Kanu: Untangling the Court Orders

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By Onikepo Braithwaite

Many of us do not understand the difference between the various outcomes of substantive court actions or applications that litigants make during the course of proceedings, criminal cases, or appeals. Some common terms we hear are: convicted; struck out; dismissed; set aside; discharged; discharged and acquitted; appeal allowed; appeal allowed in part and appeal dismissed, and do not fully know what they mean.

Presently, there’s the controversy about the recent outcome of Nnamdi Kanu’s Court of Appeal case: Charge No. FHC/ABJ/CR/383/2015 & Appeal No. CA/ABJ/CR/625/2022 Nnamdi Kanu v FRN in which the Court of Appeal ordered that: “(1) This appeal succeeds and it is allowed. (2) The decision of Nyako J of the Federal High Court, Abuja Division, delivered on the 8th day of April, 2022 retaining Counts 1,2,3,4,5,8 and 15 of the Amended Charge is set aside. (3) The said charges are accordingly terminated and struck out. (4) The Appellant is, in consequence, discharged”. Kanu’s counsel, Chief Mike Ozekhome, SAN maintains that he has been discharged with no criminal charges pending against him, and should be released forthwith. On the other hand, the Attorney-General of the Federation, Abubakar Malami, SAN maintains that Kanu was discharged and not acquitted, and  he has filed an appeal against the Court of Appeal decision to the Supreme Court.

Conviction

The term ‘Conviction’ is simply a court of competent jurisdiction finding a person guilty of a punishable offence, having gone through trial. See the case of Mohammed v Olawunmi & Ors 1993 4 N.W.L.R. Part 287 Page 254 at 287 per Ogundare JSC. A sentence or resulting order, though distinct from a conviction, emanates from it.

Struck Out & Dismissed

When an interlocutory application or action is struck out, it means that it was refused because it wasn’t properly constituted; it was not heard on its merits (not a full trial), that is, that the court did not consider the substantive issues or determine the rights of the parties in the application or suit. Based on a defect in issues of practice, procedure or form, the court refuses the application or matter, and strikes it out because of such defect, and not because it isn’t meritorious. The litigant can therefore, correct the defect and go back to the same court for the same application or matter. For instance, it could be that the proper parties to the action are not before the court. See Oloriode v Oyebi 1984 1 S.C.N.L.R. 390 at Page 400 per Irikefe JSC (later CJN). In Adesokan & Ors v Adetunji & Ors (1994) LPELR-52 (SC) per Ogundare JSC, the Apex Court held that when a court holds that a Plaintiff has no locus standi in respect of a claim, the proper order to make is to strike out such claim, not dismiss it; since the court does not have the jurisdiction to hear such a matter, it follows that it cannot dismiss it on it merits, having not heard it. A matter that is struck out “decides nothing as regards the matter in dispute, but merely gets rid of the pending action or application, leaving the Plaintiff or Applicant at liberty to begin de novo either in the same or subsequent suit…..” – Okeke v Modu 1996 9 N.W.L.R. Part 470 Page 131 at 137 per Coomassie JCA.

On the other hand, dismissal means that a court entertained a properly constituted application or matter, heard and determined it on its merits, determined the rights of the parties and dismissed it, that is, refused it or discarded it. See Ogar v James 2001 10 N.W.L.R. Part 722 Page 621 at 635-636; Odunlami v Nigerian Navy 2013 12 N.W.L.R. Part 1367 Page 20 at 56 per Rhodes-Vivour JSC. In the case of a dismissal, a dissatisfied litigant goes on appeal to a higher court.

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Sometimes, the terms ’struck out’ and ’dismissal’ are wrongly used interchangeably by the court, when they clearly mean two different things. In Oloriode v Oyebi (Supra), this observation was made by the Supreme Court when the learned trial Judge in that case who ought to have struck the matter out based on his finding that the proper parties were not before him in the suit, erroneously dismissed it instead.

Set Aside

To ‘set aside’ simply means to cancel, undo, or nullify,  from the service of a court process which is served contrary to the Rules, to a judgement. A court can set aside its own default judgement, if the Defendant subsequently applies to the court by way of motion, to have it set aside. A default judgement is one given without hearing evidence – for instance, if the Defendant fails to enter appearance and/or defence to a case, and judgement is given in favour of the Claimant; consequent upon the satisfaction of some conditions, the court may set aside its own judgement in order to give the Defendant an opportunity to be heard. See Idam Ugwu & Ors v Nwaji Aba & Ors 1961 A.N.L.R.438.

It is trite law that any court of record can also set aside its own judgement,  in a case where there was a fundamental defect, for example, if the court had no jurisdiction to hear the matter, or the judgement was obtained by fraud. In Mark & Anor v Eke (2004) LPELR-1841 (SC) the Apex Court held that a judgement which is a nullity owing to the failure to comply with an essential provision like service of process, can be set aside by the court who made the order.

Appeal Dismissed & Appeal Allowed 

An appeal is the complaint against the decision of a lower court, and a proceeding in which such decision or part of it complained of, is reviewed by a higher court. It is a continuation of the case at the lower court, and not a fresh one. See Ugwu v State 2013 14 N.W.L.R. Part 1374 Page 257 at 271 per Ariwoola JSC (now CJN). When an appeal is dismissed, it means that the appellate court agrees with the decision of the lower court, and not the Appellant. When the appeal is allowed, it means the appellate court disagrees with the decision of the lower court. See Emeka v Okadigbo 2012 18 N.W.L.R. Part 1331 Page 55 at 90 per Rhodes-Vivour JSC. It sets the decision of the lower court aside, which means that the judgement of the lower court becomes legally invalid. This amounts to a dismissal. See Fagunwa & Anor v Adibi & Ors (2004) LPELR-1229 (SC). An appeal can also be allowed in part, in that only some of the prayers in the appeal are answered, while the decision of the lower court for some of the other prayers will be upheld by the appellate court.

Kanu’s Court of Appeal Judgement 

Firstly, the appeal succeeded and was allowed. This means that the Court of Appeal disagreed with the decision of the lower court, and upheld the position of the Appellant, Nnamdi Kanu. Secondly, the Court of Appeal then went on to set aside the decision of the lower court, which retained the aforementioned counts in the Amended Charge. This means that the aforesaid counts against Kanu, were nullified by the Court of Appeal. However, the charges were struck out, not dismissed, meaning that these particular charges were not heard and determined on their merits, and were struck out based on some procedural defect; and the defect can be corrected and fresh charges filed.

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To be clear, Kanu was not acquitted by the Court of Appeal. He was discharged. In Chief of Air Staff & Ors v Iyen (2005) LPELR-3167 (SC) per Niki Tobi JSC, the Apex Court held inter alia that: “A discharge, in the context means to cancel the original provisional force of a court order by way of a charge or to free from confinement. On the other hand, acquittal means a setting free or deliverance from the charge of an offence by verdict of a court”. A discharge is not necessarily based upon the verdict of the court (it could be akin to striking out).

In simple terms, an acquittal is judgement/finding of not guilty by a court, having gone through trial. In Air Force v Kamaldeen (2007) LPELR-2010 (SC) per Musdapher JSC (later CJN) the Apex Court held that “….an acquittal of an accused person in a verdict, can only be returned on the consideration of the case on the merits”. 

A discharge and acquittal however, is a cancelling of the charge coupled with a finding of not guilty, after evidence has been taken and a full trial held. See Sections 309 of the Administration of Criminal Justice Act 2015 (ACJA).  This has not yet happened in Kanu’s case. While a discharge cancels the charge, Kanu has not been found not guilty (acquittal), as in his case, no charge has been heard on its merits. For example, it could be that the charges were not properly formulated; and all the Prosecution need do, is to make the necessary corrections and refile the updates charges, in the event that Kanu is properly extradited to Nigeria

Kanu’s Extraordinary Rendition 

However, the issue of Kanu, a British citizen’s ‘extraordinary rendition’, that is, his forcible abduction from Kenya to Nigeria without going through the proper process of extradition, is extremely relevant to the proceedings at the Federal High Court and the Court of Appeal. This point was argued by Chief Mike Ozekhome, SAN by way of Preliminary Objection. Section 2(1) of the Extradition Act 1967, makes the process of extradition binding on all countries within the Commonwealth including UK, Nigeria and Kenya. In the case of Lanre Shittu who was forcibly taken to USA by the American Government in connivance with the Nigerian Government to face money laundering charges in December 2000, the District Court in New York freed him on the ground that it lacked jurisdiction to entertain the matter because Nigeria and USA had violated their Extradition Treaty. Is this position also applicable in Nigeria? It would appear so. I would imagine that the logical consequence of an unlawful act, is illegality – you cannot build something on nothing. Extraordinary Rendition is illegal – it goes against several Protocols and Conventions including the International Covenant on Civil and Political Rights, and the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment, a Convention which Nigeria ratified in 2001 (also see Section 34 of the Constitution).

It appears that Kanu’s extraordinary rendition to Nigeria, being an unlawful act, renders all proceedings against Kanu after he was forcibly brought back to Nigeria, including the subsequent proceedings at the Federal High Court and Nyako J’s judgement, null and void for lack of jurisdiction. See Maduloku v Nkemdilim 1962 2 S.C.N.L.R. 341 on lack of jurisdiction. It seems that the Court Appeal shared this opinion, and this was reflected by its setting aside of the charges which Nyako J retained against Kanu from the Amended Charge brought after his rendition to Nigeria, and also by discharging him.

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Pertinent Questions 

The Court of Appeal having discharged Kanu, could it have also ruled that Kanu be returned to Kenya from where he was abducted, in order to avail him the opportunity to fight any extradition proceedings which the Nigerian Government should have instituted against him in the first place? Can Kanu’s discharge from the Amended charges, nullify the charges he was facing before his escape, if the court even lacked the jurisdiction to amend them  or take any other steps after he was brought back by force? Should Kanu’s case return to the ‘status quo ante bellum’, that is, how it was before the war, the war in this context, being his escape from Nigeria in September 2017? In 2017 before his escape, 4 charges were sustained against Kanu and his co-accused persons. They entered a plea of not guilty, Kanu was granted bail on April 25, 2017, and the trial was set down for hearing. The fact that the matter is now on appeal to the Supreme Court, precludes my answering these questions, as they could be considered by the Apex Court.

Conclusion 

Presently, however, by virtue of the recent Court of Appeal decision, Kanu has been discharged with no other charges pending against him; and this is why they are asking for his release forthwith – see Section 35(1) of the Constitution. Some of the Igbo elder statesmen are however, calling for Alternative Dispute Resolution, as opposed to continuing with the legal options stricto sensu. It has been argued that there are mitigating circumstances in why Kanu had to flee – that he didn’t jump bail because he felt like it, he ran for dear life, self-preservation being the first law of nature. When law enforcement descended on his country home in 2017, it was not for a tea party; people were killed there that day. This kind of escape and using false travel documentation to run for dear life, are given consideration in International law.

As usual, the issue of ethnicity and tribalism have not been left out of this matter. It has been argued that if those engaged in terrorist activities in the North can be forgiven, with ‘asò èbi’ uniform in our national colours given to them as gifts (used to pose for group photographs), in the interest of lasting peace, why can’t Kanu be released, albeit conditionally, especially as a gesture of goodwill to the Igbos who feel marginalised (see Section 42 of the Constitution). Kanu could be made to give some undertakings as a condition for his release, like: 1) stop the no-work order on Mondays in the South East; 2) stop the violence in the South East; 3) guarantee peaceful elections in South East in 2023; 4) that he won’t pursue any case against Government for damages here or in Kenya for his abduction; while Government will also drop the charges against him and let him be.

Thisday

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