The detained leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu has gone to the Supreme Court to challenge the judgement of the Court of Appeal in Abuja, staying the execution of the judgement of the court which set him free from the terrorism charges preferred against him by the Federal Government.
The three-man panel of justices of the Court of Appeal, led by Justice Jummai Sankey in its judgment delivered on October 13, also faulted the rendition of Kanu from Kenya to Nigeria and consequently dismissed the terrorism charges against him.
Apparently miffed by the decision, the Federal Government filed an application for a stay of execution of the judgement, which another three-man panel of the appellate court, led by Justice Haruna Tsamani granted.
The Federal Government had applied that the execution of the judgment be suspended pending the resolution of an appeal it lodged at the Supreme Court.
Also, not satisfied with the development, Kanu through his legal team, led by Chief Mike Ozekhome (SAN), filed an appeal predicated on three grounds at the apex court.
In the notice of appeal dated November 3, 2022, numbered, CA/ABJ/CR/625/2022, the appellant (Kanu) is seeking an order allowing the appeal, and setting aside in its entirety, the decision of the Court of Appeal, made on October 28, 2022, staying the execution of the judgement delivered on October 13, 2022.
In addition, Kanu wants an order from the Supreme Court restoring the efficacy of the judgement of the court below which has not in any way been set aside by a higher court.
Ozekhome said the Appeal Court erred in law when it proceeded to hear and determine an application for a stay of execution of judgment in a criminal appeal, brought under Order 6 Rule 1 of the Court of Appeal Rules, 2021, and Section 17 of the Court of Appeal Act of 2004, and thereby occasioned a miscarriage of justice.
He told the apex court that, both the Court of Appeal Rules 2021 and Court of Appeal Act, 2004, did not make any provisions for stay of execution of a Court of Appeal judgment in a criminal appeal and that, Order 6 rule 1 of the Court of Appeal Rules, 2021, only provides for the forms of Application as spelt out in Form 3, and did not specifically provide for or recognize an application for stay of judgement of the Court of Appeal delivered in a criminal appeal.
Ozekhome argued that, Section 7 of the Court of Appeal Act, 2004, specifically provides for stay of execution of the judgment of Court of Appeal in civil appeals. The section did not provide for stay of execution in criminal appeals.
He said, an application for stay of execution of judgment in a criminal appeal can only be entertained when the Applicant who sought to stay the execution of the judgment being appealed against, has been convicted for an offence of murder or sentenced to death, and is awaiting execution by the relevant authorities and that, a cursory look at the list of authorities cited by the Respondent in its written address in support of the motion, and those also cited and relied upon by the Court below, will show clearly that they are authorities that deal with civil matters, which have no connection or direct application in criminal appeals, or stay of execution of judgment delivered in a criminal appeal.
He argued further that the Appeal Court, in its judgment, erred in law when it failed to properly assess or evaluate or appraise the evidence led by, and on behalf of the Appellant, and consequently arrived at a wrong conclusion, when it held that, “The counter affidavit filed to rebut these facts are laden with hearsay which could not rebut the solid facts placed to enact the special circumstance positively justifying the grant of this application.”
The Court below, he said, has a legal duty to properly evaluate the evidence led on both sides before coming to a decision, which must be based on the totality of the evidence thus properly appraised or evaluated. If it fails in this duty, it commits an error of law.
“The court below failed to properly evaluate and ascribe proper evidential or probative value to the Appellant’s Counter Affidavit filed on the 21st day of October 2022. The deponent to the Appellant’s counter affidavit- Sir Ifeanyi Ejiofor, clearly and unequivocally stated the sources of his information, and the conditions and circumstances under which he received the said information.
ALSO READ FROM NIGERIAN TRIBUNE
“The Appellant’s counter affidavit filed on the 21st day of October, 2022, satisfied all the pre-conditions required under section 115(4) of the Evidence Act, 2011.
Section 115(4) of the Evidence Act, did not limit the sources of information to only one source, as the Ruling of the Court below appears to suggest: Where the source of information is more than one, it shall also be so stated, as clearly done by the deponent in this particular case.
“A High Court of competent jurisdiction sitting in the Abia State, Umuahia Judicial Division, had held that the agents of the Respondent set out as pythons to terminate the life of the Appellant, which led to the Appellant’s inability to appear in court to stand his trial. The certified true copy of the said judgment which was attached to the counter affidavit as EXHIBIT MNK3 was not considered at all by the court below.
“Evidence of the rapidly deteriorating health condition of the Appellant, copiously deposed to in the Appellant’s counter affidavit, which were neither denied nor controverted by the Respondent, and which is an exceptional and compelling circumstance that warranted the refusal of the Respondent’s application for stay, was not evaluated by the court below.
“A proper evaluation and finding of facts on the depositions of Sir Ifeanyi Ejiofor, in the Appellant’s Counter Affidavit by the Court below, would have resulted in a different conclusion favourable to the Appellant.The depositions contained in the Appellant’s counter affidavit were never challenged nor denied by the Respondent, thus, the court below had a duty to act on the same”, he said and added that, it is the duty of a court in arriving at its decision, to properly evaluate the totality of the evidence before it, for the just determination of the case, instead of resorting to technicalities rather than doing substantial justice to the parties, in arriving at its decision.
Ozekhome argued further that the Respondent did not show any special or exceptional circumstance to warrant the grant of the application for stay of execution.
“That by staying execution of a judgment that was essentially declaratory, the lower court which ought to defend the integrity of the judicial process literally overruled itself and vacated its own judgement even before the apex court has heard it,” he said.
WATCH TOP VIDEOS FROM NIGERIAN TRIBUNE TV
- Let’s Talk About SELF-AWARENESS
- Is Your Confidence Mistaken for Pride? Let’s talk about it
- Is Etiquette About Perfection…Or Just Not Being Rude?
- Top Psychologist Reveal 3 Signs You’re Struggling With Imposter Syndrome
- Do You Pick Up Work-Related Calls at Midnight or Never? Let’s Talk About Boundaries
and then