Kanu said the trial court had the power to order the respondent to cease and desist from interfering with his constitutional right.
By Jeffrey Agbo
The detained leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, has appealed against the decision of a Federal High Court (FHC), Abuja dismissing his objection to his trial continuation.
Kanu, in a notice of appeal dated and filed March 28 through his team of lawyers led by Aloy Ejimakor, prayed the Court of Appeal, Abuja to allow the appeal and set aside the trial court’s decision.
The IPOB leader had filed a preliminary objection seeking an order for some conditions to be met by the Federal Government before his trial at the FHC could proceed.
He had alleged that the Department of State Services (DSS) personnel often seized documents of his lawyers during visitation, stopped his lawyers from taking notes, eavesdropped on his consultation with his lawyers on matters pertaining to his defence, among others.
He alleged that he had not been given adequate time and facilities to defend himself in accordance with Section 36(6)(b) of the 1999 Constitution (as amended).
But Justice Binta Nyako of the FHC had, in a ruling on March 19, declined to grant the objection of the detained IPOB leader.
The judge, who ordered accelerated hearing of the trial, also dismissed his application for bail.
However, Kanu, in the notice of appeal, listed the Federal Republic of Nigeria as the sole respondent.
Kanu argued that the trial court erred in law when the court assumed jurisdiction to proceed with the hearing of the criminal trial against him when he was glaringly denied the constitutional right to fair trial.
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He alleged that he was denied adequate facilities to prepare for the defence of the criminal allegations against him and his right to counsel of his own choice, thereby occasioning a grave miscarriage of justice.
“The denial of the appellant (Kanu) the opportunity to interact and brief his counsel on what line of defences the appellant tends to agitate in the trial court and rely on was adequately brought to the attention of the trial court by motion.
“The trial court failed and neglected to make necessary orders that would protect the appellant’s aforesaid rights but rather held that the court cannot dictate how the respondent carries out its work,” he said.
Kanu said the trial court had the power to order the respondent to cease and desist from interfering with his constitutional right.
Besides, he said the lower court had the power to order an alternative custodial arrangement or non-custodial arrangement for him, where it is impossible for the respondent to comply or where the respondent persists in the act.
He said: “Denial of the appellant’s right to adequate facilities to prepare defence as enshrined in Section 36 (6) (b) of the 1999 Constitution is a jurisdictional issues in the absence of which the trial court cannot assume or proceed with the jurisdiction over the case unless and until such facilities are accorded to the appellant.”
Kanu argued that though he had prayed the court to stop the DSS alleged unconstitutional acts of forcibly seizing and photocopying confidential legal documents brought to him by his lawyers meant for his defence of the charges against him, the court declined to grant the plea.
He said the trial judge erred in law when the court ordered for accelerated hearing despite the consistently refusal of the respondent to afford him the right to adequate facility to prepare for his defence of the charges levelled against him and his right to counsel.
According to him, the order for accelerated hearing of the case in face of the constitutional breaches of fair hearing/trial rights of the appellant is a credence to the respondent to proceed on the unconstitutional denial of the appellant his right to adequate facilities to prepare for his defence and his right to counsel of his choice.
“In the present case, where Sections 36 (6) (b) and (c) of the Constitution are violated by the respondent against the appellant, the trial court lacks the jurisdiction to hear and or proceed with the hearing of the case,” he added.
The IPOB leader, therefore, prayed the appellate court to allow the appeal, vacate the ruling of the lower court for the trial court to decline jurisdiction to proceed with the hearing of the case unless and until he is granted his right to fair hearing under Section 36(6)(6)(b) and (c) of the constitution.
Alternatively, Kanu urged the Appeal Court for the trial court to order an alternative custodial or non-custodial arrangement free of interference with his said constitutional right to fair hearing.
He equally sought an order setting aside the order for accelerated hearing of the case in the circumstances of the case where he is not allowed facilities to prepare for the defence of the charges against him and denied his right to counsel.
Kanu sought a stay of proceedings pending when the respondent affords him the constitutional safeguards of being afforded adequate facilities to prepare for his defence and his unfettered right to counsel.