By Chief Mike Ozekhome, SAN

Introduction

It is no longer news that the federal government has refused to release Nnamdi Kanu, in spite of the Court of Appeal judgment delivered on the 13th of October, 2022, to that effect. The intermediate court had quashed all the 15 counts charge against him and discharged him.

The drudgery journey to this discharge must be fully captured to situate our discourse in correct historical and legal perspectives, and to demonstrate how the Federal Government of Nigeria (FG) has unfortunately become a bully against its own citizens and the entire judicial system.

Background Facts

Nnamdi Nwannekaenyi Okwu Kanu (‘Kanu’), an indigene of Afaraukwu Ibeku, Umuahia North L.G.A of Abia State, was forcibly abducted from Kenya on 19th June, 2021, tortured, blind-folded, thrown into a private detention centre for 8 days, and consequently extraordinarily renditioned to Nigeria. Upon being brought before the trial court on the 29th June, 2021, he was remanded in the State Security Services (SSS) custody. On 13th October, 2022, the Court of Appeal, Abuja Division, discharged him and held that he cannot be detained, tried or otherwise dealt with in Nigeria for, or in respect of any offence allegedly committed by him before his extraordinary rendition from Kenya to Nigeria. This is called the Doctrine of Specialty. Notwithstanding the said order of the Court of Appeal quashing all the counts against Kanu and discharging him, the FG has bluntly refused to release him. It has continued to hold him in the SSS unlawful custody till date without any further fresh order of any court of  law. Instead, it has filed an appeal against the judgment, with a motion for stay of execution. Thus, the detention of Kanu at the behest of the FG has been most unconscionable, arbitrary, whimsical and capricious.

Kanu’s Initial Arrest

Kanu was first arrested on 15th  October, 2015, and arraigned on 23rd December, 2015,before the Federal High Court, Abuja, in charge No: FHC/ABJ/CR/383/2015. He  was remanded in Kuje Correctional Centre, Kuje, Abuja, on the orders of Honourable Binta Nyako; who however later granted him bail on 14th April, 2017, about one and half years later. The charge was then adjourned for hearing to 17th October, 2017.

The Unprovoked Attack on Kanu

While Kanu was enjoying his bail in his ancestral home at Afaraukwu Ibeku, Abia State, and preparing for his trial scheduled for 17th of October, 2017, a joint team of the FG ’s security agents led by soldiers (code-named “Operation Python”), invaded Kanu’s said ancestral home on 14th September, 2017.

During the unprovoked bloody invasion, over 28 innocent and unarmed civilians were murdered in cold blood. However, Kanu who appeared to have been the principal target of the attack, managed to escape death by the whiskers, by sheer act of providence.

Kanu’s Illegal Arrest, Detention and Torture in Kenya

In the course of his forced exile abroad, Kanu entered Kenya on 5th May, 2021, and took up temporary residence therein. He had been legally admitted into Kenya as a full British citizen; not a Nigerian citizen.

Whilst in Kenya, Kanu was, on 19th June, 2021, violently accosted at the Jomo Kenyatta International Airport, Nairobi, Kenya, by about 20  agents of the FG, who abducted him, handcuffed, blindfolded, bundled him into a waiting vehicle, and whisked away to a nondescript private house (not a police station or other official holding facility) somewhere in Nairobi, Kenya.

He was chained to the floor, and subjected to all manners of indignity, torture and inhuman and degrading treatment. He was denied medications for his hypertension and heart condition, in spite of several entreaties to that effect.

Kanu’s Extraordinary Rendition

On the eight day, Kanu’s abductors brought him out of the house, put him in a car, drove him straight to the tarmac of Jomo Kenyatta  International Airport, evading the Kenyan immigration. He was forcibly bundled him into a waiting private jet and smuggled into Nigeria.

No Extradition Hearing Before Extraordinary Rendition

During this horrific experience in Kenya, Kanu was never subjected to any extradition hearing or proceedings before he was extraordinarily renditioned to Nigeria.

Kanu’s Second Arraignment and Remand

On 29th June, 2021, Kanu was brought before the trial court, without any notice to his counsel or any legal representation whatsoever. The court remanded him in the SSS custody.

The Prosecutor who was obviously never prepared for any real trial, made successive amendments on 7 occasions to the earlier five count charge; finally settling down to a 15-count charge as amended on  17th January, 2022.

The Notice Of Preliminary Objection and Striking Out of 8 Counts

This led to Kanu’s Counsel filling a Notice of Preliminary Objection challenging the jurisdiction of the court to try Kanu on the alleged 15 count charge. The objection was fiercely contested by the FG and Kanu’s lawyers, leading to the trial court striking out 8 of the 15 counts on 8th April, 2022.

In the said ruling, the trial court failed to make any findings or pronouncements on the first issue  for its determination, which bordered on whether the trial court was vested with jurisdiction to try Kanu, having regard to his extraordinary rendition from Kenya to Nigeria.

Dissatisfied with this decision of the trial court to retain 7 counts, Kanu’s lawyers appealed to the Court of Appeal.

The Court of Appeal Judgment Against the Retention of 7 Counts

While delivering its judgment on  13th October, 2022, the Court of Appeal held that Kanu’s extraordinary rendition which was never denied by the FG amounted to a gross violation of his of fundamental rights; and constituted a flagrant and egregious violation of all known domestic and international laws and treaties on extradition to which the FG is a party; and thus, bound by them.

The court held that by the nature of the extraordinary rendition, the trial court had no jurisdiction to try the Applicant on the retained 7 counts of the amended 15 count charge. Held the court, “the consequence of this section, I hold, is that the Respondent (sic) 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…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 the charges against the Appellant and I so hold.”
The court therefore terminated and struck out charge No: FHC/ABJ/CR/383/2015, which had been pending against Kanu before the FHC since 2015; with Kanu being discharged. The FG has since kept Kanu in SSS captivity, notwithstanding this judgement; and later added salt on to injury filing an appeal and asking for a stay of execution!

Kanu’s Critical Health Condition

Meanwhile, Kanu suffers from a serious medical condition that defies the medical facilities available at the SSS. Indeed, his pre-existing heart and poor health conditions were the very grounds upon which the trial court had earlier granted him bail in 2017. These health challenges became aggravated after his abduction in Kenya, during which time he was subjected to various forms of torture and inhuman and degrading treatment; all of which worsened his health condition. He even suffered a mild cardiac arrest before he was smuggled back into Nigeria.

He has since been denied access to his specialist Cardiologist who had, before his abduction in Kenya, visited him every other week for medical examination and treatment.

Kanu is being held at the SSS in a solitary confinement and subjected to daily mental and psychological torture. He is denied his freedom to worship or even mix with, or greet other inmates. Kanu’s potassium is fast depleting and the FG doctors are perplexed, as they have no solution. Yet, they still keep him, increasing his dosage; doing trial and error, and using him as a guinea pig. Even the July 10, 2022 ruling of the United Nations Working Group on Arbitrary Detention ordering the FG to release Kanu forthwith and pay him damages, has since been ignored by the FG.

The Law

Kanu’s Continued Detention is Illegal and Unconstitutional

It is legally untenable and infradig for the FG which is in clear defiance of the Court of Appeal’s order to release Kanu, to approach the same court to ask for an order staying execution of a citizen’s liberty. A similar scenario played out in NIGERIAN ARMY V GLORIA MOWARIN (1992) 5 NWLR(Pt 235) p 345(CA). The brief facts are that General Ibrahim Badamasi Babangida (IBB) had used his powers under the State Security (Detention of Persons) Decree No 2 of 1985 to detain relatives and acquaintances of persons alleged to have participated in the April, 1990 Major Gideon Orkah coup, which sought to overthrow IBB’s military junta by a coup de’tat. Gloria Mowarin, a girlfriend of a suspected coup finanicier, who was detained along with others, approached the Lagos State High through his counsel, Dr Olisa Agbakoba (now SAN), asking the court to order her release. Heavily pregnant at the time of her arrest and detention, Mowarin had a miscarriage in her 7th month, due to  the physical, mental and psychological ordeal she had gone through. A Lagos High Court that heard her case,discharged her, and ordered her immediate release from detention, along with others; at least,on humanitarian grounds. Rather than obey the court order, the FG filed an appeal to the Court of Appeal and also filed a motion for stay of execution. The intermediate court, in very strong words, deprecated the stance of the FG whom it viewed as contemnors; and held that a fragrant flouting of a court order by the executive (FG) in Kanu’s case, is an invitation to anarchy. Justice Atu Kalgo (JCA, as he then was), held as follows:

“Now, the position in this matter is that the Applicants are flagrantly flouting an order of court by refusing to release the Respondent. In other words, they are in contempt of an order of the court. The same contemnors have come with very unclean hands supplicating before this court for a grant of a favour that would, as it were, legalise their contempt. I would liken the Applicants to a sinner who prays to God to assist him in the commission of his sins. Just as God will not listen to such a supplication this court will not grant such a prayer.”

On his part, Justice Owolabi Kolawole, JCA, stated thus:

“But the question which I must ask is whether when a person has been discharged in a criminal proceedings, the prosecutor having appealed can bring an application for the execution of the judgment to be stayed? I am of the firm view that an application in such proceedings for a stay of execution will be incompetent. In the present case, where the trial Judge has ordered the release of the Respondent who has been held in prison custody the present application for a Stay of Execution is absolutely incompetent. The prayer of the Applicants for a Stay of Execution pending the determination of the appeal, is an invitation not only to reverse the decision of the learned trial Judge, but it is also to maintain that the order of detention is lawful.”

Also, in Military Governor of Lagos State v Ojukwu ( 1986) All N.L.R,233, the apex court held that it is inconceivable that a party in contempt of a valid court order will have the effontery to approach a higher court with soiled hands to taunt the court by asking it to grant the equitable remedy of staying execution of the judgment just appealed, without first obeying it. The court will not accede to such a request.

It is trite law that the essence of the fundamental rights provisions enshrined in the 1999 Constitution is to protect the citizen’s rights from abuse and violation by authorities and persons. See JIM-JAJA VS C.O.P. RIVERS STATE (2013) 6 NWLR (PT 1350) 225 Pg. 230 Para 2.

In ANOZIE V IGP (2016) 11 NWLR (PT. 1524) 387 PGS 389-390, the Court of Appeal held:

“The Courts have always leaned in favour of the preservative of the Fundamental Right of the Citizen whether as regards life or property and therefore will not lightly drive away from the judgment seat any citizen with a complaint that his right has been infringed”.

The Supreme Court, in EMEKA V OKAFOR (2017) 11 NWLR (PT. 1577) 410 Pg. 423 Para 1, held that:

“By virtue of Section 46(1) of the 1999 constitution (as amended) and Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, any person who alleges that any of the provisions of Chapter 4 of the Constitution to which he is entitled to has been, is being or likely to be contravened in any state in relation to him may apply to the High Court in the State for redress. These are Provisions which entitle a person to enforce his Fundamental Rights where he feels his right is contravened or being or likely to be contravened”.

Indeed, the apex court, coram Muhammed JSC, in ADETONA & ORS V IGELE GENERAL ENTERPRISES LTD (2011) 7 NWLR (PT. 1248) 535, dilated on the law as follows:

“Section 46 of the Constitution provides (1) any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress….Therefore, it is my (sic) understanding that where a person’s fundamental right is breached, being breached or about to be breached that person may apply under section 46(1) to the Judicial Division of the Federal High Court in the state or High Court of the State or that of the federal capital territory in which the breach occurred or is occurring or about to occur…”.

In JIM-JAM V COP (2011) 2 NWLR (PT. 1231) 375 PG 382 PAR A, the court held thus:

“A Nigerian citizen is absolutely entitled to his freedom and cannot be deprived of it until and unless due process of law is meticulously observed”.

In the said JIM-JAM V COP (2011) supra PG 382 PARA. 10, the intermediate court held thus:

“By virtue of section 35(1) (c) of the 1999Constitution, the right to personal liberty is a basic fundamental right which cannot be denied or deprived save in any of the three circumstances enumerated in paragraph (c) of sub-section 1. Even at that, due process of the law must be followed.”

Furthermore, Articles 5 and 6 of the African Charter On Human and Peoples Rights, respectively accord the individual the fundamental rights to dignity; against degrading punishment; and against deprivation of liberty and freedom of movement.

Section 35 (1) of the 1999 Constitution also guarantees the liberty of the citizen, and provides that no person “shall be deprived of such liberty save in accordance with a procedure permitted by Law”.

In similar vein, section 34(1) of the 1999 Constitution guarantees a citizen’s fundamental right to dignity of the human person,and against being subjected to “torture or to inhuman or degrading treatment”.

The Court of Appeal after hearing Kanu’s appeal as argued by his team of lawyers led by Dr Mike Ozekhome, SAN, CON, did on 13th October, 2022, discharge Kanu of the remaining 7 counts, even as it affirmed the quashing of the earlier 8 counts; and thus the entire 15 count charge pending against him before the Federal High Court, Abuja. The Court of Appeal further held that “the Applicant 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”. This judgement ought to have been complied with immediately by the FG through a release of Kanu. However,the FG has chosen to continue its illegal, unlawful and unconstitutional detention of Kanu since 13th October, 2022,when is release was ordered, in clear violation of Kanu’s rights to liberty, freedom of movement and dignity of the human person. There is nothing reason whatsoever for the FG’s continued detention of Kanu in the custody of the SSS till date, other than sheer exhibition of state impunity. It is even more egregious and unconscionable having regard to the fact that the Court of Appeal unanimously barred the FG from detaining or trying Kanu on any of the quashed the 15-count charge. Thus, Kanu’s continued unlawful detention does not within the exceptions permitted under section 35(1) of the Constitution for the deprivation of a citizen’s right to personal liberty.

In the celebrated cases of the FEDERAL REPUBLIC OF NIGERIA Vs IFEGWU (2003) 15 NWLR (PT. 848) AT 133 and GANI FAWEHENMI VS ABACHA (1996) 5 NWLR (PT. 446) at 198, the apex court enjoined all courts to ensure that the fundamental rights of citizens provided under Chapter IV of the Constitution are firmly secured and enforced. This position of the law has not changed.

In EKPU VS ATTORNEY GENERAL OF THE FEDERATION (1998) 1 HRLRA (P421, PARA A), the court held, on the meaning and connotation of dehumanization, thus:
“The very moment a person’s freedom is denied, that person is automatically dehumanized, thus, it is not only when a person is said to be tortured. The moment the cherished freedom of a person is said to be taken away from him that amounts to torture. In this case it was immaterial that the Applicant was not physically beaten or assaulted or that their detention lasted for few days. The mere fact of a breach of their constitutional rights is actionable”.

It is the duty of the court to protect the rights of a citizen even before they are infringed upon; and more especially as in the present Kanu circumstances, where his rights have already been wantonly breached and are still being continually and  brazenly violated by the FG, in flagrant disregard of the Court of Appeal ‘s judicial pronouncement. See ONDO STATE BROADCAST CORPORATION Vs. ONDO STATE HOUSE OF ASSEMBLY (1985) 61 NCLR 333 at 337.

Ubi Jus Ibi Remedium

A person, such as Kanu whose detention has been shown to be illegal and unconstitutional is entitled to the award of compensatory damages for the infringement of his fundamental rights as guaranteed by the Nigerian Constitution and the African Charter on Human and Peoples Rights. It is simply a case of ‘ubi jus ibi remedium’ (where there is a right, there is a remedy). This principle of law was emphasized by the Supreme Court in BELLO V ATTORNEY GENERAL OF OYO STATE (1986) 12 SC 1.

The case of MINISTER OF INTERNAL AFFAIRS V SHUGABA (1982) 3 NCL 915 at 953, is also on song here.

It is trite that any trespass to the person however slight, gives a right of action to recover, at any rate nominal damages. Even where there has been no physical injury, substantial damages may be awarded for the injury to a man’s dignity and for discomfort or inconvenience occasioned thereby. See YAHAYA V. NPF, PLATEAU STATE COMMAND (2018) LPELR-46045(CA).

In ARULOGUN V C.O.P LAGOS & ORS (2016) LPELR-40190(CA), the Court of Appeal held as follows:

“The award of damages in case of a breach of fundamental right must be such as would constitute a fair balanced estimate of the injuries suffered by the Applicant as due to the Respondent’s unlawful conduct.”

Section 35 (6) of the 1999 Constitution provides for the payment of compensatory damages to a citizen who is unlawfully arrested and illegally detained.

Our Humble View

Our humble view is that where a person, such as Kanu, establishes that his rights have been violated by the actions or inactions of the  government, as found by the Court of Appeal in the instant case, he  entitled to compensatory damages from the FG as penalty for the wrong. See also BELLO VS A-G OYO STATE (Supra); JIMOH VS A-G FEDERATION (1998) IHRLE Pg 513 at 523 para A-B; and, CHIEF CHINEDU EZE & ANOR VS IGP & 4 ORS (2007) CHR @ 43.

In JULIUS BERGER (NIG) PLC V. IGP & ORS (2018) LPELR-46127(CA), the Court of Appeal with great erudition, held as follows:

“The issue of infringement of the Fundamental Rights of a person is in itself fundamental. This is because; man is made in the image and likeness of God. By simple interpretation, this connotes that we are mini gods. Our beings become sacrosanct and insulated. Not to be treated with levity and anyhow. The human being deserves respect to his person, soul and spirit.

Therefore, when a person is subjected to being treated like trash, his dignity and self-esteem is done away with. In a situation where this obtains, whoever is responsible for that infraction of the Fundamental Rights of that being must be ready to face the music by way of compensation in exemplary damages. The life of man is priceless.

It is no gain saying that the economic downturn is endemic and keeps going down.
…Time has come in this country to cry aloud against these nefarious activities. The average man on the streets of Sango, or Ikorodu, or Egbu Street in Owerri should be able to walk the streets without fear of being molested by powers that be.

The issue of award of damages is discretionary and I am tempted not to interfere with the amount of damages awarded the 5th Respondent/Cross Appellant. But, with respect, the sum of N25 Million is a far away from the amount claimed by the Respondent/Cross-Appellant. I would award the sum of N30 Million because of the dire economic situation right now. It was bad enough in the year 2013 when judgment was delivered in this matter. It is even worse today economically.

In the circumstances, I hereby award the sum of N30 million to the Respondent/Cross-Appellant instead of the N25 million awarded by the Court below”.

Following the state-sponsored persecution, blatant prejudice, untold hardship, and serious embarrassment Kanu has serially suffered in the hands of the FG  throughout the period of his unlawful detention, he is eminently entitled to be released forthwith and unconditionally as already directed by the Court of Appeal. He is also entitled to, as a necessary corollary, to payment of full compensatory damages which ought to be in the form of punitive, exemplary and aggravated damages. See the cases of ODIBA v. AZEGE (1998) LPELR-2215(SC); G. K. F. INVESTMENT (NIG) LTD v. NITEL PLC (2009) LPELR-1294(SC); WAEC v. HENRY (2015) LPELR-40995(CA); THINK VENTURES LTD & ORS v. SPICE AND REGLER LTD & ANOR (2020) LPELR-50296(CA); ROOKES V. BARNARD (No 1) [1964] UKHL 1 (21 January 1964). Kanu is also entitled to public apology from the government, to mitigate the shame, derision, odium and obloquy he has thereby suffered. See IGWE OKOLO v. AKPOYIBO & ORS (2017) LPELR-41882(CA), the Court of Appeal held:

“In the light of the fact that the Appellant is entitled to damages for the proven violation of his fundamental right to personal liberty occasioned by his unlawful detention beyond the period stipulated in the Constitution, I will in exercise of the powers of the Court under Section 15 of the Court of Appeal Act award the Appellant monetary compensation, in addition to the written apology ordered by the Court for the said infraction of his fundamental right. In assessing the compensation payable to the Appellant; cognisance should be taken of the pain and suffering occasioned to the Appellant by the deprivation of his personal liberty in consequence of his detention as well as the indignity and emotional stress arising from the said detention. The amount to be awarded as compensation must reflect the abhorrence of society and the law for ODOGU vs. AG FEDERATION (1996) LPELR (2228) 1 at 15-16”.

Conclusion

The FG has mismanaged two great opportunities to have a safe landing by releasing Nnamdi Kanu. First, when the UN Working Group against Arbitrary Detention ordered it to do so in its ruling on 20th July, 2022.

Second, when the Court of Appeal quashed all the 15 count charge against him and prohibited any court in Nigeria from trying him on the offences he was arraigned for before his extraordinary rendition from Kenya to Nigeria in June, 2022.

The FG should stop being a bully against its own citizens in gross defiance of valid and extant court orders. Such acts will undoubtedly lead to a breakdown of law and order; and to a situation of chaos and anarchy, wherein frustrated citizens are invariably invited to resort to self-help, viet armies. That will be dangerous for the Government and the people.