The lead counsel of Nnamdi Kanu has filed a suit at the appeal court seeking for the reinstatement of his bail that was disrupted by federal troops.
Below is the details of the suit…
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1.0. INTRODUCTION
1.1. This is the Appellant’s Brief of Argument filed pursuant to the Notice of Appeal lodged on the 5th day of June, 2024 against the ruling of the trial Judge delivered on the 20th day of May, 2024 refusing to restore/reinstate the Appellant’s Bail erroneously revoked on the misrepresentations of the Respondent that the Appellant jumped bail. The learned trial Judge refused to restore the bail or even order home detention in spite of the affidavit evidence and the pertinent finding of the Supreme Court before the Court.
1.2. The Order subject of the instant appeal is at pages 224-225 of the Record of Appeal while the Notice of Appeal is at pages 234-243 of the Record of Appeal. The Notice of Appeal bears 4 grounds from which the issues herein have been distilled.
2.0. SUMMARY OF FACTS:
2.1. On or about 14th October 2015, the Appellant was arrested and charged, with three other suspects, for the offences relating to managing an unlawful society and other offences which were later dropped/struck out and amended to offenses relating to conspiracy, treasonable felony, false declaration of imported goods and defamation of the President. Upon arraignment, the Appellant was granted bail on the 25th day of April, 2017 by the trial court on grounds of ill health. See Paragraph 2.03 of the Respondent’s Brief of Argument before the Supreme Court in SC/CR/1361/2022 at page 7 of the Additional Record of Appeal.
2.2. The Appellant while on bail and in compliance with the terms of bail was in Afiaraukwu Ibeku, his hometown in Abia State when the Respondent devised a means of unlawfully assassinating the Appellant through a lethal military operation code named “Operation Python Dance” levied by the armed forces of the Respondent in the said Appellant’s hometown.
2.3. By providence, the Appellant escaped assassination though casualties were recorded in the operation. The Appellant was later awarded One Billion Naira in damages for this military operation and the judgment was on record before the trial court and later the Supreme Court. In the interim, and because of Appellant’s flight to safety, the Respondent deceptively approached the trial Court for the revocation of the Appellant’s bail on the ground that the Appellant had jumped bail. The order as sought was made on the 28th day of March, 2019.
2.4. Pursuant to the order revoking the Appellant’s bail, the Appellant was abducted by agents of the Respondents and extraordinarily renditioned from Kenya to Nigeria in June 2021 and on the 20th day of October, 2021, the erstwhile charge was amended to try the Appellant separately from others with whom the Appellant was initially charged. The Respondent further amended the charge to include offences relating to terrorism, on the strength of which the Appellant filed a Notice of Preliminary Objection on the 19th day of January, 2022. The validity or otherwise of the charges/counts vis-à-vis the extraordinary rendition of the Appellant was contested up to the Supreme Court and in its judgment, the Supreme Court, though allowed the appeal in favour of the Respondent, agreed with the Appellant that the rendition was unlawful and in particular- that the Appellant did not jump bail but was justified in running for his life given the circumstances of the Operation Python Dance and stated that the revocation of the Appellant’s bail was erroneous and made the impartiality of the trial Court suspicious. See EXHIBIT MNK 1 at pages10 – 14 and 19-23 of the Record of Appeal. The Appellant was also, by the Federal High Court, awarded Five Hundred Million Naira for the said extraordinary rendition and illegal detention. The judgment was of record before the court below.
2.5. Flowing from the findings of the Supreme Court on the wrongfulness of the revocation of the Appellant’s bail, the Appellant filed a Motion on Notice seeking that the Order of the trial Court revoking the bail of the Appellant be set aside, his bail restored or the Appellant be granted alternative place of custody (home detention) as against the Department of State Security detention facilities where the Appellant’s rights to counsel and facilities to prepare his defence were being flagrantly violated. See Pages 3-182 of the Record of Appeal.
2.6. The Respondent opposed the application by its Counter Affidavit and written address seen at pages 183-198 of the Record of Appeal. The Appellant filed Further Affidavit in support of the application for setting aside the bail revocation order and restoration of the bail. See pages 199-207 of the Record of Appeal.
2.7. On the 20th day of May, 2024, the trial Court delivered its ruling refusing to set aside the order revoking bail, restoring bail or transferring the Appellant to an alternative place of custody. See Pages 107-108 of the Additional Record of Appeal.
2.8. It was against the above decisions of the trial Court that the Appellant lodged the instant appeal.
3.0. ISSUES FOR DETERMINATION
3.1. The Appellant formulates the following issues for the determination of this appeal, to wit:
- Was the trial court right to refuse the prayers for the setting aside of the order revoking Appellant’s bail and restoring the bail on the purport that the trial Court had previously found that the Appellant had jumped bail, forfeited the sureties bonds and Appellant’s sureties having been discharged and proceeded to appeal, the trial court must await the outcome of the appeal when it was brought to the attention of the trial court that the revocation of the Appellant’s bail was found by the Supreme Court of Nigeria to have been obtained by deception and made in error and when the sureties had not, in truth, forfeited their bail bonds and had not been discharged? (Distilled from Ground 4 of the Notice of Appeal).
- Whether in the circumstances of the instant case, the trial Court rightly held that the Department of State Security detention facility is a proper or safe place of custody as against transferring the Appellant to an alternative place of detention given the affidavit evidence placed before the trial court? (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).
4.0. LEGAL ARGUMENTS/SUBMISSIONS ON THE ISSUES
4.1. ISSUE ONE:
“Was the trial court right to refuse the prayers for the setting aside of the order revoking Appellant’s bail and restoring the bail on the purport that the trial Court had previously found that the Appellant had jumped bail, forfeited the sureties bonds and Appellant’s sureties having been discharged and proceeded to appeal, the trial court must await the outcome of the appeal when it was brought to the attention of the trial court that the revocation of the Appellant’s bail was found by the Supreme Court of Nigeria to have been obtained by deception and made in error and when the sureties had not, in truth, forfeited their bail bonds and had not been discharged? (Distilled from Ground 4 of the Notice of Appeal).”
4.2. My Lords, we humbly submit that the learned trial Judge was manifestly wrong to have refused the prayers for the setting aside of the order revoking Appellant’s bail and restoring same on the purport that the trial Court had previously found that the Appellant had jumped bail, forfeited the sureties’ bonds and Appellant’s sureties having gone on appeal over forfeiture of their bonds, the trial court would therefore await the outcome of the appeal. Our submission is predicated on the facts that it was brought to the attention of the trial court that the said previous revocation of the Appellant’s bail was later found by the Supreme Court of Nigeria to have been made in error and was even obtained by the deception of the Respondent, such that the Supreme Court held that the Appellant did not jump bail.
4.2. My Lords, for your Lordship’s ease of reference, the prayers in the Appellant’s Motion (subject of the instant appeal) are contained at Page 3 of the Record of Appeal while the grounds for such application are at page 4 of the Record and the decision of the Supreme Court on the purported jumping of bail by the Appellant is indicated in Paragraphs 5 and 6 of the grounds. We further refer Your Lordships to Paragraphs 4 (v-ix) and 5 of the supporting Affidavit seen at pages 6, 7 and 8 of the Record of Appeal.
4.3. Further, the particular decision of the Supreme Court on the alleged issue of the Appellant having jumped bail and upon which his bail was revoked and the sureties summoned to show cause why their bail bonds should not be forfeited to the Federal Government is can be found in Paragraph 4 (vii) at page 8 of the Record of Appeal which states thus:
“I have carefully read and considered all the issues raised for determination in this appeal by the respective parties in their briefs and the arguments in respect of them. The Respondent was on bail and therefore in custody of the law when his home was illegally invaded by heavily armed military officers of the Appellant, causing him to flee from his home and the country to secure his life. In the face of such an attack, it was reasonable for him to flee to secure his life and physical wellbeing. That is what any normal and reasonable human being would do in that circumstance to preserve his life and physical wellbeing. It is glaring that the consequences of that attack were intended or foreseeable. That is not arguable. The Appellant’s officials knew that the invasion of the Respondent’s home caused him to run away to secure his life and physical wellbeing. Yet during proceedings in the pending criminal case against him, they applied for his bail to be revoked, that a warrant for his arrest be issued and his sureties forfeit their respective bail bonds and that his trial in his absence be ordered because he had jumped bail and is not in the country to stand trial. But they knew that their illegal actions made it impossible for the respondent to be in court for his trial. In a situation such as this one, where the prosecution has taken extrajudicial actions against the defendant in a pending criminal case brought by it and made it impossible for the defendant who is on bail to be in court for his or her trial, it is wrong to treat such a defendant as having jumped bail in the sense that he is running from prosecution or running to avoid prosecution in the pending criminal case in respect of which he was granted bail. The respondent did not intentionally and knowingly fail to appear in court. It was therefore wrong and malicious for the appellant that had caused the respondent to flee from his home and country to secure his life and that had therefore caused his unavoidable absence from court, to inform and thereby deceived the trial court that the respondent had jumped bail. On the basis of this deception, the appellant applied to the trial court for an order revoking the respondent bail, forfeiting the amount securing the bail bondof his sureties and order issuing a bench warrant for his arrest. It is glaring from the record of proceedings in the trial court that it granted the said orders prayed for by the appellant with knowledge of the fact that the respondent’s absence from court was caused by the invasion of his home by army officers of the appellant. Therefore, the trial court knew that the said extra judicial and illegal actions of the appellant made it impossible for the respondent to be in court for his trial, that the respondent’s absence is not intentional or deliberate absent and that the respondent is not running from prosecution or running to avoid prosecution. In the light of the foregoing, the trial court acted unfairly and without rational and legally justifiable basis by its decision revoking the respondent’s bail, forfeiting the amount securing his bail bond of his sureties and its order issuing a bench warrant for his arrest. The orders were made on the basis of the false assumption that the respondent jumped bail”. See pages 7 and 8 of the Record of Appeal and pages 10-13 of Exhibit MNK 1 seen at Pages 19-22 of the Record of Appeal.
4.4. To be sure, the foregoing finding of the Supreme Court was copiously brought to the attention of the trial Court but the trial Court still persisted refused to restore Appellant’s bail on the perversive assumptions that:
- That the trial court had during its previous decision revoking the Appellant’s bail, held that the Appellant had jumped bail;
- That the sureties had forfeited the sureties’ bonds and thus discharged from their bonds; and
- That the Appellant’s sureties had gone on appeal over the forfeiture of their bonds, hence the trial court must await the outcome of the appeal.
4.5. We submit that the premises upon which the trial Court refused the application were manifestly wrong and thus unsustainable. In the first instance, the finding of the trial Court that the Appellant had jumped bail was later, by a higher court (the Supreme Court), found to be wrong and borne out of deceit and false representations made by the Respondent. And in making this finding the Supreme Court gave detailed reasons why the course taken by the Appellant in fleeing the Appellant’s hometown and country was reasonable: to secure his life and physical wellbeing.
4.6. We submit that the finding of the Supreme Court as indicated above constitutes decision by which the trial Court is bound and which does not permit the trial Court to maintain that its previous finding that the Appellant jumped bail subsists, more particularly when there is no appeal by the Appellant against the said previous revocation of the Appellant’s bail by the trial Court. To be sure, the said pending appeal was by the Appellant’s sureties and what they appealed against was to stop the trial court from taking the steps to forfeit their bail bonds, not that the bail bonds were already forfeited as the trial court erroneously held.
4.7. My Lords, in addition to the forgoing, it is our respectful submission that the determination made by the Supreme Court on the revocation of Appellant’s bail ought to be given effect by the trial Court. Section 318 (1) of the Constitution provides that: “decision” means, in relation to a court, any determination of that court and includes judgement decree, order, conviction, sentence or recommendation”. [Emphasis is ours]. Further, Section 287(1) of the Constitution states that: “The decisions of the Supreme court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”.
4.8. In STATE V. YANGA (2021) LPELR-53086(SC), it was held that: “This appeal illustrates the fundamental importance of the principle of stare decisis in our jurisprudence. “Stare decisis” is defined in Black’s Law Dictionary, 8th Edition, at Page 1443 thus: “to stand by things decided. The doctrine of precedent under which it is necessary for a Court to follow earlier judicial decisions when the same points arise again in litigation. The rule of adherence to judicial precedent finds its expression in the doctrine of stare decisis. The doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudication, unless it be for urgent reasons and in exceptional cases…“ See: Adegoke Motors Ltd. Vs Adesanya (1989) 3 NWLR (Pt. 109) 250; Mailantarki Vs Tongo (2017) 5 – 6 SC (Pt. II) 132; University of Lagos Vs Olaniyan (1985) LFELR – 3419 (SC) @ 26 C – F.” Per KEKERE-EKUN, J.S.C (Pp. 15-16 paras. D).
4.9. We submit that the finding of fact made by the Supreme Court to the effect that the Appellant did not jump bail and that the revocation of the Appellant’s bail was made out of deceit and misrepresentation by the Respondent remains binding and sacrosanct such that the trial Court cannot be allowed to overrule or ignore such finding of fact. This approach of the trial court maintaining that it had found that the Appellant jumped bail without recourse to the finding and conclusion of the Supreme Court amounts to judicial rascality and impertinence and therefore perverse.
4.10. In ARDO V. NYAKO & ORS (2014) LPELR-22878(SC), it was advisedly held that: “…Where the lower Courts are encouraged not to follow the previous decision(s) of this Court on similar facts, such an encouragement is designed to promote anarchy, chaos and judicial rascality which is not the design or purpose of the principles of the Rules of Law. It follows therefore that the lower Courts are bound in law to follow the previous decision(s) of this Court on similar facts to the case under consideration by them…” Per ONNOGHEN, J.S.C (Pp. 43-44 paras. C).
4.11. We submit that the trial court cannot ignore the finding of fact made by the Supreme Court on the same issues of bail revocation and was therefore bound to accord unqualified respect to the finding made by the Supreme Court. Additionally, the decision of the trial Court that the Appellant’s sureties had forfeited their bail bonds is perverse and not supported by the Record of Appeal. My Lords, the trial Court only made an interim order on the 14th day of November, 2018 that the sureties deposit their bail bonds in court within 2 months or the bond would be forfeited and adjourned to the 28th March, 2019 for the hearing of the motion on Notice challenging the summons or show cause order issued to the Sureties. See Orders 2 and 3 of the trial Judge at page 223 of the Record of Appeal.
4.12. My Lords, the said orders 2 and 3 of the Orders of the trial Court were appealed against by the sureties on the 22nd day of November, 2017. The Notice of Appeal is at pages 226-233 of the Record of Appeal and it speaks for itself on the actual reasons for the appeal, which are diametrically different from what the trial court had concluded that led it to fatally misdirect itself on the reasoning behind its refusal to reinstate Appellant’s bail.
4.13. My Lords, it is therefore glaring that the Appellant’s sureties did not forfeit their bonds. More significantly, the appeal was on the making of the interim orders against the sureties without hearing the motions of the sureties seeking to show cause why their bonds should not be forfeited. As a matter of fact, to show cause why a bail bond should not be forfeited is not one and the same as the bail being actually forfeited.
4.14. We therefore submit that the decision of the trial court that the Appellant’s sureties had forfeited their bail bonds and had appealed against the orders for forfeiture was wrong, perverse and occasioned miscarriage of justice against the Appellant since the trial Court acting on the said perversion held that the trial Court should await the outcome of the appeal.
4.15. In STATE V. SOLOMON (2020) LPELR-55598(SC), it was held that: “It must be reiterated that appeals succeed where the judgment appealed against is shown to be perverse and has occasioned miscarriage of justice. A perverse decision of a Court is one that is persistent in error, one that is unreasonable or different from what is required. It is that decision wherein the Judge took into account extraneous matters or ignored the obvious. It is a settled principle of law that where an appellant establishes his complaint that the decision he appeals against is completely unsupported by evidence and no reasonable Tribunal would have so decided the issue, such a decision would be regarded as perverse and set aside. See Ramonu Atolagbe v. Korede Olayemi Shorun (1985) LPELR – 592 (SC), (1985) 1 NWLR (Pt. 2) 360 and Nafiu Rabiu v. Kano State (1980) 2936 (SC), (1980) 2 NCLR 293.” Per MUHAMMAD, J.S.C (Pp. 28-29 paras. E).
4.16. We submit that assuming however that the sureties had appealed against actual forfeiture or completed of their bonds (which is not conceded and as the Record of Appeal contradicts), the sureties’ appeals are markedly different from that of the Appellant and such appeals would not affect the vires of the trial Court to set aside its erroneous orders revoking the Appellant’s bail. This is because the Appellant’s sureties appeal against the interim order to show cause why the bonds should not be forfeited has no damning impact on the restoration of the Appellant’s bail. The two cases are different.
4.17. We further submit, as a corollary to the foregoing, that the consideration of the purported pending appeals by the Appellant’s sureties as factors that militated against the granting of the orders setting aside the revocation of the Appellant’s bail and restoring same makes the decision perverse for which Your Lordships should intervene and rectify.
4.18. In UGBOJI V. STATE (2017) LPELR-43427(SC), it was held that: “The decision is perverse, if among other things, the Court took into consideration matters extraneous to the facts in issue, or matters which it ought not to have taken into consideration. See ATOLAGBE v. SHORUN (1985) NWLR (pt.2)360. When a Court goes out of the proceedings to import and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See MISR v. IBRAHIM (1975) 5 SC 55; IROLO v. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN v. OZOKWERE (2013) LPELR – 21897 (SC).” Per EKO, J.S.C (Pp. 57 paras. C).
4.19. We submit with humility that the whole essence of restoring the bail of the Appellant in the circumstances is simply to allow him temporary pre-trial freedom and not to discharge the Appellant such that the strenuous oppositions thereto in the face of the finding of the Supreme Court and the strict posture of the trial Court is unnecessary. See SULEMAN & ANOR V. COP PLATEAU STATE (2008) LPELR-3126(SC) (Pp. 19-20 paras. E).
4.20. We submit that the trial Court could even grant the Applicant new bail on the same or different terms, notwithstanding that the Applicant’s previous applications for same were refused, since application for bail founded on different grounds and circumstances could be variously entertained. Suffice it to say that regardless of whether the bonds were forfeited and the sureties discharged (which is in fact not the case), the pendency of an appeal by the sureties (not the Appellant) against such or the attempt to forfeit their bonds (which is in fact the true state of affairs) is not an estoppel against restoration of Appellant’s bail, the revocation of which the Supreme Court held against, especially as the Administration of Criminal Justice Act 2015 (ACJA 2015) and/or the discretion of the trial Court permits the substitution of recognizances, bonds and sureties. Section 178 of ACJA 2015 provides that: “Where a surety to a recognizance becomes insolvent or dies or where a recognizance is forfeited, the Court may Order the Defendant from whom the recognizance was demanded to furnish fresh security in accordance with the directions of the original Order and if the security is not furnished the Court may proceed as if there had been default in complying with the original Order.”
4.21. In the case of OKORONKWO V. FRN (2013) LPELR-22564(CA), it was held thus: “A Court, in the course of criminal proceedings before it has the power to revoke for good reasons, the bail of the accused or admit to bail an accused it had earlier refused to admit to bail. This is an inherent power it can exercise to control proceedings before it and ensure a fair trial process. The principle underlying the exercise of this power during the course of the proceedings, is that, if the Court becomes aware of the existence of circumstances or new circumstances arise justifying the revocation of the bail of the accused or the admission of the bail of the accused the trial Court should revisit or review the bail status of the accused so as to protect the due process of administration of justice. If the Court becomes aware of facts showing that if the accused continues to be on bail and moving freely, he is likely to obstruct the Court processes or will abscond and frustrate the trial, it will not help the course of justice for the Court to fold its arm and decline to exercise jurisdiction to either revoke the bail of the accused or take other appropriate steps to prevent the criminal proceedings from being defeated. Equally if the Court subsequently becomes aware of facts that show that the accused is entitled to bail and declines to exercise jurisdiction to admit the accused to bail simply because it had previously refused him bail, this will render the fair trial of the accused suspect and violate his fundamental right to personal liberty. In Archbold Criminal Pleading Evidence and Practice (40th Edition) paragraph 291 page 133, it is stated concerning proceedings where the accused has a right to bail but is not admitted to bail pending proceedings, that “the Court must consider whether bail should be granted on each occasion that the defendant is brought before it whether or not the defendant makes the application.” This Court in SUNDAY EZEBO V. STATE (2005) ALL FWLR (PT 267) 1486 at 1495, 1500, 1504 and 1508 held that a Judge has the discretionary power to vary or review it earlier decision concerning the bail of an accused in the pending criminal proceedings before it. It is clear from its tenor particularly Sections 80, 83, 85, 86 and 88 that the Criminal Procedure Law Cap 31 did not intend to and did not exclude the inherent power of the High Court to revisit or review the matter of bail of the accused in the proceedings pending before it as the justice of the case demands. In the light of the foregoing, I hold that the trial Court was wrong to have held that it lacked the jurisdiction to determine the second application for bail and struck it out. I hold that the trial Court had the jurisdiction to determine the application and should have determined it on the merit one way or the other.” Per AGIM, J.C.A (now JSC) (Pp. 5-9 paras. F-F). See also UMOLU V. FRN (2019) LPELR-49515(CA) (PP. 11-15 PARAS. A).
4.22. My Lords, given that none of the Appellant’s sureties was ever discharged and the finding of the Supreme Court as shown in Exhibit MNK 1, we submit that Your Lordships are in a vantage position to reverse the perverse decision of the trial Court and restore the bail of the Appellant. We therefore urge Your Lordships to resolve this issue in favour of the Appellant.
5.0 ISSUE TWO
“Whether in the circumstances of the instant case, the trial Court rightly held that the Department of State Security detention facility is a proper or safe place of custody as against transferring the Appellant to an alternative place of detention given the affidavit evidence placed before the trial court? (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal)”.
5.1. To this issue, my noble Lords, we humbly answer in the negative and thus submit that given the facts in the affidavit evidence of the Appellant and those of the Respondent, the Department of State Security detention facility is not a proper place of custody, such that alternative place of detention is compellingly warranted.
5.2. My Lords, we deem necessary to recap the Appellant’s prayers before the trial Court as follows:
- AN ORDER of this Honourable Court transferring the Applicant from the State Security Services detention to house arrest/home detention or other similar place of safe custody other than at State Security Services or similar law enforcement agency detention.
- And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.See page 2 of the Additional Record of Appeal II.
5.3. My Lords, there are 10 grounds for the Application as shown in Pages 2-4 of the Additional Record of Appeal II and the summary of facts upon which the application is predicated as gleaned from the supporting affidavit are:
- Some staff of the Department of State Security were responsible for the torture and inhuman treatments meted to the Appellant during the infamous extraordinary rendition of the Appellant from Kenya to Nigeria and these agents of the Respondents steadily deny the Appellant the right to fair hearing and make themselves the accuser, the custodians, the investigator and the judge over whatever the Appellant wants or does in their detention facility.
- Counsel to the Appellant are, by the detaining authority (State Security Services), not permitted to meet with the Appellant as a team (or sitting together) for trial preparation. Instead, the detaining authority/Respondent forces the Appellant’s lawyers to meet with him separately, thereby denying or otherwise denying the Appellant the adequate facility for the preparation of his defense.
- The unconstitutional misconduct of inspecting/photocopying and otherwise perusal of legal documents, including confidential trial preparation documents Appellant’s Lawyers bring to the Appellant at the said current detention facility, which breaches Appellant’s exclusive zone of confidentiality with his Lawyers and right to Counsel.
- The detaining authority’s refusal to allow Counsel to Appellant to take notes of their discussions/consultations with the Appellant; the presence of concealed photographic, video-graphic or audio-graphic devicesin the room where Counsel meet with the Appellant and secretly taking the photograph of Counsel while consulting with the Appellant, which the Respondent did not deny. See Paragraphs 5-12 of the supporting affidavit at pages 6 and 7 of the Additional Record of Appeal II. See also the Appellant’s further affidavit particularly Paragraphs 7-16 at pages 76-80 of the Additional Record of Appeal II.
5.4. We further humbly refer Your Lordships to Exhibits MNK B-MNK F at Pages 18-37 of the Additional Record of Appeal II showing in graphic details the limitations imposed on the Appellant’s rights to counsel and facilities to prepare for the Appellant’s defence of the heinous crimes leveled against the Appellant, of which said conducts are clearly contrary to Sections 36 (6)(b) and (c) of the Constitution of Nigeria, 1999.
5.5. My Lords, to be sure, an alternative place of safe custody is permissible to a detainee under Section 299 of the Administration of Criminal Justice Act, 2015. It provides that “A suspect committed to prison under this Act shall be remanded in prison or other place of safe custody”.
5.6. We humbly refer Your Lordships to page 108 of the Additional Record of Appeal where the decisions and orders of the trial court is contained. Based on said Record, we strongly contend that the decision of the court below is unfounded and there was nowhere the trial court indicated the reasons for the decision that “I have found and held that the present place of custody of the defendant is a proper place of custody”, especially in view of the affidavit evidence before the trial court that copiously indicated otherwise:
5.7. My Lords, given the facts and the circumstances of the Appellant’s detention in the DSS facilities and the predicaments suffered by the Appellant thereat, we submit that home detention or even prison detention/remand is the appropriate place for the detention of the Appellant. In OGWUCHE VS. FRN (2020) LPELR-52523 (SC) at pages 8, 9, 10, 11 and 13, the Supreme Court even held that “the general prison is a more neutral custodial facility than the custody of the DSS” which decision gives credence to the facts showing that the Appellant is subjected to conditions depriving him his rights to counsel of his choice or facilities to prepare his defence.
5.8. My Lords, the holding of the Supreme Court in OGWUCHE’s case (Supra) that the general prison is a more neutral place of custody invariably depicts a notorious fact of the evident partiality and inherently inhumane dispositions of the Department of Security Services in the way and manner they traditionally treat suspects in their detention facilities. It is no different from other law enforcement agencies, such as the police, also treats suspects which is actually the implicit reason awaiting-trials are normally not detained at DSS or police detention facilities or cell.
5.9. My Lords, it is our submission that in so far as the Appellant is detained in the DSS detention facilities, the rights to fair trial of the Appellant would be adversely impaired in that the Appellant would never get the facilities to prepare his defence or have unhindered access to lawyers of his choice. This, no doubts, puts the Appellant in a disadvantageous position in favour of the Respondent, which becomes more egregious even when the Appellant is facing capital offences that carry the death penalty.
5.10. In NWEKE VS. STATE (2017) NSCQR Vol. 70 at page 211, the Supreme Court held that: “the right-which encompasses the twin rights to time and facilities for defence is an important element of the guarantee of fair trial and an application of the principle of equality of arms: in itself, an inherent feature of fair trial. It requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.”
5.11. We therefore submit that – as far as the Appellant’s right to fair trial is concerned – the trial court was in grave error when the Court held that the Department of State Security is a proper place of custody, more so when the trial Court did not give any reason for the said decision. We submit that the decision of the trial court to wit: “That on the issue of transfer of the Defendant/Applicant to another place of custody, I have found and held that the present place of custody of the Defendant is a proper place of custody” is arbitrary, unfounded and perverse. There was no such place where the trial Court made such evaluation and came to the conclusion that the DSS facility is a proper place of custody for the Appellant, especially given the significant affidavit evidence adduced by the Appellant in the opposite. In ILOABACHIE & ORS V. ILOABACHIE (2005) LPELR-11155(CA), it was held thus: “I agree with the learned counsel that a Court of law must always give reasons for its decision. Decisions of a Court should not be arbitrary but must be based on sound reasoning and conclusion.” Per OGEBE,J.C.A (Pp. 4 paras. B).
5.12. My Lords, we further contend that given the peculiar circumstances of the case and the denials of the Appellant’s right to freely converse with his counsel, denial of counsel’s rights to take notes from the Appellant, eavesdropping on the Appellant’s conversations with counsel, photocopying and scanning of documents meant for the Appellant (among other unlawful restrictions), it is safer, in that it would more effectively guarantee the Appellant’s rights to fair trial if he is granted home detention or any other alternative place of detention other than the DSS.
5.13. We submit that the trial court substantially ignored the Appellant’s affidavit evidence that would have made a difference in favour of alternative place of detention envisaged by Section 299 of the Administration of Criminal Justice Act, 2015. In ECOBANK V. ETTE & ORS (2014) LPELR-23444(CA), it was held thus: “It is the position of the law that issues in affidavit shall not be ignored as this will be arbitrary justice for a Judge to do so See MOKWE VS. EZEUKO (2001) FWLR (PT. 38) P. 1290 PARA C-D.” Per JELLA, J.C.A (Pp. 8 paras. B).
5.14. We submit therefore that the decision of the trial court that the DSS facility is a proper place of detention without any reasons whatsoever renders the decision perverse and contrary to the evidence before the trial Court. In OKONKWO V. FRN & ANOR (2021) LPELR-58384(SC), it was held that “A finding of fact or decision, see ODOM V. P.D.P & ORS (2015) LPELR-24351 (SC), is said to be perverse when it runs against the evidence on record or where the finding or decision being reviewed is speculative. A decision being reviewed may as well be perverse on account of the Court(s) wrongful application of the law. See also UNION BANK OF NIGERIA LTD V. NWOYE (1996) LPELR-3388 (SC), UNION BANK OF NIGERIA PLC V. MR. N. M. OKPARA CHIMAEZE (2014) LPELR-22699 (SC). 27.” Per MUHAMMAD, J.S.C (Pp. 18 paras. C).
5.15. My Lords, the refusal of the trial Court to grant the application for alternative place of custody/detention was unreasonable and an act of judicial summersault because the trial Court had also impliedly found as a fact that the DSS detention facility wherein the Appellant is held is not safe or “clean” for the purposes of the Appellant’s defence and further confirmed that the Appellant is denied facilities to prepare his defence in the DSS facilities when the trial Court found and held that: “That however, an order is hereby made varying the condition of visitation to him in custody to 3 days a week. He is to be given a safe and “clean” room to be made available to the Defendant at the present facility to prepare for his defense with his team of counsel not exceeding 5 in number”; AND “That they should be allowed such facility that is required for the preparation of his defence and be allowed to take notes”.
5.16. We submit that given the finding of the Court above that the place whereat the Appellant is detained is actually bugged such that it is not clean and safe and that the Appellant’s counsel are not allowed to take note for the purposes of the Appellant’s defence, the trial Court was therefore wrong to hold at the same time (or contradict itself) that the DSS facility is a proper place of custody for the Appellant.
5.17. We submit further that the decision is therefore perverse and led to a miscarriage of justice as the Appellant would thereby remain in a facility where his rights to prepare adequately for his defence is hampered. In STATE V. AJIE (2000) LPELR-3211(SC), it was held that an appellate Court will also interfere with findings of fact where such findings are perverse and occasioned a miscarriage of justice.
5.18. Additionally, we contend that the decision of the trial court retaining the detention of the Appellant in the Respondent’s DSS detention facilities in spite of the trial court’s finding that the room in which the Appellant is detained is not safe and “clean” as required of a detention facility and the confirmation of the Court that the Respondent denies the Appellant the rights to counsel and facilities to prepare his defence. We submit therefore, that it is only the appellate Court that can reverse this decision that has led to grave miscarriage of justice, since accelerated hearing was ordered by the trial court in the circumstances of a custody environment that denies the Appellant his constitutional right to fair trial.
5.19. My Lords, if we may ask: what would the Respondent’s suffer if the Appellant is kept in Kuje correctional facility or any such other custodial facility other than the DSS? Supposing (God forbid) that the Appellant is for whatever reason convicted and sentenced in line with the law, would the Appellant be detained in the DSS facility? My Lords, we make bold to state that the only reason behind the detention of the Appellant in the DSS facility is to prevent his engagement with lawyers of his choice and to ensure that the facilities needed to adequately prepare the Appellant’s defence are not made available to the Appellant. It is therefore a grave miscarriage of justice we vigorously urge Your Lordships to reverse.
5.20. In the case of NTEOGWUILE V. OTUO (2001) LPELR-2071(SC), it was held that: “… Since the decision of the trial Judge was not based on the credibility of the witnesses, the Court below had a duty to reverse it having satisfied itself that that decision was clearly wrong. See, The Queen v. Ogodo (1961) 2 SCNLR 366, (1961) NSCC 311 and Powell & Wife v. Streatham Manor Nursing Home (1935) AC 243 at 255.” Per OGWUEGBU,J.S.C (Pp. 21 paras. A).
5.21. On the basis of the forgoing, we humbly urge Your Lordships to resolve this issue in favour of the Appellant and against the Respondent.
6.0. CONCLUSION/RELIEFS SOUGHT
6.1. My noble Lords, in view of the totality of the arguments adduced herein by the Appellant, we respectfully urge Your Lordships to resolve this appeal in favor of the Appellant and grant the RELIEFS sought as follows:
- An Order allowing this Appeal and setting aside the decision of the trial court made on the 20th day of May, 2024.
- An Order restoring/reinstating the bail of the Appellant on same terms as earlier granted; or an Order restoring/reinstating the Appellant’s bail on any new terms and conditions.
AND IN THE ALTERNATIVE:
- An Order remanding the Appellant to an alternative place of custody or home detention/house arrest that can accord the Appellant the atmosphere to have a fair trial.
- Any Order the Honourable Court of Appeal deems fit to make in the circumstances of this Appeal.
DATED THE 19TH DAY OF JULY, 2024.
_____________________
ALOY EJIMAKOR LEGAL SERVICES
Aloy Ejimakor, Esq.
P.A.N. Ejiofor, Esq.
Maxwell Opara, Esq.
Jude Okey Ugwuanyi, Esq.
Patrick Agazie, Esq.
Mandela Umegborogu, Esq.
Ochili Michael, Esq.
Magnus Ikenna Nwangwu, Esq.
(Defendant’s Counsel)
Suite 115, 2nd Floor, Deo Gractias Plaza,
Utako District, Abuja FCT
Phone:
Email: aejimakor@gmail.com.
FOR SERVICE ON:
THE RESPONDENT, FEDERAL REPUBLIC OF NIGERIA
C/o Their Counsel,
Asiwaju Adegboyega Awomolo, SAN
Adegboyega Awomolo & Associates
Victoria Court
Plot 182, 44 Crescent, CITEC Villas,
Gwarinpa, Abuja.
