Cap C77, LFN 2004), and improper importation of goods contrary to Section 47(2) of the Customs and Excise Management Act, Cap C45, LFN, 2004.
Following the Appellant’s rendition from Kenya to Nigeria on 27th June, 2021, a 7-count Amended Charge was filed against him, which was subsequently amended on 17th January 2022, to 15-count Charge. By the latest Amended Charge, the original counts were changed from the offences alleged, to making broadcasts with intent to intimidate, incite, and acts of terrorism punishable under Sections 1(2)(b), 16, 1(2)(h), 1(2)f of the Terrorism Prevention Amendment Act, 2013; as well as importation into Nigeria of a Radio Transmitter known as Tram 50L contrary to Section 47(2)(a) of the Criminal Code Act.
The Appellant’s plea was taken further to the 15-count Amended Charge, and the Appellant timeously filed a Preliminary Objection on 19th January, 2022, challenging the jurisdiction of the trial court to try him on the 15-count Amended Charge. The Appellant raised before the court, among other issues, his extraordinary and unlawful rendition. He urged the court for an Order striking out/quashing and dismissing the counts in the Amended Charge for being incompetent. He also prayed the court for an Order discharging and acquitting him of all the counts, upon striking out the said counts.
The court heard the Preliminary Objection and, in its ruling, struck out eight of the fifteen counts. Dissatisfied with the decision of the lower court which retained seven of the fifteen counts in the Amended Charge, the Appellant appealed the decision to the Court of Appeal.
Issues for Determination
The following issues were determined by the court:
1. Whether the trial court properly evaluated and ascribed probative value to the Appellant’s evidence when it failed to consider, make findings of facts and accordingly pronounced on issue one raised for the trial court’s determination relating to the extra-ordinary rendition of the Appellant.
2. Whether the trial court has the jurisdiction to try the Appellant for the alleged offences committed in vacuo, or which the 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 the Appellant.
Arguments
On Issue one, it was submitted that the Appellant was abducted from Kenya and extraordinarily rendered to Nigeria without being first subjected to extradition proceedings in Kenya, contrary to the extant international Conventions and Treaties. Counsel submitted that the Appellant cannot be arraigned and tried on the 15-count Amended Charge, having not been properly brought before the court. He argued that the unlawful and extraordinary rendition, without hearing or due process, contravenes various International law to which the Federal Government of Nigeria is a State Party, inclusive of Articles 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. Further, Section 15 of the Extradition Act Cap E25 Laws of the Federation of Nigeria, 2004 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. Counsel posited further that the failure of the trial court to pronounce on the issue of extraordinary rendition of the Appellant, which was properly raised before it in the Preliminary Objection, is a gross violation of the Appellant’s right to fair hearing. Reacting to this submission, the Respondent argued that the issue of whether the Appellant was properly brought before the trial court, is a matter to be established during trial and not at the preliminary stage. Counsel reiterated that the Appellant was brought in by due process of law, citing Sections 3, 4 & 5 of the Administration of Criminal Justice Act.
Arguing Issues two and five (which are related and considered together by the court) counsel for the Appellant submitted that where an Information does not disclose a prima facie case against the Accused Person, the court is duty bound to quash the Charge and dismiss same. In this instance, there is nothing in the Proof of Evidence which links the Appellant to the commission of the alleged offences with which he was charged. Further, the counts 1, 2, 3, 4, 5 and 8 of the 15-count Amended Charge, failed to disclose the situs where the Appellant made the alleged broadcasts from, and this lacuna rendered the affected counts incompetent, and deprived the court of jurisdiction to try the Appellant on the alleged offences where the place of commission is not stated to be within the territorial jurisdiction of the court. Counsel for the Respondent countered the submission by stating the principle of law that where the trial court has judicially discharged its duty of evaluating evidence, an appellate court cannot assume this duty except where the decision is perverse. Citing Section 19 of the Federal High Court Act and Section 32(1) of the Terrorism Prevention Amendment Act of 2022, he argued that the trial court has the requisite jurisdiction to determine the case.
On Issue three, the Appellant submitted that count 3 of the Amended Charge relates to membership of a proscribed organisation, which is the subject of Appeal No. CA/A/214/2018 – INDIGENIOUS PEOPLE OF BIAFRA v ATTORNEY-GENERAL OF THE FEDERATION, and therefore, sub-judice. He argued that it will be prejudicial for the Appellant to be indicted, on the said count which the Court of Appeal is yet to decide. Responding, counsel for the Respondent argued that the Order proscribing IPOB is valid and subsisting, even though the appeal is pending.
Arguing Issue four, the Appellant stated that count 15 of the Amended Charge relates to an offence allegedly committed in Anambra State, outside the jurisdiction of the trial court. The Respondent on the other hand, argued that the offence relates to terrorism which is within the jurisdiction of the Federal High Court, and this court exercises a single jurisdiction nationwide with various divisions for administrative convenience.
Court’s Judgement and Rationale
Before going into determination of the first issue, the Court of Appeal deemed it necessary to consider first, the contention of the Respondent that the issue of bringing the Appellant properly before the court cannot be determined at an interlocutory/preliminary stage. Relying on the decision in JAMES v INEC (2015) 12 NWLR (Pt. 1474) 538, the court stated the settled position of law that in determining interlocutory application or the issue of jurisdiction, the court should refrain from delving into the issues in controversy in the substantive suit. The court, however, distinguished the present case from the referenced JAMES v INEC, stating that the rendition of the Appellant from Kenya to Nigeria is not an issue to be determined in the substantive case before the trial court. The substantive issue/case before the court, is the determination of the culpability of the Appellant for the retained counts of the Amended Charge upon which he was arraigned. It follows that determination of the propriety of the Appellant’s rendition, and which illegality divested the court of jurisdiction in the matter, does not amount to determining the substantive case at an interlocutory stage.
Deciding the first issue, the court held that save for the bare denial by the Respondent in its Counter-Affidavit, there is no specific denial that the Appellant was in Kenya, abducted therefrom without an extradition proceeding, and brought into Nigeria. The position of law on failure of the Respondent to contest the Appellant’s Affidavit and submissions on this issue, is that same is deemed conceded by the Respondent. The court then proceeded to decide the follow-up question, of lawfulness of the “abduction” and rendition of the Appellant to Nigeria without extradition proceedings. The court quoted extensively the provisions of Articles 7, 8 and 11 of the OAU Convention on the Prevention and Combating of Terrorism (ratified on 28th April 2002); and Section 1A(2) of the Terrorism (Prevention) Amendment Act 2013 (which imposes a duty on Nigeria to ensure conformity of its policies with international standards and United Nations Conventions on Terrorism); and Principles and Guidelines on Human and Peoples’ Right while Countering Terrorism in Africa, which specifically state that extraordinary rendition or any other transfer, without due process is prohibited. The court held that by these Conventions, Treaties and Guidelines, the act of the Respondent in removing the Appellant from another country without complying with due process of law for his removal, was in flagrant violation of the relevant 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 – GOVERNOR OF KADUNA STATE v MAKORI (2020) LPELR-50391(CA).
On the issue of Warrant of Arrest issued in Nigeria against the Appellant to answer to Charges in Nigeria, the court held, guided by the provisions in Part 5 of the Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, that the Warrant of Arrest was no justification for circumventing extradition proceedings, or the criminal justice processes. More so, Section 47(1) of the ACJA, with regard to execution of Warrant of Arrest issued in Nigeria, only allows the execution of the warrant within the borders of Nigeria. Our courts apply strictly, Conventions and Treaties entered into by this country – ABACHA v FAWEHINMI (2000) 6 NWLR (Pt. 660) 228. By the extraordinary rendition of the Appellant to Nigeria, there was clear and egregious violation by the Respondent of International Conventions, Protocols and Guidelines to which Nigeria is bound.
On failure of the trial court to evaluate evidence of the Appellant on his extraordinary rendition before making its findings, the appellate court held that by the ruling in question, it is obvious that the trial court failed to consider this issue. Referencing various decisions of the Apex Court on the need for lower courts to pronounce on all issues properly raised before it, the Court of Appeal held that the trial court failed to properly evaluate the Appellant’s case, which resulted in breach of his right to fair hearing.
The learned Justice noted that having resolved the first issue in favour of the Appellant, this should ordinarily render the resolution of other issues academic; nonetheless, given the admonition of the Apex Court for lower courts to pronounce on other issues before it even after resolving the issue of jurisdiction, the Court of Appeal went on to determine the other issues posed for its determination.
Considering issues two and five together, the court held that the purpose of a Charge is to give the accused person notice of the case against him; thus, omission in a Charge will ordinarily not be fatal to its competence. The court held that the counts in the Amended Charge, sufficiently put the Appellant on notice of the case against him.
On the second limb of the issue relating to failure to state the place of commission of the alleged crime as within the territorial jurisdiction of the court, the court relied on the decision in SULAIMAN v FRN (2020) 18 NWLR (Pt. 1755) 180, where it was held that in a criminal case, the best way to resolve the territorial jurisdiction of the Federal High Court is to identify the alleged offences charged and the elements, to see if any of the acts constituting the offences occurred in the particular place where the accused is being charged. The offences alleged here, were committed via broadcasts received and heard in Nigeria. By Section 45(d)(i) of the Federal High Court Act, where it is uncertain in which of several areas or places an offence was committed, the place of trial of such offence may be tried by a court exercising jurisdiction in any such areas or places. The offence here was a broadcast received in Nigeria, and the Federal Capital Territory, Abuja is part of Nigeria. The court accordingly, resolved issues two and five against the Appellant.
Regarding issue three, the court held that the decision of a court is binding until set aside – SADIQ v BEMBE (2021) LPELR-56240(CA). So long as the appeal has not been determined, the order of proscription is valid and subsisting.
On issue four, their Lordships relied on the decision of the Supreme Court in SULAIMAN v FRN (SUPRA), where it was held that although Section 19 of the Federal High Court Act provides that the court shall have and exercise jurisdiction throughout Nigeria, Section 45 of the Act specifically says that offences are to be tried in the area or place where any of the offences were committed. Given that the offence in count 15 was allegedly committed in Anambra State, the Federal High Court in that judicial division is the proper venue and division to determine same.
The decision of the trial court was thereby set aside.
Appeal Allowed; Charges Struck Out; Appellant Discharged.
Representation
Chief Mike Ozekhome, SAN with Benson Igbanoi; Sir Ifeanyi Ejiofor; Mrs. Amauche Onyedum and Osilama Mike-Ozekhome for the Appellant.
D.E. Kaswe (Asst. Chief State Counsel, Attorney-General’s Chambers, FMOJ) with A. Adewunmi-Aluko (Asst. Chief State Counsel) and G.C. Nweze (Senior State Counsel) for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
