The embattled leader of the Indigenous People of Biafra (IPOB) Mazi Nnamdi Kanu, has filed a suit against the Federal Government at the Supreme Court concerning his continued detention, even as Court of Appeal has ordered his freedom from illegal captivity.
In a 3-ground of appeal he filed through his team of lawyers led by a frontline constitutional lawyer, Mike Ozekhome, SAN, Kanu is challenging the ruling of the Abuja Division of the Court of Appeal, which had on October 28, stopped the execution of its judgment that quashed the terrorism charge the FG preferred against him.
He maintained that the appellate 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 I, 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.
The IPOB leader explained that both the Court of Appeal Rules 2021 and the Court of Appeal Act, 2004, did not make any provisions for a stay of execution of a Court of Appeal judgment in a criminal appeal delivered in a criminal appeal.
“Section 7 of the Court of Appeal Act, 2004, specifically provides for a stay of execution of the judgment of the Court of Appeal in civil appeals.
“By the Supreme Court decision in Olisa Metu Vs Federal Republic of Nigeria & Anor (2017) IINWLR (PT. 1575) PP 157, an application for stay of proceedings/execution judgment of the court, shall not be entertained, or brought under the inherent jurisdiction of the court provided for in section 6(6)(b) of the 1999 Constitution (as amended).”
“The jurisdiction of the Court of Appeal can only be invoked if the relief sought is such as it is empowered to grant by an enabling law or statute. No law or authority empowers the court below to grant a stay of execution in criminal appeals as such sought by the Respondent.”
“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,” Kanu argued.
Besides, he contended that the appellate court failed to properly evaluate the evidence before it and therefore arrived at a wrong conclusion to suspend the execution of the order for his release from detention.
“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 “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.
“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. The court below resorted to technicalities rather than doing substantial justice to the parties, in arriving at its decision. The ultimate aim of the law is doing substantial justice as opposed to technical justice.
“The Respondent did not show any special or exceptional circumstance to warrant the grant of the application for stay of execution”, Kanu added.
Consequently, he urged the apex court to set aside the order that stayed the execution of the judgment the Court of Appeal delivered in his favour on October 13.
Kanu, who is currently in the custody of the Department of State Services (DSSt), told the apex court that he would wish to be present at the hearing of the appeal.